Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. 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 19th day of May, 1982.
Findings Of Fact On November 18, 1976, the Real Estate Commission received respondent's application for registration as a real estate salesman. In answering the sixth question on the application form, respondent indicated that he had never been arrested for any offense. In fact, respondent was arrested for driving while intoxicated in Ft. Lauderdale and was convicted of this offense in municipal court on September 22, 1960. On April 3, 1962, he was convicted in municipal court of assault and battery on the person of Jill Boyd an offense for which he was arrested in Ft. Lauderdale on March 27, 1962. He was arrested a second time for driving while intoxicated in Ft. Lauderdale and was convicted of this offense in municipal court on February 28, 1967. On still other occasions, respondent was arrested for public intoxication and for traffic offenses. Before submitting his application for registration as a real estate salesman, respondent enrolled at the Florida Real Estate Academy for a five day crash course. An instructor told his class that the Real Estate Commission checked only five years back for arrests.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's real estate salesman's license with leave to respondent to file a proper application. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmannp, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Michael Diamond Post Office Box 9206 Ft. Lauderdale, Florida 33310
The Issue Whether Weston Professional Title Group, Inc. (Respondent) committed the violations alleged in Counts I, II, III, V, VI, and VII of the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times, Petitioner has been the entity of the State of Florida charged with the responsibility to regulate title insurance agencies. At all times relevant to this proceeding Respondent was licensed by Petitioner as a title insurance agent in the State of Florida. As of the formal hearing, Respondent had ceased its operations due to the lack of business. Petitioner's investigation of Respondent was initiated by a complaint from a man named Robert Anderson. Mr. Anderson represented to Petitioner that he discovered that his name and address had been used as the buyer of the two residences discussed above. Respondent was the title and settlement agent for both transactions. The Collonade Drive transaction settled on November 14, 2006, with disbursement of the funds on November 16, 2006. The Vignon Place transaction settled and the funds were disbursed on December 15, 2006. Mr. Anderson reported to Petitioner his belief that his identity had been stolen by a person named Pamela Higgins. Mr. Anderson reported to Petitioner that he had not participated in either transaction, and asserted that he did not sign any of the documents that purport to contain his signature as the buyer. Respondent was required to comply with the provisions of RESPA in completing the HUD-1 for the Collonade Drive closing and the Vignon Place closing. RESPA required that disbursements at closing be consistent with the HUD-1 as approved by the parties to the transaction and by the lender. COLLONADE DRIVE CLOSING On September 15, 2006, Robert Anderson (or someone impersonating Mr. Anderson) signed a "Contract for Sale and Purchase" (Collonade contract), agreeing to buy the Collonade Drive property from Mark Mariani and Kathy Mariani, for the purchase price of $1,375,000.00. The Collonade contract reflected that a deposit had been made to "FLORIDA TITLE & ESC." in the amount of $5,000 with an additional deposit of $5,000 to be made within ten days. Two loans with separate mortgages constituted the financing for the purchase of the Collonade Drive property. The first mortgage was $962,500.00. The second mortgage, as reflected on the HUD-1 Settlement Statement with the disbursement date of November 14, 2006, was $263,430.08.3/ First Magnus Financial Corporation, an Arizona corporation, was the lender for both loans. Agents of America Mortgage Corp. served as the mortgage broker for the transaction. Juan Carlos Rodriguez, an employee of Agents of America Mortgages, signed Mr. Anderson's loan application as the "interviewer." The following was a special clause of the Collonade contract: "BUYER AGREES TO PAY FOR TITLE INSUANCE [sic] FEE ONLY (LINE 1108 OF SELLERS' SETTLEMENT STATEMENT), ONLY [SIC] IF SELLERS AGREE TO USE BUYER'S TITLE COMPANY OF CHOICE. BUYER IS A LICENSED FLORIDA REAL ESTATE AGENT." Petitioner established that Robert Anderson was not a licensed Florida real estate agent. The Collonade contract represented that there were no real estate brokers representing either party. On or about November 1, 2006, Respondent received a "Request for Title Commitment" from Claudit Casanova, a mortgage broker with Agents of America Mortgage Corp., for the Collonade Drive transaction. This was a revised request. The first request had been sent to Respondent on or about October 3, 2006. A copy of the Collonade contract had been forwarded to Respondent with the first request. In connection with the Collonade Drive transaction, Respondent prepared two HUD-1s,4/ each of which was approved by the parties and the lender.5/ The first HUD-1 had an anticipated closing date of November 14, 2006. That HUD-1 was revised in response to the lender's instruction to move the disbursement date from November 14, 2006, to November 16, 2006. The revision of the HUD-1 slightly reduced the amount of cash the buyer needed to close as a result of interest beginning to run on the loans as of November 16 instead of November 14. This was a mail-away closing, in that a packet of the documents the buyer was to sign was sent to someone named Laurie Martin at a title agency in Glendale, Arizona. Ms. Marrero testified she mailed the packet pursuant to instructions without specifying who gave her those instructions. The packet of documents was returned to Respondent, with signatures purporting to be Mr. Anderson's. Laurie Martin appears to have served as the notary public when the documents were signed. The transaction closed pursuant to the revised HUD-1 with the disbursement date of November 16, 2006, which, as approved by the parties and the lender, reflected that the sellers were to receive $477,884.93 upon closing. Upon closing, Respondent drafted a check in the amount of $477,884.93 made payable to the sellers. The sellers voided the check and based on instructions from the sellers, Ms. Marrero redistributed the sellers' proceeds by wire transfer as follows: $116,112.85 to sellers; $170,250.00 to Pamela Higgins; and $191,508.08 to Unlimited Advertising USA. Fourteen dollars were spent on wire transfer charges. The actual disbursement of the seller's proceeds was inconsistent with the HUD-1 and unknown to the buyer and the lender. Respondent violated the provisions of RESPA by disbursing the proceeds of the sale in a manner that was inconsistent with the HUD-1. $195,000 DEPOSIT The Collonade contract reflected that a $5,000 deposit had been made to "Fla. Title & Esc." required for the buyer to pay an additional deposit of $5,000 within ten days. There was no evidence establishing any relationship between Respondent and "Fla. Title & Esc." Both HUD-1s for the Collonade Drive transaction reflected that the buyer had provided to the sellers a deposit in the amount of $195,000. These HUD-1s, reflecting that the sellers were holding a deposit in the amount of $195,000, were approved by the parties and the lender. Ms. Marrero testified that she was instructed to include the $195,000 deposit on the HUD-1s without specifying who gave her those instructions. Ms. Marrero did not attempt to verify that the $195,000 deposit was actually being held by the sellers. FRAUD Petitioner alleged that the Collonade Drive transaction was fraudulent. Mr. Wenger's testimony, based in part on reports of mortgage fraud prepared by the Federal Bureau of Investigation, supported that allegation. Other evidence supporting that allegation included the following facts The first mortgage quickly went into foreclosure; A mailing address given for Robert Anderson did not (as of April 19, 2011) exist. The address of Unlimited Advertising USA was also the address of Claudia Rodriguez, a former Florida title agent whose license had been suspended by Petitioner for failing to disburse in accordance with HUD statements and disbursing on uncollected funds; The address of Unlimited Advertising USA was also the address of Juan Carlos Rodriguez (the person who supposedly took the credit application from Robert Anderson); The address of Unlimited Advertising USA was also the address of Agents of America Mortgage Corporation (the mortgage broker for the Collonade closing. Juan Carlos Rodriguez supposedly notarized the document authorizing disbursement of part of the sellers' proceeds to Pamela Higgins. Mr. Anderson's purported signatures on different documents are inconsistent. The address for Mr. Anderson as it appears on the HUD- 1 Settlement Statements is 14233 W. Jenan Drive, Surprise, Arizona. Prior to the closing Ms. Marrero sent by Federal Express a copy of the unexecuted closing documents to "Pam Higgins c/o Robert S. Anderson" 12211 N. 85th Street, Scottsdale, Arizona. Following the closing, Ms. Marrero sent a copy of the closing documents by Federal Express to Robert S. Anderson, at the address 12211 N. 85th Street, Scottsdale, Arizona. Ms. Marrero testified that she acted on instructions in sending the two packages, without identifying who gave her those instructions. There was no evidence that anyone employed by Respondent knew anyone connected to this transaction prior to being asked to provide a title commitment. There was insufficient evidence to establish that Respondent had anything to do with the buy-sell agreement between the buyer and the sellers or the efforts by Mr. Anderson (or the person or persons impersonating Mr. Anderson) to obtain financing for the purchase. While there was significant evidence that the Colonnade Closing was a fraudulent transaction, there was insufficient evidence to establish that Respondent was complicit in that fraud. VIGNON COURT CLOSING On a date prior to November 6, 2006, Maribel and Timothy Graves signed a "Contract for Sale and Purchase" offering to sell their Vignon Court residence to Robert Anderson for the purchase price of $1,975,000.00. Mr. and Mrs. Graves were represented by counsel during this transaction. The copy of the contract admitted into evidence had not been signed by Mr. Anderson and did not bear a legible date. The contract provided an acceptance date of November 6, 2006. The fully executed contract was not admitted into evidence. On October 4, 2006, Claudit Casanova of Agents of America Mortgage requested Respondent to provide a title commitment for the Vignon Court transaction. In that request, the sales price was stated as being $1,975,000; the loan amount was $1,481,250 and the mortgagee was American Brokers Conduit. Preferred Properties, Int., Inc., was listed as being the real estate broker for the transaction. Respondent prepared a HUD-1 for the Vignon Court transaction that reflected a closing and disbursement date of December 15, 2006. DEPOSIT The unexecuted (by the buyer) and undated copy Purchase Agreement required a deposit of $100,000 at the time of acceptance with an additional $50,000 being due within ten days thereafter. There was no evidence as to the terms of the completely executed Purchase Agreement. Line 201 of the HUD-1 reflected a deposit of $250,000 paid on behalf of the buyer. Respondent did not verify that deposit had been made. The HUD-1 specified that the deposit was being held by the sellers. The buyer, sellers, and lender approved the HUD-1, which reflected the existence of a deposit of $250,000, prior to closing. GASPARE VALENTINO On December 6, 2006, Mr. and Mrs. Graves entered into a "Joint Venture and Property Resale Agreement" (Resale Agreement) pertaining to the sale of the Vignon Court residence with Gaspare Valentino. On February 5, 2002, Gaspare Rino Valentino was issued a license by the Department of Business and Professional Regulation of the type "Real Estate Broker or Sales" and of the rank "Sales Associate." That license was valid at the times relevant to this proceeding. Paragraph 2 of the Resale Agreement provides as follows: (2) SALE EFFORTS: CONTRACT PROCEEDS. Valentino agrees to use reasonable efforts to obtain a third party purchaser (a "Purchaser") for the Property. Valentino is not required to advertise the Property or list the Property for sale, but shall have such right to do so. Valentino does not guaranty [sic] the procurement of a Purchaser. The parties agree that the intention is for Valentino to secure a Purchaser who will pay a purchase price sufficient in order to (i) satisfy the existing debt upon the Property, (ii) pay ordinary and reasonable closing costs of the transaction, (iii) generate a net proceeds [illegible] to Owner not less than ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000); and (iv) generate such further sums beyond the foregoing in order to pay Valentino a fee for services rendered as set forth in this Agreement. In accordance with such understanding, Owner agrees to enter into and fully execute a Contract for Purchase and Sale with a Purchaser procured by Valentino which is consistent with the terms set forth in this Agreement, including without limitation, a designated sales price which enables Owner to receive at closing a net proceeds sum equal to ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) (the "Owner's Sale Proceeds") after payment of the Property Sale Expenses, hereinafter defined as set forth in Paragraph 3. Owner agrees that any net sales proceeds in excess of the Owner's Sale Proceeds shall be payable to Valentino (the "Excess Proceeds Fee), as Valentino's fee for the efforts of Valentino as set forth herein. Paragraph 3 (i) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" as follows: Owner shall receive the Owner Sale Proceeds consisting of exactly ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) from the net sales proceeds . . . Paragraph 3 (ii) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" and the "Owner Sale Proceeds": Valentino shall receive the Excess Proceeds Fees, constituting all remaining net sales proceeds in excess of the Owner Sale Proceeds, as a fee for services rendered by Valentino pursuant to this Agreement. Paragraph 7 of the Resale Agreement is as follows: 7. Licensed Agent: Valentino represents and discloses that Valentino is a licensed real estate agent in the State of Florida. Notwithstanding such, Valentino is individually entering into this Agreement using his own resources to assist Owner in the improvement and sale of the Property, and as such is a principal in this transaction earning the Excess Proceeds Fee. The parties acknowledge that Valentino is an investor in this transaction and as such at closing is entitled to and shall receive the Excess Proceeds Fee as set forth in Section [Paragraph] 3(ii) of this Agreement. Under RESPA, Section 700 of a HUD-1 is appropriately used for reporting the payments for commissions to real estate salesmen and/or brokers as part of the "Settlement Charges." Such payments can also be reported under Section 1300 ("Additional Settlement Charges"), if the payments are appropriately labeled. Respondent reflected the payment of $527,656.92 as "Payoff" to Gaspare Valentino at line 1307 of Section 1300." Prior to closing the buyer, sellers, and lender had approved the HUD-1 for the Vignon Court transaction. The lender was aware of the Resale Agreement. Mr. Marrero is an attorney licensed to practice law in Florida. Mr. Marrero construed the payments to Mr. Valentino to be other than a real estate commission. Although it is clear that Petitioner considers that payment to Mr. Valentino to be a real estate commission, the terms of the Resale Agreement entitled Mr. Marrero to treat that payment as being to an investor. Petitioner failed to establish that Respondent erroneously stated the payment to Mr. Valentino on the HUD-1. SURETY BOND As a condition of licensure, a title agency is required to provide to Petitioner a $35,000 security deposit or a $35,000 surety bond. In connection with its application for licensure on August 29, 2002, Respondent filed the required surety bond with Petitioner. The bond was issued by Fidelity and Deposit Company of Maryland with bond number 133046577. On July 14, 2004, Petitioner received from Respondent a surety bond issued by Western Surety Company in the amount of $35,000, effective as of August 29, 2004. The bond number was 69728435. On May 28, 2010, Petitioner received a letter from his surety dated May 24, 2010, which advised that bond number 69728435 would be voided or cancelled as of August 29, 2010. That letter of cancellation showed a copy being furnished to Respondent at the address "1820 North. Corporate Lakes Boulevard, Suite 105, Weston, Florida 33326." On June 11, 2010, Petitioner advised Respondent by letter sent to "1820 North Corporate Lakes Boulevard, Suite. 105, Weston, Florida 33326" that it had received the cancellation letter. The letter stated, in part, as follows: If we do not receive a replacement bond within 30 days of the dated letter, we will forward your file to the appropriate division for disciplinary action. If you do not plan to continue transacting business and wish to terminate your license, you must submit a request to us immediately. Prior to May 24, 2010, Respondent moved its offices from 1802 North Corporate Lakes Boulevard, Suite 105, Weston, Florida, to Suite 304 of the same building. Mr. Marrero testified that he had no recollection of receiving the letters cancelling the surety bond or the letter from Petitioner dated June 11, 2010. Respondent was without a surety bond between August 29, 2010, and November 18, 2010. Petitioner did not establish that Respondent's failure to maintain it surety bond during that period was willful within the meaning of section 626.8437(9). No prior disciplinary action has been brought against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating the provisions of subsections 626.8473(2) and (4) as alleged in Count I of the Amended AC; and guilty of failing to maintain a surety bond as required by section 626.8418(2) in violation of section 626.8437(1), as alleged in Count III of the Amended AC. It is further recommended that the final order find Respondent not guilty of all other violations alleged in the Amended AC. For the violations found as to Count I, it is recommended that Respondent's licensure be suspended for a period of six months. For the violations found in Count III, it is recommended that Respondent's licensure be suspended for a period of three months. It is further recommended that the periods of suspension run concurrently. DONE AND ENTERED this 8th day of February, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of February, 2012
Findings Of Fact During times material to the allegations of the administrative complaints filed herein, the Respondents were registered real estate salesmen in the employ of Theodore Dorwin, a registered real estate broker, and at all times material herein, Darwin was the active firm member broker for Intermart, Inc. Raymond Lewis, a salesman employed by Dorwin during the period December, 1975 through mid February, 1976, as a real estate salesman, was initially employed by Florida Landowners Service Bureau. During mid February, 1976, he testified that the name Florida Landowners Service Bureau was changed to Intermart, Inc., and that approximately during this period, he left the employ of Intermart, Inc. He testified that the offices were situated on northwest 79th Street, which consisted of a large room containing six cubicles where salesmen manned the telephones in the cubicles during the hours of approximately 6:00PM through 10:30PM during week days and during the early afternoon and evening hours on weekends. Salesmen were given lead cards which were apparently compiled from the county tax rolls from which a list was given containing out of state landowners. Employees, based on a "pitch" card called out of state land owners to determine their interest in selling their property. He described the procedure as a "front" when an out of state landowner was called to determine interest in selling their land. The "close" procedure was a method whereby those property owners who had displayed some interest in selling their properties were mailed a packet of materials which, among other things, contained a listing agreement. Salespersons were compensated approximately $100 to $125 for each listing secured by an executed listing agreement which in most instances represented approximately one third of the listing fee. During the course of a normal day, salesmen would contact approximately thirty landowners and they would be given estimates of the prospective selling price of their land based on the location of the property and the length of time that the owner had held it. The testimony of Lewis, which is representative of that given by later witnesses including Jeffrey Barker, August Graser, David Cotton and Henry Halar (all salesmen employed by Dorwin) reveals that property owners were called to determine their interest and if interest was noted, follow-up calls would be made after a packet of materials was sent to interested landowners. After a listing arrangement was obtained, salesmen were compensated by payment of an amount representing approximately one-third of the listing fee. In the case of a listing fee obtained by two or more salespersons, the fee (commission) was divided according to the number of salespersons instrumental in obtaining the listing. Each salesman who testified indicated that they made no guarantee that a sale would be consummated within a definite period nor were they familiar, in any particulars, with the brokerage efforts to sell the properties of owners who listed their property with Intermart. Theodore Dorwin, the active firm member broker for Intermart, Inc., was subpoenaed and testified that he had no copies of the records which were subpoenaed showing the operations of Intermart, Inc. In this regard, Raymond Lewis also testified that he had no corporate records respecting Intermart. Both witnesses testified that all corporate records of Intermart had been subpoenaed and were in the custody of the Attorney General for more than one year. Dorwin refused to give any testimony respecting the operational workings of Intermart, Inc., based on fifth amendment self incrimination grounds. The Commission's counsel took the position during the course of the hearing that Mr. Dorwin had waived any and all fifth amendment rights or privileges by virtue of having personally testified in a similar matter before the Florida Real Estate Commission in a proceeding undertaken to revoke or suspend his license as a real estate broker. Having voluntarily taken the stand in that proceeding, the Commission concludes that he is not now entitled to any fifth amendment protections. As evidence of Mr. Dorwin's having voluntarily taken the stand in the prior proceeding, excerpts of the testimony from that proceeding was introduced into evidence. (See FREC Exhibit number 8). Having considered the legal authorities and the arguments of counsel, the undersigned is of the opinion that testimony given by a party in a separate proceeding to which the Respondents were not party to and of which the Respondents had no notice of cannot serve in lieu of evidence on which findings of fact can be based to substantiate allegations pending in the instant case. To do so, would possibly leave open the door for highly prejudicial and damaging testimony to which the Respondents here had no opportunity to rebut, cross examine or otherwise explain, all of which is inherently destructive of their basic rights, fairness and fundamental due process. The cases of Hargis v. FREC 174 So.2d 419 and Vann, 85 So.2d 133 are not deemed inapposite to the conclusion reached here. The fact that the State's Attorney General is currently conducting an investigation into the operations of Intermart makes clear that the possibility of criminal action or other sanctions exist (e.g. tax problems). For these reasons, I conclude that Dorwin's testimony in a prior proceeding, amounts to no waiver of his constitutional privilege. For these reasons, exhibit number 8 will not be considered as evidence herein. Having so concluded, the record is barren of any evidence, hearsay or otherwise, which would tend to establish in a competent and substantial manner, that the Respondents herein had engaged in conduct alleged as violative of Chapter 475.25, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the administrative complaints filed herein be dismissed in their entirety. RECOMMENDED this 18th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, all in violation of Subsection 475.25(1)(b), Florida Statutes., and, if so, what administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules promulgated thereunder. Respondent, Richard J. Mitchell, is now and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0396926 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as an involuntary inactive salesman with a home address of 2118 South Tuttle Avenue in Sarasota, Florida 33239. On June 6, 1986, Respondent and Janine Martel (Martel) entered into a contract for the purchase and sale of real property, wherein Respondent agreed to convey his one-half interest in a house that Martel had been renting from him in Sarasota. The remaining one-half interest was held by James Ward. (Petitioner's Exhibit 2.) Prior to Respondent's conveyance of the real property to Martel, Respondent assured Martel that there was only one mortgage which encumbered the property and that he would undertake the necessary steps to insure that Martel would be able to assume the underlying first mortgage in favor of Stockton, Whatley, Davin & Company. Respondent also assured Martel that he would resolve any other adverse interest which affected or otherwise encumbered the house. Martel rented from Respondent for an extended period and he periodically advised her regarding the purchase of real property based on his knowledge of real estate transactions and his regular discussions with Martel. As a result of those discussions, Martel placed a great deal of trust and reliance on representations made by Respondent. Martel and Respondent agreed to close on the contract for the purchase and sale of the property on July 11, 1986. On that date, Respondent executed a quit claim deed to Martel conveying his one-half interest in the property to Martel. Throughout the closing, Respondent concealed from Martel the true status of his interest in the property including several recorded liens which encumbered the property at the time of conveyance. By doing so, Respondent misrepresented and concealed from Martel encumbrances which affects the property. Respondent made the above-referred misrepresentations and concealments in order to effectuate the transaction for personal monetary gain. After Martel closed on the purchase, she discovered that persons other than Respondent and James Ward claimed legal and/or equitable interest in the property and that the property was encumbered by a second mortgage in the amount of $3,700.00. Upon Martel's discovery of the misrepresentations by Respondent, Martel initiated a civil suit against Respondent which resulted in her obtaining a default final judgment against Respondent in the amount of $13,864.00 in the Circuit Court of Sarasota County, Florida, on or about August 1, 1988. (Petitioner's Exhibit 4.) Respondent did not appear at the hearing to contest or otherwise refute the administrative charges filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's real estate license for a period of two (2) years. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990.
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
The Issue By Administrative Complaint filed 10 February 1978 the Florida Real Estate Commission (FREC) seeks to revoke, suspend or otherwise discipline the registration of William D. Folz, Respondent, as a real estate salesman. As grounds therefor it is alleged in Count I that Respondent placed a "For Sale by Owner" sign on a tract of land he did not own and was thereby guilty of misrepresentation in a business transaction in violation of Section 475.25(1)(a) Florida Statutes and guilty of operating as a broker while registered as a real estate salesman in violation of Section 475.42(1)(b) Florida Statutes. In Count II it is alleged that Respondent was previously found guilty of obtaining his registration by means of fraud, misrepresentation and concealment in violation of Section 475.25(2) Florida Statutes and, therefore, his registration may be revoked pursuant to Section 475.15(3) Florida Statutes. Three witnesses were called by Petitioner, one witness was called by Respondent and 10 exhibits were admitted into evidence.
Findings Of Fact At all times here involved William D. Folz was registered with the Florida Real Estate Commission as a real estate salesman associated with Roger Bouchard Realty, Inc. Following receipt of a complaint investigators from FREC in November 1977 checked vacant property in Tarpon Springs, Florida and found thereon a For Sale By Owner sign with a telephone number listed to Respondent's home. One of these investigators, testifying from notes made the week before the hearing, testified that he dialed the telephone number on the sign and talked to a person identifying himself as Folz who said he was the owner of the property. The following day this investigator met Respondent in the Real Estate office and at this time Respondent denied ownership of the property but admitted ownership of the sign. Respondent at this meeting claimed to be a friend of the owner and formerly an officer in the company owning the property; however, at the time he did not know if he was still an officer in the company. This witness had little, if any, independent recollection of the events to which he testified and no effort was made to refresh his recollection by use of material recorded by the witness at or about the time of the incident. His testimony, therefore, is entitled to little weight. The property on which Respondent had placed the sign in question was owned by Melvin McKnight, and wife, and it had been listed by Respondent and placed in Multiple Listing Service (MLS). McKnight is an investor who has had several transactions involving Florida real estate in which Respondent has acted as his agent. He had given the listing of the property here involved to Respondent and had authorized Respondent to place the sign bearing Respondent's telephone number on this property. If specific authorization had not been granted, McKnight ratified those acts of Respondent subsequent to their occurrence. Respondent had represented McKnight at closings and had delivered deeds executed by McKnight at those closings for some five years prior to the incident here involved. Subsequent to the termination of the listing agreement with Respondent and his broker, Roger Bouchard Realty, Inc., the property was sold through the efforts of another real estate office and no commission was paid to Respondent or Bouchard. By Final Order filed June 8, 1976 (Exhibit 8) the FREC revoked Respondent's registration as a real estate broker for a violation of Section 475.25(2) Florida Statutes. By Order entered 22 July 1976 following Motion for Reconsideration of Final Order the Commission granted leave to Folz to file application for registration as a real estate salesman and by letter dated December 5, 1976 (Exhibit 10) the FREC advised Respondent that his petition for reinstatement as a broker had been denied and he was ordered to serve twelve months active registration before becoming eligible to apply for reinstatement without having to take the broker's examination. Section 475.25(3) authorizes the FREC to revoke the registration of a registrant when the registrant is found guilty of a second violation of Section 475.25(1), Florida Statutes. Section 475.25(2) provides a basis for revocation of a registration independent of Section 475.25(3).
Recommendation RECOMMENDED that Respondent be issued a written reprimand for violation of Section 475.42(1)(b) Florida Statutes and Rule 21V-6.04 Florida Administrative Code. DONE AND ENTERED this 19th day of July, 1978. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: James A. Doherty, Esquire Florida Real Estate Commission 400 W. Robinson Street Orlando, Florida 32801 Mr. William D. Folz c/o Roger Brouchard Realty, Inc. 301 South Missouri Avenue Clearwater, Florida 33516
