The Issue Whether either Petitioner is entitled to Unclaimed Property Account Number 108502717.
Findings Of Fact The Department receives unclaimed property and disburses that property from the State of Florida Treasury to the rightful owners. During the last fiscal year, the Department's Bureau of Unclaimed Property received in excess of $300,000,000 of unclaimed property, and paid claims in excess of $212,000,000. The Department has the duty to evaluate the merits of each claim for unclaimed property and to pay only those claimants who can establish, by a preponderance of the evidence, that they are the rightful owners of the unclaimed property. Anja Sova was born in 1921 in Finland, but resided in Lake Worth, Florida. Her husband's brother was married to Iina Sova, who resided in Finland. Anja Sova opened several accounts with different banks during her lifetime; two of those accounts were opened at Washington Mutual Bank, and she designated Iina Sova, her sister-in-law, and Silja Lappalainen, her grand-niece and Iina's granddaughter, as joint pay-on-death beneficiaries. In January 2001, at the age of 79, Anja Sova opened a Certificate of Deposit (CD) account with Sterling Bank, depositing $95,000.00 in the account. The CD designated the pay- on-death beneficiary as Silja Sova. Anja Sova signed the signature card for this CD three times, once right next to the name of the designated beneficiary, Silja Sova. The bank had no other information as to the beneficiary. Anja Sova died in a car accident in 2002. The accounts with Washington Mutual were paid to the designated beneficiaries, her sister-in-law, and her grand-niece. Unclaimed Property Account Number 108502717 consists of the matured Sterling Bank CD, worth $127,031.97, and designates Silja Sova as the pay-on-death beneficiary. It had been held by Sterling Bank until its remittance to the Department as unclaimed property. American Research is a corporate claimant representative, and represents the residual heirs of Anja Sova's estate. Choice Plus is also a corporate claimant representative, and represents Silja Lappalainen, Anja Sova's grand-niece. American Research ran searches through various private, social, and governmental databases in the United States, and found no person named Silja Sova. In 2013, American Research also requested and received an Extract from the Population Information System in Finland. This database was created in 1969. The Extract revealed one person named Silja Sova; that person is a child born in 2009, who lives in Finland. No credible evidence was presented on whether the Extract includes only living persons, or if it also includes deceased persons (persons who were born between 1969 and 2001 and died before November 2013, when the search was done through the Extract). American Research argued that Silja Sova simply does not exist. It is unknown, however, whether Anja Sova's husband had more brothers with the surname Sova, or whether Anja Sova's father-in-law had brothers. The undersigned cannot find, given the scant evidence presented, that Silja Sova does not exist, and never existed, in Finland. American Research also proposed the theory that Anja Sova purposely created a fictitious name when designating Silja Sova as the beneficiary. There was no credible evidence presented to support this theory, either; it was mere speculation. An Order for Subsequent Administration was entered by a probate court in Palm Beach County, Florida, on April 11, 2013. It establishes the residual beneficiaries of Anja Sova's estate, but it does not include Silja Lappalainen, Anja Sova's surviving grand-niece. Choice Plus was also unable to locate a person named Silja Sova, and argued that the CD mistakenly designated the pay-on-death beneficiary as Silja Sova when it should have read Silja Lappalainen, Anja's grand-niece who had also been a beneficiary on the Washington Mutual accounts. Curiously, Choice Plus represents Silja Lappalainen, but did not offer testimony from her at the hearing.1/ Instead, Choice Plus offered into evidence an affidavit from Iina Sova, the deceased's sister-in-law, disclaiming any interest in the account. The affidavit is not found credible or reliable; it is written in a language that the affiant did not speak, there is no indication that a certified translator was present while the statement was being made, and the affidavit is replete with hearsay. Unfortunately, there was no credible evidence presented to support Choice Plus's argument that the designation of Silja Sova as the pay-on-death beneficiary was indeed a mistake that a then 79-year-old great-aunt made. The record is void of any credible evidence which meets the preponderance of the evidence standard, entitling either Petitioner to Unclaimed Property Account Number 108502717.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that American Research and Investigations, Inc.'s claim for Unclaimed Property Account Number 108502717 be DENIED. It is also RECOMMENDED that Choice Plus, LLC's claim for Unclaimed Property Account Number 108502717 be DENIED. DONE AND ENTERED this 18th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 18th day of April, 2014.
The Issue The issue for determination is whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, SA Lee was licensed by the State of Florida as a real estate salesperson, having been issued license number SL-0640485 on July 15, 1996. Further, Respondent SA Lee was a real estate salesperson in association with Respondent Realty, a real estate broker corporation. At all times material hereto, Respondent SE Lee was licensed by the State of Florida as a real estate broker, having been issued license number BK-0594787. Further, Respondent SE Lee was the qualifying broker and officer of Respondent Realty. At all times material hereto, Respondent Realty was licensed by the State of Florida as a real estate broker corporation, having been issued license number CQ-0272573. In 1996, Brian Mulally (buyer) wanted to buy certain residential property located at 4397 Vicliff Road, West Palm Beach, Florida. Maryann Duchesne and Margaret Reppucci were the sellers of the property. Medallion Realty was the listing broker for the property. Paula Castro was the real estate salesperson representing Medallion Realty. The sellers authorized Medallion Realty and Ms. Castro to represent them, to be their agents in the sale of their property. Respondent SA Lee, as sales agent for Respondent Realty, notified the buyer that she was not representing him. The buyer knew at all times that Respondent SA Lee was not his representative in the purchase of the property. In a "Disclosure" document dated September 4, 1996, the buyer acknowledged that Respondent SA Lee was not representing him and that the sellers were compensating Respondent SA Lee.1 The sellers did not authorize Respondent SA Lee to represent them in the sale of their property and were not aware of the Disclosure document. Respondent SA Lee and Respondent Realty were not representing the sellers or the buyer. However, an inference is drawn and a finding of fact is made that Respondent SA Lee and Respondent Realty were working together with Medallion Realty in the sale of the property and that Respondent SA Lee and Respondent Realty were sub-agents of Medallion Realty.2 The buyer and sellers executed a Contract for Sale and Purchase (Contract) of the property, with the buyer executing the Contract on September 30, 1996, and the sellers on October 1, 1996. The effective date of the Contract was October 1, 1996. The Contract provided, among other things, that Respondent Realty would hold deposits in escrow; that the buyer's first deposit would be $100; that the buyer's second deposit of $1,900 would be made within five days of October 1, 1996; that, within five days of October 1, 1996, the buyer would make application for a mortgage loan; that, within 15 days of October 1, 1996, the buyer would obtain a written commitment for a mortgage loan; that the closing date was October 31, 1996; and that Medallion Realty and Respondent Realty were the listing broker and cooperating broker, respectively. The buyer was to obtain the money for the second deposit from a family member. He had planned a trip around the time of the execution of the Contract, during which he would obtain the money for the second deposit. When the buyer returned from his trip, he did not have the money for the second deposit. The buyer informed Respondent SA Lee of his failure to return with the money for the second deposit. Shortly thereafter, Respondent SA Lee and Ms. Castro had a telephone conversation regarding the property. During their conversation, Respondent SA Lee informed Ms. Castro that the buyer had not made the second deposit but that he was still going to obtain the money for the second deposit. The disclosure to the sellers' agent, Ms. Castro, of the buyer's failure to remit the second deposit was before the due date for the deposit, which was on or before October 6, 1996. Ms. Castro continued to make inquiries to Respondent SA Lee as to the payment of the second deposit by the buyer. Respondent SA Lee informed Ms. Castro that she was trying to get the deposit from the buyer who was advising her (Respondent SA Lee) that he was getting the money for the deposit. Ms. Castro was continuously aware that the buyer had not remitted the second deposit to Respondent SA Lee. Respondent SA Lee and Ms. Castro wanted the real estate transaction to proceed. Respondent SA Lee's communication with the sellers was through Ms. Castro. Respondent SA Lee did not have access to a telephone number for the sellers. The sellers obtained the services of a closing agent, who was also their attorney. On or about October 11, 1996, approximately five days after the due date for the second deposit, the sellers' attorney, acting as closing agent, contacted Ms. Castro regarding the second deposit. Ms. Castro informed the sellers' attorney that she would contact Respondent SA Lee and get back with her (the sellers' attorney). On or about October 15, 1996, approximately nine days after the due date for the second deposit, the sellers' attorney, in her role as the closing agent, contacted Respondent SA Lee and requested an escrow letter regarding the second deposit. Obtaining the escrow letter would allow the beginning of the preparation of the closing documents. Respondent SA Lee informed the sellers' attorney that she would contact Ms. Castro and that Ms. Castro would in turn contact the sellers' attorney. Respondent SA Lee contacted Ms. Castro. No escrow letter was forwarded to the sellers' closing agent because no second deposit had been made by the buyer. Even without the escrow letter, the closing agent began the preparation of the closing documents. Thereafter, the sellers' attorney, acting as closing agent, contacted Respondent SA Lee several times regarding the remittance of the second deposit, but Respondent SA Lee never gave the sellers' closing agent a forthright response; Respondent SA Lee never informed the sellers' closing agent that the buyer had not remitted the second deposit.3 Respondent continued to communicate with Ms. Castro regarding the second deposit. The sellers' closing agent was not informed until around October 28 or 29, 1996, that the buyer had not remitted the second deposit. Other problems, regarding the real estate transaction, in addition to the remittance of the second deposit, erupted between the buyer and the sellers. At that time Ms. Castro allowed the sellers' attorney to step-in and handle all matters regarding the transaction. The evidence indicates that this change occurred sometime between October 15 and October 30, 1996. When the sellers' attorney began to handle all matters regarding the real estate transaction, Respondent SA Lee should have, but did not, inform the sellers' attorney that the buyer had not remitted the money for the second deposit. The second deposit was eventually remitted by the buyer on or about October 30, 1996. The buyer forwarded the money directly to the sellers' attorney per Respondent SA Lee's instructions. For several reasons, including the buyer's failure to timely remit the second deposit, the closing did not occur on October 31, 1996, as provided in the Contract. The closing on the property occurred on November 27, 1996. Sometime after the closing of the real estate transaction, Respondent SE Lee ceased to be the qualifying broker for Respondent Realty. Sharon E. Lee became the qualifying broker and officer for Respondent Realty. No evidence was presented by the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) as to Respondent SE Lee's failure to properly supervise the activities of Respondent SA Lee or Respondent Realty. No evidence was presented as to whether Respondent SA Lee or Respondent Realty had a history of disciplinary action taken against them.
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 Real Estate enter a final order and therein: Dismiss Count III against Stephen E. Lee. Find Sherry Ann Lee guilty of Counts I and II. Find C. Mist Realty, Inc. guilty of Count IV. Impose upon Sherry Ann Lee an administrative fine of $1,000, payable under the terms and conditions deemed appropriate, and the completion of a 45-hour post-licensure course. Reprimand C. Mist Realty, Inc. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 16th day of June, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On May 10, 1973, petitioner, a Tennessee business trust, loaned Hunt- Florida Enterprises, Inc. the principal sum of $1,300,000.00, receiving in return a mortgage deed and mortgage note on property owned by Hunt-Florida located in Broward County. (Exhibits 1 and 2) On September 30, 1975, petitioner loaned Hunt-Florida an additional sum of $125,000.00, receiving in return a "promissory note and mortgage modification agreement." This agreement reflected Hunt-Florida's entire indebtedness to petitioner for $1,425,000.00 and encumbered the mortgaged property for the full amount. This agreement ratified and confirmed the personal and individual guarantee of Richard E. Hunt and his wife, Joyce B. Hunt, of the mortgage note dated May 10, 1973. (Exhibit 3) No payments were made by Hunt-Florida to petitioner to reduce its indebtedness. On February 13, 1976, Hunt-Florida executed to petitioner a quitclaim deed to the subject property. (Exhibit 4). This quitclaim deed had three covenants. It was agreed that by acceptance of the deed, petitioner would not institute suit for the amount owed it by Hunt-Florida in the amount of $1,300,000.00, plus interest, nor would petitioner sue the individual grantors. It was further agreed that the quitclaim deed was subject to the aforementioned mortgage and promissory note and mortgage modification agreement and it was provided that the same shall not merge so that the right to foreclose was not extinguished by the quitclaim deed. Finally, the quitclaim deed provided that it was subject to a purchase contract executed between Hunt-Florida and SLC Oil and Gas Corporation. Hunt-Florida assigned to petitioner all its rights, title and interest in said purchase contract and the proceeds of the same. This quitclaim deed bore only minimal documentary stamps. The respondent Department of Revenue made a total assessment against petitioner in the amount of $16,086.80. This sum includes taxes and surtaxes on the February 13, 1976, quitclaim deed, taxes on the promissory note and mortgage modification agreement and penalties and interest. (Exhibit 5). Petitioner does not contest the mathematical computation or its liability for the assessment on the modification agreement. It does contest the taxes, surtaxes, penalties and interest as assessed upon the quitclaim deed.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment as set forth in the revised notice of proposed assessment of tax and penalty dated December 8, 1976, be upheld. Respectfully submitted and entered this 22nd day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1977. COPIES FURNISHED: John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 David L. Kline, Esquire Abrams, Anton, Robbins, Resnick and Schneider, P.A. Post Office Box 650 Hollywood, Florida 33020 David K. Miller Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue Whether the Respondent violated Subsection 475.25(1)(b), Florida Statutes, by failing to reconcile his accounts, having monies stolen from him by an employee, and withdrawing money from his escrow account as commissions. Whether the Respondent violated Subsection 475.25(1)(k), Florida Statutes, by failing to maintain funds paid to him as deposits for rentals, sales taxes, and security deposits in his escrow account until after the date of the rental.
Findings Of Fact The Respondent is a licensed real estate broker and was so licensed at all times relevant to the events which are a part of the Administrative Complaint. The Respondent holds license number 0177110 issued as a broker, t/a Sunspot Realty, 16428 West Highway 98A, Panama City, Florida 32407. On February 10, 1989, Elaine Brantley, an investigator for the Department of Professional Regulation, visited the Respondent's office for the purpose of conducting a financial audit of the records of the business. The Respondent was not present; and Teresa Tuno, the Respondent's secretary and wife, stated she would prefer that Brantley not review the records in her husband's absence. On February 14, 1989, Brantley telephoned the Respondent and made arrangements to audit Respondent's books on February 15, 1989. A review of the records by Brantley on February 15, 1989 revealed that the records were in a state of disarray and the ledgers were not posted. At that time, Brantley advised the Respondent that the records had to be put in order, the ledgers posted, and accounts reconciled by February 17, 1989, when she would reinspect the records. Brantley reinspected the records on February 17, 1989, and all the ledgers had been posted and the accounts had been reconciled through January. The audit revealed that Tuno had received $47,961.45 in security deposits, sales taxes, and rental deposits which were not refundable under the lease agreement. The audit revealed that the balance of the Respondent's escrow account was $33,321.45. The difference between the balance of the escrow account and the money received by the Respondent includes $8,000 which the Respondent paid to himself with checks drawn on the account for "commissions", and $6,540 which had been stolen by an employee of the Respondent. The monies stolen included cash deposits paid by rental customers to the employee and one check on the escrow account endorsed in blank and given to the employee to pay for items purchased for one of the rental units which the employee cashed and converted to his own use. The theft was reported to the local police and their investigation revealed that the employee had disappeared under suspicious circumstances, indicating foul play. The lease agreement states that a deposit of 50% of the rental rate was required to reserve a property and the deposit was refundable only if another tenant could be found for the same period. The Respondent's agreement with the owner of the property called for a commission of 30% of the rental receipts. However, there was no mention of when the commission was earned and under what circumstances it would be paid in the original rental agreement. Upon being criticized for this practice by Brantley, the Respondent repaid the total amount of the draws. Subsequently, he had a new agreement drawn purporting to authorize early payment of management fees. The new agreement states in pertinent part: Owner agrees to compensate Agent a commission of 30% of rental receipts with the exception of long term winter rentals which will be at a rate of 20%. Agent is authorized to draw management fees upon receipt of tenant's non-refundable reservation deposit. The balance of the escrow account was sufficient to meet any potential demands against it. Had the property been leased to another renter for the same period of time, the second renter's deposit would have been deposited to the account making up the funds refunded to the first renter. The audit also revealed that the Respondent had paid monies from the escrow account to a maintenance company operated by the Respondent for work performed on various of the properties. However, the Respondent had not debited the individual property accounts at the time the check was drawn. Each of the properties had a sufficient individual balance to pay for work charged against the property. The appropriate entries were made eventually in the ledgers for the property by the Respondent. The Respondent has amended his agreement with property owners to permit him to bill for repairs on their property on a cost-plus-10% basis to eliminate this problem. None of the actions by the Respondent resulted in financial loss to any of his clients, and the Respondent was cooperative and candid with the auditor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent: Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing commissions to himself; Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing payments to a maintenance company which he owned without debiting individual property accounts; and Be required to enroll and satisfactorily complete a course on maintenance of escrow funds and accounts. DONE AND ORDERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 1989. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 89-2681 The Respondent filed a letter in place of proposed findings which contained legal argument which was read and considered. It did not contain any findings. The Petitioner filed proposed findings which were read and considered as follows: Paragraphs 1-3 Adopted Paragraph 4, 1st sentence Adopted Paragraph 4, 2nd sentence Rejected as irrelevant Paragraphs 5-7 Adopted Paragraphs 8-10 Rejected. The terms of the contracts do not address when Tuno was entitled to his commission. Under the terms of the contracts the renters were not entitled to a refund of their advance deposit after a reservation was made unless a new renter could be found for the same time, in which case that renter would have to make a deposit. When Tuno was entitled to his commission was not addressed in the contracts. While findings that Tuno violated the provisions of statute relating to maintenance of funds in his escrow account; this failure was based upon the lack of clarity in the contracts and the high standard of conduct in maintaining escrow accounts which is required of licensees. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. 0. Box 1900 Orlando, Florida 32802 Mr. Robert P. Tuno 16428 West Highway 98A Panama City, Florida 32407
The Issue The issue in this case is whether the Petitioners established entitlement to $22,165 of abandoned property being held by the Respondent, the Department of Banking and Finance, Division of Finance, under Chapter 717, Fla. Stat. (1993).
Findings Of Fact On or about December 21, 1992, the National Abandoned Property Processing Corporation delivered to the Department of Banking and Finance, Division of Finance, $22,165 in cash derived from the cash acquisition of McGraw-Edison Company on May 30, 1985, Cooper Industries, Inc. Cooper Industries indicated that the cash, representing $65 per common share for 341 unexchanged shares, had been abandoned by Helen A. Block, 1116 North 13th Court, Hollywood, Florida 33019, and that the owner's account number was 000148084992, but Cooper Industries does not have a social security or tax identification number or any other information to identify the owner. Richard Steel-Reed and Donald E. Block are the adult sons of, and heirs to the estate of, a Helen A. Block who died in California on August 6, 1989, after having resided in Chatsworth, California, for approximately three to five years. Prior to residing in California, and in particular in 1983, she resided at 3901 South Ocean Drive, Hollywood, Florida. But there is no evidence that she ever resided at 1116 North 13th Court, Hollywood, Florida 33019. The Petitioners were unable to produce any stock certificates or account statements or any other evidence directly identifying their mother as the owner of the $22,165 at issue in this case. The Petitioners were unable to prove, by a preponderance of the evidence, that their mother was the owner of the $22,165 at issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Banking and Finance, enter a final order denying the Petitioners' claim to the $22,165 being held by the Department. RECOMMENDED this 2nd day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of August, 1994. COPIES FURNISHED: Bruce G. Kaufmann, Esquire 11151 66th Street North Suite 401 Largo, Florida 34643 Paul C. Stradler, Jr., Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399 Honorable Gerald Lewis Comptroller The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399
Findings Of Fact At all times material hereto Ralph Thomas West was a licensed real estate salesman with license number 0364011, and Charles De Menzes was a licensed real estate broker with license number 0174324. De Menzes was operating as qualifying broker and officer of De Menzes Realty, Inc., 2116 East Silver Springs Boulevard, Ocala, Florida, license number 0208877. De Menzes Realty, Inc. was a corporation licensed as a broker in Florida. From approximately September 3, 1981 to approximately June 14; 1984; West was licensed and operating as a real estate salesman in the employ of De Menzes Realty, Inc. On March 31, 1984, West obtained an exclusive right of sale listing contract from James M. and Grace Bell for the sale of certain real property. The listing contract was for six months, ending on September 30, 1984, and specified that the listing would be placed with Multiple Listing Service. West had the Bells sign the listing contract, gave them a copy, and returned to De Menzes Realty where he signed the listing and then placed it on the secretary's desk for presentation to, and signature by, De Menzes. Standard office practice was that all listings were placed in a file folder after the salesman and De Menzes had signed them, other required authorization forms were placed in the file and it was returned to the salesman who was then responsible for having all required forms in the file·assigned. The salesman then was supposed to return the file to the secretary who would place the listing with the Multiple Listing Service (MLS). De Menzes told his salesmen that they were responsible for following up on the file and making sure the listing had been placed with MLS. De Menzes does not routinely follow up on listings to insure that salesmen carry out these responsibilities, and he took no action on the Bell listing after executing the exclusive listing. After De Menzes signed the Bell listing, it was placed in a file folder along with Key Box Authorization and Notice to Sellers forms which had to be signed by the Bells. West gave these forms to the Bells on April 1, 1984, and they signed them on that date. They also gave West a key to their property and he placed a lock box on the property door. On April 7, 1984, an auction of the Bell property was held by Max Heubner, who was a licensed real estate salesman working in the employ of De Menzes Realty, Inc. as an auctioneer. Huebner arranged for the auctions himself, including the advertising, and conducted them himself. He did not seek or obtain De Menzes' approval to hold auctions. Huebner would routinely give De Menzes a copy of his auction fliers so that De Menzes would be aware that an auction was being held in case someone called the office about it. The Bell property was not sold as a result of this auction. The Bell listing was never placed in MLS. West did show the property to two people following the auction but never followed up to be sure the listing was entered in MLS. After West left the employ of De Menzes Realty, Inc., on or about June 14, 1984, no efforts were undertaken by De Menzes Realty to sell the Bell property. De Menzes Realty, Inc. and Charles De Menzes were unaware of the Bell listing until early July, 1984, when Grace Bell called the office to inquire about progress in selling the property. Gail Barbee, broker- salesperson at De Menzes Realty, told Grace Bell that there was no listing on file with De Menzes Realty, Inc., and no listing of their property had ever been placed with MLS. Barbee sent Bell a new listing contract on July 19, 1984, but the Bells decided not to reexecute another listing. On October 4, 1984, Barbee returned pictures of the property, as well as a key which Bell had sent her in response to Barbee's letter in July. In early May, 1985, West was going through his briefcase and found the entire Bell listing file; including the original listing contract. This was not a file which he prepared on the subject property but was the actual office file prepared on this listing by personnel of De Menzes Realty, Inc. West had placed the file in his briefcase by mistake and did not realize he had it until May, 1985. He subsequently submitted this file to Petitioner on May 30, 1985. The file had been in his sole possession for approximately a year, during which time he had completely forgotten about the listing, and had left the employ of De Menzes Realty.
Recommendation Based upon the foregoing it is recommended that Respondents, Charles De Menzes and De Menzes Realty, Inc., each be reprimanded. DONE and ENTERED this 16th day of October, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 1. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 3. 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 5. 9. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 3 and 4. Rulings on Respondent's Proposed Findings of Fact: Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 2. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6 and 7. Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 8. Rejected as irrelevant. Adopted in Finding of Fact 8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, FL 32801 Harvey R. Klein, Esquire 333 N.W. 3rd Avenue Ocala, FL 32670 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801
The Issue The issue to be resolved in this proceeding concerns whether the claim of International Equities Group, Inc. on behalf of Theodore Andrews, the personal representative of the estate of Shirley Andrews, for abandoned property in the custody of the Respondent, in the amount of $16,515.62, should be granted.
Findings Of Fact On or about December 19, 1991, International Equities Group, Inc. (International) filed a claim on behalf of Theodore Andrews, the personal representative for the estate of Shirley Andrews, for the amount of $16,515.62 in abandoned property. This sum was originally in the form of a bank deposit under account no. 1197-1988-00184, originally deposited in Barnett Bank of Palm Beach County, N.A. (the Bank), which was the original "holder" of the property and account in question. There is no dispute that the property constitutes abandoned property having been in possession of the Bank for the required period of seven years without any activity whatever. Consequently, after the Bank attempted to contact the named owner of the account, Arthur G. Cullen, at the last known address and was unable to make such contact because the address proved to be invalid, the account was treated by the Bank and the Department as abandoned. The bank account in question was a savings account with Arthur G. Cullen listed on the signature card as the owner of the account. After determining that no activity had occurred with regard to the account for a period of at least seven years, the Bank attempted to contact Mr. Cullen at the address it had of record, which was 413 Rider Drive, Boynton Beach, Florida 33425. The Bank learned that that address was apparently invalid and consequently, was unable to make any contact with Mr. Cullen. On July 15, 1991, Mr. Schwartz, representing the personal representative of the estate of Shirley Andrews, with power of attorney, contacted Ms. Pam Klettner of the Bank and explained that the social security number listed on the account in question, 118-34-5232, was the social security number of the late Ms. Shirley Andrews. Mr. Schwartz testified that he explained to Ms. Klettner that that listed social security number belonged to the late Ms. Shirley Andrews, as evidenced by social security records and her death certificate. He explained to Ms. Klettner that the Petitioner was the illegitimate father of at least one of Ms. Shirley Andrews' children. He then inquired of Ms. Klettner as to whom the account would be paid to, Ms. Andrews' estate, as her social security number was a match with the social security number entered on the account, or to Mr. Cullen (if he could be found, as the listed address had proved to be invalid according to the post office). Ms. Klettner responded, according to Mr. Schwartz, that she would seek a ruling for that situation from the Bank's legal department and would inform him as to the proper ownership of the account. Mr. Schwartz was later contacted by personnel of the Bank and informed that the owner of the social security number, in the Bank's view, would be the owner of the account and the funds deposited therein and that once the necessary probate documents were generated, Ms. Klettner would draft a letter to the State of Florida Unclaimed Property Department stating that the proper disbursement of the account would be to the Andrews' estate. As a consequence of this communication, Mr. Schwartz contacted Ms. Pam McMahon in the State of New York to begin probate of the Shirley Andrews' estate, informing her of the decision of the Bank regarding required documentation for payment of the account to Mr. Schwartz and International, on behalf of the personal representative, Theodore Andrews. Letters of Administration were apparently issued by the probate court in New York and the above-named claimant, Mr. Schwartz, submitted the proper forms and documents to the State of Florida Unclaimed Property Section, seeking possession of the funds in question. This was because, in the meantime, the Bank had elected to deem the property abandoned and pay the funds over to the custody of the Department. Mr. Schwartz contacted Ms. Klettner and requested that she draft the required letter to the Department to accompany the claim, as she had offered to do earlier. Ms. Klettner apparently informed Mr. Schwartz that she no longer worked in that department and was unable to keep her earlier commitment in this regard. Thereafter, a decree was entered by the Surrogate Court of the State of New York, County of Niagara, purportedly stating that the funds in question should be released to the estate of Shirley Andrews within ten days. According to Mr. Schwartz, the decree was issued to both the State of Florida and to the Bank. The purported court decree was not acted upon in the required ten days and ultimately, this claim was denied by the Department by its denial letter of November 4, 1992. The death certificate of Ms. Shirley Andrews purportedly contains the above-referenced social security number, which is the same social security number as appears on the bank account which is listed under the name of Arthur Cullen. Apparently, personnel of the Department checked that social security number through the State of Florida drivers license indexing system and the number appeared in that system with the name of Arthur G. Cullen attached. However, a credit check using that social security number through a credit reporting agency record revealed that the number matched the name of Ms. Shirley Andrews and not Arthur G. Cullen. The death certificate of Shirley Andrews has not been submitted into evidence and, according to testimony, apparently is not a certified death certificate, although it is inferred from the totality of the testimony that the death certificate was presented to the Department at some point in the claim process. The purported decree of the probate court for the County of Niagara, State of New York, Surrogates Court, has not been presented in evidence either. According to the evidence of record, Arthur G. Cullen, the purported owner of the account, under the Department's theory that the listed name on the account is tantamount to ownership, has never been located. Even if his whereabouts were known, the evidence shows that both the address on the account and the social security number on the account are not apparently those of Arthur G. Cullen. Other than the testimony of Mr. Schwartz, however, no definitive proof in the form of a certified copy of the death certificate bearing the social security number of Shirley Andrews, so that it could be matched to that appearing on the original bank account record, nor a certified copy of the New York probate court's judgement or decree, which might indicate findings of fact or conclusions of law establishing a basis for payment of the funds over to the estate of Shirley Andrews, has been placed in evidence. Consequently, it is determined that adequate proof by a preponderance of the evidence has not been established so as to justify award of the funds in question to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the claim of International Equities Group, Inc. on behalf of Theodore Andrews, as personal representative of the estate of Shirley Andrews, for the abandoned property in the amount of $16,515.62, with regard to account number 1197-1988-00184, without prejudice to perfection of such claim by submission of appropriate proof and explanation of entitlement to the Department at a later time, subject to any time limits and other requirements contained in Chapter 717, Florida Statutes, and Chapter 3D, Florida Administrative Code. DONE AND ENTERED this 7th day of December, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2591 Respondent's Proposed Findings of Fact Accepted. Accepted in the sense that the non-certified death certificate may have been presented to the Department by way of explanation of entitlement with regard to the claim in question but such death certificate was not presented in evidence to the Hearing Officer. Accepted in the sense that it demonstrates the basis for the Department's initial denial of the claim. Rejected, as it does not state the entirety of the proof presented to the Hearing Officer in this Section 120.57(1), Florida Statutes, proceeding. Accepted to the extent that it constitutes the Department's basis for denial of the claim. Accepted. COPIES FURNISHED: Mr. Stephen Schwartz International Equities Group, Inc. 1532 Camden Avenue Los Angeles, California 90025 Leslie A. Meek, Esquire Assistant General Counsel Office of the Comptroller 401 North West 2nd Avenue, Suite N-708 Miami, Florida 33128 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact Respondent is licensed by the State of Florida as a real estate brokers and holds license No. 0002997. On May 7, 1979, Respondent acted in the capacity of a real estate broker in the transaction of the sale of a parcel of real property located in Polk County, Florida. The purchaser in that transaction was Margaret Rhoden, and the seller was June Davis, who was represented in the transaction by a relative, Henry Goodwin. On May 7, 1979, Margaret Rhoden entered into a Contract for Sale of Rea1 Estate for the purchase of a piece of property Frostproof, Florida, from June Davis. The full purchase price of the property was $3,500, which Ms. Rhoden paid to Respondent in cash on May 7, 1979, and obtained a receipt from Respondent for that amount. At the time the contract was entered into, Ms. Rhoden was advised that a deed should be forthcoming from the seller within two to four weeks. A date of June 20, 1979, was established to close the transaction, subject to a 120-day curative period should any cloud on the title be discovered. The contract between the parties provided that should any such cloud appear of record, the seller would have a period of 120 days after receipt of written notice prior to the date set for closing in which to attempt to cure the defect. The contract further provided that if title defects were not cleared within the l20-day period, the deposit would be returned to the buyer, or, at the buyer's option, the transaction should be closed in the same manner as if no defect had been found. A warranty deed purporting to transfer the property from the seller to the buyer was executed on June 7, 1979, and a title binder was issued on that same date. The title binder indicated an outstanding mortgage on a larger piece of property of which the parcel purchased by Ms. Rhoden was only a part. When efforts to clear this cloud on the title took longer than expected, Ms. Rhoden asked, and was granted, permission by the seller's agent to commence construction on the improvements on the property notwithstanding the fact that she knew that a cloud remained on the title to the lot, and the transaction had not been closed. Construction was not completed on the improvements because Ms. Rhoden ran out of cash during the course of construction. She moved into the dwelling while it was still in a partially completed condition and, on September 8, 1979, with the permission of the seller's agent, received a loan of $3,000 from the $3,500 deposit she had placed with Respondent, Ms. Rhoden executed a promissory note dated September 8, 1979, in which she agreed to repay the $3,000 loan when clear title to the property was issued. Ms. Rhoden used the proceeds of this loan to make additional improvements on the property. On October 26, 1979, Respondent received both the warranty deed dated June 7, 1979, and the title binder issued on that date from the attorney for the seller. When approached by Ms. Rhoden, Respondent agreed to lend her the deed and title binder to attempt to obtain additional financing to complete construction on her home. The clear inference from the record in this proceeding is that there was never any understanding between Respondent and Ms. Rhoden that this deed could be recorded at this or any other juncture in this transaction. In fact, the contract entered into between the buyer and seller clearly called for the payment of the full purchase price of the property at closing, and the note subsequently executed by Ms. Rhoden conditioned the issuance of a warranty deed to her on the payment of the $3,000 face value of the note. Ms. Rhoden was unsuccessful in obtaining additional financing to complete construction on her home, probably due to the fact that when she sought that financing the outstanding mortgage on the property had still not been satisfied. When Respondent advised the seller's attorney that he had loaned the warranty deed to Ms. Rhoden for the purposes outlined above, he was advised that there was nothing to keep Ms. Rhoden from recording the deed, at which point Respondent apparently determined that it would be prudent for him to retrieve the deed from Ms. Rhoden's possession. Ms. Rhoden had her mother return the deed to Respondent in February of 1980. According to the testimony of both Ms. Rhoden and her mother, they felt the purpose for the returning of the deed was to have it recorded. Respondent denies any such understanding. In resolving this conflict in testimony, the clear inference from the circumstances involved in this transaction, including the wording of the contract of sale and the note executed by Ms. Rhoden, supports a finding that all of the parties to this transaction either knew, or should have known, that the recording of the deed at this juncture in the transaction would have been improper. Although the outstanding mortgage had been satisfied in January of 1980, Ms. Rhoden had not Performed her obligation under the contract of sale by paying the full purchase price. When Respondent had recovered the deed from Ms. Rhoden, he was advised by the attorney for the seller not to record the deed until he had received payment from Ms. Rhoden in accordance with the contract and the promissory note. As indicated above, the outstanding mortgage on the property was satisfied in January of 1980. On February 6, 1980, Respondent Prepared a closing statement reflecting the purchase price of the property as $3,500. From this amount he deducted a total of $478 for state documentary stamps, title insurance, Preparing the deed, and amount of real estate commission leaving a the apparently forwarded the note from Ms. Rhoden for $3,000, together with the $22.00 cash balance remaining from her initial $3,500 deposit to the seller along with the deed which the seller had earlier executed. Ms. Rhoden apparently never made or tendered payment of the $3,000 note, the transaction never closed, and at the time of final hearing in this cause an eviction action was apparently pending between the seller and Ms. Rhoden. Paragraph seven of the contract of sale executed between the seller and Ms. Rhoden Provides as follows: If Buyer fails to perform this contract, the deposit this day paid by Buyer as aforesaid shall be retained by or for the account of Seller as consideration for the execution of this agreement and in full settlement of any claims for damages.
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
The Issue Whether Margaret Ann Reese is guilty of, and should be disciplined for committing, fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, or breach of trust in a business transaction?
Findings Of Fact At all times relevant to this proceeding, Margaret Ann Reese was licensed by the State of Florida pursuant to Chapter 475, Florida Statutes. She holds license number 0454079. At all times relevant to this proceeding, Ms. Reese was licensed as a real estate salesman, c/o Ellison Realty, Inc., 2226 E. Silver Springs Boulevard, Ocala, Florida 32671. During 1986, Ms. Reese showed certain real property and a mobile home (hereinafter referred to as the "Property"), which was owned by Frederick W. and Mary Holm to Mary Kennedy and John J. Korsun, Sr., her father. The Property is located in Oxford, Sumter County, Florida. The Property was listed by Nehimiah Clark David, another real estate salesman with Ellison Realty, Inc. Ms. Kennedy and Mr. Korsun inspected the Property several times. Water damage to the ceilings of the mobile home was noticed during the inspections. Ms. Kennedy and Mr. Korsun expressed concern about the condition of the roof of the mobile home. The roof was, therefore, repaired by the owners. On November 5, 1986, Ms. Reese obtained a Contract of Sale, wherein Ms. Kennedy and Mr. Korsun offered to purchase the Property. Because of their concern about the condition of the roof, Ms. Reese added the following under paragraph X, "Special Clauses," in the Contract of Sale: "Seller warrants roof for 1 year." The Contract of Sale was mailed to Mr. and Mrs. Holm in Punta Gorda, Charlotte County, Florida. Mr. and Mrs. Holm struck the language included by Ms. Kennedy and Mr. Korsun in the Contract of Sale concerning the one year warranty of the roof and added "sold as is" in paragraph X, "Special Clauses." Mr. and Mrs. Holm then executed the Contract of Sale, as modified, and mailed it to Ellison Realty, Inc. Ms. Reese, after receiving the Contract of Sale from Mr. and Mrs. Holm, informed Ms. Kennedy and Mr. Korsun that their offer had been accepted. Ms. Reese did not inform Ms. Kennedy or Mr. Korsun that the sellers had modified the Contract of Sale by deleting the one year warranty of the roof and adding the language that the sale was "as is." Ms. Reese failed to provide a copy of the Contract of Sale signed by the Holms or have Ms. Kennedy and Mr. Korsun initial the modifications made by the Holms. A copy of the Contract of Sale, as modified by the Holms, was not provided to Ms. Kennedy until February or March, 1987. The sale of the Property was closed on December 5, 1986. Closing took place at the offices of Advanced Title Searching, Inc., and was conducted by the President of Advanced Title, Robert M. Connell. At the closing Ms. Kennedy and Mr. Korsun decided that the Property would be sold only to Ms. Kennedy. Ms. Kennedy was not specifically informed during the closing that the language concerning the one year warranty of the roof had be stricken and that the language "sold as is" had been added. She was told, however, that the Property was being sold "as is" by Mr. Connell. Mr. Connell also followed his routine of reviewing paragraph X of the Contract of Sale with Ms. Kennedy and having her initial and sign a Buyers Affidavit. Among other things, Ms. Kennedy acknowledged by signing the Buyers Affidavit that she had reviewed paragraph X of the Contract of Sale. The Buyers Affidavit also refers to the only special clauses in paragraph X of the Contract of Sale as executed by Mr. and Mrs. Holm Although the terms of the sale were generally described by Mr. Connell and Ms. Kennedy signed the Buyers Affidavit, Ms. Kennedy was not shown the Contract of Sale as executed by Mr. and Mrs. Holm, she was not specifically told about the removal of the special clause concerning the one year warranty on the roof or that the roof was "as is," and she did not understand what she was signing. In approximately February, 1987, following Ms. Kennedy's purchase of the Property, the roof of the mobile home began leaking water during a rain storm. Ms. Kennedy called Ms. Reese to report the damage. Ms. Reese then informed Ms. Kennedy for the first time that the language concerning the one year warranty of the roof had been stricken and that the language "sold as is" had been added to the Contract of Sale. Ms. Reese offered to pay the cost of repairing the roof. Ms. Kennedy declined this offer because she wanted the roof replaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Margaret Ann Reese by found guilty of violating Section 475.25(1)(b), Florida Statutes. It is further RECOMMENDED that Ms. Reese be reprimanded and required to pay a fine of $500.00. DONE and ENTERED this 14th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 14th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1294 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3-6. 4 7. 5 8. A copy of the contract was provided in 1987, not 1988. 6 9-10. 7 See 10-11. 8 10. The last two lines of this proposed finding of fact are not supported by the weight of the evidence. 9 12. 10 Not supported by the weight of the evidence. 11 13. 12-13 Hereby accepted. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3-6. 4 7. 5 Not supported by the weight of the evidence. Mr. David's testimony was contradicted by Ms. Reese's admissions to the Petitioner's investigator. 6 8. 7 10. See 11. 8 See 10-11. 9 12. 10 Not supported by the weight of the evidence. 11 13. 12-13 Hereby accepted. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 3280 Steven W. Johnson Senior Attorney Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Frederick D. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
