Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R.T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April.
The Issue The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order dismissing both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
Findings Of Fact Respondent R. F. Plocki is now, and was at all times alleged in the Department's Administrative Complaint, a licensed real estate broker, having been issued license No. 0160705. The last license issued to Plocki was as an active broker in care of 3-D Realty, Inc., 605 Northlake Boulevard, No. 82, Altamonte Springs, Florida 32701. Respondent 3-D Realty, Inc., is now, and was at all times alleged in the Department's Administrative Complaint, a corporate real estate broker, having been issued license No. 0208114. At all times alleged in the Department's Administrative Complaint, Plocki was licensed and operating as the qualifying broker and officer of 3-D Realty. On or about July 28, 1982, respondents, in their capacity as real estate brokers, presented to J. B. Steelman, Inc., as listing real estate broker via Alice DeVries, salesman, a sales contract for the purchase by respondents' client, Frances Valentine, of certain real property owned by Malcolm Barber and Phyllis Barber, the clients of J. B. Steelman, Inc. Valentine is a personal friend for whom Plocki has handled various business transactions over the years. Because Valentine was in New York and the Barbers were anxious to get a contract, Plocki agreed to negotiate the sales contract for Valentine under a power of attorney. During negotiation of the sales contract by Plocki, DeVries, and the Barbers, Plocki made clear and had reflected in the sales contract that the sales contract was contingent upon Valentine obtaining financing for part of the purchase price. Plocki also indicated that Valentine had not yet paid him the $500 deposit required under the sales contract, but that he would request the deposit when he mailed Valentine a fully executed copy of the sales contract. Either on the day of the negotiations or a few days later, the sales contract was executed by the Barbers. Plocki telephoned Valentine the next day to advise her that she had a contract that required her to pay a $500 deposit and attempt to obtain the necessary financing. He agreed to pick up the necessary paperwork to apply for the financing at Flagship Bank and send the loan application papers and a copy of the sales contract to Valentine. Valentine never sent the deposit, and Plocki did not follow up on the deposit. Instead, both he and the sellers primarily were concerned with the loan application. Around September 17, 1982, on the last of several telephone calls to the bank to check the status of the loan application, Plocki was advised that Valentine's application had been denied. The loan officer advised Plocki that Valentine already had been sent a copy of the denial and that Plocki should advise J. B. Steelman, Inc., of the denial of the loan application. When Plocki telephoned J. B. Steelman, Inc., he learned that Alice DeVries had taken ill and that the transaction now was being handled by a new salesman, Charlyne Becker. Becker rejected Plocki's offer to contact the sellers to try to salvage the sale, saying it was her sale and that Plocki should stay out of it. Approximately one week later, Becker began demanding release of the $500 deposit to the Barbers. Plocki refused, reasoning that Valentine was entitled to the deposit under the terms of the sales contract. Later, by the time Plocki was again asked about the deposit in the course of a Department investigation, Plocki believed that the deposit had been paid into 3-D Realty's escrow account and later paid back out to Valentine after she was unable to obtain financing. However, further inquiry revealed to Plocki and reminded him that the deposit never had been delivered to him or 3-D Realty at all. Meanwhile, in late 1982, respondents' landlord required them to vacate their offices at 701 East Altamonte Drive, Altamonte Springs. Initially, the move was to be temporary, and respondents left their office equipment and signs in storage at the 701 East Altamonte Drive building. Later, respondents decided permanently to move their offices to Plocki's residence at 605 Northlake Boulevard, No. 82, Altamonte Springs. For approximately one month, respondents operated out of the 605 Northlake Boulevard office while their sign remained on the door of their old office in the 701 Altamonte Drive building. Then, for two to three weeks after respondents' official change of address to 605 Northlake Boulevard on or about February 1, 1983, respondents had no sign either at the 701 Altamonte Drive building or the 605 Northlake Boulevard office. Since then, respondents have had a sign in the front window of Plocki's residence at 605 Northlake Boulevard, but the sign is not affixed to the window and has fallen out of the window on occasion. Plocki indicates an intention to affix the sign to the window so that this will no longer happen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order reprimanding respondents and assessing a $25 fine against each of them for violating Sections 475.22 and 475.25(1)(c), Florida Statutes (1983). 83-1809 RECOMMENDED this 15th day of June, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1984. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Kenneth J. Cotter, Esquire 119 Pasadena Place Orlando, Florida 32803 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
Findings Of Fact Respondent is a licensed real estate salesman and was so licensed at all times relevant to this proceeding. However, his license is currently inactive. At the time of the transaction with Des Lauriers in October, 1981, which is the basis for these charges, Respondent was employed by Romill Realty, Inc. with offices in Pompano Beach, Florida. Respondent's supervising broker at that time was David Lee O'Dell. Both Des Lauriers and Respondent are Canadian citizens and had done business in Montreal where Respondent was a securities dealer. Discussions on the purchase of Florida property began in Montreal and eventually resulted in an offer which Respondent arranged between Des Lauriers and his associates as buyers and a Robert G. Lubbers as seller. The property at issue is located in Broward County, Florida. A $30,000 deposit was required and was paid by an associate of Des Lauriers in Canada to Ronald Miller's business account there. Although the $30,000 deposit apparently never reached Florida, Respondent concedes that he did receive it. His supervising broker should have been, but was not, involved in this transaction, nor did he receive this deposit. Subsequently, the offer to Lubbers was rejected and Des Lauriers demanded that Respondent return the $30,000. The money has not been returned. Respondent attempted partial payment at onetime, but his check was dishonored. He eventually transferred his interest in a Florida condominium to Des Lauriers and executed a mortgage on his house in Canada. However, the value of these assets is only about $10,000.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's real estate salesman license. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 4th day of May, 1984. COPIES FURNISHED: Robert W. Lee, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Ronald A. Miller Post Office Box 297 Champlain, New York 12919 Harold Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent Gustave A. Miller was a licensed real estate broker with license number 0060208, and Respondent Pamela Michaels was a licensed real estate salesman with license number 0059873. At all times pertinent to this case, Respondent Miller operated Gus Miller Real Estate, Inc., 5505 E. Colonial Drive, Orlando, Florida; and Respondent Michaels was a salesperson working for him at that office. On or about November 15, 1981, Respondent Michaels prepared a contract for the sale of property owned by Betty B. Stahl (1/2 interest) and Helen Vierbickas or Flora Belle Turner Van Trease (1/2 interest) in Orlando, Florida, to Timothy Karl Kunke and Shawna Jean Kunke. Purchase price was to be $64,000 with $1,000 paid as deposit. Buyer was to apply and qualify for a loan guaranteed by the Federal Housing Administration (FHA). Seller was to clean and paint the inside of the house, but did not enter into a contract with Respondents to accomplish this work. The contract contained the usual provision for the division of forfeited deposit in the event of buyer default. Due to a death in the buyer's family, he was not able to qualify for an FHA loan, and without any coordination with or approval of seller, Respondent Miller deducted $235 from the deposit held by him, as his fee for painting the property, and refunded $765 to the Kunkes. Thereafter, on or about December 4, 1982, Respondent Michaels presented a second contract for the sale of the same property to Mrs. Stahl, although the majority of her dealings were actually with Mr. Stahl, who was advising his wife. The buyer listed this time was Robert G. McRae, and the contract reflected a deposit in the amount of $4,000 paid by check to Gus Miller Real Estate, Inc. This contract, which was accepted by the sellers, also called for the buyer to apply for and qualify for an FHA loan, and seller agreed to pay the discount points on that loan, not to exceed 3 percent. Though the $4,000 was reflected as paid on the front of the contract, the provision reflecting the receipt of earnest money to be held in escrow on the bottom of the reverse side of the contract was not filled in or signed by either Respondent, even though Respondent Miller's firm name was stamped in. Nonetheless, when Mr. Stahl asked Respondent Michaels about the check at the time the contract was signed by Mrs. Stahl, Michaels assured him they had it in their possession and agreed to send him a photocopy of it, which she failed to do. In the prehearing stipulation, Respondents agreed that no deposit had been paid. At some point in time, Respondents admitted they did not have the deposit. Mrs. Vierbickas, a friend of Mrs. Stahl's sister, Mrs. Van Trease, was told by Respondent Michaels that they did not have the check, but she is unsure when she was told this. I find, nonetheless, that Respondents continued to represent to the Stahls that the deposit had been received and was being held by them until after the transfer was cancelled for other reasons. McRae signed the contract on December 4, 1981. That same day, he was taken by Respondent Michaels to the Orlando office of Countrywide Funding Corporation where, before an employee of that Company, Joyce Freed, he filled out an application for an FHA mortgage in the amount of $61,300. On that same visit, he signed a certificate that the property to be covered by the mortgage would serve as his primary home. He also acknowledged in writing that he understood FHA financing could not be utilized for any purpose other than owner- occupied properties. He subsequently signed additional documents in relation to the loan in which he affirmed that the property to be financed would be occupied by him, even after the mortgage commitment was received from the FHA. On January 11, 1982, McRae certified on a U.S. Department of Housing and Urban Development (BUD) form that he intended to occupy the property. Coincidentally, that same day, a lease was signed by a Barbara Sullivan, on behalf of herself and her husband, purporting to lease the home McRae was then occupying for one year at $650 per month with an advance deposit of $1,300 paid. McRae was not asked to sign this lease, which was witnessed by both Respondents and notarized by Respondent Miller. McRae did not receive any rent from this lease, which was not a bona fide conveyance of an interest in the property. It was not intended to convey the property, but was generated by Respondents for some purpose not related to a tenancy by the Sullivans. McRae testified that when Michaels took him to Countrywide's office, he did not intend to occupy the property to be purchased, but instead intended for his daughters to live there. However, when he saw from the forms he was signing that there was a requirement for the property to be owner-occupied, he, at that moment, changed his mind; and when he signed the documents, minutes thereafter, he intended to move in. I find this testimony to be unworthy of belief. During the period from the date of the sales contract with McRae to the date of the proposed closing, the interest rate went up higher than was called for in the contract, and McRae refused to close. Sometime later, in late February, 1982, a Larry Werts came to the property in question and discussed with Mr. Stahl the possible purchase of Mrs. Stahl's one-half interest in the property for $27,500 in cash. Werts was, however, unable to secure this much cash. Thereafter, he indicated he would make an offer on the entire parcel through Respondent Michaels; and subsequently, Respondents, together, brought a contract to Mrs. Stahl, signed by Werts, which reflected a purchase price of $50,000. The Stahls rejected this offer as being too low.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the license of each respondent be suspended for one year, that each respondent pay an administrative fine of $1,000, and that each respondent be reprimanded in writing, but that the execution of the suspension be deferred for one year with a provision for automatic recission. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert W. Olsen, Esquire 205 N. Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
Findings Of Fact Respondent, Ralph De Ponte, Jr., is a licensed real estate salesman, license number 0110328, in the State of Florida. Petitioner is the state agency charged with the responsibility of regulating real estate licensees. On or about August 25, 1993, Respondent, while licensed as a real estate salesperson, solicited and obtained a joint venture agreement between Eugenio R. Martinez and Johnco Management, Inc. The purpose of the joint venture was to purchase and sell real estate lots for profit. Lot Center Real Estate, the brokerage company for whom Respondent was employed at the time, was to act as the exclusive agent for the purchase and resale of all properties purchased by the joint venture. Mr. Martinez entrusted $15,000 with Respondent in accordance with the joint venture agreement. Mr. Martinez, based upon the representations from Respondent, believed the money would be invested in the purchase of real estate. Instead, Respondent used the $15,000 to pay off his personal debts. Johnco Management, Inc. was administratively dissolved by the Secretary of State on August 26, 1994, for failure to file its annual report as required by law. Mr. Martinez made repeated demands on Respondent for the return of the $15,000 because no effort was being made to purchase real estate and sell it for profit. Respondent is unable to return Mr. Martinez' investment and claims that the lack of additional funds caused the joint venture to prove unsuccessful. Respondent considered the $15,000 from Mr. Martinez a personal loan. Mr. Martinez' version of the incident, which is also supported by the written joint venture agreement drafted by Respondent, has been deemed more credible.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Florida Real Estate Commission, enter a final order revoking Respondent's real estate license. DONE AND ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0661 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 10 are accepted. Rulings on the proposed findings of fact submitted by Respondent: None submitted. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ralph De Ponte, Jr. Post Office Box 7751 Port St. Lucie, Florida 34985
