Findings Of Fact At all times pertinent to the allegations of the Administrative Complaint, Gerald Schultz was a real estate broker holding License #0215135 and active firm broker for Choice Rentals and Realty Corporation (formerly Choice Rentals, Inc., and hereinafter "Choice Rentals"), which was a corporate broker holding License #0195222. Rosemary Hufcut entered into a contract with Choice Rentals on July 30, 1980, for Choice Rentals to provide her with rental information based upon criteria she gave Choice Rentals. Hufcut paid a fee of $50 to Choice Rentals for its services. Hufcut was looking for an apartment for herself and her two daughters. She specified she wanted a good neighborhood with good schools. Hufcut was given rental data by Choice Rentals and, with her father, visited a number of the apartments listed. The apartments were not suitable. On the following day, Hufcut requested a refund and submitted a written request for a refund on August 6, 1980. On August 26, 1980, Hufcut's refund request was denied by a letter from Choice Rentals (Petitioner's Exhibit #6). This letter provided in part: Refusal to accept available rental properties meeting the requirements as set forth in your contract with us, does not constitute cancellation of contractual agreement. (This is pursuant to the Florida Law regarding "obtaining a rental".) note - produced available rental property meeting the requirements stated on contract. Hufcut has never received a refund from Choice Rentals. The Board introduced Petitioner's Exhibits #1 through #6, which were received in evidence.
Recommendation Having found the Respondents guilty of violating Section 475.25(1)(b), Florida Statutes, the Hearing Officer recommends that the Board of Real Estate suspend the licenses of Respondents for ten years. DONE and ORDERED this 25th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 25th day of March, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami, Florida 33165 Mr. Gerald Schultz c/o John Hume, Esquire 5100 North Federal Highway, Suite 405 Fort Lauderdale, Florida 33308 Choice Rentals & Realty 3367 North Federal Highway Fort Lauderdale, Florida 33308 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, Brenda W. Smith, violated sections 475.25(1)(b) and 475.25(1)(d)1., Florida Statutes (2013),1/ as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute real estate licensees, pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. Respondent is licensed by Petitioner as a real estate broker in the state of Florida, license BK 534400. Respondent’s address of record with Petitioner is Post Office Box 15453, Panama City, Florida 32406. Respondent’s brokerage, Spirits Realty, Inc., is a registered for-profit corporation in the state of Florida with its principal place of business listed as 3812 Dolphin Drive, Panama City Beach, Florida 32408, and a mailing address listed as Post Office Box 15453, Panama City, Florida 32406. On May 31, 2012, Respondent, on behalf of her brokerage, Spirits Realty, Inc., entered into a property management agreement (Property Management Agreement) with Ronald W. Roberts to manage the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408.3/ The term of the Property Management Agreement was for one year, beginning May 31, 2012, and provided: THIS PROPERTY MANAGEMENT AGREEMENT is made on the 31st day of May 2012 and is effective 31 May 2012 by and between Ronald W. Roberts whose address is 3555 Walden Land, Acworth, Ga 30102, hereinafter referred to as “Owner” and SPIRITS REALTY INC., BRENDA SMITH, LICENSED REAL ESTATE BROKER, Post Office Box 15453, Panama City, Florida 32406, hereinafter referred to as “Agent”. WITNESSETH in consideration of the mutual promises and covenants herein contained, the Owner and Agent agree as follows: The Owner represents to the Agent as follows: (a) The Owner is the sole owner and holder of marketable record title to the following described property: 3803 Long John Drive, Panama City Beach, Florida 32408. The Owner hereby appoints the Agent as the sole and exclusive Agent to Lease and manage the premises known as 3803 Long John Drive. This Agreement is for 1 year beginning 31 May 2012. Agent to enter into an agreement for 1 year lease, $1000 per month rental, tenant to pay Jun/July rent in advance (non-refundable); & $1000 security deposit. The owner agrees to the following: Spirits Realty Inc. Commission of 10% of the rents collected in each calendar month (which shall be deducted from rents collected each month). Spirits Realty Inc., Hancock Bank, holds the security deposit (for liquidated damages) and advanced last months [sic] rent in Escrow. If Agent is not available, Jesse Smith, Admin, is authorized signer. 4. [sic] Owner authorizes the broker to secure tenant; and enter into a 1 year lease. Manage tenant relations collecting, give receipts, holding and disbursing rents to owner, serving notices, initiating eviction & damage actions. Agent will receive and forward $2500 check from tenant to Ron Roberts, for sale agreement of furniture and furnishings, on site. The Property Management Agreement was signed by Ronald W. Roberts and notarized in Cherokee County, Georgia, on May 31, 2012. Notably, the Property Management Agreement does not require advanced notice on the part of the Owner to terminate the Property Management Agreement. On May 31, 2012, Respondent and/or Spirits Realty Inc., ostensibly acting on behalf of Mr. Roberts, entered into a four- page residential lease agreement drafted by Respondent (Lease) with Allen Pridgen and Lori Roark (n/k/a Lori Pridgen), as tenants, for the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408 (the Premises). The term of the Lease was for one year, from June 1, 2012, through June 30, 2013. Curiously, instead of naming Mr. Roberts as the lessor, the first sentence on the first page of the Lease names “Spirits Realty Inc., Brenda Smith, Lic. Real Estate Broker, Agent” as “Lessor.” The bottom of the first page of the Lease states “Page 1 of 1.” In addition, page four of the Lease submitted by Respondent as part of her Exhibit R-7 (which page was not included in the copy of the Lease submitted by Petitioner as part of Exhibit P-2) is signed by Respondent and Spirits Realty, Inc., on and below the signature line labeled “Lessor,” respectively. By comparing the signatures of the “Lessees” on the last page of the Lease (page four) with the signatures on the exhibit entitled “Security Deposit/Advance Last Months [sic] Rent Receipt” (Deposit Receipt), it is apparent that Allen and Lori Pridgen both signed page four of the Lease on May 31, 2012, as Lessees. As documented by the Deposit Receipt, on May 31, 2012, Respondent collected from Allen and Lori Pridgen a $1,000 cash security deposit, plus $1,000 as the last month’s rental payment under the Lease. The Deposit Receipt, signed by both of the Pridgens, as well as Respondent, provides that the monies collected would be held in a “non-interest bearing account Spirits Realty, Inc. Escrow” with Hancock Bank in Panama City Beach, Florida. Mr. Roberts signed a typed statement on May 31, 2012, printed on paper with a fax number, date, and time in the top margin, stating: “The four page Residential Lease on Long John Drive, Panama City Beach, Florida, is hereby agreed upon and approved by the property owner Ronald W. Roberts.” The next year, Respondent prepared a document entitled “Lease Renewal Agreement” (Lease Renewal) for renewal of the Lease for another seven months, from June 1, 2013, to January 1, 2014. The initial paragraph of the Lease Renewal listed the parties as: Lessor4/: Allen Pridgen & Lori [Pridgen] Agent: Spirits Realty Inc., Lic. Real Estate Broker The Lease Renewal kept all terms of the Lease in effect and provided that the Security Deposit and last month’s rent would continue to be held in Hancock Bank. The Lease Renewal also stated: That tenants shall pay a monthly rental of $1,000 for each month by the 1st of each month to Spirits Realty, Inc., for the Renewal Term. Tenants agree to give 60 days written notice prior to vacating property, Or give notice of intent to renew lease for up to one year. According to dates next to their signatures, the Lease Renewal was signed by Alan and Lori Pridgen on May 30, 2013; by Brenda Smith for “Spirits Realty Inc and Brenda Smith, Lic Real Estate Broker” on May 31, 2013; and by Dorothy and Ronald Roberts as “Property Owner” on June 4, 2013. In late 2013, the Roberts decided to terminate the Property Management Agreement and manage the rental of the Premises themselves. The decision to terminate the agreement was made a short time after the tenants had a problem with a water leak and a faulty water heater. Because the tenants considered the problem to be an emergency, they dealt directly with the Roberts, who, as owners, authorized the tenants to pay for the required repairs directly and take the payment off the rent. On December 1, 2013, Mr. Roberts spoke to Respondent on the telephone and advised her that the Roberts no longer wanted to use Respondent’s brokerage, Sprits Realty, Inc., for property management services and that they were going to terminate the Property Management Agreement. Ms. Roberts was present with her husband during the telephone conversation and overheard the discussions. During the conversation, Respondent told Mr. Roberts that they needed to give her at least a 60-day notice of termination, and Mr. Roberts advised Respondent that their termination of the Property Management Agreement would be effective February 1, 2014. The next day, December 2, 2013, the Roberts sent a letter by certified mail to Respondent, at her address, and to Spirits Realty, Inc., at its address. The letter was signed by both Mr. and Ms. Roberts, witnessed and notarized, and stated: Dear Mrs. Smith, Per our conversation on December 1, 2013, please accept this letter as a 60 day formal notification that we wish to terminate the contract we currently have with Spirit Realty for Property Management Services. As of 2/1/2014, we will no longer require your services in handling the property management for 3803 Long John Drive, Panama City, Florida, 32408. Please forward the security deposit that you collected from the tenant, Alan Pridgen in 2012 and are currently holding in an escrow account. You can mail it to Ronald & Dorothy Roberts at 3555 Walden Lane, Acworth, Georgia 30102. We appreciate your time and services since Mr. Pridgen began occupying the property. Although multiple attempts were made to deliver the letters, they were returned unaccepted. The Roberts made additional attempts to contact Respondent by telephone, but were unable to do so. By another letter sent by certified mail to Respondent dated January 16, 2014, Mr. and Ms. Roberts again requested in writing that Respondent forward to them the $2,000 identified in the Deposit Receipt. The letter reiterated the fact that in a telephone conversation on December 1, 2013, Respondent was advised that the Roberts were terminating the Property Management Agreement. The letter was returned unaccepted. Although the Roberts letters to Respondent dated December 1, 2013, and January 16, 2014, were returned unaccepted, Respondent’s own exhibit, a copy of a certified letter that Respondent allegedly sent to the tenants on December 11, 2013, acknowledges that Mr. Roberts called on December 1, 2013, regarding both the Lease and the Property Management Agreement. The first paragraph on the third page of Respondent’s December 11, 2013, letter to the tenants states: 1 Dec 2013 Ron Roberts called SRI [Spirits Realty, Inc.] agent saying Alan [Pridgen] paid over $900 in improvement costs having to do with the air conditioner and hot water heater - & Alan would not be paying rent due 1 Jan 2014 – SRI would not receive a management fee – triggering liquidated damages clause. Breach of lease. Lease – Agreement/relationship of landlord & tenant (real property) or lessor and lessee – specifes [sic] 10% rent compensation. Further, during her cross-examination of Ms. Roberts at the final hearing, Respondent acknowledged that she had spoken on the telephone with Mr. Roberts on December 2, 2013, and that during the conversation the subject of breaking a contract with a real estate person was discussed. While it is found that the telephone conversation occurred on December 1, 2013, as opposed to December 2, 2013, it is evident that the conversation indeed occurred. Based on the evidence, it is found that on December 1, 2013, the Roberts effectively communicated their desire to terminate the Property Management Agreement, effective February 1, 2014. Further, although the certified letters were refused, it is found that the Roberts timely asked Respondent for return of the $2,000 reflected in the Deposit Receipt. In addition to the letters that the Roberts sent to Respondent, after speaking to the Roberts, Ms. Pridgen prepared a letter, at the Roberts’ request, for her husband to send to Respondent, dated December 1, 2013, which stated: Brenda, This letter is to inform you that I no longer wish to continue my contract with you and the Roberts. I have been renting this property since June of 2012, the original contract was for one year. I agreed to rent the property for an additional 6 months which is now up. I no longer wish to continue this contract with Spirits Realty Inc. Thank you Allen D. Pridgen The letter was sent to Respondent by certified mail on December 4, 2013, but Respondent never picked it up. Shortly after her conversation with Mr. Roberts on December 1, 2013, Respondent called the police and tried to have the Pridgens evicted from the Premises. The Roberts explained over the phone to the police officer that they, not Respondent, were the owners of the Premises. The Pridgens were not evicted. Ms. Pridgen’s credible testimony explained that they did not intend to vacate the Premises, but rather planned to continue to rent it directly from the Roberts. As of the date of the final hearing, the Pridgens were still leasing the Premises from Ms. Roberts. To date, Respondent has not returned to Ms. Roberts, as owner with responsibilities over the Lease, either the $1,000 Security Deposit or the $1,000 Advanced Rent she collected from the tenants. Instead, Respondent has retained the entire $2,000 and characterizes the funds as “liquidated damages” for the Roberts’ wrongful termination of the Property Management Agreement. The Property Management Agreement has no specific requirement for the manner in which it is to be terminated. Nevertheless, Respondent transferred the $2,000 reflected in the Deposit Receipt into Spirits Realty, Inc.’s, operating account at Hancock Bank. Respondent argues that she is entitled to retain the $2,000 because Ms. Roberts did not make a timely claim upon the escrow deposit following receipt of Respondent’s expressed intent to keep the escrow monies as “liquidated damages.” Respondent bases her argument on the Roberts’ alleged breach of the Property Management Agreement. As there was no breach and the Roberts’ request for return of the escrow funds was timely made, Respondent’s belief that she is entitled to liquidated damages has no merit. Respondent also suggests that she is entitled to retain the $2,000 reflected in the Deposit Receipt because the tenants failed to give 60 days’ notice of their intent to terminate the Lease. Respondent’s suggestion is premised upon the fact that she and her brokerage are erroneously named as the “Lessor” in the Lease that Respondent drafted. Respondent’s argument evinces that she either has a misunderstanding of her role as agent for the Roberts, or intended to take advantage of her position in a manner inconsistent with her obligations under the Property Management Agreement. Although erroneously listed as the “Lessor” under the Lease, neither Respondent nor her brokerage was a proper party to the Lease. Rather, in accordance with the Property Management Agreement, Respondent and her brokerage were only authorized as agents for Mr. Roberts in dealing with the Premises. Under the circumstances, even if the tenants had breached the Lease (which they did not), Mr. Roberts and his successor in interest, Ms. Roberts, not Respondent and her brokerage, would be entitled to make a claim against the tenants as the owners and actual lessors under the Lease. Incredibly, at the final hearing, Respondent submitted into evidence a copy of a document entitled “Lease Addendum” dated May 31, 2012, which was purportedly signed by the tenants, Alan Pridgen and Lori Pridgen. The purported “Lease Addendum” provides: Lease Addendum 31 May 2012 FS 83.575, 83.595 breach, liquidated damages, and termination FS 83.595(4) Tenant statue [sic] contains two liquidated damages provisions allowing the landlord (Lessor) an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew lease. Lessor, Spirits Realty Inc. will receive the $2,000 advance fees, “early termination fee”, out of escrow, if a breach of the lease occurs. X I agree as provided in the lease agreement, $2,000 security (an amount that does not exceed 2 months rent) as liquidated damages or an early termination fee if I elect to terminate the lease agreement and Lessor waives the right to seek additional rent beyond the month in which landlord takes possession. FS 83.575 Lessee is required to give 60 days notice of intent not to renew the lease or Lessor, Spirits Realty Inc will receive the $2,000 advance fees security deposits as “liquidated damages”. Spirits Realty Inc is entitled to 5% real estate fee at close. In addition, Respondent submitted into evidence a second document entitled “Lease Addendum” purportedly signed by the now-deceased Mr. Roberts. That second “Lease Addendum” provides: Lease Addendum 31 May 2012 I agree with the Lease Addendum. Spirits Realty Inc will receive the $2,000 security deposits advanced fees out of escrow if there is a breach in the lease. Spirits Realty Inc will receive 5% real estate fee when the property closes. Lessor is acting as a Transaction Broker to lease/sale property. Ms. Roberts and Lori Pridgen credibly testified during the hearing that neither they nor Mr. Roberts, prior to his death, signed a separate Lease Addendum. Ms. Pridgen testified that she would not have signed any type of document which essentially gave up any and all rights to the escrow monies. Further, Ms. Roberts explained that her late husband, Mr. Roberts, who had an understanding of real estate matters, would not have signed such a document. Moreover, the documents presented as lease addenda are suspect. The type font is remarkably different from other documents obtained on May 31, 2012, in connection with the Lease and Property Management Agreement. Further, the paper signed by Mr. Roberts on May 31, 2012, in which he agreed to the Lease, has a fax number, date, and time at the top, but the purported lease addendum does not. Finally, the signatures on the lease addenda appear to have been copied from other signatures and taped into place. While reviewing the purported lease addendum during her cross-examination by Respondent at the final hearing, Ms. Pridgen testified: Okay. First of all, this is not the –- this has never been seen in our paperwork. The whole time that we’ve been doing paperwork with you for all these years, this was never ever seen till Brande sent it up here in the paperwork she had. And besides that, the print is not the same as any of your paperwork. And also, you can tell by the signature that they have been copied and paste onto the amendment. If the – somebody will just look at them, you didn’t clean up your work under your tape before you put it right there. So you - - you needed to clean your work up when you tape something like that because we’ve done it before. You have to clean up your work, or people can tell it when you look at it. Other than evincing Respondent’s nefarious intent to justify her retention of the $2,000, the purported lease addenda are given no evidentiary value. The evidence does not justify Respondent’s retention of the $2,000. The evidence adduced at the final hearing otherwise clearly and convincingly showed that Respondent wrongfully retained the $2,000 identified in the Deposit Receipt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Florida Real Estate Commission, finding that Respondent violated sections 475.25(1)(b) and 475.25(1)(d)1. as charged in the Administrative Complaint, imposing an administrative fine in the amount of $3,500, assessing reasonable costs pursuant to section 455.227(3)(a), and revoking Respondent’s license to practice real estate. DONE AND ENTERED this 29th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2016.
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (e), and (k), Florida Statutes, 1/ by: committing fraud, deceit, dishonesty, or breach of trust in a business transaction; acting as a broker; and failing to place funds with her registered employer; and if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is licensed as a real estate sales person under license number 0555229. The last license issued to Respondent was issued as a sales person percentage A.A. Carnes, Inc., 1399 W. Highway 434, Longwood, Florida 32750. In August, 1993, Respondent operated as a licensed real estate sales person for Mannix Realty, Inc. Respondent managed rental property located at 3551 Malona Drive in Orlando, Florida. The rental property was owned by Ramesh and Harjit Zala who lived outside the state (the "Zalas" property). On November 1, 1993, Respondent solicited and negotiated a lease agreement with Scott and Winifred Houldin at the monthly rental of $2,100 (the "tenants"). The tenants paid two months rent to Respondent as a reservation deposit. Respondent appropriated the reservation deposit and rental income for her own personal use. She failed to disclose the rental agreement, reservation deposit, or rental income to Mr. Amos W. Harris, Respondent's broker. Respondent requested the owners and the tenants to direct all correspondence to Respondent's home address. The owners and tenants complied with Respondent's request. Respondent did not disclose the transaction to Mr. Harris. Respondent neither accounted for nor returned the rental funds to her broker or to the owners. In August 1993, Respondent managed rental property located at 1346 Stearman Court in Orlando and owned by Robert and Patricia Sheetz (the "Sheetz" property). The owners lived outside the state. After Respondent assumed responsibility for the Sheetz property, the rental income declined and expenses increased. Although the Sheetz property was rented, Respondent failed to deliver the rental income from the Sheetz property. In December, 1993, the owners discovered that the rental property was in fact occupied. They informed Mr. Harris, and demanded delivery of the rental income. Mr. Harris was unaware that the property was rented or that Respondent had failed to deliver the rental income from the property. On December 29, 1993, Mr. Harris confronted Respondent. Respondent paid $475 of the rental income to the owners of the rental property. Mr. Harris subsequently terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 475.25(1)(b), (e), (k), and 475.42(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March 1996.
The Issue Whether Respondent Homes-R-Us, Inc.'s license as a corporate real estate broker, Respondent Vera McWeeney's license as a real estate broker, and Respondent Anthony Cutrona's license as a real estate salesman should be suspended or revoked, or the licensees otherwise disciplined for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint dated September 3, 1981. The Administrative Complaint herein alleges that the Respondents utilized a contract form in their business of negotiating rentals and furnishing information to prospective tenants which did not conform to Rule 2IV-10.30, Florida Administrative Code, therefore being in violation of various provisions of Chapter 475, Florida Statutes. The Complaint also alleges that Respondents employed various persons to conduct the business who were not licensed by Petitioner, and who were paid compensation, in violation of various provisions of Chapter 475, Florida Statutes. At the commencement of the hearing, the parties stipulated to the facts set forth in Paragraphs 2-4 of the Administrative Complaint, and that Respondents, in their business of furnishing rental information to prospective tenants for a fee, utilized a contract form which did not conform to Rule 2IV-10.30, Florida Administrative Code. As to Count II, the parties stipulated that during the times alleged in the Administrative Complaint, the corporate Respondent employed unlicensed personnel who performed certain activities, to include (1) acceptance of a rental fee provided in the contract, (2) receipting of the rental contract, delivery to the prospective customer of the "vacancy book" containing available rental properties, and (4) verifying the availability of various rental properties after selection by the customer by telephoning the prospective lessor of the property. Respondents Anthony R. Cutrona and Vera McWeeney testified at the hearing, and Petitioner called its investigator, Francis A. Maye, and a former investigator, Debbie J. Minutoli, as witnesses. Petitioner submitted eight exhibits in evidence and Respondent submitted one exhibit.
Findings Of Fact Respondent Homes-R-Us, Inc. is now, and was at all times relevant to the matters alleged in the Administrative Complaint, licensed as a corporate real estate broker, License No. 0212520, at 9000A North Florida Avenue, Tampa, Florida. (Stipulation) Respondent Vera McWeeney is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate broker, License Nos. MI4 0058950 and MI4 021252, and the active firm member and officer of Homes-R-Us, Inc. (Stipulation) Respondent Anthony R. Cutrona is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate salesman for Homes-R-Us, Inc., with License No. MI4 0328427. (Stipulation) Homes-R-Us, Inc. is a firm that solicits or otherwise receives from prospective lessors of residential property, information about such rentals which is then placed in a book and provided to prospective tenants who pay a fee to the firm in order to locate appropriate rental property. The firm advertises such available rentals in newspapers and secures customers in this manner. No fee is charged to the owner or prospective lessor of the property. The normal procedure employed by the firm is to receive payment of the fee from a customer, permit the customer to select any suitable properties from the descriptive information, and then seek telephonic confirmation of the continuing availability of the selected properties. The customer then proceeds to visit the property or otherwise contact the owner and negotiate a rental, if desired. If unsuccessful or unsatisfied with the properties, the customer can continue to avail himself of the "listings" maintained by Homes-R-Us, Inc. for a period of three months on a daily basis. (Testimony of Cutrona, Stipulation, Petitioner's Exhibits 2-3, 8) Respondent Cutrona has been the general manager of Homes-R-Us, Inc. since it was established in November, 1979. Respondent McWeeney was obtained as the firm broker on a gratuitous basis to supervise the activities of the firm. A form contract is used between Homes-R-Us, Inc. and the customer at the time the fee is paid by the customer to obtain rental information. The form was designed by Cutrona when the firm commenced business and was approved by McWeeney. The contract contained a provision that purportedly was included pursuant to law that read in part "If you do not obtain a rental, you are entitled to receive a return of 26 percent of the fee paid, if you make demand within 30 days of this contract date". Respondents used the figure of 26 percent for refund purposes based upon their interpretations of the requirements of Subsection 475.453(1), Florida Statutes. They were not aware of the fact that Petitioner's Rule 21V-10.30, Florida Administrative Code, (formerly Rule 21V-10.15) provided that such contracts should provide for a refund of 75 percent of the fee. Accordingly, the contract form was in violation of the applicable rule. (Testimony of Cutrona, McWeeney, Petitioner's Exhibits 2-3, Respondents' Exhibit 1) At the time Homes-R-Us, Inc. commenced business, in November, 1979, Respondent McWeeney was the only licensed employee in the firm. Cutrona received his license as a salesman in January, 1980. During the period February to August, 1980, the firm employed another licensed real estate salesman, but during the period from August to November 21, 1980, Respondents were the only licensed personnel. On the latter date, an employee, Brenda Serino, received her license as a real estate salesman. A branch office in Tampa had been opened in the spring of 1980, and Cutrona spent one day a week in that office. He was at the original Largo office during the other six days of the week. Respondent McWeeney periodically visited the office and kept in touch with activities by telephone communications. (Testimony of Cutrona) On November 10, 1980, Deborah Minutoli, an investigator for Petitioner, visited Respondents' office in an "undercover" capacity. Her investigation was prompted by several complaints that had been filed against the firm. She posed as a customer, signed the contract and paid a $45 fee to look through their listing book. She dealt with Brenda Serino, who was at that time an unlicensed employee of Homes-R-Us, Inc. Ms. Serino signed the contract on behalf of the Respondent firm. Ms. Minutoli told the employee that she was looking for a one- bedroom or efficiency-type, apartment and could pay about $180 rent per month. Ms. Serino explained a sample listing in the book and the type of information included in the listings. Ms. Minutoli then looked through the book and found five listings which she wrote on a piece of paper and gave to Ms. Serino. Several persons in the office, including Respondent Cutrona, made telephone calls to verify the listings, but only one person was able to be contacted at that time. An employee, Jackie Mourey, then presented Ms. Minutoli with a form showing the five rentals with addresses, telephone numbers, and rental prices, which both signed. The form also included a sixth rental which Ms. Mourey said was a new listing that had just come in and had not been placed in the book as yet, but since it was within the requested price range and location, it was placed on the form. Ms. Minutoli departed from the office and several days later examined one of the rental properties, drove past the other ones and returned to Respondents' office the following day. At this time, she requested that her fee be returned because the properties were unsatisfactory. Respondent Cutrona urged her to continue using the service, but gave her an "adjustment form" to fill out and told her that they would decide whether or not a refund was in order. She subsequently attempted to reach Cutrona by telephone, but was unsuccessful on several occasions. On November 21st, she spoke to him over the phone and he suggested that she fill out the "adjustment form". On November 24th, she, together with investigator Greg Clift, went to Respondents' office and gave the "adjustment form" to Cutrona, but he declined to make the refund. Subsequently, during the same month, Ms. Minutoli, together with another of Petitioner's investigators, Francis Maye, went back to Respondents' office. Maye posed as her uncle and again they sought a refund of the fee which had previously been paid, but again were unsuccessful. (Testimony of Minutoli, Maye, Petitioner's Exhibits 2-7) Investigator Maye had previously talked to Respondent Cutrona's wife at one of the offices concerning a refund complaint from another customer. At that time a refund was made in full. Maye had a conversation with Respondent Cutrona on November 25, 1980 concerning the percentage of fees payable to a customer on a refund. According to Cutrona, Maye questioned the use of a 26 percent refund amount, and told Cutrona he would get back to him later and verify the correct percentage of any refund, but never did so. Cutrona's testimony in this respect is considered credible. During the conversation, Maye did not advise Cutrona to cease using the 26 percent figure or to revise the contract form. Cutrona later talked to another employee of Petitioner who convinced him that Petitioner's regulations required a 75 percent refund and the firm thereupon revised its form to reflect the correct percentage. Investigator Maye also spoke to Respondent McWeeney in November, 1980 concerning the "seven services of real estate" and what services could be performed by unlicensed personnel in the rental office, but did not inform her concerning any suspected irregularities in the operation of Homes-R-Us, Inc. (Testimony of Maye, Cutrona, McWeeney) Respondents' employees were mostly part-time help who were compensated on an hourly basis, and it was therefore difficult to obtain licensed personnel who would remain with the firm. The clerical personnel do not provide any information to customers regarding leasing arrangements, but do receive listings called in to the office by landlords. Only licensed personnel solicit listings from prospective lessors, or owners of property. Additionally, unlicensed clerical personnel accept rental fees, prepare rental contracts, deliver the "vacancy book" to customers, and verify rental availabilities by telephone to the prospective lessors. (Testimony of Cutrona, Stipulation)
Recommendation That an administrative fine of $250.00 be imposed against Respondent Homes- R-Us, Inc., and that a public reprimand be issued to Respondent Vera McWeeney and Anthony Cutrona for violation of Subsection 475.25(1)(e), Florida Statutes. DONE and ENTERED this 25th day of February, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 25th day of February, 1982. COPIES FURNISHED: Salvatore A. Carpino, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph R. Park, Esquire 33 North Ft. Harrison Avenue Clearwater, Florida 33515 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in dispute in this matter are as follow: Was the Respondent, Wit Zajack, responsible for the acts of the Respondent, Home Hunters II, Inc., and its employees prior to July 7, 1981, when Zajack's registration as the corporate broker's active firm member became effective? Was Zajack relieved of responsibility for the acts of the corporate broker by appointing a manager and delegating duties to the manager? Did the Respondents use an advance fee rental contract containing information as required by Rule 21V-10.30, Florida Administrative Code? Was the language used in said contract by the Respondents contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and in violation of Section 475.453, Florida Statutes? Did the Respondents fail to refund advance fees upon demand in violation of Sections 475.25(1)(e) and 475.453(1), Florida Statutes? The proposed findings as submitted in this matter by the parties have been considered by the Hearing Officer. To the extent they have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Wit Zajack, is a licensed real estate broker holding License #0219881. The Respondent, Home Hunters II, Inc., was a corporate real estate broker holding License #0218141. At the time of the accounts described in the Administrative Complaint, Home Hunters was operating as a corporate real estate broker. Home Hunters was engaged in a rental service business and advertised rental property information or lists, collecting an advance fee from prospective lessees. Zajack was aware that Home Hunters was engaged in the advance fee rental business from the beginning of his association with the firm. Zajack applied for registration as the active firm member for Home Hunters on March 5, 1981. His application contained various discrepancies and was returned for correction on May 8, 1981. The application was corrected and returned after 20 days 1/ to the Board of Real Estate, whereupon Zajack was registered as the active firm member effective July 6, 1981. On or before May 6, 1981, Zajack was held out to the public as being affiliated with Home Hunters by a sign at Home Hunters' offices on Colonial Drive in Orlando, Florida. At all times material to the allegations of the Administrative Complaint, Zajack was an officer of Home Hunters. Home Hunters used the contract form exemplified in Petitioner's Exhibits 8 and 11 from the start of its business activities until March of 1982. This form does not contain the language required by Rule 21V-10.30, Florida Administrative Code. At least as early as October of 1981, Zajack was aware of the fact that Home Hunters' contract did not meet the requirements of Rule 21V-10.30, Florida Administrative Code. He directed Tom O'Toole, the manager of Home Hunters, to correct the forms around the first part of 1982, but the forms were not corrected. Zajack referred all calls and letters of complaint which he received regarding the failure of Home Hunters to make refunds to O'Toole. O'Toole was given the responsibility to deal with all disputes for Zajack. Zajack did not follow up on the complaints. During this time, Zajack resided in Fort Myers, Florida. O'Toole and Zajack's business partner, Ralph Snyder, Jr., organized and ran Home Hunters. Melissa Diehl entered into an advance fee rental contract with Home Hunters on July 1, 1981, paying Home Hunters $50 for this service Diehl did not receive information on apartments which was consistent with the specifications she had given Home Hunters, or which were available for rental. She called Home Hunters about apartments she saw listed in its advertisements in the newspaper and was advised they had been rented. Diehl located a rental on her own and requested a refund from Home Hunters. She made several demands for a refund but never received a refund. She specifically asked to speak with Zajack but was told he was not available. On June 16, 1981, Brenda Mosely entered into an advance fee rental contract with Home Hunters, paying Home Hunters $50 for its services. Mosely called Home Hunters as required by the contract but did not receive listing information which was consistent with the specifications she had stated in her contract. Mosely orally requested a refund of her money after the 21-day period. She was advised to put her request in writing, which she did. She was denied a refund by Home Hunters on the basis that she had not called for 21 days, because she had not called on weekends when Home Hunters was closed. Ralph Tropf contracted with Home Hunters on March 26, 1981, for rental information, paying a $50 fee to Home Hunters in advance for its services. None of the information he received was consistent with the specifications he had given to Home Hunters. Tropf called for the 21-day period required in the contract and found a rental on his own. On April 16, 1981, Tropf made a written request for a refund. He never received a reply from Home Hunters. Tropf reported the matter to the Better Business Bureau, which forwarded to him the reply of O'Toole which stated Tropf had not complied with the terms of the contract to call for 21 days. On April 27, 1981, O'Toole advised Tropf that Zajack was the person to whom Tropf should detail his complaints. In March of 1981, Mrs. Gwenda Eva Roe had a similar experience to those described above in attempting to obtain a refund of money paid by her minor daughter to Home Hunters for rental information services.
Recommendation Having found that the Respondents, Wit Zajack and Home Hunters II, Inc., are in violation of Rule 21V-10.30, Florida Administrative Code, and Sections 475.453 and 475.25(1)(e), Florida Statutes, it is recommended that the license of Wit Zajack be suspended for one year. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of July, 1982.
Findings Of Fact At all times material hereto, Respondent, Ralph B. Snyder, Jr. ("Respondent"), was a licensed real estate broker having been issued license No. 008299P. Respondent was the qualifying broker for Home Hunters V, Inc., a corporate real estate broker having been issued license No. 00221795, with a principal business address of 2829 Okeechobee Boulevard, West Palm Beach, Florida. In September, 1981, Respondent registered Home Hunters V, Inc., as a real estate brokerage corporation, with himself as qualifying broker. The office remained open until April, 1982. Respondent was not present in the West Palm Beach office of Home Hunters V on a full-time basis because, in addition to that business, he was involved in a construction business on Sanibel Island, Florida. In late September or early October, 1981, Respondent hired Greg Howle to manage the Home Hunters V office in West Palm Beach. At all times material hereto, Howle was not registered as either a broker or salesman. Respondent's business, insofar as here pertinent, consisted of maintaining card files of rental properties available in the West Palm Beach area, and advertising availability of those properties for the owners. When a prospective tenant came to Respondent's office in response to advertisements, those tenants would sign an agreement with Home Hunters V, Inc., and, after payment of a $60 fee, would be furnished information concerning available properties in the area that generally conformed to the types of properties prospective tenants were seeking. The standard procedure in Respondent's office was that the prospective tenant would first meet with Greg Howle, the office manager, who would have them execute the agreement with Home Hunters V, Inc., collect the $60 fee from them, and refer the tenants to other office employees. On February 13, 1982, Lucille and Whitfield Vye of Canton, Massachusetts, visited the office of Home Hunters V. They were seeking an apartment and visited Home Hunters V in response to an ad they had seen in a local newspaper. After speaking with two other employees in Respondent's office, the Vyes were referred to Greg Howle, the office manager. As a result of the discussions with Mr. Howle, Whitfield Vye signed a rental agreement with Home Hunters V, Inc., and paid a $60 fee to Mr. Howle. The contract signed by Mr. Vye indicated he sought a one- or two-bedroom furnished duplex or apartment that accepted children and pets. Although Mrs. Vye in her testimony indicated that they preferred a ground-floor apartment, there is no indication in the record in this cause that that desire was ever communicated to Mr. Howle. There is nothing in the contract between the parties to indicate that Mr. and Mrs. Vye were limiting their options to a ground-floor apartment. The contract between Home Hunters V, Inc., and the Vyes also provided specifically that: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. In addition, the contract also provided that ". . . [n]o refunds are made during 30 day period when vacancies can be provided in the area and price range of tenants as indicated in above agreement." During their meeting on February 13, 1982, the Vyes were furnished the address of a potential rental apartment belonging to a Mrs. Rodberg. Before Mr. and Mrs. Vye left the Home Hunters V office, Mr. Howle placed a telephone call to Mrs. Rodberg, the substance of which conversation is not apparent from the record in this proceeding. The Vyes proceeded to the address given to them by Mr. Howle. The apartment was located on the second floor of a building, and no one answered in response to their knocks on the door. Mr. Vye then placed a telephone call to the owner of the property, whose telephone number he had been furnished by Home Hunters V. Mr. Vye testified concerning the particulars of Mrs. Rodberg's conversation with him, but the observations made by Mrs. Rodberg to Mr. Vye constitute hearsay, and cannot be used in this proceeding to support a finding of fact. See, Section 120.58(1)(a), Florida Statutes. When they were disappointed in the nature of the apartment whose address they had been furnished by Home Hunters V, Inc., Mr. and Mrs. Vye returned to the Home Hunters office on Sunday, February 14, 1982. The office was, however, closed. Subsequently, the Vyes returned to the Home Hunters V office on February 15, 1982, and spoke with Mr. Howle. During this visit, the Vyes asked for a refund, and expressed their dissatisfaction with the apartment they had visited. Mr. Howle advised the Vyes that he would attempt to find them some other rental property, but that he could not refund their deposit for 30 days. Thereupon, the Vyes returned to their Massachusetts home and waited 30 days before writing a series of three letters to Greg Howle requesting a refund of the $60 rental fee. By this time, Mr. Howle had left the employ of Home Hunters V, Inc. The letters sent by the Vyes were addressed to Mr. Howle, and not to either the individual or corporate Respondent in this case. There is no evidence of record to indicate that either of the Respondents ever received notice of the Vyes' request for a refund as contained in the letters they wrote to Mr. Howle. Thereafter, the Vyes filed a complaint with the Department of Professional Regulation. On May 27, 1982, an investigator from the Department of Professional Regulation advised Respondent Snyder in a telephone conversation of the complaint received from the Vyes. The next day, Respondent Snyder sent the Vyes a refund in the amount of $57.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondents promptly return the rental agreement fee to Narendra Patel in accordance with their agreement on the record in this cause. DONE AND ENTERED this 22nd day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of October, 1981.
Findings Of Fact At all times relevant hereto, respondent, Ezell Realty, Inc., was a licensed corporate real estate broker having been issued license number 0231943 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Winfield Ezell, Sr., held real estate broker's license number 0309739 issued by petitioner and was the sole qualifying broker and officer of Ezell Realty, Inc. The firm is located at 1512 West Gore Street, Orlando, Florida. Grover Crawford was an acquaintance of Ezell who was interested in purchasing certain rental property on Coretta Way in Orlando, Florida. When he was unable to purchase the property Crawford told Ezell to let him know if anything else became available in that area. Ezell happened to own a rental house at 1121 Coretta Way which he had just purchased several months earlier in a foreclosure proceeding, and the two eventually began discussions concerning a possible sale. At all times relevant thereto, the house was rented to tenants, and Crawford intended the property to remain as investor-owned property rather than owner-occupied property. Ezell initially agreed to sell the property for $70,000 and the two entered into a contract on January 8, 1983, using this sales price. However, the lender's appraisal of the residence came in far below this figure, and the parties eventually agreed on a sales price of $55,450. A second contract for sale and purchaser was executed on June 22, 1983. Although the contract provided that Crawford would pay a cash deposit of $2,300 to be held in escrow by Ezell Realty, none was paid since Ezell was given $2,300 by the tenants of the house to make needed repairs to the property prior to the sale. This arrangement was agreeable with Crawford. The contract also required the seller (Ezell) to pay all closing coats. Therefore, Crawford was not required to pay any "up front" costs in order to buy the property. Under the terms of the second contract, Crawford was to obtain FHA financing on the property in the amount of $53,150. This type of financing is the most desirable from an investor standpoint since the mortgage can be easily transferred to another buyer for a small transfer fee without lender approval. After executing the first contract on January 8, 1983, Ezell and Crawford executed an "Addendum to Contract For Sale and Purchase" on the same date which provided in pertinent part: This contract is for the sole purpose of having the buyer obtain an assumable FHA mortgage for the seller and reconveying title to the seller. The seller hereby irrevocably assumes the said FHA mortgage from the buyer immediately after closing and the buyers hereby agree to that assumption. For this, Crawford was to receive $1,000. The parties agreed that this addendum would apply to the second contract executed on June 22, 1983. At the suggestion of Ezell, Crawford made application for a $53.150 FHA loan with Residential Financial Corporation (RFC) in Maitland, Florida, a lending institution which Ezell had done business with on a number of prior occasions. However, Ezell was not present at any meetings between Crawford and RFC. When Crawford applied for the mortgage, he indicated the property would be used for investment purposes and would not be owner-occupied. For some reason, RFC assumed the property would be owner-occupied and structured the-loan in that manner. Because of this, Crawford's down payment was slightly less than 5% of the value of the property with the remainder being financed by the institution. Had RFC treated the loan as an investor-loan, the down payment would have been increased to around 15%. Neither Crawford or Ezell advised RFC of the Addendum to the contract which required Crawford to reconvey the property to Ezell for $1,000 once the FHA mortgage was obtained. Had RFC known of this it would not have approved the loan. There was no competent evidence that such an agreement was illegal or violated any federal laws or contravened any real estate industry standard or ethical consideration. The loan was eventually approved, and a closing held on September 22, 1983. After closing, Crawford retained the property in his name with Ezell making all payments from the rent proceeds. This was consistent with an oral agreement between the two that such an arrangement would last for an indefinite period as long as the payments were current. When Crawford later received several notices from the lender stating that mortgage payments were in arrears, he hired an attorney and demanded that Ezell fulfill the terms of the Addendum. He also filed a complaint against Ezell with petitioner which precipitated the instant proceeding. After the closing, Ezell had intended for the tenants to assume the mortgage since they had expressed an interest in buying the property. However, such a sale never materialized. In July, 1984, the property was reconveyed to Ezell, and Ezell paid Crawford $1,000 as required by the Addendum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be dismissed, with prejudice. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802 Julius L. Williams, Esq. P. O. Box 2629 Orlando, FL 32802 ================================================================ =
The Issue The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Amended Administrative Complaint dated February 29, 2013, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of real estate licensees pursuant to chapter 475, Florida Statutes. At all times material to this case, Mardy was licensed as a Florida Real Estate Broker. Her license number is 3048239. No prior disciplinary action has been brought against Respondent. Mardy has been actively licensed as a broker in Florida since April 6, 2010. From April 8, 2010, to present, Mardy also served as the registered broker with Mardy’s Premier Properties, Inc., license number CQ1036525. The brokerage company was located at 12180 Southshore Boulevard Suite 101A, Wellington, Florida 33414. Approximately seven years ago, Mardy assisted Alix and Patricia Pasquet (“Pasquets”) with a rental transaction. In 2011, when the Pasquets decided that they wanted to lease a rental residence near their sons’ school, they decided to contact Mardy to assist them in obtaining the rental residence since they had been satisfied with her previous service. The Pasquets decided to lease the rental residence at 11188 Millpond Greens Drive, Boynton Beach, Florida 33473, (“Millpond”). The Pasquets made an offer to pay the rent a year in advance to benefit from the reduced rental amount with a full year’s payment. Mardy informed the Pasquets that the rental money needed to be in the U.S. instead of Haiti in order to execute the leasing agreement and then the Millpond owner would accept their offer to lease the property if they showed proof of funds in the U.S. prior to April 6, 2012. On or about April 5, 2012, the Pasquets wired Mardy the total rent for the year in the amount of $33,365.00 to Mardy’s Premier Properties, Inc.’s bank, PNC Bank, at Mardy’s request. Mardy received the monies in the corporation’s operating account ending in 6863. Mardy accepted the Pasquets’ rental funds with the direction to use the monies to secure Millpond as a rental residence for the Pasquets. On or about April 9, 2011, the Pasquets signed a lease addendum, which was predated to April 5, 2011. The addendum indicated the rent payment would be wired to the Millpond owner upon commencement of the lease or prior thereto. After the addendum was signed, Mrs. Pasquet tried to follow-up with Mardy to schedule the Millpond walk through that had been discussed at the previous meeting. She attempted to contact Respondent to no avail for about a week to schedule the Millpond walk through. When Mrs. Pasquet finally reached Mardy, Respondent informed her that her unavailability was because of a death in the family since her grandmother had passed. Around April 25, 2011, Mardy informed Mrs. Pasquet that she no longer had the Pasquets’ $33,365.00. Respondent provided several different reasons for use of the Pasquets’ monies. All explanations given were for both a personal and improper use, and without the Pasquets’ permission. Hence, the undersigned rejects any of Mardy’s excuses as valid or credible. Respondent never delivered the Pasquets’ rental monies to the Millpond owner nor closed the rental deal with the Millpond owner or his agent for the lease of Millpond. At hearing, Respondent admitted that she used the Pasquets’ $33,365.00 without their permission. On or about April 26, 2011, the Pasquets negotiated a lease directly with Millpond owner and leased Millpond for six months. They did the walk through on or about April 29, 2013, and moved into the Millpond property on or about May 8, 2013. After the Pasquets discovered that Mardy had taken their $33,365.00, they contacted an attorney to assist them with the matter to try to get the rental monies back. The police also became involved in the attempt of the Pasquets to get their rental monies back. When the police became involved, Respondent agreed to pay the money back to the Pasquets. On or about July 7, 2011, Respondent paid the Pasquets $10,000.00 with check number 75053315-2. On or about July 8, 2011, Respondent paid the Pasquets $3,365.00 with check number 75115202. On or about October 27, 2011, Respondent paid the Pasquets $5,000.00 with check number 0734873625. At the hearing, Mardy had not made a payment since October 2011. The Pasquets have spent thousands of dollars on legal fees trying to get their rental monies back from Respondent. Respondent owes them approximately $15,000.00. The Pasquets were forced to withdraw unbudgeted funds from their business in order to pay for the six-month lease for Millpond, which has been a financial hardship for the Pasquets. Jonathan Platt ("Investigator Platt") is employed by the Division as a Lead Investigator. Investigator Platt has worked for the Division for approximately 22 years. Investigator Platt was assigned the complaint regarding the Pasquets' missing rental funds. He interviewed Respondent and requested Respondent's corporation bank records as part of his investigation. Mardy failed to deliver the bank records to Investigator Platt. Respondent also failed to maintain an escrow account or accounting of rent deposited into the corporation’s bank account ending in 6863 with PNC Bank. Investigator Platt completed his investigation by obtaining Mardy's requested records directly from PNC Bank with an investigative subpoena duces tecum. Afterwards, the Division issued an Administrative Complaint against Mardy in which it charged violations of sections 475.25(1)(b), 475.42(1)(i), 475.25(1)(d)1, 475.25(1)(e), Florida Statutes (2010); and Florida Administrative Code Rules 61J2-14.012(1) and 61J2- 14.010(1). Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
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: Finding Guirlande Mardy violated Counts 1, 3, 4, and 5 of the Amended Administrative Complaint; and Imposing revocation of Guirlande Mardy's license identified herein. DONE AND ENTERED this 30th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of April, 2013. COPIES FURNISHED: Christina Ann Arzillo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Guirlande Mardy 14541 Draft Horse Lane Wellington, Florida 33414 Juana Watkins, Director Division of Real Estate 400 W Robinson Street, N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 W Robinson Street, N801 Orlando, Florida 32801 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
