The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag). Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states: IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED. In addition to the foregoing, the application submitted by the Respondent provided the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The answers provided by the Respondent to the two questions (application questions numbered 18 and 19) were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. ________________________________ J. D. PARRISH 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 1st day of May, 2001. COPIES FURNISHED: Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph H. Fernandez, Esquire The Law Offices of Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent Gustave A. Miller was a licensed real estate broker with license number 0060208, and Respondent Pamela Michaels was a licensed real estate salesman with license number 0059873. At all times pertinent to this case, Respondent Miller operated Gus Miller Real Estate, Inc., 5505 E. Colonial Drive, Orlando, Florida; and Respondent Michaels was a salesperson working for him at that office. On or about November 15, 1981, Respondent Michaels prepared a contract for the sale of property owned by Betty B. Stahl (1/2 interest) and Helen Vierbickas or Flora Belle Turner Van Trease (1/2 interest) in Orlando, Florida, to Timothy Karl Kunke and Shawna Jean Kunke. Purchase price was to be $64,000 with $1,000 paid as deposit. Buyer was to apply and qualify for a loan guaranteed by the Federal Housing Administration (FHA). Seller was to clean and paint the inside of the house, but did not enter into a contract with Respondents to accomplish this work. The contract contained the usual provision for the division of forfeited deposit in the event of buyer default. Due to a death in the buyer's family, he was not able to qualify for an FHA loan, and without any coordination with or approval of seller, Respondent Miller deducted $235 from the deposit held by him, as his fee for painting the property, and refunded $765 to the Kunkes. Thereafter, on or about December 4, 1982, Respondent Michaels presented a second contract for the sale of the same property to Mrs. Stahl, although the majority of her dealings were actually with Mr. Stahl, who was advising his wife. The buyer listed this time was Robert G. McRae, and the contract reflected a deposit in the amount of $4,000 paid by check to Gus Miller Real Estate, Inc. This contract, which was accepted by the sellers, also called for the buyer to apply for and qualify for an FHA loan, and seller agreed to pay the discount points on that loan, not to exceed 3 percent. Though the $4,000 was reflected as paid on the front of the contract, the provision reflecting the receipt of earnest money to be held in escrow on the bottom of the reverse side of the contract was not filled in or signed by either Respondent, even though Respondent Miller's firm name was stamped in. Nonetheless, when Mr. Stahl asked Respondent Michaels about the check at the time the contract was signed by Mrs. Stahl, Michaels assured him they had it in their possession and agreed to send him a photocopy of it, which she failed to do. In the prehearing stipulation, Respondents agreed that no deposit had been paid. At some point in time, Respondents admitted they did not have the deposit. Mrs. Vierbickas, a friend of Mrs. Stahl's sister, Mrs. Van Trease, was told by Respondent Michaels that they did not have the check, but she is unsure when she was told this. I find, nonetheless, that Respondents continued to represent to the Stahls that the deposit had been received and was being held by them until after the transfer was cancelled for other reasons. McRae signed the contract on December 4, 1981. That same day, he was taken by Respondent Michaels to the Orlando office of Countrywide Funding Corporation where, before an employee of that Company, Joyce Freed, he filled out an application for an FHA mortgage in the amount of $61,300. On that same visit, he signed a certificate that the property to be covered by the mortgage would serve as his primary home. He also acknowledged in writing that he understood FHA financing could not be utilized for any purpose other than owner- occupied properties. He subsequently signed additional documents in relation to the loan in which he affirmed that the property to be financed would be occupied by him, even after the mortgage commitment was received from the FHA. On January 11, 1982, McRae certified on a U.S. Department of Housing and Urban Development (BUD) form that he intended to occupy the property. Coincidentally, that same day, a lease was signed by a Barbara Sullivan, on behalf of herself and her husband, purporting to lease the home McRae was then occupying for one year at $650 per month with an advance deposit of $1,300 paid. McRae was not asked to sign this lease, which was witnessed by both Respondents and notarized by Respondent Miller. McRae did not receive any rent from this lease, which was not a bona fide conveyance of an interest in the property. It was not intended to convey the property, but was generated by Respondents for some purpose not related to a tenancy by the Sullivans. McRae testified that when Michaels took him to Countrywide's office, he did not intend to occupy the property to be purchased, but instead intended for his daughters to live there. However, when he saw from the forms he was signing that there was a requirement for the property to be owner-occupied, he, at that moment, changed his mind; and when he signed the documents, minutes thereafter, he intended to move in. I find this testimony to be unworthy of belief. During the period from the date of the sales contract with McRae to the date of the proposed closing, the interest rate went up higher than was called for in the contract, and McRae refused to close. Sometime later, in late February, 1982, a Larry Werts came to the property in question and discussed with Mr. Stahl the possible purchase of Mrs. Stahl's one-half interest in the property for $27,500 in cash. Werts was, however, unable to secure this much cash. Thereafter, he indicated he would make an offer on the entire parcel through Respondent Michaels; and subsequently, Respondents, together, brought a contract to Mrs. Stahl, signed by Werts, which reflected a purchase price of $50,000. The Stahls rejected this offer as being too low.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the license of each respondent be suspended for one year, that each respondent pay an administrative fine of $1,000, and that each respondent be reprimanded in writing, but that the execution of the suspension be deferred for one year with a provision for automatic recission. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert W. Olsen, Esquire 205 N. Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In 1980 or 1981, records of a criminal charge involving the petitioner Stephanie D. Grooms were ordered sealed. The attorney representing petitioner in that proceeding was Abe Rigau, now deceased. In late July of 198G, petitioner was charged by a two- count information with the crime of issuing worthless checks. She entered a plea of guilty to the charges and the County Courts in and for Hillsborough County withheld adjudication of guilt and imposed a fine of $35 on August 25, 1982. In the Fall of 1984, petitioner was a candidate for the Office of County Commission of Hillsborough County. During the campaign, a newspaper reporter contacted the petitioner in reference to a criminal charge involving worthless checks. Concerned about the election and the implications a criminal charge would have upon her political aspirations, petitioner telephoned Roger Rigau, an attorney and the son of deceased Abe Rigau, for advice. Roger Rigau recalls that petitioner telephoned his office between September and November of 1984. It was Mr. Rigau's impression that petitioner contacted him because she was concerned that information concerning her previous charges could be politically embarrassing, that she was under the impression that the record had been previously sealed by his father, Abe Rigau, and that she was confused as to how a reporter could have obtained information regarding the prior criminal record which had been sealed. At all times, it was the understanding of Roger Rigau that petitioner was referring to the case which his father had handled for her. He was not aware of any new charges beyond those which were the subject of the record sealed in 1980 or 1981. Roger Rigau expressed surprise to petitioner that a member of the press would be able to obtain information regarding a sealed record. His office file contained paper work indicating that petitioner's record had been sealed by Abe Rigau. Roger Rigau was concerned that something was incorrect, either as a result of his father's error or a court clerk's office error. He told petitioner that he would check into the matter, did so and learned that the case his father had handled had indeed been sealed in 1980 or 1981. He so advised petitioner and also advised her that when a record is sealed, she need not relate to anyone that she had been arrested for or convicted of a crime. Sometime after petitioner submitted her application for licensure as a mortgage solicitor in April of 1985, she again contacted Roger Rigau regarding sealed criminal charges. Roger Rigau again advised petitioner that when records are sealed or expunged, one may properly refuse to acknowledge or may deny the fact that one has been charged with or arrested for a crime. Roger Rigau is knowledgeable about the law concerning the sealing and/or expunction of criminal records. Had he understood that petitioner was, either in 1984 or 1985, ever inquiring about her 1982 charges or record, he would have advised her that it is legally impossible to have more than one criminal record sealed. As noted above, Roger Rigau never had any knowledge concerning the 1982 worthless check charges and his advice to petitioner was, at all times, with reference to her 1980 sealed record. Petitioner has a different recollection of her ., conversations with Roger Rigau. She remembers contacting Roger Rigau in 1984 around election time after a news reporter called her regarding some criminal charges. She states that she asked him if the 1982 charges and record could be expunged and that he replied that he would check into the matter. Sometime thereafter, she called his office and a secretary from his office, not identified or called as a witness in this proceeding, led petitioner to believe that the matter had been taken care of. In March of 1985, petitioner went to work for Cameron- Brown, Co. In April of 1985, she filled out an application to the Comptroller's Office for registration as a mortgage solicitor. The application form requires answers to 18 questions and the signature of the applicant in affirmation under penalty of perjury that the answers provided are true and correct. Question 5 of the application states: "Have you ever been arrested, or indicted for a crime?" Petitioner answered this question "NO." Petitioner recalls that, prior to submitting her application, she telephoned Roger Rigau or a secretary in his office, inquired as to how she should answer question 5 on the application and was advised that since her record had been sealed, she could fail to acknowledge or deny any charges which had been sealed. Petitioner recalls making the following statement to Roger Rigau: "My worthless check charges that your dad had expunged and that you had taken care of for me, can I legally put down there "no," or how can I answer that?" Roger Rigau does not specifically recall talking to petitioner prior to the time she submitted her application, but does recall talking to her either during the time of the respondent's investigation or after petitioner received notice of the respondent's intent to deny her application. In any event, he gave her the same advice he had given her in 1984 -- that she need not acknowledge and may deny a sealed criminal charge. Again, he was not aware that petitioner was involved in any criminal charges beyond that 0th which his father was involved in 1980 or 1981. After the submittal of the petitioner's application, respondent's financial examiner/analyst, Jana Synatschk. conducted a routine investigation, which included a review of Court files. It was discovered that petitioner was the subject of two criminal actions - one in 1980 and one in 1982. The 1980 file was sealed, but the 1982 file was open for review. Ms. Synatschk telephoned petitioner on May 30, 1985, told her she had found two cases against a Stephanie Grooms for worthless check writing and asked petitioner if she was aware of this. Petitioner responded that she had no knowledge of such charges, and Ms. Synatschk required petitioner to submit an affidavit to that effect. After reviewing the notarized affidavit stating "I, Stephanie Grooms, have no knowledge of a record on a check charge mentioned by Jana Synatschk," Ms. Synatschk determined that the social security numbers, driver's license numbers and birth dates of the person involved in the 1982 worthless check charges and the petitioner/applicant were identical. She thereupon turned the case over to her supervisor, Arthur M. James. Petitioner recalls speaking with Roger Rigau prior to submitting the affidavit to the respondent and again receiving the advice that she could properly deny a sealed criminal charge. Mr. Rigau does not recall speaking to the petitioner about the affidavit she was required to submit during the application process. He does recall that petitioner requested him to sign an affidavit after she received notice that her application had been denied. Supervisor Art James telephoned petitioner on June 20, 1985, and asked her specific questions relating to the 1982 criminal charges. After denying that she had written the bad checks, Mr. James told her that the signatures on the checks appeared to be similar to her signatures on the affidavit and on her application. He invited her to come to his office to discuss the matter. She responded that her attorney would get in touch with him. Mr. James waited three or four days and, when he did not hear from petitioner's attorney, the petitioner's file was forwarded to Tallahassee. On July 22 1985, the respondent denied petitioner's application for a mortgage solicitor's license based upon her lack of integrity, truthfulness and honesty as evidenced by her false statement in response to Question 5 on the application. On or about the time of the respondent's denial order, but prior to petitioner's knowledge of the denial, petitioner telephoned the respondent's Tallahassee office to inquire about the status of her application. Joseph Ehrlich, the Assistant Director for the respondent's Division of Finance, informed petitioner that her application was being investigated and asked her about her arrest record. Petitioner denied any such record. It was not until after the respondent's order of denial dated July 22, 1985, that she explained to respondent's personnel that she denied the 1982 worthless check charges because she thought that case had been sealed or expunged and that she accordingly had a legal right to deny all charges in connection with that case.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Stephanie D. Grooms for licensure as a mortgage solicitor be DENIED. Respectfully submitted and entered this 8th day of January, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32301 Dick Greco, Jr., Esquire Molloy, James & Greco, P.A. Suite 910 501 East Kennedy Blvd. Tampa, Florida 33602 Wendy M. Mitchler, Esquire Greg Cummings, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 APPENDIX The proposed findings of fact submitted by the petitioner and the respondent have been accepted and/or incorporated in this Recommended Order, except as noted, below. Petitioner 2 - 3. Rejected to the extent that it implies that petitioner informed Mr. Rigau that she was referring to the 1982 charges. 3. Last sentence rejected as irrelevant and immaterial. 10. . First sentence rejected as to the time petitioner consulted with Mr. Rigau or his office not supported by competent substantial evidence. 15. Rejected, not supported by competent, substantial evidence. 17. Rejected, not supported by competent, substantial evidence. Respondent 13. Rejected, not relevant or dispositive of any issue in this proceeding. 15. Last sentence rejected, not relevant or dispositive of any issue in this proceeding.
The Issue Whether Margaret Ann Reese is guilty of, and should be disciplined for committing, fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, or breach of trust in a business transaction?
Findings Of Fact At all times relevant to this proceeding, Margaret Ann Reese was licensed by the State of Florida pursuant to Chapter 475, Florida Statutes. She holds license number 0454079. At all times relevant to this proceeding, Ms. Reese was licensed as a real estate salesman, c/o Ellison Realty, Inc., 2226 E. Silver Springs Boulevard, Ocala, Florida 32671. During 1986, Ms. Reese showed certain real property and a mobile home (hereinafter referred to as the "Property"), which was owned by Frederick W. and Mary Holm to Mary Kennedy and John J. Korsun, Sr., her father. The Property is located in Oxford, Sumter County, Florida. The Property was listed by Nehimiah Clark David, another real estate salesman with Ellison Realty, Inc. Ms. Kennedy and Mr. Korsun inspected the Property several times. Water damage to the ceilings of the mobile home was noticed during the inspections. Ms. Kennedy and Mr. Korsun expressed concern about the condition of the roof of the mobile home. The roof was, therefore, repaired by the owners. On November 5, 1986, Ms. Reese obtained a Contract of Sale, wherein Ms. Kennedy and Mr. Korsun offered to purchase the Property. Because of their concern about the condition of the roof, Ms. Reese added the following under paragraph X, "Special Clauses," in the Contract of Sale: "Seller warrants roof for 1 year." The Contract of Sale was mailed to Mr. and Mrs. Holm in Punta Gorda, Charlotte County, Florida. Mr. and Mrs. Holm struck the language included by Ms. Kennedy and Mr. Korsun in the Contract of Sale concerning the one year warranty of the roof and added "sold as is" in paragraph X, "Special Clauses." Mr. and Mrs. Holm then executed the Contract of Sale, as modified, and mailed it to Ellison Realty, Inc. Ms. Reese, after receiving the Contract of Sale from Mr. and Mrs. Holm, informed Ms. Kennedy and Mr. Korsun that their offer had been accepted. Ms. Reese did not inform Ms. Kennedy or Mr. Korsun that the sellers had modified the Contract of Sale by deleting the one year warranty of the roof and adding the language that the sale was "as is." Ms. Reese failed to provide a copy of the Contract of Sale signed by the Holms or have Ms. Kennedy and Mr. Korsun initial the modifications made by the Holms. A copy of the Contract of Sale, as modified by the Holms, was not provided to Ms. Kennedy until February or March, 1987. The sale of the Property was closed on December 5, 1986. Closing took place at the offices of Advanced Title Searching, Inc., and was conducted by the President of Advanced Title, Robert M. Connell. At the closing Ms. Kennedy and Mr. Korsun decided that the Property would be sold only to Ms. Kennedy. Ms. Kennedy was not specifically informed during the closing that the language concerning the one year warranty of the roof had be stricken and that the language "sold as is" had been added. She was told, however, that the Property was being sold "as is" by Mr. Connell. Mr. Connell also followed his routine of reviewing paragraph X of the Contract of Sale with Ms. Kennedy and having her initial and sign a Buyers Affidavit. Among other things, Ms. Kennedy acknowledged by signing the Buyers Affidavit that she had reviewed paragraph X of the Contract of Sale. The Buyers Affidavit also refers to the only special clauses in paragraph X of the Contract of Sale as executed by Mr. and Mrs. Holm Although the terms of the sale were generally described by Mr. Connell and Ms. Kennedy signed the Buyers Affidavit, Ms. Kennedy was not shown the Contract of Sale as executed by Mr. and Mrs. Holm, she was not specifically told about the removal of the special clause concerning the one year warranty on the roof or that the roof was "as is," and she did not understand what she was signing. In approximately February, 1987, following Ms. Kennedy's purchase of the Property, the roof of the mobile home began leaking water during a rain storm. Ms. Kennedy called Ms. Reese to report the damage. Ms. Reese then informed Ms. Kennedy for the first time that the language concerning the one year warranty of the roof had been stricken and that the language "sold as is" had been added to the Contract of Sale. Ms. Reese offered to pay the cost of repairing the roof. Ms. Kennedy declined this offer because she wanted the roof replaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Margaret Ann Reese by found guilty of violating Section 475.25(1)(b), Florida Statutes. It is further RECOMMENDED that Ms. Reese be reprimanded and required to pay a fine of $500.00. DONE and ENTERED this 14th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 14th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1294 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3-6. 4 7. 5 8. A copy of the contract was provided in 1987, not 1988. 6 9-10. 7 See 10-11. 8 10. The last two lines of this proposed finding of fact are not supported by the weight of the evidence. 9 12. 10 Not supported by the weight of the evidence. 11 13. 12-13 Hereby accepted. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3-6. 4 7. 5 Not supported by the weight of the evidence. Mr. David's testimony was contradicted by Ms. Reese's admissions to the Petitioner's investigator. 6 8. 7 10. See 11. 8 See 10-11. 9 12. 10 Not supported by the weight of the evidence. 11 13. 12-13 Hereby accepted. COPIES FURNISHED: Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 3280 Steven W. Johnson Senior Attorney Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Frederick D. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue An administrative complaint dated March 18, 1992 alleges that Respondent violated Section 475.25(1)(b), F.S., by fraud, misrepresentation, false promises, concealment, dishonest dealing and breach of trust in a business transaction with George and Mable Bush. The issue in this proceeding is whether that violation occurred and if so, which discipline is appropriate.
Findings Of Fact Respondent, Dilsa M. Fish, was at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0356415 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesperson, c/o Josef Heinrich Augustin, 25 NE 22nd Street, Miami, Florida 33127. At all times material hereto, Respondent was an officer and was the sole owner of I.E.P. Construction Company, Inc. (hereinafter, "IEP"). George Bush and his wife Mable Bush met Respondent in October 1989 at Respondent's office in Lehigh Acres, Florida. The Bushes were interested in buying property. Neither of the Bushes had previously bought real estate, and neither of them had completed high school. The Respondent had a map. Using the map, she gave the Bushes directions, and the Bushes, following those directions, found and looked at some lots in Lehigh Acres. The Bushes found a lot they liked on the corner of East 12th and Joel Boulevard. They went back to Respondent, and she marked their selection on her map. The Bushes gave her a check for $50 for a deposit on the lot. The idea was that IEP was going to build a house for the Bushes on the lot. The Bushes did not sign a contract. Respondent told them that when they returned home to New Jersey, they were to send an additional $2,950, and then she would send them a deed for the lot. The Bushes returned to their home in New Jersey and sent Respondent a check for $2,950 shortly thereafter. In March 1990 the Bushes returned to Lehigh Acres. At that time, the Bushes signed a contract with IEP. The contract was prepared by Respondent and was entitled "Contract of Purchase and Sale Property With Improvements To Be Constructed," and was dated March 14, 1990. The Bushes made selections concerning the decor of their house, and they gave Respondent a cashier's check for an additional $15,000. The lot specified in the contract was not the same lot as the lot which the Bushes had selected in October 1989. The lot specified in the contract was on East 8th and Hamilton. Respondent told the Bushes she changed lots in order to save money on fill dirt, and the Bushes agreed to the change. Later the Bushes were apprised that Respondent changed lots because the lot originally chosen by the Bushes was commercial property. During the Bushes' March 1990 visit to Lehigh Acres, the Bushes applied for financing at BancFlorida, a local bank selected by the Respondent. The Bushes' application was approved August 30, 1990. Paragraph 3 of the Bushes' contract with IEP, Petitioner's Exhibit 1, provided as follows: 3. TIME: Construction is to be completed within 120 days starting from the date of financial approval unless delayed by strike, act of God, material or labor shortages, or other causes beyond control of contractor. Around August 1990, the Respondent called the Bushes and told them that she was changing the lot again, this time to one on Lake and 6th Street, because it would be closer to where Respondent lived. The Bushes agreed to the change in order to get started with construction and because it was closer to Lehigh. The Respondent sent them a new contract page one to sign and return, which they did. In October 1990 George Bush and a co-worker of his, John Volk, came to Florida and stayed at Lehigh Resort Center, where Mr. Bush had a timeshare. Mable Bush did not come because she was in the hospital. Mr. Bush came because he wanted to see why construction of the Bushes' house was being delayed. Mr. Bush stayed for approximately one week. During that time dirt was placed on the lot on Lake and 6th Street, but there was no other visible construction progress. After Mr. Bush's return to New Jersey, the Bushes received two letters from the Respondent. The first, dated October 12, 1990, stated that "The construction of your home is under way." In the letter the Respondent promised to provide the Bushes with accommodations and storage pending completion of the Bushes' house, at no charge for the initial period November 15-December 15, 1990. The second letter, dated October 25, 1990, advised the Bushes that there was ". . . a title problem on the property." The letter also advised that "We can not have the house ready by the deadline." and that "They (the title company) are not telling me how long it will take to clear title. Therefore, my timing and schedule will be totally off." After receiving the October 26, 1990 letter, the Bushes discussed the possibility of cancelling the contract with IEP, and Mr. Bush called the Respondent and asked her how much it would cost ". . . to just forget the whole thing." The Respondent told him it would cost about $1,500, but then she persuaded the Bushes not to cancel by offering to change lots again, this time to a lot on East 5th and Greenwood. The Bushes agreed. They felt that since the Respondent had their money they didn't have much choice. The Bushes moved to Florida on November 13, 1990, and initially they stayed in a house in Lehigh Acres owned by the Respondent and which the Respondent also used as an office. It was the same office where the Respondents had originally met the Respondent in October of 1989. The Respondent promised to clear off the lot on East 5th and Greenwood, but she never did, and a "For Sale" sign continued to be displayed on the lot. After moving to Florida, the Bushes received correspondence from BancFlorida indicating that the bank was still under the impression that the Bushes were buying the lot on East 8th and Hamilton. Mable Bush called the bank and was told there would be a fee of $250 to change lots. The Bushes asked Respondent to pay the fee and she refused. After this incident the Bushes decided that they did not want to continue doing business with the Respondent. On December 14, 1990, the Bushes moved out of the Respondent's house/office, and on December 15, 1990 they moved into a nearby house in Lehigh Acres which they bought. The Bushes requested that the Respondent return the $18,000 they paid her, but, through and including the date of the hearing, she failed or refused to return any portion of it. During the course of the transaction between the Bushes and the Respondent, the Bushes did not have an attorney representing them because the Respondent told them they didn't need an attorney and because the Bushes trusted the Respondent.
Recommendation Based upon the foregoing, it is hereby, RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding the Respondent Dilsa M. Fish guilty of violating Subsection 475.25(1)(b), Florida Statutes, imposing an administrative fine in the amount of $1,000 and revoking the Respondent's license. DONE AND RECOMMENDED this 9th day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 9th day of August, 1993. COPIES FURNISHED: Dilsa M. Fish 612 James Avenue Lehigh Acres, Florida 33936 Dilsa M. Fish c/o Eric Rivera 7291 N.W. 37th Streeet, Apt. C-6 Hollywood, Florida 33024 Theodore R. Gay, Senior Attorney Department of Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2011),1/ and if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Mitchell was certified as a Corrections Officer in the State of Florida by the Commission on March 29, 1988, and issued Correctional Certification #54803. Mr. Mitchell was certified as a Law Enforcement Officer in the State of Florida by the Commission on August 13, 1990, and issued Law Enforcement Certification #54802. Mr. Mitchell is retired from the Marion County Sheriff’s Office and served in law enforcement for about 20 years. Mr. Richard Hopper and Ms. Cynthia Hopper owned the residence located at 16040 S.E. 31st Court, Ocala, Florida, (Summerfield property) from about March 29, 2001, until about August 25, 2011. During 2010, the Hoppers were experiencing financial difficulties and believed they would be unable to keep paying the mortgage on the Summerfield property. They thought it was only a matter of time before the bank repossessed it. They decided to go ahead and move to Gainesville, Florida. Mr. Hopper was unemployed, and they reasoned that Ms. Hopper would be closer to her job at Shands Hospital there. They thought an apartment in Gainesville would be a little less expensive, and that they would save on commuter expenses. Mr. and Ms. Hopper moved out of the Summerfield property sometime in August 2010. The Hoppers left some personal property in the house, which they did not intend to abandon. They made trips almost once a week between the Summerfield property and their new residence in Gainesville, Florida. On each trip they took additional belongings from the Summerfield property with them, until very little was left at the Summerfield property. Ms. Hopper described the remaining property as consisting of some home schooling books, a closet of her clothes, a pool table, a blue chair, and some desks. She noted that there were “a lot of personal things from my childhood in there and although it may have looked like junk to someone else, it was very personal to me.” By the end of 2010, the Summerfield property was very rundown. Routine maintenance had not been performed and the property presented an abandoned appearance. The lawn was overgrown and there was trash in the yard. The doors were unlocked and there was an open window with no screen. Mr. Mitchell lived in the area and was aware of the state of the Summerfield property. Mr. Mitchell discussed the difference between squatters’ rights and adverse possession under section 95.18, Florida Statutes, with his friend and co-worker Lieutenant Dennis McFatten of the Marion County Sheriff's Office on a couple of occasions. Lt. McFatten was not specifically familiar with the adverse possession statute and Mr. Mitchell explained his own understanding of it. Lt. McFatten concluded that if an individual moved into a house without getting permission from the owner in his district, he would call the State Attorney’s office to get legal advice, but that he would be inclined to make an arrest. Mr. Mitchell bought a Black’s Law Dictionary and tried to interpret section 95.18, Florida Statutes. On or around January 31, 2011, Mr. Mitchell filed an adverse possession claim on the Hoppers' residence with the Marion County Property Appraiser’s office. Mr. Mitchell also entered the structure on the Summerfield property on January 31, 2011. He did not have permission from the Hoppers to do so. His intent was to adversely possess the property. He was retired from employment as a law enforcement officer at this time. Mr. Mitchell filed the adverse possession papers with the property appraiser in the mistaken belief that this would keep his entry onto the Summerfield property from constituting an illegal trespass. The Hoppers did not know Mr. Mitchell at this time and had not authorized, licensed, or invited him to enter the structure. Sometime in early February, 2011, Mr. Mitchell rented a dumpster and had it delivered to the Summerfield property. Mr. Mitchell threw some the Hoppers' remaining personal belongings that he found in the structure into the dumpster. Mr. Mitchell described this personal property as follows: It was trash. I mean, that’s all I can call it. It isn’t something that you would use. I can tell you that. That’s why they left it. Anything that was left in the house was not nobody gonna use. Mr. Mitchell erroneously believed the property that he threw in the dumpster had been abandoned. On or about February 10, 2012, when the Hoppers next returned to the Summerfield property, they noticed the dumpster in the driveway as they approached the property. Mr. Hopper testified that it was a large dumpster, with the top edge probably above his head. They believed that the bank had repossessed the home, and they simply had not yet been notified. They slowly drove on by the property and did not stop. Mr. Hopper testified that when they saw the dumpster and believed the property had been repossessed, it “hit them “like a load of bricks.” Ms. Hopper testified she could see some of their personal property in the dumpster. Ms. Hopper started crying. They believed that the house and all of the items in it were now out of their hands. They Hoppers testified that they believed they had no further rights to anything. The Hoppers made no effort to stop their vehicle to ascertain what was happening or to try to retrieve their personal property. Mr. Mitchell changed the locks on the doors of the Hoppers' residence, and painted portions of the interior walls without the Hoppers' permission. Mr. Mitchell turned on the electricity at the Hoppers' residence with Sumter Electric Company. Mr. Mitchell parked a trailer with tag #I147QZ with his personal belongings in the garage of the Hoppers' residence. On or about February 18, 2011, Mr. Mitchell called Mr. Hopper to advise him that he had filed the adverse possession claim on Mr. and Ms. Hopper's residence. They discussed the adverse possession statute. They also discussed a Christian website. Mr. Hopper did not agree with Mr. Mitchell’s attempt to gain adverse possession of the property. On or about March 5, 2011, the Hoppers returned to the Summerfield property. They found the locks on the doors had been changed. They could see through a window that the walls had been partially painted. The Hoppers called the Ocala Sheriff’s Office. After a Deputy arrived, the Hoppers gained entry to the structure. They found a utility trailer in the garage. There was furniture in the trailer and elsewhere around the garage that did not belong to the Hoppers. They found a work order for carpet cleaning lying on a counter. They noticed that several items of their personal property that had been left in the house were missing. Ms. Hopper testified that the items that were missing included her clothes and lots of her personal items. While a price could not be put on the sentimental items, she testified that the fair market value of the missing personal property was between $500 and $600. The Hoppers did not have photographs, receipts, or other documentation of the missing items of property. Ms. Hopper recalled the missing items solely from her memory. On or about March 6, 2011, the Hoppers changed the locks on the front and back doors and disabled the garage door entry. On March 7, 2011, Mr. Mitchell called Ms. Hopper and asked her if the Hoppers had gone back to the Summerfield property. She said yes. Mr. Mitchell then asked her if they had changed the locks. When she advised him that they had, Mr. Mitchell asked if he could get in to get his things back. Ms. Hopper said, “Not without me there, because it is my house.” Mr. Mitchell was polite during the call. Mr. Hopper got on the telephone with Mr. Mitchell and they began discussing religion and scripture. This conversation irritated Ms. Hopper, who told her husband to hang up the phone. She became very upset. Mr. Mitchell was arrested and later entered into a pre-trial diversion program where he was ordered to pay $575.00 in restitution to Ms. Cynthia Hopper. Mr. Mitchell paid $575.00, but did not believe the personal property he had thrown away was worth that much. He paid that amount, as he testified, “to get it behind me, I did what they wanted me to do, so that’s what I did.”
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding that Respondent, Roosevelt Mitchell, failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and That Respondent's certifications as a Corrections Officer and a Law Enforcement Officer be suspended for a period of two years, followed by two years' probation. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 3rd day of December, 2012.
Findings Of Fact The facts here involved are undisputed. At all times here relevant Leroy Herron, Respondent, was registered with the Florida Real Estate Commission as a broker and active firm member of Chase Realty, Inc. Chase Realty, Inc. was a corporate broker, one hundred percent of whose stock was owned by Carl F. German, a non-registrant. At and prior to August 1977, Respondent Herron was employed at the Ramada Inn at Lake Worth as bartender. He had received his real estate broker's registration two or three years before, but had never actively participated in a real estate office or sold real estate. Carl F. German, a former comptroller for the business owning Ramada Inn, came into the Ramada Inn several times per month and during a conversation with Herron learned that Herron was a registered broker. German said he was in need of a broker and asked if Herron was interested. The conversation was general and no specific employment agreement was reached. Although German had Herron registered with the Petitioner as active firm member of Chase Realty, Inc., Herron was assigned no duties, provided with no office space or was ever invited to come to the office. German explained the firm's business at this time did not involve real estate sales and that he had Herron available in case a deal came up involving a real estate transaction. In August 1977 German brokered a deal to sell a liquor lounge known as Crazy Jim's to one Sheridan, who gave German a $5000 deposit on the transaction. Herron had no involvement in this deal and was totally unaware of it until Sheridan contacted him after he had, been unable to get his deposit back from German. The Deposit Receipt and Contract for Sale and Purchase (Exhibit 2) was prepared by the attorney for the seller and stated "This represents the purchase and sale of personal property only and the lease of the real estate." The contract provided for a commission of $5000 to Chase Realty, Inc. or one-half of the deposit in case the buyer forfeited. The $5000 down payment was deposited by German in an account of Chase Realty, Inc. on which German was the only authorized signature. When the transaction failed to close and the buyer demanded return of his deposit, German refused to return the deposit. A complaint by the buyer to the Petitioner led to the investigation and the charges here involved. German contends that the transaction was for the sale of a business only and that he was not involved with the lease recited in Exhibit 2, as that was between the buyer and the lessor. German readily acknowledged that he had made no specific arrangements with Herron to perform the functions of an active firm member broker but insisted that at this time the company was not engaged in any real estate transactions and that he had no need for a registrant. Upon being advised that he had been registered as active firm member of Chase Realty, Inc. Herron had his certificate removed from the Chase Realty Office and presumably placed his registration in an inactive status. He cooperated fully with the investigator for Petitioner and with the buyer regarding the return of the buyer's deposit. Carl F. German was tried on criminal charges resulting from the transaction leading to the charges preferred against Herron. Those criminal charges against German involved acting as a real estate broker without a license. The business card German showed to Herron had the name Carl F. German, President, Chase Realty, Inc. (address) Real Estate Brokers. Herron was not aware that German was not a registered real estate broker or that Herron was to be registered as the active broker of Chase Realty, Inc. when he agreed to have his license registered with Chase Realty, Inc.
