The Issue Should Respondent's license as Florida real estate salesperson be disciplined for the alleged violations of certain provisions of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint filed herein, and, if so, what penalty should be imposed?
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 of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 475, Florida Statutes. Respondent, at all times relevant to this proceeding, was licensed as a real estate salesperson in the State of Florida, having been issued license number SL-0669595, and subject to the provisions of Chapter 475, Florida Statutes. At all times relevant to this proceeding, Respondent worked as a real estate salesperson in the ReMax real estate office owned by a Lydia Trotter. At all times relevant to this proceeding, Respondent worked under the control and direction of Lydia Trotter, a real estate broker. On July 30, 1999, Respondent entered into a contract with Oye Jeon to sell her a certain parcel of real estate for the purchase price of $99,000.00 and received a deposit in the amount of $30,000.00 from Oye Jeon. Respondent failed to inform Oye Jeon that he did not own the property and did not have a contract to purchase the property from Mr. McClelland, the owner of the parcel of property. Respondent paid a finder's fee in the amount of $10,000.00 to Mr. and Mrs. Song for finding a buyer (Oye Jeon) for this parcel of property. At all times relevant to this proceeding, neither Mr. Song nor Mrs. Song was licensed as a broker, broker salesperson, or salesperson under the laws of the State of Florida. Respondent did not own or have a contract to purchase the parcel of property in question from Mr. McClelland, the owner of the property, at the time Respondent entered into the contract to sell this parcel of property to Oye Jeon on July 30, 1999. Respondent eventually purchased this parcel of property from Mr. McClelland (apparently after the contract with Oye Jeon was entered into) but has never honored the contract with Oye Jeon or returned her $30,000.00 deposit. Respondent has never deposited the $30,000.00 received from Oye Jeon with his broker, Lydia Trotter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a review of the Disciplinary Guidelines set out in Rule 61J2-24.001, Florida Administrative Code, it is RECOMMENDED that the Department enter a final order finding Respondent, Seyed R. Miran, guilty of violating Subsections 475.25(1)(b), (e), (h), and (k), Florida Statutes, and revoking his real estate salesperson's license. DONE AND ENTERED this 22nd day of May, 2003, 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2003. COPIES FURNISHED: James P. Harwood, Esquire Department of Business and Professional Regulation 400 West Robinson Street Suite N308 Orlando, Florida 32801-1772 Seyed R. Miran 8505 North Orleans Avenue Tampa, Florida 33604 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801-1772
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 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 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation 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 Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Lawrence R. Dennis is now and was at all times pertinent hereto a licensed real estate broker in the State of Florida having been issued license number 0148366 in accordance with Chapter 475, Florida Statutes. The last license issued was a broker, c/o Dennis & Associates, Inc., 4141 North Miami Avenue, #300, Miami, Florida 33127-2847. Respondent, Dennis & Associates, Inc., is now and was at all times pertinent hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0236428 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 4141 North Miami Avenue, #300, Miami, Florida 33127-2847. Sometime in September or October 1990 Janet Carter saw an advertisement in the Miami Times newspaper for a home for sale by Dennis and Associates, Inc. Mrs. Carter called the telephone number listed in the ad and talked with Mr. Dennis. After speaking with Mr. Dennis about the advertised property Mrs. Carter and her husband viewed the property and ultimately executed a contract to purchase the property which was owned by Dennis and Associates, Inc. Mrs. Carter knew that Mr. Dennis was a licensed real estate broker and felt that she was dealing with him in his capacity as a broker. Mrs. Carter understood that Mr. Dennis's corporation (Dennis & Associates, Inc.) was the owner and seller of the property. Mr. Dennis did not live in the home that the Carters were interested in buying and at all times the Carters were under the assumption that they were negotiating the purchase of a home through a licensed broker. There was, however, insufficient evidence to establish that Mr. Dennis misled the Carters into believing that he was acting in any capacity other than as the president of the corporation that owned the subject property. On or about October 22, 1990, Ms. Carter and her husband, Ruben, executed a Purchase and Sale Contract and Receipt for Deposit for property located at 2001 Northwest 53rd Street, Miami, Florida (Carter contract). The seller of the property was Dennis and Associates, Inc. In the first paragraph of the Carter contract, the receipt of the sum of $500.00 from the buyers as a deposit on account of the purchase price is acknowledged by the seller. The form language in that paragraph referring to the deposit being held in escrow is crossed out. The crossed out language is not signed or initialed by any of the parties to the transaction. 2/ On the second page of the Carter contract, the following provision was not altered by the parties: "Deposit check will be deposited, and the funds held in an escrow account until the sale has been closed." The $500.00 deposit was not paid by the Carters until November 19, 1990. Mrs. Carter believed the earnest money deposit was to be held in an escrow account. After signing the Purchase and Sale Contract and Receipt for Deposit the Carters took the contract to attorney Keith Levarity who prepared a two page Modification of Contract and attached it to the original contract. The Modification of Contract allowed the Carters, at their expense, to obtain a roof and termite inspection. The parties to the transaction agreed to that modification of the contract. Another provision in the Modification of Contract agreement provided that the earnest money deposit in the amount of $500.00 would be held in Mr. Levarity's trust account. Respondents did not agree to that modification and that provision was deleted from the Modification of Contract agreement. The Carters agreed to allow Mr. Dennis to hold the earnest money deposit in his escrow account and that portion of the Modification of Contract that referred to Mr. Levarity holding the earnest money deposit was crossed out, initialed by the Carters and by Mr. Dennis, and dated November 19, 1990. The Modification of Contract also provided that if defects were noted by the inspections, repairs to the house would be made by the sellers prior to the closing of the transaction. On November 19, 1990, Janet Carter gave Respondent Lawrence Dennis check number 541 in the amount of $500.00 as an earnest money deposit for the purchase of the property located at 2001 Northwest 53rd Street, Miami, Florida. The transaction never closed because certain repairs to the property were never made by the Respondents as agreed. On January 14, 1991, Mr. and Mrs. Carter advised Mr. Dennis by letter that they wished to cancel their contract and wanted a full refund of the $500.00 deposit. In addition to the letter of January 14, 1991, Mrs. Carter verbally told Mr. Dennis that the contract was cancelled and that she wanted her $500.00 earnest money deposit refunded. In December 1990, Respondents ordered a roof inspection to determine the extent of the repairs that would be needed. This inspection cost Respondents the sum of $50.00. Under the terms of the Carter contract as modified, the Respondents were to bear the cost of paying for that roof inspection. The Carters never ordered a roof inspection and were not, under the terms of their written contract, obligated to pay for the roof inspection ordered by Mr. Dennis. On or about February 25, 1991, Janet and Ruben Carter signed a release on deposit receipt provided by Mr. Dennis. The release on deposit provided that Mr. Dennis would return $450.00 of the $500.00 earnest money deposit made by the Carters. Mr. Dennis insisted on retaining the sum of $50.00 to pay for the roof inspection that he had ordered. Although the Carters believed they were entitled to the return of all of their earnest money deposit, they agreed to accept the sum of $450.00 on the advice of their attorney. On or about March 8, 1991, Janet Carter filed a complaint against Respondents with the Department of Professional Regulation. As of the time of the formal hearing, the Respondents had not repaid the Carters any portion of the $500.00 earnest money deposit they had made. Kenneth George Rehm is an experienced real estate investigator who had been employed by the Department of Professional Regulation for the ten years preceding the formal hearing. In March or April of 1991 Mr. Rehm went to the registered location of the office of Respondents to talk with Mr. Dennis about the complaint filed with the Department of Professional Regulation by Mrs. Carter. There was no sign indicating that the premises was a real estate office or that Lawrence Dennis was the broker of a real estate office either on the primary entry to the office or on the lobby directory. When Mr. Rehm brought the lack of a proper sign to Mr. Dennis's attention he put up a piece of paper with his name and the name of the company. Respondents established that at one time they had signs on the outside of Mr. Dennis's office suite and on the lobby directory, but that both signs had been stolen. It was not established when the thefts occurred or whether these thefts were the reason there were no signs in March or April 1991. Respondents had replaced their signs by the time of the formal hearing. Mr. Rehm interviewed Mr. Dennis about the Carter transaction on April 8, 1991. When Mr. Rehm asked to review the escrow account, Mr. Dennis told him that the Respondents did not have an escrow account and that, consequently, the Carter deposit was not being held in escrow. When informed by Respondent that there was no escrow account Mr. Rehm asked to review the operating account. Mr. Dennis refused to permit Mr. Rehm review of the operating account. Mr. Dennis telephoned Frederick H. Wilsen, Petitioner's Chief Staff Attorney, and inquired as to whether he had to give the operating account records to Mr. Rehm. After talking with Mr. Wilsen, Mr. Dennis agreed to allow Mr. Rehm review of the records for the operating account. On April 9, 1991, Mr. Rehm prepared a subpoena duces tecum directing Mr. Dennis as broker for Dennis and Associates, Inc., to produce at Petitioner's offices in Miami on April 15, 1991, all monthly bank statements, bank deposit slips, and cancelled checks for operating accounts and/or escrow accounts for the period of April 1, 1990, to the time of service of the subpoena on April 9, 1991. During Mr. Rehm's initial interview of Mr. Dennis he was told by Mr. Dennis that he could bring the subpoena to Respondents's office the following day at approximately 10:00. Mr. Rehm attempted to serve the subpoena at that time but Mr. Dennis was not at the office. Mr. Rehm contacted Mr. Dennis who indicated he would be at his office at approximately noon. Mr. Rehm was at Respondents's office at noon and Mr. Dennis was not there. Mr. Rehm returned to Respondents's office a third time in the afternoon and successfully served the subpoena duces tecum on Mr. Dennis. Mr. Dennis came to Mr. Rehm's office on April 15, 1991, but did not produce all the documents outlined in the subpoena duces tecum. On April 15, 1991, Mr. Rehm asked Mr. Dennis to produce cancelled checks and a bank statement for March of 1991. Mr. Dennis never complied with that request. The request for these records was within the scope of the subpoena. In response to the subpoena, Mr. Dennis gave Mr. Rehm a copy of two of the monthly bank statements for an escrow account (account number 20300562106) in the name of Dennis and Associates, Inc., at Eagle National Bank. The monthly statement for the period ending November 30, 1989, reflected that an overdraft in the amount of $8.91 existed in the account resulting from a bank service charge. The monthly statement for the period ending January 10, 1990, reflected a zero balance. There was no evidence of any activity in the escrow account subsequent to January 10, 1990. Mr. Dennis asserted the position that he did not have to provide records for an escrow account because Respondents did not have an active escrow account. That position is rejected. The evidence establishes that Respondents had, as of January 10, 1990, an escrow account at Eagle National Bank, and there was no persuasive evidence that this account had ever been closed. The documentary evidence introduced in this proceeding establishes that, as of January 10, 1990, the escrow account had a zero balance, but it does not establish that the account was closed. Mr. Dennis's testimony that he had asked that the account be closed is insufficient to establish that the account was closed, nor did it establish that Respondents were relieved of their duty to provide documentation in response to the subpoena that would enable Mr. Rehm to either audit the escrow account or verify that the account had been closed. When Mr. Rehm discussed the Carter contract with Mr. Dennis in late March 1991, Mr. Dennis stated he would return $450.00 of the $500.00 earnest money deposit to the Carters in the first week of April 1991. As of the date of the formal hearing Respondents had not refunded any of the earnest money deposit to the Carters. On or about November 30, 1990, a Final Judgment in case #90-2559-SP020 in the County Court in and for Dade County, Florida, was entered against Respondent Lawrence R. Dennis d/b/a Dennis & Associates, Inc., in favor of Nathaniel A. Greenidge and Joycelyn B. Greenidge. The award of the Final Judgment was for the principal sum of $3,200.00, prejudgment interest of $44.80, costs of $70.50 and attorneys' fees of $200.00 for a total of $3,515.30. The Final Judgment obtained by the Greenidges was a result of Respondents's refusal to refund an earnest money deposit taken by Respondents in conjunction with a real estate transaction involving Respondents as the seller of the property. Respondents refused to honor said Final Judgment, so the Greenidges had to levy on the subject real property and set it for Sheriff's sale on April 3, 1991. In an effort to obtain the debt owed by Respondents, the Greenidges entered into an agreement to cancel the Sheriff's sale in exchange for receipt of $3,500.00 from a third party purchasing the property. The agreement set a closing on or before 30 days from the date of the agreement. Respondents did not timely pay the Greenidges. On or about March 27, 1992, Respondents paid the Greenidges approximately $3,000.00, which they accepted in satisfaction of the final judgment. On or about October 16, 1990, the Respondents were issued a letter of guidance from the Florida Real Estate Commission for a violation of Section 475.25(1)(d), Florida Statutes, and Rule 21V-10.032, Florida Administrative Code. On or about February 19, 1991, a Final Order was issued by the Florida Real Estate Commission in DOAH Case No. 90-5124 (DPR Case Nos. 0148366 and 0236428) incorporating a stipulation disciplining Respondent for breach of trust in a business transaction, failure to account and deliver a deposit and failure to notify the Florida Real Estate Commission of a deposit dispute. That proceeding pertained to dealings between Respondents and Gwendolyn King and Roxie Ann King. On or about August 26, 1991, Mr. Wilsen, sent a letter to Respondents in reply to a letter sent to Mr. Wilsen by Respondents on or about July 31, 1991. Mr. Wilsen's letter stated, in pertinent part: It is a matter of private agreement as to who will hold the deposit and where the account will be maintained. As the property owner, you may hold the funds so long as you have the mutual prior knowledge and consent of the parties you are dealing with in the transaction." The King, Greenidge, and Carter transactions all occurred prior to Respondents's July 31, 1991, letter to Mr. Wilsen. Mr. Dennis did not rely on Mr. Wilsen's reply in his dealings with the Kings, the Carters, or the Greenidges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact contained herein and which suspends the licensure of both Respondents for a period of one year and which assesses an administrative fine in the total amount of $500.00. DONE AND ORDERED this 9th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 July, 1992.
The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At times pertinent hereto, Respondents were the holders of Florida real estate licenses. During all times material hereto, Respondent, Robert F. Nagel was licensed and operating as a real estate broker. Additionally, Respondent Nagel was the qualifying broker for Bluff's Realty, Inc. During times material, Respondents had an open listing agreement with Angelo Traina to sell his property at 401 Ocean Bluffs Boulevard, 305, in Jupiter, Florida. On or about December 7, 1986, Respondents prepared a purchase-sales contract signed by Carl and Lila Holback, as purchasers and Angelo Traina, as seller, for the purchase of the above referred property for the price of $98,450.00. The sales contract called for a $1,000.00 deposit to be held in escrow by Respondents. An additional $8,000.00 was to be deposited in escrow with the Respondents upon acceptance by the Seller. The contract signed by the Holbacks and Traina's contained a failure of performance provision. The failure of performance provision was contained in paragraph S of the contract and provided essentially that if the buyer failed to perform as required per the terms of the contract, the deposit could be retained by the seller as liquidated damages, or seller, at seller's option, could proceed at law or in equity to enforce the seller's legal rights under the contract. On the following day, December 8, 1986, the Holbacks informed the Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks requested that the $1,000.00 deposit instead be transferred from the Traina/Holback transaction to a new contract to purchase a different condominium unit. This was done on December 8, 1986, as directed by the Holbacks without the knowledge and consent of Angelo Traina. The Holbacks considered that they had been pressured by Mr. Traina into executing the purchase agreement and that after reflection on the "duress" exerted by Mr. Traina, the Holbacks considered that they had a 72 hour period in which they could withdraw from the transaction. They therefore advised Respondents that they were no longer desirous of purchasing the Traina property. The Holbacks closed on a different property on January 12, 1987. Subsequent to December 8, 1986, but prior to January 13, 1987, Respondents offered to pay Mr. Traina $500.00 in return for a release from any potential liability under the contract. This offer was rejected by Mr. Traina. Thereafter, on or about January 13, 1987, Mr. Traina retained counsel who demanded a payment of $10,000.00 from Respondents for alleged damages for breach of a fiduciary duty. The Respondents refused to pay $10,000.00 to or on behalf of Angelo Traina based on the listing agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondents for Two Thousand Dollars (2,000.00) payable within thirty (30) days of entry of Petitioner's Final Order. RECOMMENDED this 25th day of August, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of August, 1988. COPIES FURNISHED: John L. Bryan, Jr., Esquire Scott, Royce, Harris, Bryan & Hyland, P.A. 450 Royal Palm Way Post Office Box 2664 Palm Beach, Florida 33480 Steven W. Johnson, Esquire Department of Professional Regulation- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Laurence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent's registration as a real estate broker should be suspended or revoked for alleged violations of Sections 475.25(1)(a) , (i) & (j) , Florida Statutes. The Respondent appeared at the hearing without legal counsel and was advised as to his right to be represented by legal counsel at his own expense. He elected to represent himself at the hearing. He was also advised of his rights under the Administrative Procedure Act, including his right to testify under oath if he so desired, and he indicated his understanding of these rights. The hearing officer advised counsel for Petitioner that although the Administrative Complaint contained an alleged violation of Section 475.25(1)(i), this violation was not stated in the Notice of Hearing. Petitioner's counsel stated that Paragraph 2, Count 2, of the Administrative Complaint stated a violation of that subsection, but that it had not been alleged as a separate ground therein for adverse action. However, counsel stated that if the evidence presented indicated such a violation, Petitioner would amend its complaint at that time to conform to the evidence, and that it desired to present evidence concerning such a possible violation. At the conclusion of the hearing, Petitioner requested that this alleged violation be included in its Complaint. Respondent was advised that he could request a continuance if necessary to defend against the additional allegation, but he stated that he was able to defend against it without need for a continuance.
Findings Of Fact Respondent was a registered real estate broker during the period when the alleged violations occurred and is currently registered in the same capacity. (Petitioner's Exhibit 9). On or about February 27, 1973, Respondent was the real estate broker for Associated Real Estate of Broward, Inc., a Florida Corporation, in which he owned all of the stock. On that date, one Lawrence Tellschow delivered to Respondent a check in the sum of 4000.00 as a deposit upon property which he desired to purchase from Louise M. Orner, located in Boca Raton, Florida. Tellschow signed a deposit receipt contract on that date which provided on the reverse under "Deposit" that "(Checks issued for the deposit on this contract will be deposited promptly for clearance (after acceptance of this contract by all parties) and the holder of the deposit will not be responsible for the nonpayment of checks". Respondent thereupon obtained the signature of the seller on the contract and returned to his office at which time Tellschow told him not to deposit the check in the escrow account because he had no bank and the check was no good. He further stated that someone else was supposed to give him a check for the deposit, but had not done so. Respondent thereupon returned the check to Tellschow, called up the seller's son and informed him that there was no contract and that he would send a letter to that effect. He did so on March 1st, wherein it was stated that the check did not clear the bank and that after returning the check to Tellschow, the latter had then decided to withdraw his offer. However, Respondent also stated in this letter words that indicated he had not, in fact, deposited the check (Testimony of DeGeorge, Harper, Chappell; Petitioner's Exhibits 1,4,5,6,7) On March 1, 1973, Respondent, Henry Pinelli, Lawrence Tellschow, and Associated Real Estate of Broward, Inc., entered into an agreement whereby Pinelli and Tellschow would contribute monies for the purchase of stock in the corporation, and become officers and directors thereof. The agreement further provided that the corporation would engage in real estate investment and development. It also stated that Pinelli had made certain loans to the corporation for the purchase of properties, that he contemplated making and/or securing additional loans for such purpose, and that he would be entitled to receive a note and mortgage from the corporation as to all such funds. This agreement was modified by a later undated agreement which provided that a certain single family residence under construction at Lighthouse Point, Florida, real property owned by the corporation should be held by the corporation simply as "nominee and for the account of Henry Pinelli" who would assume all obligations and be entitled to all profits derived from said property. It further provided that Respondent and the corporation would have the exclusive right to sell the said property and that the six percent commission there for would go solely to the benefit of Respondent Respondent's Exhibits 1 & 2). The three principals in the corporation had a number of disputes with respect to the activities of the corporation which resulted in the resignation of Tellschow on June 15, 1973, and differences between Respondent and Pinelli as to entitlement to real estate commissions. Although their agreement provided that Respondent would have the exclusive right to sell properties which were acquired by funds advanced by Pinelli (and which were later deeded to him by the corporation), Pinelli gave listings to other realtors for his property located at 3531 N.E. 30th Avenue, Lighthouse Point, Florida. Respondent's conviction that he was being ill-treated by Pinelli led him to place a mechanic's lien on the Lighthouse Point property on November 1, 1973. This lien was predicated upon Respondent allegedly having furnished labor, services or materials consisting of: "exclusive sales agent". On May 9, 1974, the Circuit Court of Broward County, Florida, issued an Order requiring Respondent to remove the claim of lien. Respondent had not had the permission of the owners of the property to place the lien thereon. By the time the lien was removed, various law suits were pending between the parties which had not been resolved (Testimony of Bamman, Henry Pinelli, Patricia Pinelli, Waderlow, DeGeorge; Petitioner's Exhibits 10 & 11: Respondent's Exhibits 4-20).
Recommendation That Respondent Donald D. DeGeorge be issued a written reprimand for violation of Section 475.42(1)(j) , Florida Statutes. DONE and ORDERED this 4th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J.R. Parkinson, Esquire Mr. Donald G. DeGeorge Florida Real Estate Commission c/o Grear Real Estate, Inc. .2699 Lee Road 901 S.E. 17th Causeway Street Winter Park, Florida 32789 Ft. Lauderdale, Florida
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of October, 2010.
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 JAMES E. BRADWELL , 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 21st day of October 1985.
