The Issue Whether Respondent acted as a yacht broker in Florida without holding a yacht broker's license issued by petitioner?
Findings Of Fact Respondent, presently retired, was formerly employed with Sun Yacht Charters located in Camden, Maine. He has never been licensed by the State of Florida as a yacht and ship salesperson or broker. Respondent attended the 57th Annual Miami International Boat Show and Strictly Sail (boat show) held February 12-18, 1998. Respondent was in attendance at the Sun Yacht Charters Exhibit Booth, a booth in the Strictly Sail portion of the boat show. Investigators and other Petitioner employees regularly attend this specific boat show in order to find unlicensed activity, such as selling and brokering of regulated yachts by persons not holding valid salesperson or broker’s licenses. On February 13, 1998, Petitioner investigators James Courchaine and Peter Renje attended the boat show. They carried fictitious business cards with false names and the designation "Yacht Consultant" on the cards. Courchaine’s fictitious name was James K. Ramson. Renje’s card bore the name Pete Benson. While walking through the Strictly Sail portion of the show, the investigators saw the booth for Sun Yacht Charters and Respondent. Respondent’s name tag read "Pat Raum." Outside the tent, the two investigators checked their list of licenses and did not find Pat Raum’s name listed. Although a license is not required in the sailboat portion of the show, Courchaine, posing as James K. Ramson, went back into the show and introduced himself to Respondent, handing him the fictitious business card with the name James K. Ramson, Yacht Consultant, displayed on it. Courchaine, a/k/a Ramson, inquired of Respondent that he was looking for a boat for a client for an outright purchase for a client. Courchaine asked if there were any boats for sale through Sun Yacht Charters. Respondent replied that sometimes people in their charter program wanted to sell a boat and that Sun Yacht Charters would sell it for them. He gave Courchaine his business card identifying himself as Pat Raum, Director of Yacht Sales for Sun Yacht Charters. The business address on the card was Camden, Maine. Respondent also gave Courchaine a specifications sheet on the Southern Belle, destined to come out of the charter program in April of 1998. The specifications sheet listed an asking price of $9,000 for the boat. From conversations he had with Petitioner's employees at a previous time when he discussed obtaining a Florida license, Respondent understood that Florida law did not permit him to sell or purchase yachts in Florida as an owner's agent. On February 17, 1998, following contact with Sun Yacht’s Camden office, Courchaine learned that Respondent was still in Florida. Courchaine contacted Respondent and asked for a contract. Believing that he was dealing with a licensed Florida Yacht broker, Respondent agreed to what he thought was an appropriate arrangement between himself and Courchaine whereby the sale of the Southern Belle would involve a 30/70 split on the commission from the sale. Respondent later confirmed to Courchaine in a fax message that same day that Courchaine, a/k/a Ramson, would get three percent of the sales commission. Also, he included in the fax to Courchaine a blank Yacht Purchase and Sale agreement. It was Respondent’s understanding that in the event of a sale, the matter would have to be handled by Courchaine a/k/a Ramson, or another Florida broker, that he, Respondent could not act as a broker in Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order dismissing the notice to show cause. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Raum Post Office Box 302 Kennebunkport, Maine 04046 Philip Nowick, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner carried his burden of proving his good moral character and entitlement to a yacht salesperson's license under chapter 326, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, the oral and documentary evidence, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Respondent is the state agency charged with enforcing chapter 326, the Yacht and Ship Brokers Act, and the administrative rules promulgated thereunder. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht salesperson's license. On Petitioner's application, the application question, number 14, relating to criminal history, was answered "yes." Petitioner failed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or were pending, as required by the application for the yacht salesperson's license. On October 12, 2012, Petitioner entered a plea of guilty to conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to three years of supervised release following incarceration in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was ordered to pay $6,567,496.00 in restitution in case number 1:1220156CR-UNGARO. On April 22, 2016, Petitioner was released from incarceration and placed under supervised release, set to expire on or about April 21, 2019. Petitioner failed to certify to Respondent that Petitioner has never been convicted of a felony in Petitioner's application for a yacht salesperson's license. Petitioner timely received a copy of Respondent's Notice of Intent to Deny License Application on July 19, 2016. Petitioner completed programs in Residential Drug Abuse Treatment Program, the Wellness Program, and the Community Treatment Services Program at Dollan Mental Health Clinic. Petitioner served his time without issue. Petitioner has been sponsored by a South Florida yacht broker who is going to supervise his activity as a yacht salesman. Facts Adduced at the Hearing Pursuant to chapter 326, Respondent has regulatory jurisdiction over yacht and ship licensees and is responsible for the approval or denial of applications for licensure for yacht salespersons and yacht brokers. Petitioner's younger sister, Beatriz Llorente, who is a practicing real estate and criminal defense attorney, testified. She described Petitioner as a "father figure" to her. She testified that Petitioner's conviction for conspiracy to commit bank fraud "devastated" her, because she felt that her reputation was being questioned.1/ When she drove him to federal prison, Petitioner "asked her for forgiveness." She was familiar with his prison experience. As far as she knew, Petitioner had no disciplinary problems in prison and was awarded maximum gain time. Furthermore, his 57-month sentence was reduced to less than two and one-half years. Despite his incarceration and current probation status, she stated that he is very active with his children and shares a great deal of time with them. He told her, "I will work for the rest of my life to regain your trust." His sister is convinced that Petitioner has overcome his faults, and she emphatically stated he is of good character. On cross-examination, she testified that Petitioner had no drug or alcohol problems when he was growing up, but they arose during the years preceding his conviction. An attorney friend of Petitioner's, Francisco Pines, testified. Pines has known Petitioner since 1988. They attended school together. More recently, their families have interacted and spent time together. They participated together in recreational activities, such as boating and fishing, before Petitioner's incarceration for the federal crime. Since Petitioner was released from prison, Pines has had contact with him three or four times. Pines was also asked about Petitioner's character. In his view, Petitioner knows that what he did was wrong and has made changes to get his life in order. Pines testified that Petitioner is very loving, caring and nurturing with his children. The witness has seen a "change for the better." According to him, Petitioner has always demonstrated a strong work ethic, more so now than before the criminal incident. A licensed mental health counselor, Sandra Rico, was also called by Petitioner. Beginning in 2011, she provided mental health therapy and counseling to Petitioner related to his anxiety due to a crisis in his marriage. She determined that he used and abused alcohol to relieve this anxiety. She treated him on and off until 2013. She also emailed him while he was in federal prison to make sure that he was getting continued treatment for his anxiety and alcohol abuse issues. After he was released from prison, Rico counseled him once a month from July 2016 through the fall of 2016. Her current treatment with him is more in the nature of prevention and maintenance, and to help him develop coping skills. She testified that the therapy he received in prison helped him and that Petitioner changed while in prison. As examples, she cited that he is more involved and willing to do more of her treatment assignments and that he now journals his feelings. Rico related that she is surprised by Petitioner's progress and that she believes he is no longer drinking. He is making better choices and being more careful. She opined that he gathers his thoughts more deliberately now, primarily because he wants to impress his children and reach "goals" he has set for himself. In her opinion, he is of good character now. His treatment with her continues "as needed." Lazaro R. Navarro is the chief executive officer at Florida Yachts International and manages approximately ten sales associates. He has known Petitioner's family for over 15 years. When Petitioner was released from federal prison, the family asked Navarro if he would consider employing Petitioner and sponsoring him. He gave Petitioner a job doing "online marketing," which involved managing leads and performing back office work. Navarro characterized Petitioner as a great asset to his company and trustworthy. He has no doubts about Petitioner and his work habits. Petitioner arrives at work early and is usually the last one to leave. Petitioner has exceeded all of his expectations, and is a very dedicated employee. As the employing yacht broker, Navarro supervises Petitioner and ensures that all of his work is done correctly. Although no details were offered, Navarro testified that Petitioner has accepted full responsibility for his criminal conduct and is a great father. Based upon the financial procedures and protocols used at Navarro's yacht company, he testified that Petitioner would not need to handle or accept any cash as a part of his sales responsibilities. Instead, finances and money exchanges are handled and processed by a closing specialist and the chief financial officer.2/ Navarro commented that he would trust Petitioner with money handling, if that occasion arose. Petitioner offered his own testimony. He received a Florida real estate license in February 2005 and worked for his cousin as a real estate salesperson until 2008. He was indicted for conspiracy to commit bank and wire fraud in March 2012. This federal indictment stemmed from activities in 2006 while he worked as a licensed real estate salesperson. He confirmed that he visited with Rico for mental health counseling related to problems with his wife, as well as anxiety related to the government's criminal investigation of him in 2009. Although his prison sentence did not include mandatory alcohol or drug treatment, he followed the advice of a psychiatrist at the prison and voluntarily enrolled in a residential drug and alcohol abuse treatment program. He also participated in a health and nutrition wellness class for nine weeks. He completed both programs successfully. While in prison, he took several foreign language classes, thinking they would be useful for the yachting business. He also participated in a hazmat (hazardous materials) program outside the prison on a naval base. Apparently, a Navy Admiral retained him for the program. Also, while in prison, he was hired on the naval base to provide cleaning and maintenance services at a dormitory. He was allowed to serve a reduced prison sentence-- 32 months of his 57-month sentence, and he was released six months early to go to a halfway house. While there, he became eligible for home confinement. He was released from home confinement in April 2016. Although he is still under supervised release (probation), he is no longer required to make personal visits and can report to his probation officer remotely through the Internet. He is jointly and severally liable for over $6 million in restitution with the other defendants in his criminal case. It was undisputed that he is current with his restitution payments of $151.00 each month. Petitioner is active in his Catholic Church and gave "his testimony" at a recent church retreat. He characterizes his relationship with his children as being one of honesty and emphasized that it is important to have God in his life. When Respondent called requesting additional information for his application, he promptly provided his federal Termination Report and Certificates of Completion. Pet. Exs. 3, 4, and 5. Petitioner expressed a passion for boating and believes he is good at sales. He wants the yacht salesperson's license, in part, so that he can pay off the criminal restitution more quickly. He claims to no longer act impulsively and believes that his children are the most important thing in his life. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht and ship salesperson's license. On Petitioner's application, he answered question number 14 "Yes," indicating that he had a criminal history.3/ Applicants who answer "Yes" to question number 14 on the application are directed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or are pending.4/ However, Petitioner failed to submit this statement. When asked about this omission, Petitioner testified, "I turned back for the next one (question), and I didn't bother looking. It shows part of impulsive behavior." Petitioner thought the information request at the bottom of the page he overlooked was simply a part of the next question.5/ Respondent obtained a Florida Department of Law Enforcement criminal background check on Petitioner, which indicated that, on October 12, 2012, Petitioner pled guilty to conspiracy to commit bank and wire fraud. Resp. Ex. 4. Certified court records obtained by the Division indicated that Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349, a felony, and sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons with three years of supervised release following incarceration. Petitioner was ordered to pay $6,567,496.00 in restitution.6/ Notably, Petitioner's federal "Judgment In A Criminal Case" included Special Conditions of Supervision. This included a "Related Concern Restriction." Petitioner testified that this provision prohibited him from "touch[ing] funds" while under supervised release. His employer at Florida Yacht International wrote a letter, ultimately filed with the probation office, that Petitioner "would not be dealing with any funds." Resp. Ex. 1, pp. 1-7.7/ Petitioner certified on his application that, in February 2005, he was licensed as a real estate sales associate in the state of Florida, having been issued license number SL3111375. Petitioner testified that, in order to become a real estate sales associate, he completed a pre-licensing course; applied with and was approved to take the state licensing exam by the Department of Business and Professional Regulation; and passed the Florida Real Estate Sales Associate Examination. Petitioner stated that, at the time, he was familiar with the laws regulating the profession of real estate contained in chapter 475, Florida Statutes.8/ Petitioner testified that between 2005 and 2008, he worked as a real estate sales associate for Llorente Realty Group, under a supervising broker, Petitioner's cousin. While employed there as a Florida licensed real estate sales associate, Petitioner engaged in an illegal real estate fraud scheme which lead to his 2012 federal criminal conviction. On several occasions, Petitioner provided up to $150,000.00 of his own funds to make seven or eight improper short-term loans of approximately ten to 15 days each. Petitioner made a profit of approximately eight to ten percent per loan.9/ Petitioner testified that these transactions involved buying houses under an individual's name (the straw buyer) and, after closing, executing a quitclaim deed to transfer title of the property to one of the co-conspirators, to whom Petitioner had made the loan. The property was subsequently transferred to the co-conspirator's family trust, leaving the outstanding mortgage in the name of the straw buyer. When the straw buyer failed to pay the outstanding mortgage, the lender would initiate foreclosure proceedings against the straw buyer who was no longer in possession of the property. This fraudulent scheme was carried out against several lending institutions. After the lenders became aware of the scheme, a criminal investigation was initiated. The government characterized his involvement as a breach of his fiduciary duty. In mid-2009, Petitioner was notified that he was under federal investigation for his involvement in the "straw buyer" scheme. After finding out about the investigation, Petitioner began to have relationship problems with his wife and to abuse alcohol. This prompted him to see Rico, a licensed mental health counselor. On March 8, 2012, Petitioner was indicted on eight counts related to the bank fraud scheme. On October 12, 2012, Petitioner entered a plea of guilty and was adjudicated guilty of conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. Resp. Ex. 1. Petitioner was incarcerated at Pensacola Prison Camp beginning March 1, 2013. Petitioner earned eight months' "gain time" off of his sentence. Additionally, while incarcerated, Petitioner completed the RDAP, Residential Drug and Alcohol Treatment Program, which qualified Petitioner for a 12-month reduction in his sentence. Due to these reductions and good behavior, Petitioner served only 32 months of his 57-month sentence in federal prison. During his incarceration, Petitioner also completed a nine-week wellness course on various subjects such as nutrition and exercise and worked at Naval Air Station Pensacola, Corry Station Naval Technical Training Center, and the Pensacola Prison Camp. On October 27, 2015, Petitioner was released to a halfway house and shortly thereafter began working for Navarro at Florida Yacht International as a clerk. On November 10, 2015, Petitioner became eligible for home confinement, and, by April 18, 2016, Petitioner completed TDAPT, a transition recovery program. On April 21, 2016, Petitioner was released from custody, and, on April 22, 2016, he was placed under supervised release, currently set to expire on April 21, 2019. Petitioner testified that he has paid $6,000.00 towards the restitution he owes in the amount of $6,567,496.00. As previously mentioned, this restitution is owed with several co- conspirators who are jointly and severally liable with him. Resp. Ex. 1, p. 5. Petitioner testified that he is up to date on required payments pursuant to the order of restitution. Navarro monitors and supervises Petitioner's work and is ultimately responsible for Petitioner under his own yacht broker license. Petitioner is also currently employed as a part- time driver for Uber. In compliance with the Related Concern Restriction of his criminal conviction, Petitioner has not been placed in a position of trust or responsibility over sums of money at Florida Yachts International. Petitioner stated that upon obtaining a job as a clerk with Florida Yachts International, Navarro was required to certify to Petitioner's supervisors through the halfway house that Petitioner "would not be dealing with any funds," pursuant to the "Related Concern Restriction" of Petitioner's Special Conditions of Supervision.10/ Resp. Ex. 1, p. 4; Resp. Ex. 4, p. 51. Following his release from incarceration, Petitioner continues to see Rico for therapy sessions on a monthly basis. Rico provided a letter of recommendation for Petitioner. As mitigation and in an effort to show his good moral character, Petitioner testified that he is not abusing alcohol anymore, has made substantial efforts to reconnect with his children, and has maintained a close relationship with his sister both before and after his incarceration. Licensed yacht salespersons are not restricted and may work under any licensed yacht broker. They may also switch their registered broker if they wish to work for someone else. Additionally, salespersons become eligible to apply for their own yacht and ship broker license after two years as a salesperson. A representative of Respondent, Chelisa Kirkland, testified for Respondent. A yacht salesperson's license is only required for the sale of used or pre-owned vessels in excess of 32 feet. Vessels less than 32 feet and new vessel sales of any size do not require a license. Kirkland confirmed that Petitioner's probation, or court supervision, does not end until April 2019. Applying the statutory and rule criteria, Respondent denied Petitioner's application for a yacht salesperson's license. More specifically, Respondent was concerned about the nature and seriousness of the federal crime, particularly because Petitioner held a professional real estate license at the time the criminal bank fraud offenses were committed. Additionally, as of the date of the application, Petitioner's government supervision and probation had not been completed, and there was a very significant amount of restitution still owed, in excess of $6,000,000.00. Finally, Respondent felt that there had not been a significant passage of time since the conviction in 2012. As a result of the totality of these circumstances, Kirkland recommended that Petitioner's application be denied. She acknowledged that her recommendation was based solely on the conviction for conspiracy to commit bank and wire fraud. She conceded that Florida law does not impose an "automatic" denial just because Petitioner owes restitution, is still under supervision, or was convicted of a federal crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, confirm its previous denial and enter a final order denying Petitioner's application for a yacht salesperson's license. DONE AND ENTERED this 13th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2017.
The Issue Whether the application of Ronald J. Palamara (“Palamara”) for licensure as a yacht and ship broker under Chapter 326, Florida Statutes, should be granted or denied.
Findings Of Fact The Petitioner was previously a licensed yacht and ship broker in Florida, holding Yacht Broker License No.324. On April 28, 1999, the Petitioner’s prior license expired. The Petitioner reapplied for a Yacht Broker license on February 24, 2000. Robert Badger (Badger), at that time an investigator with the Division, investigated the application for form pursuant to Rule 61B-60.003(2), Florida Administrative Code, and found that there were no problems with the form of the application. Badger also reviewed the application for moral character of the applicant pursuant to Rule 61B-60.003(3), Florida Administrative Code. On the application, the Petitioner indicated that he had a criminal background, but failed to disclose the nature of the criminal background on the application. In a letter from the Division addressed to the Petitioner, additional information was requested regarding his criminal background. The Petitioner replied in a letter that he had been convicted of a misdemeanor for resisting an officer without violence. The Petitioner also disclosed on the application that he had a civil Final Judgment against him in the matter of Chinnock Marine, Inc. v. Barthelemy & Palamara, Case No. 98- 19512 (Fla. 17th Cir. 1999). He did not fully disclose the details relating to events that led to the judgment. Instead, he stated on the application that the claims were “unfounded” and that Chinnock Marine “misled the court.” The subject application is dated February 22, 2000. On that application, the Petitioner was specifically required to disclose any “pending” civil suits involving a yacht. At the time of his application, another civil matter was pending against the Petitioner in World Class Yachts v. Palamara, Case No. 99-12923 (Fla. 17th Cir. 2001), which was filed on July 22, 1999. The Petitioner failed to disclose the pending World Class Yachts civil suit.2 Subsequent to the filing of the subject application, a non-final order was entered against the Petitioner finding that he was in default and rendering judgment for World Class Yachts in the amount of $157,500. The Petitioner took an interlocutory appeal of the circuit court’s non-final order of default to the Florida Fourth District Court of Appeal. The Fourth District Court of Appeal affirmed the trial court's order of default. Palamara v. World Class Yachts, Case No. 4D01-3260 (Fla. 4th DCA 2001). The Petitioner admits that the World Class Yachts case relates to a yacht. Although the circuit court had not entered a Final Judgment against the Petitioner in the amount of $157,500.00 at the time of the hearing in this case, the World Class Yachts civil litigation involving a yacht should have been disclosed on the application pursuant to Rule 61B-60.003(3)(a)6, Florida Administrative Code. In both Chinnock Marine and World Class Yachts, the Petitioner has moved to vacate the default judgments, alleging that he was not properly served. The Petitioner has worked in the yacht brokerage business in South Florida for many years. He has never had any disciplinary action taken against his license. In the community in which he lives and works he enjoys a reputation for being a person of integrity, honesty, and good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be issued in this case granting the license sought by the Petitioner. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2002.
The Issue Whether Herbert Lane is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Herbert Lane is a registered real estate salesman. Herbert Lane was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Herbert Lane as a registered real estate salesman. DONE and ORDERED this 7th day of April 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire and Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Herbert Lane 3890 Swenson Apts. No. 503 Las Vegas, Nevada 89109 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. CASE NO. 77-208 PROGRESS DOCKET HERBERT LANE, NO. 2960 DADE COUNTY Respondent. /
The Issue At issue in this proceeding is whether Respondent Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Section of General Regulation has violated Section 120.535 F.S. by adoption of a policy which meets the definition of a "rule" under Section 120.52(16) F.S., without complying with the rulemaking procedures established by Section 120.54 F.S.
Findings Of Fact Petitioner originally applied and was licensed as a yacht and ship salesman in June, 1992. To be a salesman, one must be associated with a licensed broker who prominently displays the salesman's license. On April 15, 1994, Petitioner contacted Respondent agency by telephone to discuss renewal of his salesman's license issued June 3, 1992 and due to expire under its own terms on June 3, 1994. At that time, Kathy Forrester told Petitioner that his file reflected that his license had been "cancelled" effective March 10, 1993 due to a letter received on or about March 1, 1993 from Petitioner's employing broker, Frank Stanzel. Mr. Stanzel's letter showed that he was relocating his business from Miami to Ft. Lauderdale and that he wanted his two salesmen's licenses transferred to the new location. He enclosed with his letter the two salesmen's licenses for agency action, as required by agency rules. Mr. Stanzel further reported that Petitioner had left his employ on October 19, 1992, taking his license with him, so Mr. Stanzel could not return Petitioner's license to the agency. On March 22, 1993, five months after Mr. Stanzel heard the last of Petitioner and approximately three weeks after he notified the agency of Petitioner's leaving his employ, Mr. Stanzel's broker's license expired. Under the terms of the agency rules, Mr. Stanzel was required to apply for a new license. He applied. His broker's license was not renewed retroactively, and his new license became effective August 30, 1993. For approximately five months, from March 22, 1993 to August 30, 1993, Mr. Stanzel was not a licensed Florida broker. Neither Mr. Stanzel nor the Respondent agency notified Petitioner of this fact nor did anyone notify Petitioner at that time that his salesman's license was deemed "cancelled" during the broker's lapse. After finding out for the first time on April 15, 1994 that the agency presumed his salesman's license "cancelled" by Mr. Stanzel's notification that Petitioner had taken his salesman's license and left Mr. Stanzel's employ, Petitioner and his father prevailed upon Mr. Stanzel to execute an affidavit dated May 19, 1994 to the effect that Mr. Stanzel had misunderstood, now believed Petitioner had been diligently working at yacht sales after October 19, 1992, and wanted Petitioner's salesman's license reinstated. The affidavit was submitted to the agency. Although Ms. Forrester had misgivings about the affidavit, the agency reinstated Petitioner's salesman's license effective April 29, 1994, after receiving the affidavit (TR 25-28). The reinstated license still had the original expiration date of June 3, 1994. The agency did not reinstate Petitioner's salesman's license retroactive to October 19, 1992 when Petitioner went into construction work fulltime, to the date of Mr. Stanzel's original broker's license expiration, or to the date of Mr. Stanzel's new broker's license. Petitioner accepted his salesman's license as reinstated. Petitioner did not renew his salesman's license on June 3, 1994, so it expired by its own terms. On July 21, 1994, Petitioner filed an application to be licensed as a yacht and ship broker, together with the required bond, fee, and fingerprints. On August 2, 1994, Peter Butler, Head of the Section of Yacht and Ship Brokers, wrote Petitioner a deficiency notice, explaining that the agency regarded Petitioner's salesman's license "cancelled" during the lapse of his employing broker's license. The agency has no rule which specifically states that when an employing broker's license expires, his salesmen's licenses are automatically cancelled. The language employed in the deficiency notice was, "any salesman licenses held by [the employing broker] were considered cancelled (sic) for that period of time [the period while the employing broker's license was expired/lapsed] because they did not have an actively licensed broker holding their license." [Bracketed material added for clarity.] This language is the focus of this proceeding. The deficiency notice did not refer to the prior "cancellation" of Petitioner's salesman's license based on Mr. Stanzel's March 1, 1993 notice that Petitioner had left his employ effective October 19, 1992. The deficiency notice cited Section 326.004(8) F.S. [1993] which provides: Licensing.- (8) A person may not be licensed as a broker unless he has been a salesman for at least 2 consecutive years, and may not be licensed as a broker after October 1, 1990, unless he has been licensed as a salesman for at least 2 consecutive years. Bob Badger, an agency investigator, submitted a report to Mr. Butler dated September 1, 1994 expressing his opinion that even with Mr. Stanzel's after-the-fact affidavit, Petitioner's salesman's license would have been interrupted by the fact that he had no licensed broker holding his salesman's license during Mr. Stanzel's broker's license lapse of five months. He further concluded that Petitioner's salesman's license was "suspended" for a short period for not renewing his salesman's license bond. After review of the investigation report, on September 19, 1994, the agency issued its Intent to Reject Petitioner's broker's application pursuant to Rule 61B-60.002(6) F.A.C. alluding to the deficiency notice and citing Section 326.004(8) F.S., for Petitioner's failure to complete two consecutive years as a salesman. Section 326.004(14)(a) and (b) F.S. and rules enacted thereunder clearly place on the broker the responsibility of maintaining and displaying the broker's and salesmen's licenses as well as providing for a suspension of a salesman's license when a broker is no longer associated with the selling entity. Typically, salesmen turn in their licenses through the original broker for cancellation by the agency and receive new ones when they move from one broker's oversight to another's. Salesmen who are employed by one broker also switch their salesman's licenses to another active broker whenever the first broker disassociates from a yacht sales company and moves to another company, quits, retires, or lets his broker's license lapse. Due to the common dynamics of the employment situation whereby salesmen are under the active supervision of their employing broker in the company office, they usually know immediately when a broker's license is in jeopardy or the broker is not on the scene and supervising them. This knowledge is facilitated by the statutes and rules requiring that all licenses be prominently displayed in the business location. Anybody can look at anybody else's license on the office wall and tell when it is due to expire. If licensees are in compliance with the statutes and rules, no active salesman has to rely on notification from the agency with regard to the status of his own or his broker's license. In the present case, Petitioner removed himself from all contact with Mr. Stanzel as of October 19, 1992. Therefore, he did not know what was occurring in the office or with any licenses. All agency witnesses testified substantially to the effect that since they have been employed with the agency and so far as they could determine since its inception, agency personnel have relied on Sections 326.002(3), 326.004(8), 326.004(14)(a) and (b) F.S. and Rules 61B-60.005 and 61B-60.008(1)(b) and (c) F.A.C. to preclude licensing someone who has not been actively supervised by a Florida licensed employing broker for two consecutive years. More specifically, agency personnel have always applied Sections 326.004(14)(a) and (b) to place on the broker the responsibility of maintaining and displaying the broker's and salesman's licenses as well as providing for a suspension of the salesman's license when his broker is no longer associated with the sales entity. The agency has always interpreted the word "broker" as used in Chapter 326 F.S. and Chapter 61B-60 F.A.C. to mean "Florida licensed broker." See also, Section 326.002(1) and 326.004(1) F.S. and Rule 61B-60.001(1)(g) F.A.C. These interpretations are in accord with the clear language of the applicable statutes and rules. Petitioner unsuccessfully attempted to show that he had received treatment different than others similarly situated.
The Issue Whether the Respondent operated as a salesperson without being the holder of a valid and current license as a real estate salesperson, in violation of Section 475.42(1)(a), Florida Statutes, and therefore in violation of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent is and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0475436 in accordance with Chapter 475, Florida Statutes. The last license was issued to Respondent as a salesperson c/o Dolphin Realty Referral Inc., 2525 Pasadena Avenue, Suite L., South Pasadena, Florida 33707. On December 18, 1996, Respondent presented a written offer to listing agent Sharon Simms for property located at 3900 48th Avenue, South, St. Petersburg, Florida. In connection therewith, Respondent, who was the building contractor for buyer Joseph S. Sparra, accepted a $2,000 deposit which was placed in the escrow account of Dolphin Realty Referral Inc., of which Thomas J. Hassel was qualifying broker. Hassel drafted the contract and qualified Joseph S. Sparra with Sigmund Financial for a first mortgage. The Respondent was employed by Hassel as an independent contractor. Thomas Hassel, the Respondent's employing broker, advised him that he was not sure Respondent's license was active, but the Respondent made no attempt to contact the Petitioner to ascertain his licensure status. On January 24, 1997, the Respondent accompanied Joseph S. Sparra to the closing at Anclote Title Services, where the Respondent provided the escrow money and accepted a $5,780 commission check on behalf of Dolphin Realty Referral, Inc. During the entire transaction, Respondent was not properly licensed with Dolphin Realty Referral, Inc., nor with any other real estate brokerage. Respondent's license was involuntarily placed on inactive status from January 1, 1996, through July 20, 1997, due to no employing broker. Hassel later advised Respondent that his license was not transferred to the new corporation when the broker changed its name from Dolphin Realty of Pinellas County to Dolphin Realty Referrals, Inc. The Respondent did not accept a share of the commission on the house in St. Petersburg, Florida. Respondent did not participate as a real estate salesperson in any other transaction while his license was on inactive status.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Florida Real Estate Commission issue a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(a) and (e), Florida Statutes, as charged in the Administrative Complaint; and, Impose an administrative fine of $500 and require Respondent to complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 John A. Kitzmiller, pro se 2613 59th Street, South St. Petersburg, Florida 33707 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue On February 28, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued a Notice To Show Cause to Robert O'Brien (O'Brien) alleging that O'Brien violated Section 326.006(2)(e)7, Florida Statutes. Specifically, O'Brien was charged with allowing an unlicensed person to attempt to sell a 52' Hatteras known as "Watermellon" on behalf of O'Brien Yacht Sales. The issue is whether this violation occurred and, if so, what penalty is appropriate. On May 15, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued an Amended Notice To Show Cause to David Sandmann (Sandmann) alleging that Sandmann violated Section 326.004(1), Florida Statutes. Specifically, Sandmann was charged with offering or negotiating to sell a 52' Hatteras, known as "Watermellon". The issue is whether this violation occurred and, if so, what penalty is appropriate. RULINGS ON PETITIONER'S EXCEPTIONS TO ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT Petitioner filed an exception to the Administrative Law Judge's Finding of Fact number 15. Section 120.57(1)(j), Florida Statutes, states that: The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence. A thorough review of the record has been made. The Division adopts and incorporates by reference the first sentence of the Administrative Law Judge's Finding of Fact number 15. Petitioner's exceptions to the remainder of Finding of Fact number 15 are accepted because the remainder of the Administrative Law Judge's Finding of Fact number 15 is not supported by competent substantial evidence. The second sentence, "The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat." is rejected because, the Petitioner presented testimony which proved that Sandmann: offered "to help" the Division investigators when they approached the boat. (T. 20, 38-39). gave the Division investigators a business card with his name and O'Brien Yacht Sales, Inc. written on it. (T. 19, 38-19, 52)( P's Exh. 2) gave the Division investigators a spec sheet containing information about the boat. (T. 21, 32, 39, 52). (P's Exh. 3). told the Division investigators that the price of the boat was negotiable. (T 22, 29-30, 39-40, 52). told the Division investigators that the commission would be paid by the seller. (T 21, 22, 29-30, 32, 34, 40, 43) had a copy of a blank sales contract faxed to him (from O'Brien Yacht Sales, Inc.) at the boat show. (T. 22- 23, 41, 52) Also at Recommended Order, page 5, paragraphs 9, 10, 11 and 12. Additionally, there was no competent substantial evidence to support the Hearing Officer's Finding of Fact that Respondent Sandmann was not offering or negotiating to sell the boat, because these actions were uncontroverted. Respondent Sandmann never denied that he was offering or negotiating to sell the boat. Furthermore, the sentence in question is not a Finding of Fact, but rather a Conclusion of Law. The Administrative Law Judge's characterization of this as a Finding of Fact, does not make it so. In Hernicz v. State Dept. of Professional Reg., 390 So.2d 194 (Fla. 1st DCA 1980), facts were undisputed that a nurse practitioner had done certain acts, and when the Board concluded that the actions were a violation of the statute, the court held that that amounted to a Conclusion of Law and not a Finding of Fact. The "facts" were the individual actions that were taken by the Respondent, whether these acts violated the statute was a Conclusion of Law. As stated above, the acts, themselves, in this case were neither denied nor disputed. The second sentence in Finding of Fact number 15 is stricken in its entirety. The third sentence in Finding of Fact number 15 states that "[I]t is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts". The "expectation of receiving compensation" was the argument relied on by the Respondents at hearing as their defense to participating in the boat show. Because "compensation" is an integral part of Chapter 326, Florida Statutes, its interpretation should be left to the expertise of the agency. It is a well settled principle that the interpretation of a statute by the agency responsible for its enforcement is entitled to great weight, and will not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); Shell Harbor Grou, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). The Division believes that "compensation" can be other than a monetary commission, as claimed by Respondents. "Compensation" can be "perks" such as transportation or use of a house or yacht, or something intangible, such as friendship and affection. The existence of a quid pro quo is what is looked for. Furthermore, from a thorough reading of the record, it was proven by substantial competent evidence that a commission was anticipated being paid, because Petitioner's investigators were told that "the commission would be paid by the seller". (T 21, 22, 29-30, 32, 34, 40, 43). Possibly, no monetary commission was paid to Sandmann, because the yacht did not sell. Regardless, the Division finds that the friendship between Mr. Mellon and Sandmann was adequate compensation under Chapter 326, Florida Statutes. The third sentence of Finding of Fact number 15 is stricken in its entirety. The fourth sentence, "Respondent Sandmann was at the Boat Show and on the `Watermellon' solely as a friend of Mr. Mellon, the owner", is also rejected. The Division does not dispute the long standing friendship of Respondent Sandmann and Mr. Mellon, however being someone's "friend", does not exempt them from Chapter 326, Florida Statutes. There was uncontroverted testimony that Respondent Sandmann was offering or negotiating to sell the boat. That is all that is necessary for him to be within the jurisdiction of the Division, and require him to have a license. Although his friendship could be his motivation or compensation for being on the yacht, his actions, while there, show that he was offering or negotiating to sell the "Watermellon". The fourth sentence of Finding of Fact Number 15 is stricken in its entirety. RULINGS ON PETITIONER'S EXCEPTION TO ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS OF LAW Petitioner filed an Exception to Conclusion of Law number 23 contained in the Recommended Order. This conclusion stated that the Petitioner had failed to meet its burden as to Sandmann because it failed to establish that he was attempting to sell the yacht, and, if the case against Sandmann failed, then the case against O'Brien failed. The Division rejects this Conclusion of Law because it believes that Petitioner proved by substantial competent evidence that Sandmann was offering or negotiating to sell the "Watermellon", and that friendship is adequate compensation.
Findings Of Fact Petitioner is the agency of the State of Florida that administers and enforces the Florida Yacht and Ship Brokers' Act, Chapter 326, Florida Statutes. At all times pertinent to this proceeding, Respondent O'Brien has been licensed as a Yacht and Ship Broker pursuant to the provisions of Chapter 326, Florida Statutes. Respondent O'Brien owns and operates O'Brien Yacht Sales. Respondent O'Brien resides in and has his principal place of business in Palm Beach County, Florida. Mr. Sandmann is a resident of Essex, Connecticut. He has never been licensed as a yacht salesman or as a yacht broker. Mr. Sandmann makes his livelihood as the owner of a dog collar manufacturing business. Henry Mellon, the boat's owner, held a salesman's license issued by Petitioner that expired in August 1994. At the times pertinent to this proceeding, Mr. Mellon was not licensed by the Petitioner. Respondent Sandmann, Respondent O'Brien, and Mr. Mellon have been close friends for many years. Mr. Mellon formerly worked for O'Brien Yacht Sales. Mr. Mellon and Respondent Sandmann are old friends from college. The Fort Lauderdale International Boat Show permitted only new yachts or brokered yachts. Individuals were not supposed to sell boats in this show. Respondent O'Brien was aware of this restriction. In October 1995, Respondent O'Brien had the boat "Watermellon" displayed and listed for sale at the 36th Annual Fort Lauderdale International Boat Show. The asking price for the sale of the Watermellon was $425,000. Mr. Mellon is neither an officer or a director of O'Brien Yacht Sales. Mr. Mellon signed a form styled "Application and Contract for Exhibit Space" so that the Watermellon could be exhibited at the boat show and on this application represented that he was a vice president of O'Brien Yacht Sales. Neither Respondent O'Brien or his company paid to put the Watermellon in the Boat Show and neither expected to receive any commission from the sale of the Watermellon. Respondent O'Brien was acting out of friendship with Mr. Mellon. 1/ On October 27, 1995, Peter Butler and Robert Badger, in their official capacities as employees of the Petitioner, attended the Boat Show and went to the Watermellon. They observed a sign on the back of the boat that advised that the boat was being offered by O'Brien Yacht Sales and gave its telephone number. Mr. Butler and Mr. Badger approached the boat and asked a person, later identified as Respondent Sandmann, whether Respondent O'Brien was aboard. Respondent Sandmann told Mr. Butler and Mr. Badger that Respondent O'Brien was not aboard, asked if he could help them, and gave them a business card with his name and the name of O'Brien Yacht Sales on it. No licensed salesman was on board at this time, but Mr. Mellon, the owner of the boat, was aboard. 2/ Respondent Sandmann gave Mr. Butler and Mr. Badger a copy of a printed sheet containing basic information about the Watermellon. This sheet, referred to as a spec sheet, contained errors that Respondent Sandmann verbally corrected when he gave them the sheet. In response to questions, Respondent Sandmann told Mr. Butler and Mr. Badger that the price of the boat was negotiable and that the commission would be paid by the seller. Mr. Butler and Mr. Badger asked Respondent Sandmann if they could see a copy of the contract that a buyer would need to sign if he purchased the boat. In response, Respondent Sandmann contacted the O'Brien Yacht Sales office and had someone fax to him a copy of the contract used by O'Brien. Respondent Sandmann then gave the form contract to Mr. Butler and Mr. Badger. The business card given by Respondent Sandmann to Mr. Butler and Mr. Badger was printed in 1994 when Respondent Sandmann, who is fluent in French, Spanish, and Italian, accompanied Mr. Mellon to a boat show in Europe. Mr. Butler and Mr. Badger did not inquire as to the amount of the commission that would have been paid by the seller of the Watermellon because Petitioner does not regulate commissions. None of Respondent Sandmann's acts, when considered individually, required a license from the Petitioner. 3/ The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat. It is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts. Respondent Sandmann was at the Boat Show and on the Watermellon solely as a friend of Mr. Mellon, the owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order as to these consolidated cases that dismisses the charges filed against these respondents. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents were licensed real estate salesmen in the State of Florida, with Mr. Blanc's license being 0406481 and Ms. Kirkland's license being 0399466. The Division of Real Estate is a state government licensing and regulatory agency charged with the responsibility of regulating the practice of real estate in this state. In November, 1985, Mr. and Mrs. William A. McKie were owners of Week 43 in Unit 1 of a time share condominium located at the Anchorage Resort and Yacht Club in Key Largo, Florida. About that time, they received a card issued by the Florida Bay Club to visit a time share condominium there. Because they were somewhat disappointed in the condition of their Anchorage unit, they went to see the Florida Bay Club facility and met with Respondent Kirkland who took them on a tour of the facility and the model apartment. Mrs. McKie was quite impressed with it, but indicated she could not afford it, because she and her husband already owned a time share unit at the Anchorage. When told that, Ms. Kirkland introduced the McKies to Respondent Blanc, who in the course of his sales presentation, suggested that the McKies use their ownership at the Anchorage as a trade-in worth $4,000 off of the in excess of $11,000 price of the Florida Bay Club unit. The McKies agreed and signed certain documents incident to the purchase including a worksheet, purchase agreement, disclosure agreement, and settlement statement, all prepared by Respondent Blanc. The worksheet reflected that the unit being purchased by the McKies, Week 44 in Unit A-5, had a purchase price of $6,500 toward which the McKies made a down payment of $650 by three separate charges to their Master Card and Visa cards, two for $300 each and one for $50. This left a mortgage balance to be financed of $5,850 payable for 7 years at 15 1/2 percent with monthly payments of $114.54. No reference was made in the worksheet to a trade in of the Anchorage unit. The purchase agreement also signed by the McKies and by Respondent Kirkland for the Florida Bay Club reflects a purchase price of $6,500 with a down payment of $650. The truth in lending form reflects that the amount financed would be $5,850 at 15.5% resulting in a finance charge of $3,771.36 with a total monthly payment amount of $9,621.36 which, when added to the $650 deposit, showed a total sales price of $10,271.36. The settlement statement signed by the McKies reflects a sales price of $6,500 with a $650 deposit. At no place, on any of the documentation, is the $4,000 trade-in for the Anchorage unit reflected. As a part of the transaction and at the suggestion of Respondent Blanc, the McKies were to sign a quitclaim deed to him as the representative of the seller to receive credit for the $4,000 trade-in. The documents, except for the quitclaim deed, were signed by the McKies on their first visit to Florida Bay Club on November 17, 1985. Mrs. McKie does not recall either Respondent signing the documentation, but there is evidence that Ms. Kirkland signed the purchase agreement and the worksheet and Mr. Blanc approved the worksheet. Neither the disclosure statement, the settlement statement nor the quitclaim deed, which was prepared by Respondent, Blanc, and furnished to the McKies on their second visit, was signed by either Respondent. The McKies went back to Florida Bay Club approximately a week later to sign for the prize they had been notified they had won and to sign the quitclaim deed, which had not been ready for them on their first visit. Respondent Blanc explained what the quitclaim deed was for and according to both McKies, they would not have purchased the property at Florida Bay Club had they not been able to trade-in their Anchorage unit. They definitely could not afford to pay for both units, a fact which was repeatedly explained to Respondents on both visits. Mrs. McKie believed that when she signed the quitclaim deed to the Anchorage unit, she would no longer be responsible for making payments there and in fact, the McKies notified the Anchorage Resort Club that Respondent Blanc had assumed their Week at the Anchorage, a fact which was confirmed by the Anchorage to Mr. Blanc by letter dated February 13, 1986. It is further noted that on January 30, 1986, Ms. Berta, general manager of the Florida Bay Club, by letter of even date, notified Mr. Blanc who was no longer an employee of Florida Bay, that the McKies' payment book, invoices for taxes due on the Anchorage property, and the quitclaim deed were being forwarded to him as evidence of the change of ownership of the Anchorage Resort unit from the McKies to Respondent Blanc. In this letter, Blanc was requested to notify the Anchorage of the change so the McKies would not be dunned for continuing payments. At the closing of the Florida Bay unit, when Mrs. McKie and her husband signed the quitclaim deed, Respondent Blanc told her she would continue to get payment notices from the Anchorage while the transfer was being processed, but she should bring those payment notices to him at the Florida Bay Club and he would take care of them. When Mrs. McKie received the first notice, she brought it to the Florida Bay Club to give to Mr. Blanc, but he was no longer located there. On this visit, she spoke to Ms. Berta, who advised her that the Florida Bay Club did not take trades. Ms. Berta called Respondent Blanc at his new place of business by phone in Mrs. McKie's presence and Respondent indicated at that time that he would buy the Anchorage unit himself and assume the payments. As a result, Mrs. McKie sent the delinquent notices to him at his new place of business, Gulf Stream Manor. In the meantime, she continued to make her new payments at the Florida Bay Club. Notwithstanding Respondent Blanc's agreement to assume payments, Mrs. McKie continued to receive mortgage payment delinquent notices from the bank for the Anchorage unit. During later negotiations with the bank regarding this, Mrs. McKie was told that she would still be responsible for making the payments even if Respondent Blanc took over and didn't pay and as a result, in order to relieve herself from this impending burden, she made arrangements to pay off the entire amount due for the Anchorage unit. After that she made several efforts to get Respondent Blanc to pay her back for the amount paid. Respondent Blanc agreed to make the payments and said he would pay the taxes on the unit, but he never reimbursed the McKies for any of the amount they had to pay. The McKies now own the Anchorage unit and have worked out a settlement agreement with the Florida Bay Club to get out of the responsibility for the unit there. Review of the quitclaim deed in question, prepared by Respondent Blanc and signed by the McKies, reflects that the McKies are both the grantors and grantees of the property and that Respondent Blanc's name nowhere appears on the document. It is of no force and effect. Respondent contends that when the McKies indicated they were unable to purchase a new unit since they still had a prior unit to pay for, relying on his understanding that the marketing organization selling the Florida Bay Club units had in the past taken a unit in trade, he discussed the matter with his supervisor who advised that he could offer up to $4,000 in trade on the unit. In order to do this, Respondent Blanc had to price the new unit at $10,500 and credit the McKies with $4,000. However, none of the documentation shows this was ever done. At no place on any of the documentations is the $4,000 trade-in referenced. It is clear the offer of a trade-in was a sham to induce the McKies to purchase a unit at Florida Bay Club. Ms. Berta, who was manager at Florida Bay Club at the time in question, indicated that no trade-ins were ever taken by the club. The prior trade-in referenced by Mr. Blanc was a unit which was completely paid for as opposed the McKies' which still had a substantial outstanding balance on it. Respondent Kirkland who was not a party to any of the negotiations subsequent to her initial interview with the McKies indicates that she "probably" quoted the McKies a price of $10,500. When Mrs. McKie indicated that they could not afford such a high price, she turned them over to Mr. Blanc who thereafter handled the entire transaction. Respondent Blanc tells a somewhat different story about the reaction of the McKies when his failure to assume responsibility for the trade-in unit at the Anchorage Bay Club came to light. He indicates that it was never intended that he would take title to this unit at first. The trade in was to be absorbed by the marketing company, Resort Sales International, for whom he worked, and he assumed, when he left the following week to go to a different facility, the company would follow through with its agreement to assume the McKie's Week at the Anchorage. He was quite surprised, he contends, to learn that this had not been done and since he wanted a unit in the Key Largo area anyway, he agreed to then assume it personally after first offering Mrs. McKie the opportunity to back out of the purchase. When she said that she wanted to be at Florida Bay Club, he was sent the payment books and the deed. He called the bank to notify them that he was going to assume responsibility for the loan, but the bank would give him no information regarding it and the bank official, Ms. Brown, was adamant in her representation that the McKies could not quitclaim deed the property to him. No reason was given for this, however. Mr. Blanc claims he made a series of telephone calls between January 30 and March 31, 1986, in an attempt to straighten out the difficulty involved. These included sixteen calls to Ms. Berta, eight calls to his former supervisor at Resort Sales, four calls to the Anchorage, three calls to the bank and three calls to Mrs. McKie. Mrs. McKie denies receiving calls from the Respondent and contends that her numerous calls to him remained unanswered. In a call he made after she paid off the loan on the Anchorage and settled with Florida Bay Club for approximately $2,183, Mrs. McKie advised Blanc to forget about it, that they were tired of messing with him and with the property. As a result, he admittedly gave up and did and heard nothing more regarding the property until he was contacted by a DPR investigator. On January 30, 1988, Mr. Blanc offered to buy Mrs. McKie's unit at the Anchorage for $2,900 which was exactly the amount owed on the property when she paid it off. She refused to accept that offer since she had paid $6,800 for the unit initially.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent Sandra Kirkland be dismissed and that Respondent Blanc's license as a real estate salesman in Florida be suspended for six months. RECOMMENDED in Tallahassee this 19th day of April, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Darlene F. Keller Department of Professional Acting Executive Director Regulation DPR, Division of Real Estate Division of Real Estate Post Office Box 1900 Post Office Box 1900 Orlando, Florida 32801 Orlando, Florida 32801 Sandra S. Kirkland Post Office Box 9264 Panama City, Florida 32407 John G. Blanc 17501 West Highway 98 Panama City, Florida 32407
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
