The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
The Issue In this disciplinary proceeding, the issues are: (1) whether Respondents, who are licensed real estate brokers, failed within a reasonable time to satisfy a civil judgment relating to a real estate commission; (2) whether Respondents failed to maintain trust funds in an escrow account as required; and (3) whether disciplinary penalties should be imposed on Respondents, or either of them, if Petitioner proves one or more of the violations charged in its Administrative Complaint.
Findings Of Fact The Parties Respondent Marlene Montenegro Toirac ("Toirac") is a licensed real estate broker subject to the regulatory jurisdiction of the Florida Real Estate Commission ("Commission"). Respondent Home Center International Corp. ("HCIC") is and was at all times material hereto a corporation registered as a Florida real estate broker subject to the regulatory jurisdiction of the Commission. Toirac is an officer and principal of HCIC, and at all times relevant to this case she had substantial, if not exclusive, control of the corporation. Indeed, the evidence does not establish that HCIC engaged in any conduct distinct from Toirac's in connection with the transactions at issue. Therefore, Respondents will generally be referred to collectively as "Toirac" except when a need to distinguish between them arises. Petitioner Department of Business and Professional Regulation, Division of Real Estate, has jurisdiction over disciplinary proceedings for the Commission. At the Commission's direction, Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. The Veloso Judgment Toirac and Elena Veloso ("Veloso") did business together and wound up as opponents in court. Veloso got the better of Toirac, obtaining, on June 5, 2001, a judgment in the amount of $4,437.60 against her and HCIC from the Dade County Court. The judgment liquidated a real estate commission that Veloso claimed the defendants owed her. On June 12, 2001, Toirac filed a Motion to Set Aside Final Judgment, wherein she asked the county court to (a) vacate its judgment in favor of Veloso, on the ground that the defendants had not been served with process and (b) consolidate Veloso's county-court proceeding with an action then pending in circuit court, which Toirac had brought against Veloso.1 As of the final hearing in this case, Toirac's motion, after four years, had not been heard or decided. As of the final hearing in this case, Toirac had not satisfied the judgment in favor of Veloso. The Escrow Account Shortfall On January 24, 2002, Tibizay Morales, who was then employed by Petitioner as an investigator, conducted an audit of Toirac's records. (The impetus for this audit was Petitioner's receipt, on or about June 20, 2001, of a complaint from Veloso.) Pursuant to the audit, Ms. Morales determined that the balance in Toirac's escrow account was $4,961.05. Ms. Morales determined further that Toirac's trust liability, i.e. the total amount of money that she should have been holding in escrow on her clients' behalf, was $12,242.00. Thus, there existed a shortfall of $7,280.95 in Toirac's escrow account. Toirac was not able, at the time of the audit, to explain the shortfall. A few weeks later, however, by letter dated February 13, 2002, Toirac informed Ms. Morales that the shortfall had been caused by the issuance, "in error," of a check in the amount of $7,345.00, which was drawn on HCIC's escrow account and payable (evidently) to HCIC; HCIC had deposited the funds into its operating account, thereby creating, according to Toirac, an "overage" of $7,345.00 in the latter. To correct the problem, Toirac had arranged for the transfer of $7,345.00 from HCIC's operating account to its escrow account, which was accomplished on or about February 1, 2002. The Charges In counts I and IV, Petitioner charges Respondents with failing to account for and deliver trust funds, in violation of Section 475.25(1)(d)1., Florida Statutes.2 Petitioner's position is that Respondents failed within a reasonable time to satisfy the county-court judgment in favor of Veloso. In counts III and V, Petitioner accuses Respondents of having failed to maintain trust funds in the real estate brokerage escrow account until disbursement was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Petitioner's position is that the escrow account shortfall identified on January 24, 2002, is proof that funds held in escrow had been disbursed without proper authorization. Ultimate Factual Determinations There is no dispute (for Toirac admitted at final hearing) that the judgment debt owed by Respondents to Veloso relates to a real estate commission. It is also undisputed that, as of the final hearing, the county-court judgment had not been satisfied. The undersigned determines that Respondents have failed to satisfy the civil judgment in Veloso's favor within a reasonable time.3 Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(d)1., Florida Statutes.4 It is determined that the erroneous transfer, via check, of funds from HCIC's escrow account to its operating account constituted an unauthorized disbursement of funds entrusted to Toirac by others who had dealt with her as a broker. While this might have resulted from the simple mistake of an incompetent bookkeeper, as Toirac maintains, nevertheless the disbursement was unauthorized and substantial——amounting to approximately 60 percent of Toirac's total trust liability. Therefore, the undersigned finds Respondents guilty of violating Section 475.25(1)(k), Florida Statutes. In view of the foregoing, Petitioner has established the charges set forth in counts I, III, IV, and V of its Administrative Complaint, by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order that: (a) finds Respondents guilty as charged in counts I, III, IV, and V of the Administrative Complaint; (b) suspends Respondents' respective real estate licenses for 90 days; and (c) imposes an administrative fine of $2,500 against Respondents, jointly and severally; and (d) places Respondents on probation for a period of at least 3 years, subject to such lawful conditions as the Commission may specify. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 14th day of September, 2005.
Findings Of Fact Respondent Isabel A. Taquechel is licensed by the Florida Real Estate Commission as a real estate salesman with license number 0126307. At all times material to these findings of fact she has been so licensed. In August of 1978 Ms. Taquechel, as a real estate salesman, entered into a condominium purchase agreement with Half Moon Towers of Miami, Inc. to purchase unit G-110. On September 12, 1978 she entered into an agreement with Mr. Vincente Alessandro which provides as follows: September 8, 1978 To whom it may concern: Let it be known by the present document that in the apartment acquired by me, Isabel A. Taquechel, it has been bought by Mr. Vincente Alessandro with a personal identity Argentinian number 684559 with the address or domicile on the street Corrientes, 1132 in Buenos Aires, the Argentina Republic. Said apartment located in a project, Half Moon Towers, number G-110 on 5055 N.W. 7th Street will be transferred to the name of Mr. Alessandro after this operation is ac cepted on behalf of the financing bank of the operation. Sincerely, /s/ Isabel A. Taquechel Her signature was notarized on September 12, 1978. The purpose of the agreement was for Ms. Taquechel to purchase the referenced condominium unit in her own name in trust for Mr. Alessandro. He is an Argentinean national and a resident of Argentina. If he purchased the unit in his own name, the bank financing the purchase would have required a larger down payment than if the unit were purchased by Ms. Taquechel who is a resident of Dade County, Florida. On December 14, 1978 Ms. Taquechel took title by a warranty deed from Half Moon Towers of Miami, Inc. to unit W-110 at 5055 N.W. 7th Street, Miami, Florida. There is no explanation in the record for the discrepancy in the unit numbers between G-110 for the unit Ms. Taquechel originally contracted to purchase and unit W-110 which she actually purchased. Throughout the course of these proceedings the parties have ignored this discrepancy. It is therefore not considered material here. Despite her agreement to take title to the condominium unit in trust for Mr. Alessandro, Ms. Taquechel has refused to convey title to him. Repeated demands for such a conveyance have been made on her by Mr. Alessandro's agents, but at the time of the final hearing she still had not executed a quit claim deed to him. All the funds for the purchase of the condominium unit have been paid by Mr. Alessandro. The agreement between Ms. Taquechel and Mr. Alessandro for her to purchase the unit in trust on his behalf was made in the course of Ms. Taquechel's practice as a real estate salesman. She has broken that agreement. During the time when Ms. Taquechel was refusing to execute a deed conveying the unit to Mr. Alessandro, she filed a Petition for Bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. She listed the condominium unit as "property held for another person in her bankruptcy Statement of Financial Affairs for Debtor not Engaged in Business. The filing of her bankruptcy proceedings stayed a pending suit by Mr. Alessandro in circuit court against Ms. Taquechel for the imposition of a constructive trust over the condominium unit. Subsequently the trustee in bankruptcy conveyed a deed to Mr. Alessandro for the condominium unit. Its title is clouded by the status of bankruptcy proceedings due to the United States Supreme Court decision of Northern Pipeline Construction Company v. Marathon Pipe Line Company, U.S. , 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Because of the title cloud Mr. Alessandro may not sell the condominium unit for full value at the present time. On June 17, 1979 Ms. Taquechel drew a bank check on her own account payable to Jose Lococo in the amount of $1,000. That amount represented a loan to her from Mr. Lococo as a personal favor. There is no evidence in the record of when Mr. Lococo presented the check for payment. 1/ The record does reflect a debit memorandum made by the drawee bank, Republic National Bank of Miami. That memorandum is dated December 21, 1979. The memorandum reflects that the check was not paid because Ms. Taquechel had closed the account on which it was drawn. The record does not reflect when she closed her account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding Ms. Isabel A. Taquechel guilty of a breach of trust in a business transaction and suspending her license as a real estate salesman for a period of five (5) years. DONE and ENTERED this 11th day of May, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 11th day of May, 1983.
The Issue Whether the Respondent's Florida real estate license should be disciplined because the Respondent was guilty of false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent is guilty of operating Bellwether Developments, Inc. as a broker, without holding a valid license as a broker in violation of Subsection 475.25(1)(a), Florida Statutes. Whether the Respondent is guilty of failure to account or deliver a share of a commission in violation of Subsection 475.25(1)(d)1, Florida Statutes.
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. The Respondent, Joseph C. McAuliffe, is now and was at all times material hereto a licensed real estate broker in the State of Florida. He was issued license number 0260690 in accordance with Chapter 475, Florida Statutes. The last license was issued as a broker percentBellwether Realty, 526-A Emmett Street, Kissimmee, Florida 34741. On January 9, 1990, and August 9, 1990, Respondent in his own capacity and as the chairman and secretary of Bellwether Development, Inc. (not licensed) entered into written contracts to sell four lots to Jerry P. and Kimberly M. Wray. Pursuant to addendum II of the contracts and the agreement dated January 25, 1990, the Respondent agreed to resell the lots within one year at minimum prices of $16,000; provide the buyers with reimbursement for the total closing cost of $689.08 on three lots; and reimburse the buyers for the monthly payments and any other ordinary and necessary expenses related to the lots. Additionally, if no sale were made by Bellwether, the Respondents agreed to buy back the lots and to provide the buyers a 25 percent return on their investment. The Respondent breached the contracts and the January 25, 1990 agreement by failing to sell the lots or repurchase the lots in accordance with the written agreement. Afterward the buyers lost title to the lots as a result of actions in foreclosure. On February 26, 1992, the buyers filed a civil complaint against the Respondent and Bellwether Development, Inc. based, inter alia, on breach of contract, fraud, constructive fraud, and misrepresentation. On July 14, 1993, the Circuit Court in St. Lucie County entered a judgment against the Respondent individually and as an officer of Bellwether Development, Inc. for damages of $67,542.70. The Respondent has failed to satisfy the $67,542.70 judgment or to otherwise pay the money claimed by the buyers, and said debt remains outstanding. Beginning October, 1987 through January, 1989, the Respondent registered Bellwether Realty, Inc., Bellwether Management, Inc. and Bellwether Development, Inc. with the Secretary of State. On October 14, 1987, and on January 18, 1989, Respondent registered Bellwether Realty, Inc. and Bellwether Management, Inc. with the Petitioner. According to Petitioner's official records Respondent maintained a licensed office located at 526A Emmett Street, Kissimmee, F lorida for Bellwether Realty, Inc. and a licensed office located at 200 Albany Avenue, Stuart, Florida for Bellwether Management, Inc. On or about October 9, 1992, the Secretary of State involuntarily dissolved Bellwether Realty, Inc. and Bellwether Development, Inc. for failure to file an annual report. The Respondent was an officer of both corporations. The Respondent operated Bellwether Development, Inc. as a brokerage without a valid license. In late 1990, Annkarol Cemer was employed through Bellwether Realty, Inc. to solicit and negotiate sales contracts. On August 31, 1990, the Respondent, in dissolving that relationship, agreed to pay Annkarol Cemer $4,647.50 in real estate sales commission and $1,000 vacation pay by December 31, 1990. After December 31, 1990, Annkarol Cemer demanded the payment of the $4,647.50 in commissions owed and $1,000 in vacation pay. Respondent received and kept those commissions and refused to share the commission with Cemer. On February 25, 1993, Cemer obtained a Final Judgment in the County Court of St. Lucie County, Florida in the amount of $6,422.60 against Respondent individually and Bellwether. Said judgment remains outstanding.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent be found guilty of violating the aforementioned statutes, as charged in the Administrative Complaint, and that his real estate license be suspended for two years. It is further RECOMMENDED that Respondent McAuliffe be fined $1,000.00, payable within 30 days of the entry of a final order, and such other and further conditions as the Commission deems just and reasonable. DONE AND ORDERED this 15th day of November, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of November, 1994. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1-17. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Joseph C. McAuliffe, Jr. 3846 S.W. Savoy Drive Palm City, Florida 33990 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0702
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
Findings Of Fact At all times pertinent to these Findings of Fact, the Respondent has been a licensed real estate broker in the State of Florida having been issued license number 0317497. In 1985, the Respondent operated his own real estate brokerage firm, Kline Real Estate, Inc., which acted as a marketing agent for Majestic Builders, a construction company. Both Kline Real Estate, Inc., and Majestic Builders did business in and around the Spring Hill, Hernando County, Florida, area. Majestic Builders was owned by George Orlando. In early 1985, Majestic Builders' qualifying general contractor was Stephen Cannon. In early 1985, the Respondent was contacted by the Whitmarshes of Lynchburg, Virginia, who expressed interest in having a modified version of a Majestic Builders model home built on a piece of property in Spring Hill, Florida. Eventually, the Whitmarshes selected a lot on which to have the residence built, and the Respondent brokered the purchase of the lot (from a third party) and the construction contract. Both contracts were entered into on or about April 27, 1985. Both contracts required that the Whitmarshes make a deposit, $1,000 on the lot purchase and $5,000 on the construction contract. Both deposits were made into the escrow account maintained by Kline Real Estate, Inc. The $1,000 deposit was disbursed without incident at the closing of the lot purchase on or about May 7, 1985. The construction contract between the Whitmarshes and Majestic Builders provided in connection with the deposit: DEPOSIT TO FIX HOME PRICE FOR PERIOD OF 6 MOS. [MONTHS), DURING WHICH COMMENCEMENT MAY BEGIN WITHIN 30 DAYS OF NOTIFICATION AND INITIAL PAYMENT OF 30% OF BALANCE. SHOULD COMMENCEMENT BE AFTER 6 MOS., DEPOSIT WILL STILL APPLY BUT TO NEW PURCHASE PRICE OF MODEL AT TIME OF CONSTRUCTION. For the balance of the spring and summer of 1985, the Whitmarshes continued to consult with the Respondent and, primarily through the Respondent, with George Orlando regarding the modifications the Whitmarshes desired to make to the Majestic Builders model, but they were not particularly anxious to commence construction for personal, family health reasons. In addition, they understood and knew from the contract provision and from conversation with the Respondent that their $5,000 deposit was supposed to be credited to the price of the home they eventually built even if commencement was more than six months from the contract date. On or about November 11, 1985, the Respondent advised the Whitmarshes by telephone, confirmed in writing: This [is] notification, that in accordance with your contract, you are legally in default. This letter is written out of legal necessity and has no bearing on your deposit which will bw [sic] applied to the agreed upon purchase price of a Majestic Home. The default merely is to state the builder is no longer held to the prices quoted. And any changes either up or down will be reflected in the new contract price. (Emphasis added.) Notwithstanding his November 11 letter, the Respondent withdrew the Whitmarshes' $5,000 deposit from the Kline Real Estate, Inc., escrow account and deposited it in the Kline Real Estate, Inc. operating account. Of the $5,000, $1,000 was used the purchase of a building lot for Majestic Builders, and $1,500 was paid directly to George Orlando, to whom the Respondent believed the $5,000 belonged. 1/ The Respondent is unable to account for the balance of the $5,000. 2/ On or about March 21, 1986, the Respondent received a letter from Mr. Whitmarsh stating: "With this letter I authorize you to use $500 from my escrow account to obtain a new floor plan and prepare a cost estimate for my revised version of your Wind and Wildfire Model Home." The Respondent, who had had a heart attack in September, 1985, and was in the process of closing out Kline Real Estate, Inc., and getting out of the real estate business, passed the letter on to George Orlando. Orlando balked at the request, taking the position that the purpose of the $5,000 was not for use to draw up revised plans. But it is the Respondent's understanding that Orlando eventually relented and agreed not to require the Whitmarshes to pay for the revised plans with new money. It is unclear from the evidence whether revised plans ever were drawn. 3/ In approximately June or July, 1986, the Respondent closed Kline Real Estate, Inc., and got out of the real estate business. He never heard anything else from the Whitmarshes about the transaction and assumed that Orlando and the Whitmarshes had satisfactorily concluded their business dealings. But in fact in approximately early 1987, the Whitmarshes received information that Majestic Builders was not a licensed contractor. Although, on checking, they learned that Majestic Builders then had a licensed qualifying contractor, the Whitmarshes still did not feel comfortable with Orlando and Majestic Builders. In about April, 1987, the Whitmarshes decided to hire another builder and asked Orlando for the return of their deposit. Orlando refused, saying that the Respondent had the money. 4/ Nonetheless, the Whitmarshes never contacted the Respondent for the return of the deposit. Later, the Whitmarshes and Orlando became involved in another dispute arising out of the alleged improper use of Orlando's Wind and Wildfire drawings by the Whitmarshes and the builder they eventually hired, Stephen Cannon, who had been Majestic Builders' qualifying general contractor but had left to start his own construction company with the understanding that Cannon would not use any of Majestic Builders' drawings. The Respondent had no knowledge of any of these disputes between Orlando and the Whitmarshes until he was interviewed by a Department of Professional Regulation (DPR) investigator in August, 1988. The DPR had begun an investigation of Orlando on the Whitmarshes' complaint of alleged violations of the laws regulating construction contractors and learned that the dispute involved a deposit that had been held in trust by a licensed real estate broker. DPR then began an investigation of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding the Respondent, Ronold E. Kline, guilty of violating portions of paragraph (b) and paragraphs (d) and (k) of Sections 475.25(1), Florida Statutes (1987), and suspending his license for a period of one year. RECOMMENDED this 15th day of December, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989.
Findings Of Fact This matter arose from the sale of a certain apartment building in Dunedin, Florida, known as Piper's Ten. This building was owned by two foreign corporations, the principals of which are represented by a Mr. Eugene Morgan of Boston, Massachusetts. Douglas S. Kennedy, Defendant, is a registered real estate salesman whose license was registered with Lockhart Realty, Inc., of Seawalls Point, Florida, the broker for which was his then wife Trude Kennedy. The Defendant and his wife were involved in domestic difficulties which eventually lead to a divorce. When the Defendant and his wife separated sometime in late 1972, he sought out his friend and business associate, Eugene Morgan, who suggested that the Defendant move to Dunedin, Florida and reside in the model apartment at Piper's Ten. The Defendant heeded the suggestion and took on the assignment as resident manager of the Piper's Ten Apartments at a final salary of approximately $1,000 per month. According to the Defendant and Mr. Morgan, his prime responsibility was seeing that Morgan and his co-investors in the property "receive a fair shake with the local people in and around Dunedin, Florida." At the time the property was registered with a real estate broker of Dunedin, Florida, whose name is Mr. Woodrow Register, and he had an exclusive listing on the sale of Piper's Ten Apartments. The initial arrangement between Morgan and the Defendant was that the Defendant would live in the apartment rent free and he would be paid an amount to defray his expenses for the management responsibility. When the Defendant became dissatisfied with this arrangement approximately 3 weeks later, he notified Mr. Morgan that he could no longer remain in Dunedin under that arrangement. This set the stage for the new arrangement referred to above whereby the Defendant was to be paid $1,000 per month payable out of the proceeds, when and if the building was sold. According to Morgan, this arrangement was to last for at least 4 to 5 months or until such time as a purchaser was located to purchase the apartment building. During April 1973, Kelly Prior Realty of Dunedin produced a proposed purchaser for the property at the purchase price of $400,000 which was the amount set by the owners who had agreed to pay a real estate commission of 5 percent. Kelly Prior Realty prepared a proposed contract of sale and purchase and submitted it to the offices of the attorney for the seller, Raymond Argyros, who after certain modifications, submitted the contract to the sellers for their approval. At the closing in May 1973, Kelly Prior, the selling broker, received a full commission of 5 percent as agreed upon by their sellers in their open listing of the property. According to attorney Argyros, the Defendant received a check for $5,000 as agreed upon between the Defendant and Morgan and according to him, the contract erroneously referred to such payment as a commission. It is this $5,000 payment which is the matter of controversy in this hearing. According to Morgan, Defendant was hired to "see if he could get Morgan and his associates a fair shake with the local people in Dunedin respecting the management of the apartment building." Originally the two story building was primarily an office space on the lower level and approximately ten apartments on the upper level. The plan was to rent the upper level as a condominium and to lease the office space on the lower level. Morgan was unable to sell the condominiums on the upper level based on the fact that prospective purchasers did not want to buy condominiums in a building approximately 50 percent comprised of office space. With this fact, Morgan and his associates made the decision to convert the lower level to apartments as well. When this was done, the Defendant saw to it that the building was properly managed and provided feedback to Morgan in order to keep him advised at all times of the situation with the apartment building. When the building was sold, Kelly Prior Realty Company received the commission of $20,000 which represented 5 percent of the total purchase price and the Defendant received $5,000 for his efforts. In this regard, the Defendant received a check drawn in the amount of $5,000 and the check bore a notation that the amount represented a commission. When the Defendant noted this, he changed the face of the check to reflect that the amount paid was intended to be an agency fee for the sale of Piper's Ten. The Defendant played no part in the drafting of the purchase and sales agreement. After the closing, the Defendant also was given the furniture from the model apartment and he thereafter departed for Puerto Rico. Trude Kennedy, the Defendant's former wife, testified that Lockhart Realty was in no way associated with the sale of Piper's Ten. Trude Kennedy had several conversations with Mr. Morgan regarding the sales and problems which he encountered with Piper's Ten. However the basis of these statements involved other businesses which she had with Morgan regarding the sale and subdivision of other properties in and around Dunedin. Mrs. Kennedy was unaware of the amount paid to the Defendent and she made no claim for such funds when the payment was disbursed. Morgan denied that the amount in any way reflected a commission but rather was payment for the services which the Defendant rendered in the general upkeep and management of the building such that he could be fully advised at all times of the progress, if any, that the local realtors were having with the sale of the apartment building. With these facts, the undersigned is of the opinion that the $5,000 sum given to Kennedy represented the amount as per the agreement he had with Morgan. There was no evidence that he participated in any way with the sale of the building other than to advise Morgan of any efforts that the other local realtors played in locating purchasers. It was noted that the check which represented payment for these services indicated that the amount originally was a commission. However, the Defendant, when noting that the designation of a commission was included on the check, immediately advised Mr. Argyros, the seller's agent, to correct that mistake by placing a designation that the amount represented was intended to be a "seller's agent" fee. This correction was made prior to the time the check was deposited and it was done with the consent of attorney Argyros. There was no evidence that the Defendant demanded such amount as a commission for his efforts as a salesman or that he showed the property to prospective purchasers as a real estate salesman. Thus it appears that the amount paid to the Defendant was an amount given him for his services as testified to by Morgan. The amount paid also appears to correspond with the arrangement as testified to by Morgan. I therefore find that the $5,000 sum paid the Defendant represented an amount for services that he rendered, not as a real estate salesman, but rather, as a property manager of the Piper's Ten Apartment building.
The Issue The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
Findings Of Fact The Commission is the state agency charged with licensing real estate sales associates in Florida. See § 475.161, Fla. Stat. On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license. On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002. At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000. Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule 61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked. Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement. At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked. Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license. Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license. Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients. Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves. Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately $8 million since she began working for the charity over 20 years ago). No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002. At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure. Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S BRUCE CULPEPPER 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 10th day of May, 2017.
The Issue The issue is whether Petitioner’s application for licensure as a real estate broker should be approved.
Findings Of Fact Petitioner has been a licensed real estate sales associate since 2000. His license number is 693538. Most of Petitioner’s work in the real estate industry has involved business transactions, but he has also handled transactions involving residential properties. On August 23, 2004, Petitioner filed an application for licensure as a real estate broker. Petitioner disclosed in the application that, in July 2003, his sales associate license was suspended by the Commission for 30 days and that he was placed on probation for a period of six months. That disciplinary action was based upon a single incident that occurred on or about November 7, 2001. Petitioner agreed to the disciplinary action as part of a “Stipulation” to resolve an Administrative Complaint charging him with fraud and misrepresentation in violation of Section 475.25(1)(b), Florida Statutes (2001), and with having operated as a broker without a license in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001). The Administrative Complaint contained the following “essential allegations of material fact,” which were admitted by Petitioner as part of the Stipulation: On or about November 7, 2001, Respondent, a seller’s agent, facilitated a purchase and sale transaction between Buyer and Seller. On or about November 7, 2001, [Petitioner] was not registered with a broker.[1] The transaction referenced above failed to close. Buyer released a $1,000.00 payment to Seller. [Petitioner] submitted the $1,000.00 payment to Seller. [Petitioner] instructed [Seller] to execute a check in the amount of $500.00 payable to “Cash.”[2] [Petitioner] accepted the $500.00 payment as his own payment for services. The Final Order adopting the Stipulation was filed with the agency clerk on June 25, 2003. Petitioner’s suspension commenced on July 25, 2003, which is “thirty days from the date of filing of the Final Order.” The suspension ended 30 days later, on August 24, 2003. Petitioner’s probation ran “for a period of six (6) months from the Effective Date [of the Stipulation],” which was defined as the date that the Final Order was filed with the agency clerk. As a result, the probation period ran from June 25, 2003, to December 25, 2003. Petitioner was required to complete a three-hour ethics course and a four-hour escrow management course during the probation period, which he did. Petitioner has not been subject to any other disciplinary action. Petitioner has taken several continuing education courses in addition to those required as part of his probation. He is working towards certification by the Graduate Realtor Institute. Petitioner has taken the classes necessary to become a real estate broker, and he passed the broker examination. Petitioner has worked for broker Phillip Wetter since March 2005. Petitioner manages the day-to-day operation of Mr. Wetter’s brokerage firm. His responsibilities include preparing listings, negotiating contracts, and handling escrow funds. He has been involved in over 50 successful real estate transactions under Mr. Wetter’s supervision. According to Mr. Wetter, Petitioner is meticulous in his work, including his handling of escrow funds, and he always makes sure that he “dots all his ‘I’s’ and crosses all his ‘T’s’.” Petitioner acknowledged in his testimony before the Commission and at the final hearing that what he did in November 2001 was wrong. He credibly testified that he has learned from his mistake. In his testimony before the Commission and at the final hearing, Mr. Wetter attested to Petitioner’s honesty, ethics, good moral character, as well as his qualifications to be a broker. That testimony was unrebutted and is corroborated by the letters of support from Petitioner’s former clients that are contained in his application file, Exhibit R1. Mr. Wetter’s opinions regarding Petitioner’s fitness for licensure as a real estate broker are given great weight. Those opinions are based not only on his personal observations as Petitioner’s current qualifying broker, but also on his personal experience with Petitioner representing him in several business transactions while Petitioner was working for other brokers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order approving Petitioner’s application for licensure as a real estate broker. DONE AND ENTERED this 22nd day of November, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 November, 2005.
