The Issue The issue is whether respondent's license as a real estate broker should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Robert Lee Fountain, Jr. (Fountain), is a licensed real estate broker having been issued license number 0214081 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). When the events herein occurred, Fountain's license was in limbo with a home address of 2124 Shady Oaks Drive, Tallahassee, Florida. At one time, respondent also held a license as a certified building contractor issued by the Construction Industry Licensing Board (Board). Certified copies of documents received in evidence establish that on February 14, 1989, the Board issued an administrative complaint charging respondent with various violations of Chapter 489, Florida Statutes (1987), in conjunction with a construction job undertaken by respondent in Leon County, Florida. After an evidentiary hearing was conducted and a Recommended Order entered, the Board issued a Final Order on April 24, 1991, revoking respondent's license for gross negligence, incompetence and misconduct in the practice of contracting and imposing upon him an administrative fine in the amount of $10,750.00. The order also dismissed charges of fraud and deceit. That order is now final and although respondent disputes the findings in the order which resulted in his license being revoked, he does not deny that the order was rendered and the above action being taken by the Board. The record (transcript and exhibits) which underpins the Board's final order was not entered into evidence in this proceeding. Further, there is no evidence of record that respondent intentionally violated any statute or rule governing the use of either his contractor or real estate licenses.
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 all charges against respondent. RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 24th day of June, 1992.
The Issue The issue is whether Petitioner's application for a real estate license should be denied for the reasons stated in Respondent's Notice of Intent to Deny, dated November 2, 2018.
Findings Of Fact The Commission is the state agency charged with licensing real estate brokers and sales associates in Florida. See § 475.161, Fla. Stat. On August 17, 2018, Petitioner filed with the Commission an application for a Real Estate Broker License – Out of State Experience. According to his PRO, however, he is applying for a "real estate associate license." In conjunction with the application, a lengthy and somewhat confusing record of Petitioner's administrative and criminal history in New York and Minnesota between 1995 and 2018 has been compiled and is found in Commission Exhibit 11, consisting of approximately 300 pages. Besides holding an active Colorado real estate license, he also has a mortgage originator's license issued by the State of Minnesota in 2018. The application required Petitioner to provide answers to four background questions. In response to question 1, which asks the applicant if he has ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or is currently under criminal investigation, Petitioner answered yes. In his explanation to the question, Petitioner listed four arrests, discussed below, all occurring in the State of Minnesota. Although the Notice of Intent to Deny alleges that he was convicted of a felony, the Commission now concedes that all convictions are for misdemeanors. First, on July 1, 1997, Petitioner, then 22 years old, was arrested for one felony count of criminal sexual conduct in the first degree and two felony counts of criminal sexual conduct in the third degree. In May 1998, he pled guilty to fifth degree sexual conduct, a gross misdemeanor, and was fined $900.00, sentenced to nine days in jail, placed on two years' probation, ordered to undergo sex offender treatment, and required to register as a sex offender for ten years in New York (where he had relocated temporarily) and Minnesota. Petitioner completed all conditions required by the court. In his application, Petitioner explained that the arrest and conviction were the result of "interactions with an underaged woman [a 15-year-old babysitter for his fiancee's child] that lied about her age." At hearing, he testified that he pled guilty to the misdemeanor charge because he did not have sufficient funds to continue to fight the original felony charges, and he "did not want to take the chances with the jury," even though the prosecutor admitted to the court the defendant's attorney "can kill our guys on cross-examination." He decided to "take the misdemeanor and get on with [his] life." Petitioner acknowledges that he pled guilty to a sexual offense, but it is fair to find that he wants the Commission to accept his version of events - that the girl fabricated the entire incident. Second, on July 10, 1997, Petitioner was arrested for disorderly conduct, a misdemeanor, after an "[a]rgument with girlfriend and her brother." He was found guilty of the charge and paid a $150.00 fine. Third, in October 2008, while in a divorce proceeding with his then wife, Petitioner was charged with violation of an Order for Protection for "exchanging messages with my wife on childcare/exchange matters which were allowed according to the original order. She called in and filed a complaint." The application states that the charge was later dismissed. The Commission does not dispute this representation. Finally, in November 2008, Petitioner was arrested for gross misdemeanor domestic assault against his then wife. Petitioner explained that this incident occurred after an "argument with wife (she was heavily intoxicated) that escalated." He later pled guilty to disorderly conduct, paid a $300.00 fine, and was given one year of unsupervised probation. He successfully completed all conditions imposed by the court. Question 1 requires that an applicant also report traffic offenses other than parking, speeding, inspection, or traffic signals. The Commission's PRO points out that Petitioner failed to disclose that in 1995, while a resident of the State of New York, he pled guilty to operating a motor vehicle (motorcycle) while impaired by drugs (marijuana). At hearing, Petitioner testified that he forgot about the traffic violation, as it occurred 24 years ago when he was only 20 years old. Even though the Notice of Intent to Deny does not allege that Petitioner failed to disclose his complete criminal record, the issue was tried by consent at hearing. However, Petitioner's omission of this minor item should have no bearing on whether to approve or deny the application. Question 4 asks the applicant to disclose whether he ever has had a license to practice any regulated profession revoked, annulled, suspended, relinquished, or otherwise disciplined in any jurisdiction. Petitioner answered yes. In explaining his answer to question 4, Petitioner stated that his Minnesota real estate broker license was revoked by the Department of Commerce in May 2018 for (a) failure to self-report a 2008 bankruptcy; (b) the denial in 2009 of his application for a residential general contractor's license; and a 2012 felony charge (domestic assault by strangulation of his ex-wife), which was dismissed later. The application added that due to the revocation of the Minnesota license, his Colorado realtor license "is currently in review." At hearing, however, Petitioner testified that Colorado is not taking any action on that license. The revocation order provided in part that Petitioner obtained his license by fraud and misrepresentation, he had a complete disregard for the law, and he could not be trusted to make material disclosures and otherwise comply with licensing requirements. See Comm. Ex. 11, p. 208. Obtaining a license by fraud and/or misrepresentation, and not being trusted to make material disclosures and comply with licensing requirements, are grounds for revoking or suspending a license in the state of Florida had Petitioner then been registered. At hearing, Petitioner testified that he actually had disclosed the bankruptcy and administrative action to the state when he submitted an application to transfer a brokerage license in 2009. Evidently, this contention was not accepted by the Department of Commerce. Petitioner says he "attempted" to appeal the revocation order, but the appeal was denied. In its PRO, the Commission alleges that Petitioner failed to disclose an enforcement action instituted by the Minnesota Department of Labor and Industry (MDLI) in 2009, which resulted in him voluntarily consenting to the revocation of a residential building contractor license held by Vanquish Custom Homes, LLC, a company he controlled. Although this omission is not cited in the Notice of Intent to Deny, the issue was raised at hearing without objection by Petitioner. Petitioner's response to background question 3 acknowledges that his application for a "residential general contractor's license" was denied in 2009. Also, in a letter attached to the application, Petitioner made reference to that action, although in a somewhat confusing and incomplete manner. See Comm. Ex. 11, p. 187. The letter fails to disclose that the proceeding arose in the context of an enforcement action by MDLI, which alleged, among other things, that Petitioner was untrustworthy, incompetent, and unqualified to act as a licensee's qualifying owner. The letter and application also fail to disclose that MDLI issued a consent order revoking the license, imposing a $5,000.00 suspended civil fine, and ordering him to cease and desist from acting as a residential building contractor. Had Petitioner been registered in the state of Florida, these actions would have been grounds to suspend or revoke the license. At hearing, Petitioner explained that the license lapsed around 2007, he reapplied for licensure in 2008, but he withdrew the application after MDLI issued an intent to deny. He says he took this action because he "didn't need the contractor license, and it just wasn't worth spending the money to fight it." By consent of the parties, Petitioner acknowledged that he failed to disclose a consent order issued by MDLI in 2013, which determined that Vanquish Services Group, LLC, another company controlled by Mr. Shields, had violated the 2009 consent order. Petitioner was ordered to cease and desist from any further residential building contractor violations and to pay a $5,000.00 civil penalty, of which $4,500.00 was stayed. At hearing, Petitioner testified that in an effort to procure clients, his company incorrectly advertised four trades on Angie's List, when the company was allowed no more than three trades to be advertised. He admits this was a "mistake." Two character witnesses, Mr. Hartos and Ms. Anderson, both currently licensed as realtors in Minnesota, testified on behalf of Petitioner. Both testified that they are aware of his prior administrative and criminal history. Mr. Hartos is a long- time licensed broker, who has served on the Minnesota Association of Realtors Board of Professional Standards for more than 25 years, and was Petitioner's broker and "boss" for the last five years. The other is a former employee. Based on their work experience with Petitioner, they found him to be ethical, truthful, honest, and trustworthy, and not a danger to the public. Forty-three letters of recommendation, including those submitted by the two character witnesses, all hearsay in nature, corroborate this conclusion.
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 denying Petitioner's application for a license as a real estate broker or sales associate. DONE AND ENTERED this 15th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 15th day of July, 2019.
Findings Of Fact At all pertinent times, respondent Bobbie G. Scheffer, who holds license No. 0073955, was a real estate broker for Rivard Realty, Inc. in Fort Walton Beach, Florida; and Ralph S. Ecoff was a licensed real estate salesman, employed by Rivard Realty, Inc. He holds license No. 0454969. In the spring of 1988, another salesman in the employ of Rivard Realty, Inc., Wayne Thompson, obtained the listing for the three-bedroom, one-story house at 28 East Casa Loma Drive in Mary Esther, Florida, from its then corporate owner, Roman Acts, Inc. He received information about the property from a representative of the corporation. Without verifying the information, Mr. Thompson entered it into a computer. Misled by the owner's representative, he reported the house's age as eight years. Respondent's Exhibit No. 7. In fact, the house had been built in 1974. Petitioner's Exhibit No. 4. A public water supply serves the house, but a septic tank, not a public sewer, receives wastewater from the house. Aware of these matters, Mr. Thompson, when confronted with a blank on a form labelled "WATR/SEW", filled in "Pub. Wat." Respondent's Exhibit No. 7. No more than another letter or two could have been squeezed into the blank on the form displayed on a computer video terminal. Respondent Ralph S. Ecoff saw the house in the course of showing it to prospective buyers, and decided to buy it himself. After a representative of Roman Acts, Inc. accepted his offer (but before the closing), Mr. Ecoff and a partner set about refurbishing the house. Mr. Ecoff, a septuagenarian who bought the house with the intention of reselling it, finds computers intimidating. Still another real estate salesman in the employ of Rivard Realty, Inc., Steve Kehran, volunteered to enter a revised listing in the multiple listing service computer, to let it be known that the property was again for sale. As instructed by Mr. Ecoff, Mr. Kehran raised the price and "changed the blurbage" (to read "EVERYTHING NEW AGAIN. COMPARES WITH NEW HOME. LOW INTEREST RATE," etc.) Petitioner's Exhibit No. 11. In keeping with Mr. Ecoff's instructions, Kehran relied on the superseded listing for other information about the house. That is why the age of the house was again inaccurately reported as eight years. Extrapolating innocently but inaccurately from the earlier listing's "Pub. Wat.," Mr. Kehran assumed public sewers accompanied the public water supply and filled in the "WATER/SEW" blank with the abbreviation "Comm Sew." Petitioner's Exhibit No. 11. Mr. Ecoff had read the listing from which Mr. Kehran took the information but, he testified, he did not read it carefully. Whether he read over what Mr. Kehran wrote at any time before the Stacys complained of the inaccuracies is not clear. Mr. Ecoff has said all along that he was aware the property had a septic tank. He testified to this effect at hearing and also testified that he was aware the house was more than eight years old when the Stacys agreed to buy it. If he had read the listing Mr. Kehran entered in the computer for him with proper care and due regard for the importance of its accuracy, he would have discovered the misinformation it contained. Although Mr. Stacy had physical possession of a multiple listing sheet bearing the information Mr. Kehran introduced into the computer data bank at Mr. Ecoff's behest, while he and his wife drove around with Ms. Scheffer, looking at houses, and may well have read it at that time, the evidence did not show that either Ms. Scheffer or Mr. Ecoff reiterated the information verbally. (It was not clear whether Mr. Stacy retained the sheet Ms. Scheffer furnished him after seeing the house.) Engaged by a mortgage company, an appraiser who was familiar with the neighborhood reported the true age of the house, but put its "effective age" at ten years, after two visits to the property. The appraiser's report, which recited inaccurately, as the listing had, that a public sewer served the property, was furnished to the mortgage company that financed the Stacys' purchase. Once the report reached the mortgage company, it was available to the Stacys, although they did not in fact see it, as far as the evidence showed, before the closing, which took place on August 24, 1988. On or before January 1, 1991, Mr. and Mrs. Stacy will be required to cause pipe to be installed to connect the house to a public sewer main, itself yet to be laid. Mr. Stacy has been told the hook-up will cost $1,600.00 over and above the $600.00 it will cost to install the connector. Even so, the evidence did not establish that the house's dependence on a septic tank affected its market value in 1988. The evidence also failed to show that the house's age materially affected its value. Ms. Scheffer encourages salespersons in her employ to take advantage of courses the local Board of Realtors offers, and scheduled Mr. Ecoff for every such course available. She has not personally instructed salespeople to verify information sellers give them by independent inspection. Perhaps because the practice of relying on sellers' representations is widespread, the multiple listing sheets all bear the disclaimer, "INFORMATION DEEMED RELIABLE, BUT NOT GUARANTEED." The evidence did not show how carefully Ms. Scheffer read the inaccurate listing that salesmen in her employ generated, or that she would have been or should have been aware of the inaccuracies, however carefully she had examined the listing. Although Mr. Ecoff said he knew there was a septic tank on the property because the grass was so green in part of the backyard, Mr. Stacy testified that the septic tank is buried in front of the house. It was not proven that even an experienced real estate broker like Ms. Scheffer should necessarily infer an actual age of more than eight from an effective age of ten years. In short, the evidence did not clearly and convincingly demonstrate that respondent Scheffer actually knew or had reason to know the listing was inaccurate.
Recommendation It is, in accordance with Rule 21V-18.008, Florida Administrative Code, recommended: That petitioner suspend respondent Ecoff's license for thirty (30) days. That petitioner dismiss the administrative complaint, insofar as it alleges that respondent Scheffer violated Section 475.25(1)(b), Florida Statutes (1989). RECOMMENDED this 20th day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of December, 1990.
The Issue Whether Respondent's Florida real estate license should be revoked or otherwise disciplined for violations of Sections 475.25(1)(b), 475.25(1)(e), and 475.25(1)(k), Florida Statutes.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to enforce the provisions of Chapter 475, Florida Statutes, and the rules promulgated pursuant thereto. At all material times, Respondent, Lee Scott Marose, was a licensed real estate salesperson in the State of Florida, having been issued license No. 0584225, pursuant to Chapter 475, Florida Statutes. From December 10, 1993 to June 6, 1994, Respondent was employed as a real estate salesperson with Tam-Bay Realty, Inc., in Hillsborough County, Florida. On or about February 1, 1994, Respondent solicited and obtained a residential lease between Richard Akers, Sr. (Owner), and R. Dugan Fry (Tenant) for property located at 1731 Staysail Drive, Valrico, Florida. The lease provided for rental payments of $850.00 per month. On or about May 1, 1994, in accordance with the lease, the Tenant sent Respondent a check in the amount of $850.00 payable to Tam-Bay Realty. Respondent did not deliver the May 1, 1994 check to Tam-Bay Realty, but instead caused the Tenant to issue another check dated May 9, 1994, in the amount of $850.00 payable to Respondent. Respondent received the May 9, 1994 check, cashed the check, and diverted the funds to his own use. Due to Respondent's actions, Tam-Bay Realty refunded the money to the Owner, and dismissed Respondent from its employment. During the investigation of this matter by Petitioner, Respondent admitted to Petitioner's investigator the conversion of the rental check, but explained that his actions were an attempt to shorten the "turn-around" time on the rental check, and that he had been unable to replace the funds because money had been stolen from his personal checking account.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found in violation of the above-cited statutory provisions, and that Respondent's Florida real estate license be revoked. RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of September, 1995. RICHARD HIXSON 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 8th day of September, 1995. APPENDIX As to Petitioner's proposed findings: 1.-9. Accepted and incorporated. COPIES FURNISHED: Steven W. Johnson,, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lee Scott Marose 18950 U.S. Highway 144, #133 Mount Dora, Florida 32757 Darlene F. Keller, Division Director 400 West Robinson Street 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 The issue in this case is whether disciplinary action should be taken against Respondent's real estate salesperson license based upon the alleged violation of Section 475.25(1)(m), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a licensed real estate salesperson in the State of Florida having been issued license number 0606079 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as a salesperson, c/o Century 21 Action Realty, Inc., 8904 Taft Street, Hollywood, Florida 33024-4649. Respondent obtained his Florida real estate license on or about December 11, 1993. Respondent's application for licensure as a real estate salesperson (the "Application") was filed with Petitioner on or about October 14, 1993. Question 9 of the Application asked Respondent if he had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld. Respondent answered that question in the negative. The evidence established that Respondent's answer to Question 9 on the Application was not accurate. On April 1, 1985, Respondent pled nolo contendere to a charge of possession of cocaine. Adjudication of guilt was withheld and Respondent was given a suspended sentence. At the time of Respondent's plea agreement, he was 20 years old. The circumstances surrounding his arrest, arraignment and plea indicate that Respondent did not fully understand the legal technicalities of what was taking place. Respondent entered the plea on the same day that he was arraigned and a public defender was appointed to represent him in connection with charges arising from an arrest that occurred on January 26, 1985. Respondent's arrest on January 26, 1985 took place outside a bar in Fort Lauderdale. Respondent had gone to the bar to meet some friends. While he was waiting for his friends, Respondent met an individual, S.T., with whom he was not previously acquainted. Respondent and S.T. began a conversation and talked about the possibility of going to another bar. Respondent and S.T. went to the parking lot and were sitting in S.T.'s car discussing where to go next. A police officer approached the car and observed S.T. holding a small plastic straw. According to the police report, when the police officer reached the car and asked for identification, S.T. handed the straw to Respondent and exited the car. The police officer then asked Respondent to exit the car. As Respondent was getting out of the car, the police officer saw Respondent drop the straw. The police officer picked up the straw and noticed a white powdery substance which he thought to be cocaine. He arrested Respondent and S.T. and, upon, subsequent search of the car, found a small bag containing cocaine. The amount of cocaine found is not clear from the evidence presented in this case. Because of his shock and surprise when he was arrested and the subsequent passage of time, Respondent does not remember all of the details surrounding his arrest. In particular, he does not remember S.T. handing him the straw and/or dropping it upon leaving the car. Respondent claims that he did not know that there was cocaine in the car and there is no evidence directly tying him to the cocaine. As indicated above, the case was resolved at Respondent's arraignment on April 1, 1985. Respondent does not recall all of the discussions that took place, but it was his understanding that he had not been convicted of a crime. Respondent did not understand the legal significance of the term "withheld adjudication". He was told that he was "free to go". No probation or further conditions were imposed upon him. Consequently, Respondent did not move to have the records of his criminal case sealed or expunged, even though he could have sought such an order from the court. When he was filling out the Application, Respondent believed that since no penalties had been imposed and he had not been convicted of a crime he could truthfully answer no to Question 9 on the Application. While the evidence established that Respondent did not intentionally lie on the Application, it does not appear that he took any steps to verify the accuracy of his belief before submitting the Application. Respondent first learned that there was some question regarding his criminal record when he was contacted by an investigator for Petitioner. Respondent immediately notified his supervisor at Century 21 Action Realty, where he was employed. Respondent's supervisor testified at the hearing in support of Respondent and stated that she found him to be trustworthy, honest, loyal and dependable. She indicated that she would not hesitate to hire Respondent again even after learning of his brush with the criminal justice system.
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 finding the Respondent not guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint. DONE AND RECOMMENDED this 12th day of July, 1995, in Tallahassee, Leon County, 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 12th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6150 Rulings on the proposed findings of fact submitted by the Petitioner: Adopted in pertinent part in findings of fact 1. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 4. Adopted in substance in findings of fact 15. Rulings on the proposed findings of fact submitted by the Respondent: Rejected as unnecessary. Adopted in pertinent part in findings of fact 1. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 4. 8. Rejected as unnecessary. 9. Adopted in substance in findings of fact 11. 10. Adopted in substance in findings of fact 7. 11. Adopted in substance in findings of fact 7 and 8. 12. Adopted in substance in findings of fact 9. 13. Adopted in substance in findings of fact 9. 14. Adopted in substance in findings of fact 10. 15. Adopted in substance in findings of fact 10. 16. Adopted in substance in findings of fact 13. 17. Adopted in substance in findings of fact 12. 18. Adopted in substance in findings of fact 11. 19. Adopted in substance in findings of fact 5. 20. Adopted in substance in findings of fact 6. 21. Adopted in substance in findings of fact 14. Subordinate to findings of fact 14. Subordinate to findings of fact 15. Subordinate to findings of fact 16. Rejected as unnecessary. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 17. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, FL 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Theodore R. Gay Senior Attorney Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, FL 33128 Harold M. Braxton, Esq. Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, FL 33156-7815
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE 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 on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, David J. Zachem, is now, and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0194936. The last license issued was as a broker c/o Sunstate Tax Consultants, Inc., 220 East Madison Street #512, Tampa, Florida, Respondent, during times material, was licensed as a broker/salesperson with Gary Levone Hall, t/a Gary L. Hall & Associates, 243 Timberland Avenue, Longwood, Florida. On or about July 24, 1991, the Resolution Management Associates, Inc. of Atlanta, Georgia, engaged Henry Mazas, the principal of H.R. Mazas & Associates, an accounting firm to perform an appraisal of real property located in Seminole, Florida (called Seminole Landing) which was owned or controlled by the Federal Resolution Trust Corporation, the federally affiliated agency which is selling off failed savings and loan associations financed or mortgaged properties. While Respondent was licensed as a broker/salesperson with Hall, Mazas engaged Respondent to assist in the appraisal of the Seminole Landing property. Respondent assisted Mazas by doing what is commonly referred to in the trade as the "leg work" such as visually inspecting the property, reviewing public records, compiling comparables and other raw data which was utilized by Mazas in completing his appraisal. Respondent signed on the appraisal letter evidencing his assistance as a consultant who assisted Mazas in completing his appraisal. C.W. Marlow, contracts manager of Resolution Management Associates, received a bill from Mazas for the appraisal service in the amount of $4,830.00, which amount was paid to Mazas on or about October 29, 1991. Mazas deposited the check into his account and thereafter paid Respondent $2,321.11 via a check dated November 5, 1991. On November 8, 1991, Respondent and his wife, Patricia Zachem, endorsed the check for payment. At the time that Respondent assisted Mazas in compiling the raw data to complete his appraisal, Mazas was unaware of Respondent's affiliation with Gary Hall. Respondent signed off on the appraisal to fully disclose to everyone concerned that he consulted with Mazas in compiling the raw data for the appraisal. Gary L. Hall, is a licensed real estate broker since approximately 1982. Hall has known Respondent since 1988. They are friends who assist and consult with each other primarily about political activities. Respondent placed his license with Hall as a matter of convenience and was never active in either buying, leasing or selling real property to the public. Respondent and Hall had no agreement respecting the splitting of fees that Respondent would earn for commissions that he received. According to Hall, Respondent "would have been able to keep the entire commissions that he receive for any work that he performed." Hall knew that Respondent was active in preparing appraisals when he became affiliated with his agency. Respondent is the holder of a real estate salesman's license since 1978 and a broker since 1979. Respondent while licensed as a broker, joined the Pinellas County Property Appraiser's Office. Respondent has been employed in two county property appraiser's offices (Broward and Pinellas counties). Respondent was a senior deputy in Broward County with his employment commencing sometime in 1981. He was so employed until January 1989 when he was employed by Pinellas County. In Pinellas County, Respondent was the chief deputy and the chief appraiser. Since 1980, Respondent has principally been a "mass appraiser" while working in Broward and Pinellas counties. Respondent is the qualifier for Sunstate Tax Consultants, which he is the president. Respondent is a Certified Florida Evaluator (CFE). To be qualified as a CFE, one must have worked in a property appraiser's office in the mass appraisal element for a period in excess of two years and have successfully passed four appraisal courses which are designated courses. Specifically, these courses are income to evaluation, the mechanical application of appraisals, appraisal assessment jurisdiction and vacant land. After successfully completing these courses, the property appraiser for whom the applicant is employed writes a letter of recommendation to the certification committee of the Department of Revenue. That committee reviews the applicant's qualifications and either grant or deny the CFE certificate. Respondent primarily placed his real estate license with Hall such that he could qualify as an expert in the numerous petitions filed with the Value Adjustment Board where the evaluation of properties are subject to litigation. Those appraisers who have an active broker license is an indication that they are fully qualified in the appraisal and real estate business. Respondent, as stated, never engaged in the typical brokerage business of buying, selling, leasing or renting property to the public. Specifically, Respondent's understanding with Hall was that if he engaged in any business that was governed by Petitioner, Hall would be notified. Respondent was never engaged to conduct an appraisal or to act as an appraiser for Mazas or the Resolution Management Associates. Respondent would have so advised Hall had he been involved in such a relationship or any activity that was governed by Chapter 475, Florida Statutes. Eugene Davidson, an ad valorem tax consultant. was tendered and received as an expert appraiser. Davidson was one of three founders that founded the National Society of Fee Appraisers more than 35 years ago. Davidson holds a senior designation as an ASA member. Davidson is a member of the Institute of Real Estate Management and hold the designation as a certified property manager (CPM). Davidson is certified with Florida as a general real estate appraiser. Davidson was a professor at the University of Miami, the University of Florida and in the Bahamas (Nassau and Freeport). Davidson knows Respondent as a person on high morals and integrity and who is knowledgeable in real e stte and appraisinng. Davidson has known Respondent more than twelve years. An appraisal is the act or process of estimating value, or an opinion of value. Consulting is the act or process of providing information, analysis of real estate data and recommendations or conclusions on diversified problems in real estate other than estimating value. Respondent's engagement, to compile raw data, was as a consultant. He was not engaged, nor did he offer an opinion of value or an estimate of value. It is normal industry practice for consultants to sign appraisals when they provide or otherwise furnish significant information to the appraiser and, in doing so, complies with standard 2-3 of Chapter 475, Part II. See Sections 475.611 and 475.624, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing Counts I-IV of the Administrative Complaint filed herein. 1/ DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of March, 1993.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the state government licensing and regulatory agency charged with the responsibility to prosecute Administrative Complaints alleging misconduct by practitioners of the real estate profession in this state. The Florida Real Estate Commission is the state agency responsible for licensing real estate sales persons and brokers in Florida and for regulating the real estate profession in this state. By Administrative complaint dated May 1, 1992, Respondent and Nicholas G. Patsios were charged with various violations of Section 475.25(1), Florida Statute. At the time, Respondent was a licensed real estate salesperson at Gulf Beaches Realty, Inc. (Gulf Beaches) in Holmes Beach. Gulf Beaches was licensed as a real estate broker for which Mr. Patsios was the qualifying broker. However, Respondent was actually the owner of Gulf Beaches and registered as an officer of the corporation. On January 16, 1992, an investigator for the Department had attempted to audit Gulf Beaches' escrow account but could not do so because the records were not in order. This was the impetus for the investigation into the operation which resulted in the filing of the Administrative Complaint. Respondent actually operated the brokerage, and in the Administrative Complaint was alleged to have been registered as an officer of a brokerage corporation while licensed as a salesperson. She was also charged with having operated as a broker while licensed as a salesperson. By Final Order dated August 18, 1992, the Florida Real Estate Commission found Respondent guilty of the alleged misconduct, fined her $100.00, reprimanded her and placed her on probation for one year conditioned, inter alia, upon her not violating any other provisions of Chapter 475. On May 21, 1993, the Department again charged Respondent with violations of Chapter 475, alleging that she: (1) continued to operate as a broker while licensed as a salesperson; (2) operated as a broker without holding a valid broker's license and (3) violated an order of the Commission. Though the matter was referred to the Division of Administrative Hearings, Respondent failed to respond to the Administrative Complaint, and pursuant to a motion to relinquish jurisdiction, the matter was returned to the Commission. Thereafter, by Final Order dated November 7, 1993, the Commission revoked Respondent's license as a salesperson. In the interim between that action and the filing of the instant Administrative Complaint, Peggy Jean Lasser, a licensed broker, became the qualifying broker for Gulf Beaches. She allowed Respondent, the owner of the brokerage, to control its operations, including interfacing with clients. When the Commission initiated action against Ms. Lasser for that infraction, she did not dispute the allegations, and as a result, by Final Order of the Commission dated August 15, 1995, her license was suspended for two years. Ms. Lasser immediately ceased operating as the broker for Gulf Beaches. To the best of her knowledge, however, Gulf Beaches is still operating as a real estate office without a broker, and Respondent is still operating as a salesperson without a broker. On July 29, 1996, George Sinden, an investigator for the Department, went to Gulf Beaches' office accompanied by another investigator. He found the door to the office open and Respondent seated at a desk beside the door. She was alone in the office. There were office machines present and it appeared to Sinden that the office was operating as a real estate office. During his visit, Mr. Sinden could find no one with a valid license as a broker or salesperson. Respondent indicated she was trying to find a broker to qualify the company. She admitted she was currently operating a real estate business. Respondent also indicated she had four rentals which she was managing and for which she was depositing funds into a trust account for the owners. She also claimed to have an escrow account with over $2,000 in it. Sinden found that Respondent was not complying with the Commission's monthly reconciliation requirements and he could not determine to whom the funds in the escrow account belonged. Respondent claims this money was deposit money placed by a prospective purchaser in a sale between two parties, both of whom trusted her to hold the funds. She claims she was to receive a 5 percent fee. Records of Secretary of State's office showed Ms. Lasser as the only officer of Gulf Beaches. However, she no longer holds a valid broker's license. Respondent indicated she was the sole owner of Gulf Beaches. She claimed when Sinden interviewed her and at the hearing, where she again admitted the matters set forth above and in the Complaint, that she has not take in any new business since Ms. Lasser left. Respondent admits that she has attempted to divest herself of her clients but claims that because the Complaints filed against her by the Department have damaged her reputation, no broker will work with her or her business since the action in 1992. Respondent either cannot or will not accept the fact that she is operating illegally. Her primary concern seems to be the fact that this business is her way of making a living. She is 80 years old and seeks only to operate for two more years, at which time she will "meet her maker." The evidence is clear that since 1992, and before, Respondent has been the owner of Gulf Beaches. From the departure of Mr. Patsios to the incumbency of Ms. Lasser, and after the departure of that individual up to the present, Respondent has operated the corporation without a broker. It is also clear that since November 1993, Respondent has operated as a salesperson without a valid license.
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 finding Respondent guilty of the misconduct alleged in the Administrative Complaint and, consistent with the provisions of Section 455.228, Florida Statutes, impose an administrative fine in the amount of $2,500.00. DONE and ENTERED this 3rd day of September, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of September, 1996. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N308 Post Office Box 1900 Orlando, Florida 32802-1900 Geraldine Ruesel, pro se 5351 Gulf Drive Holmes Beach, Florida 34217 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
