The Issue The issues in this case are whether the respondents, Dorothea L. Prisament and Warricks Real Estate , Inc., should be disciplined on charges filed in a six-count Administrative Complaint, three counts for each respondent, and alleging that the respondents: (1) were culpably negligent in allowing their escrow account to have a negative balance, in violation of Section 475.25(1)(b), Florida Statutes (1989); (2) failed to maintain trust funds in a properly maintained escrow account, in violation of Section 475.25(1)(k), Florida Statutes (1989); and (3) failed to maintain a proper office sign, in violation of F.A.C. Rule 21V-10.024 and Sections 475.25(1)(e) and 475.22, Florida Statutes (1989).
Findings Of Fact Dorothea L. Prisament and Warricks Real Estate, Inc., are now, and were at all times material hereto, licensed as real estate brokers in the State of Florida. Dorothea L. Prisament was the active real estate broker for the corporate broker, Warricks Real Estate. On or about August 16, 1989, investigator Marjorie G. May conducted an office inspection and audit of the escrow accounts of the respondents. Ms. May also reviewed the outer office of the respondents. The entrance sign did not have the name of Dorothea L. Prisament on it; however, the sign did have Warricks Real Estate correctly identified and identified as a licensed real estate broker. Ms. May advised Ms. Prisament of the fact that Ms. Prisament's name needed to be on the sign and identified as a real estate broker. Ms. Prisament had a new sign made which fully complies with the statutes and rules. There was no evidence introduced at hearing to show that the escrow account of the respondents had a shortage in any amount; directly to the contrary, both the Department of Professional Regulation investigator and Ms. Prisament agreed that there was no shortage in the account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and in light of the fact both that the respondents' violation was a very minor and technical one which was immediately corrected and that the respondents had to undergo the costs of defense of this case and suffer the mental duress of defending this case, it is recommended that the Florida Real Estate Commission enter a final order dismissing Counts I through IV of the Administrative Complaint and reprimanding the respondents for a minor and technical violation under Counts V and VI. RECOMMENDED this 20th day of July, 1990, 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 20th day of July, 1990. COPIES FURNISHED: Janine A. Bamping, Esquire Department of Professional Regulation, Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Darlene F. Keller Director, Division of Real Estate 400 West Robinson street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, 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 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
Findings Of Fact At all times relevant thereto, Respondent, Oswald S. Welsh, held real estate broker license number 0301189 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He presently is broker for Welsh International Realty, Inc. located at 4684 Northwest 183rd Street, Carol City, Florida. Prior to his involvement with Welsh International Realty, Inc., Respondent was employed as a salesman with Pedro Realty, Inc. until on or about September 15, 1980. Respondent mailed the required papers to establish his own real estate firm to the Board of Real Estate in Orlando, Florida, shortly after he left Pedro Realty, Inc. He assumed that he was authorized to commence business as a broker once the papers were mailed. This assumption was based upon his understanding of the practice followed by other brokers in Dade County. However, because the papers were mailed to Orlando rather than the Department of Professional Regulation in Tallahassee, his registration as a broker did not become effective until November 17, 1980. Respondent engaged the services of an attorney in Hialeah, Florida, to incorporate his real estate firm. The articles of incorporation were sent to the Department of State by letter dated September 19, 1980. Because of an error in the papers, the application was returned to Welsh's attorney on October 1, 1980. The incorporation was ultimately approved on October 22, 1980. Prior to the approval of the incorporation, a salesman for Respondent's firm negotiated a sale of real property on October 17, 1980. Welsh received no proceeds or other value from the closing. Welsh is a native of Jamaica who has lived in the United States since 1963. He became a United States citizen in January, 1982. His real estate firm presently employs approximately twelve persons, of whom seven are full time. Respondent did not intentionally violate the law but appeared to have relied upon the advice of his attorney as to when he could begin to operate his business in a legal manner. Because of errors in filing the papers, or paper not properly filled out by his attorney, he unintentionally began operating prior to approval by the State.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the Administrative Complaint and issued a public reprimand. DONE and ENTERED this 8th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 William H. Davis, Esquire 111 NW 183rd Street Miami, Florida 33169 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the state government licensing and regulatory agency charged with the responsibility to prosecute Administrative Complaints alleging misconduct by practitioners of the real estate profession in this state. The Florida Real Estate Commission is the state agency responsible for licensing real estate sales persons and brokers in Florida and for regulating the real estate profession in this state. By Administrative complaint dated May 1, 1992, Respondent and Nicholas G. Patsios were charged with various violations of Section 475.25(1), Florida Statute. At the time, Respondent was a licensed real estate salesperson at Gulf Beaches Realty, Inc. (Gulf Beaches) in Holmes Beach. Gulf Beaches was licensed as a real estate broker for which Mr. Patsios was the qualifying broker. However, Respondent was actually the owner of Gulf Beaches and registered as an officer of the corporation. On January 16, 1992, an investigator for the Department had attempted to audit Gulf Beaches' escrow account but could not do so because the records were not in order. This was the impetus for the investigation into the operation which resulted in the filing of the Administrative Complaint. Respondent actually operated the brokerage, and in the Administrative Complaint was alleged to have been registered as an officer of a brokerage corporation while licensed as a salesperson. She was also charged with having operated as a broker while licensed as a salesperson. By Final Order dated August 18, 1992, the Florida Real Estate Commission found Respondent guilty of the alleged misconduct, fined her $100.00, reprimanded her and placed her on probation for one year conditioned, inter alia, upon her not violating any other provisions of Chapter 475. On May 21, 1993, the Department again charged Respondent with violations of Chapter 475, alleging that she: (1) continued to operate as a broker while licensed as a salesperson; (2) operated as a broker without holding a valid broker's license and (3) violated an order of the Commission. Though the matter was referred to the Division of Administrative Hearings, Respondent failed to respond to the Administrative Complaint, and pursuant to a motion to relinquish jurisdiction, the matter was returned to the Commission. Thereafter, by Final Order dated November 7, 1993, the Commission revoked Respondent's license as a salesperson. In the interim between that action and the filing of the instant Administrative Complaint, Peggy Jean Lasser, a licensed broker, became the qualifying broker for Gulf Beaches. She allowed Respondent, the owner of the brokerage, to control its operations, including interfacing with clients. When the Commission initiated action against Ms. Lasser for that infraction, she did not dispute the allegations, and as a result, by Final Order of the Commission dated August 15, 1995, her license was suspended for two years. Ms. Lasser immediately ceased operating as the broker for Gulf Beaches. To the best of her knowledge, however, Gulf Beaches is still operating as a real estate office without a broker, and Respondent is still operating as a salesperson without a broker. On July 29, 1996, George Sinden, an investigator for the Department, went to Gulf Beaches' office accompanied by another investigator. He found the door to the office open and Respondent seated at a desk beside the door. She was alone in the office. There were office machines present and it appeared to Sinden that the office was operating as a real estate office. During his visit, Mr. Sinden could find no one with a valid license as a broker or salesperson. Respondent indicated she was trying to find a broker to qualify the company. She admitted she was currently operating a real estate business. Respondent also indicated she had four rentals which she was managing and for which she was depositing funds into a trust account for the owners. She also claimed to have an escrow account with over $2,000 in it. Sinden found that Respondent was not complying with the Commission's monthly reconciliation requirements and he could not determine to whom the funds in the escrow account belonged. Respondent claims this money was deposit money placed by a prospective purchaser in a sale between two parties, both of whom trusted her to hold the funds. She claims she was to receive a 5 percent fee. Records of Secretary of State's office showed Ms. Lasser as the only officer of Gulf Beaches. However, she no longer holds a valid broker's license. Respondent indicated she was the sole owner of Gulf Beaches. She claimed when Sinden interviewed her and at the hearing, where she again admitted the matters set forth above and in the Complaint, that she has not take in any new business since Ms. Lasser left. Respondent admits that she has attempted to divest herself of her clients but claims that because the Complaints filed against her by the Department have damaged her reputation, no broker will work with her or her business since the action in 1992. Respondent either cannot or will not accept the fact that she is operating illegally. Her primary concern seems to be the fact that this business is her way of making a living. She is 80 years old and seeks only to operate for two more years, at which time she will "meet her maker." The evidence is clear that since 1992, and before, Respondent has been the owner of Gulf Beaches. From the departure of Mr. Patsios to the incumbency of Ms. Lasser, and after the departure of that individual up to the present, Respondent has operated the corporation without a broker. It is also clear that since November 1993, Respondent has operated as a salesperson without a valid license.
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 guilty of the misconduct alleged in the Administrative Complaint and, consistent with the provisions of Section 455.228, Florida Statutes, impose an administrative fine in the amount of $2,500.00. DONE and ENTERED this 3rd day of September, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of September, 1996. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N308 Post Office Box 1900 Orlando, Florida 32802-1900 Geraldine Ruesel, pro se 5351 Gulf Drive Holmes Beach, Florida 34217 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times material to this case, the Respondent, Gloria Corsoro, has been a licensed real estate broker. She is the qualifying broker for the company known as Orange Management Corp. The Department is the state agency charged with the responsibility of regulating real estate licensees in the State of Florida. On or about July 20, 1994, the Respondent, Gloria Corsoro, entered a plea of nolo contendere to the crime of unlawful use of a notary. As a result, the Respondent was adjudicated guilty, placed on probation for a period of six months, and required to make payments and serve community service as directed by the court order. The plea and conviction stemmed from Respondent's conduct in connection with a warranty deed (the deed) which was recorded in the public record for Indian River County, Florida, on October 12, 1993. The deed conveyed a condominium unit from Leon R. Leavitt to the G. Corsoro Family Trust. The deed, notarized on October 1, 1989, purportedly bore the signatures of Leon R. Leavitt, the grantor; Mamie Cellura, a witness; Marie Copley, a witness; and Joseph Cellura, the notary before whom the document was executed. In fact, the document was not signed by Marie Copley or Leon R. Leavitt. At the time of the hearing, Mamie Cellura and Joseph Cellura were deceased. They were the parents of Marie Copley and her sister, the Respondent. At the time the deed was executed, Respondent signed Mr. Leavitt's name under a power of attorney he had reportedly given to her. Respondent further claims that Mamie Cellura signed for herself as a witness, signed for Marie Copley as a witness, and signed her husband's name with him (he had Parkinson's disease) as the notary. All this was completed, according to Respondent, Marie Copley, and Leon R. Leavitt, with everyone's full consent and knowledge. Marie Copley and Leon R. Leavitt were not present when the document was executed. Since they claim Respondent was authorized to execute the document, they are not concerned as to who signed the document but believe Mamie Cellura and Respondent signed as represented by Respondent. According to Nicholas Burczyk, the Respondent signed the document for all signatories on the instrument. Even by Respondent's account, the named parties did not execute the deed as presented on the face of the document. Respondent was originally charged with uttering a forged instrument and forgery. She chose to enter the plea as to the misdemeanor charge of unlawful use of a notary because she was "financially unable to pay to go to trial."
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, through the Florida Real Estate Commission enter a final order determining the Respondent, Gloria Corsoro violated Section 475.25(f), Florida Statutes, and imposing a reprimand together with an administrative fine in the amount of $1,000.00. DONE AND RECOMMENDED this 10th day of July, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0334 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is accepted as stated in findings of fact paragraphs 6 through 14 above; otherwise rejected as incomplete statement of fact. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. Respondent's assessment of the charges against Respondent together with the argument has been considered in the preparation of the foregoing. COPIES FURNISHED: Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Daniel Villazon Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Michael F. Berry MICHAEL F. BERRY, P.A. 2145-15th Avenue Vero Beach, Florida 32960
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: Respondent, Robert E. Zimmerly (Zimmerly) is a licensed real estate broker having been issued license No. 0127833, with last known address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a real estate broker. Respondent, Haines City Realty, Inc. (Haines City) is a licensed corporate real estate broker having been issued registration No. 0146307, with its last known business address of 500 Hinson Avenue, Haines City, Florida and at all times pertinent to these proceedings was licensed by the State of Florida as a corporate real estate broker. Haines City's license is currently in an inactive status. At all times pertinent to these proceedings, Zimmerly was the sole broker, of and for Haines City, and was its President. Several weeks prior to April 23, 1981, the date N. B. Willoughby (Willoughby) signed the first offer to purchase the property (offer), Zimmerly along with Barbara Costello (Costello) and Chancellor I. Hannon (Hannon) showed the property described as "Lots 230 and 233 of the Lucerne Park Fruit Association Subdivision, P1at Book 3, Page 67, Public Records of Polk County, Florida" (property), consisting of approximately 20 acres and contiguous to the city limits of Winter Haven, Florida to Willoughby, a prospective buyer, along with Ray Workman (Workman), Willoughby's associate. Costello at the time was a sales person for American Realty of Haines City, now known as American Realty of Polk County, Inc., (American Realty). Zimmerly was representing Haines City. Hannon was representing Ridge Holding Association, Inc., (seller) the owner of the property. The property had originally been listed with Haines City but presently was considered as being listed with American Realty. Subsequent to having seen the property, Willoughby instructed Zimmerly to prepare an offer to purchase, with a purchase price of $70,000, subject to the condition, among others, that the seller would obtain a special exception for a mobile home park. A deposit check for $500 was submitted along with the offer. Costello submitted the offer to Hannon for seller. Sometime around April 25, 1981, Hannon notified Costello that the seller had rejected Willoughby's offer because of the condition concerning a special exception for mobile home park. Within a day, Costello notified Zimmerly of the rejection. Zimmerly requested rejection in writing which Hannon did not furnish until May 11, 1981 due to his involvement in personal matters. Willoughby was not notified of seller's rejection of his first offer until around May 11, 1981. On April 27, 1981, after a verbal notification by Costello of rejection of Willoughby's offer, Zimmerly prepared and submitted an offer to purchase (Ridge offer) from Ridge Crest, Ltd., Agent, (This was apparently meant to be Ridge Crest Villas, Ltd.) signed by Bob Zimmerly, a general and limited partner, to seller, with a purchase price of $72,000, subject to the condition, among others, that seller furnish a letter requesting a special exception for mobile homes park. The Ridge offer was submitted to Hannon for the seller and was accepted by seller on May 5, 1981. On May 18, 1981 Willoughby submitted his second offer to purchase (second offer), with deposit, to seller through Zimmerly. The second offer was identical to the first offer except for the deletion of the condition requiring a special exception for mobile home park. Zimmerly did not advise Willoughby at this time, or at any other time material to the transaction, that Zimmerly was involved in an attempted purchase of the property through Ridge Crest Villas, Ltd. even though the Ridge offer had been accepted on May 5, 1981. Although the Ridge offer indicated a closing date of May 15, 1981, the transaction did not close for reasons not clear in the record, until May 27, 1981. The warranty deed and the mortgage deed executed on day of closing shows Ridge Crest Villas, Ltd. as the Grantee and Mortgagor, respectively. The deposits submitted with both of Willoughby's offers were timely refunded by Zimmerly. Willoughby was notified by Hannon after the closing that his second offer was rejected. On November 6, 1980, a limited partnership known as Ridge Crest Villas Ltd., was filed with the Secretary of State. The record is not clear, but apparently this limited partnership was involuntarily dissolved for failure to file an annual report and on October 14, 1981, an identical limited partnership, with the same name was filed with the Secretary of State. Both limited partnerships listed Robert E. Zimmerly as a general partner with 5 percent interest and listed Robert E. Zimmerly and Dolores J. Zimmerly as limited partners with 45 percent and 50 percent interests, respectively. Respondent Zimmerly's testimony was that: (1) he wanted a written (firm) rejection before notifying Willoughby because of previous dealings with Willoughby; (2) it is not uncommon to use limited partnerships in real estate transactions because of the availability of tax advantages when using a limited partnership; (3) he was acting for Jones and Destefano when he made the offer and purchased the property in the name of the limited partnership; (4) he intended for Jones and Destefano to own the property through the limited partnership and took a promissory note for the down payment; (5) he did not advise Willoughby of his involvement in the purchase of the property, other than in general terms "that some fellows from up north are interested" (Destefano is "from up North") because he had been taught in real estate schools, and it was his policy, not to discuss one prospective buyer's offer with another prospective buyer; and (6) it is common practice to have a "backup" offer as with Willoughby's second offer because you are never sure if a particular transaction will close. Mainly, this testimony went unrebutted by the petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that respondent be found guilty of a violation of Section 475.25(1)(b), Florida Statutes 1981) For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of Reprimand and impose an administrative fine of $1,000.00. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of May, 1985. COPIES FURNISHED: James R. Mitchell Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite 308 P.O. Box 1900 Orlando, Florida 32802 Arthur C. Fulmer, Esquire P.O. Drawer J Lakeland, Florida 33802 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent is now and was at all times material to this action a licensed real estate broker in the State of Florida, holding license number 0064475. Respondent operated his own real estate brokerage firm under his license. The firm was located in Niceville, Florida. In addition to his real estate brokerage business Respondent maintained and managed his personal real estate investments. Several of these personal investments included rental property which Respondent would later sell. One such piece of property was located at 104 Perdido Circle, Niceville, Florida, and is the property involved in this action. Prior to July 6, 1985, the Respondent, as seller and not as a broker, advertised for sale the Perdido property. Sometime around July 6, 1985, Robert L. Mitchell and June F. Mitchell looked at the Perdido property. Frank Ray, a salesman for John Brooks Realty, an unrelated real estate firm showed the property to the Mitchells. They liked the property and wanted to buy it. Frank Ray made arrangements for himself and the Mitchells to meet with Respondent in order to discuss the terms of the potential purchase contract. They met on July 6, 1985. The meeting lasted approximately an hour to an hour and a half. During the lengthy meeting Respondent went over the purchase terms contained in the contract of sale. The Mitchells main concern was to have immediate occupancy of the house. Special terms were developed for renting the property. At some point during the meeting the down payment came under discussion. Originally, the Mitchells had planned on a $1500 down payment which was acceptable to Respondent. However, as the meeting progressed the Mitchells decided they would like to reduce the amount of the down payment. Respondent informed the Mitchells that the only way he could decrease the $1500 down payment was to make the money a non-refundable option payment. Respondent then marked out the $1500 down payment figure contained in the purchase contract and inserted a $1200 figure. Respondent concurrently added the language "option payment" next to the $1200 figure. The remainder of the contract was discussed and the Mitchells signed the amended document. The Mitchells then wrote a check to Respondent, personally, in the amount of $1200. The note section of the check the Mitchells wrote contained the language "house down payment." The exact discussion on the down payment/option is not clear. What is clear from the evidence is that neither party had a meeting of the minds over what the $1200 check was. The Mitchells being very inexperienced in real estate thought it was a down payment. Although it is doubtful the Mitchells understood the legal meaning of the term "down payment." Respondent thought it was a non- refundable option payment. Absolutely no evidence of fraud or misrepresentation on the part of Respondent was demonstrated. Likewise, there was no evidence that Respondent in any way used his knowledge or expertise in the real estate market improperly. The final result of the negotiations was that the Mitchells had entered into what on its face purports to be a rental contract with an option to buy. However, since there was no meeting of the minds over the option, the option was eventually unenforceable. Since there was no meeting of the minds regarding the $1200 the money was not properly escrowable property. In essence the $1200 was neither a down payment nor an option payment. This lack of escrowability is borne out by the sales contract which calls for another escrow agent. 1/ The Mitchells took possession of the property for approximately three months. The Mitchells failed to obtain financing. The contract was conditioned upon the Mitchells obtaining financing, and the transaction failed to close. A dispute arose between the parties concerning the down payment/option money. When the dispute could not be resolved by the parties, the Mitchells filed a lawsuit against Nevin H. Nordal demanding a refund of the $1200 "house down payment." As a result of the Mitchell's lawsuit the County Court, in Okaloosa County, Florida, Summary Claims Division, by Amended Final Judgment dated January 20, 1987, awarded the sum of $1,028,87. The judgment figure is the balance of the $1200 after deduction of a counterclaim of $171.13 for cleaning the house after the Mitchells evacuated the property. Additionally, the Respondent was required to pay costs in the sum of $57 for a total of $1,087.87 due the Mitchells. The judgment amount is bearing interest at a rate of 12 percent per annum. The County Court judgment contains no findings of fact as to the Judge's reasoning on the judgment award. The Mitchells have repeatedly demanded of the Respondent that he pay the judgment. He has repeatedly refused to pay the judgment. Respondent did account to the Mitchells for the money when he told them he had deposited the check and had spent the funds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that the Administrative Complaint failed against Respondent, Nevin H. Nordal, be dismissed. DONE and ENTERED this 4th day of March, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1989.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility, and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Paul F. Savich is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0077390 in accordance with Chapter 475, Florida Statutes. Respondent, Ernest M. Haefele, is a licensed real estate broker, having been issued license number 0517821 in accordance with Chapter 475, Florida Statutes. On October 1, 1984, the Respondents, purchasers in their individual capacities, entered into a contract for deed to a tract at the Tropical Acres Subdivision, with Tropical Sites, Inc., and Angie S. Crosby and Eugene T. Crosby, at a sales price of $9,046.50. Said amount to be paid at the rate of $90 per month until paid. Pursuant to the agreement, the Respondents agreed not to assign the agreement without the permission of Tropical Sites, Inc. A closing was held on May 8, 1990, and the Respondents transferred possession of the tract by assignment of contract to Leroy H. and Charlotte Beard. A mobile home on the real property was part of the purchase price for a total sales price of $39,000.00 The agreement called for a down payment of $2,000 to the Respondent Savich. The Beards also signed a mortgage note in favor of the Respondents Savich and Haffele, for $37,000. The note was payable at the rate of $373.15 per month. Upon payment in full, Respondents were obligated to deliver a good and sufficient deed to the property to the purchasers. At the closing, Respondent Haefele was not present. The Beards received two documents at closing, a contract for sale and one other document, but did not receive a copy of the original agreement for deed, a disclosure statement, or a title to the trailer on the tract. In addition, Respondent Savich did not seek permission of Tropical Sites, Inc., prior to the closing. Prior to the closing, the Beards moved onto the property, and subsequently began making monthly payments of $373.15 to Respondent Savich. The Beards had purchased two or three pieces of property in the past, but had always gone through a bank. In relation to this agreement, they understood the nature of the transaction at the time of the closing. In early 1991, Mr. Beard made a telephone inquiry to the County property appraiser's office as to the status of the property for homestead exemption purposes. He was advised that Tropical Sites, Inc. was the current owner of the tract, and that he was not eligible for homestead exemption. The Beards did not apply for homestead exemption at the appraiser's office. In August 1991, the Beards stopped making payments to the Respondents on the advice of their attorney, but continued to reside on the premises until December 1991. In November 1991, an attorney acting on behalf of the Beards made a demand upon Respondent Paul F. Savich for the return of the $2,000.00 deposit. The Respondents did not return the $2,000.00 deposit or otherwise pay the money claimed by the Beards. In his dealings with the Beards, Respondent Savich did not withhold information, lie or mislead the purchasers. They simply were unhappy with the agreement, and decided to get out of it when they recognized that they would not receive title to the mobile home and property until the note was paid in full. In early 1992, the Beards quitclaimed their interest to the property to Respondent Savich's former wife, and they were released from their obligations under the note.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Counts I and II of the Administrative Complaint filed against Respondents Paul F. Savich and Earnest M. Haefele be DISMISSED. DONE AND ENTERED this 30th day of November, 1992, 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 30th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Adopted in substance: paragraphs 1,2,3,4,5,6,7(in part),8,9(in part)10,11,12,13 Rejected as against the greater weight of evidence: paragraphs 7(in part: the $2,000 was a down payment, not an earnest money deposit), 9(in part: the Beards moved on to the property prior to closing. Respondent's proposed findings of fact: Respondent submitted a proposed order with unnumbered paragraphs which partially recounted the testimony of several of the witnesses and combined facts and conclusions of law. Therefore, a separate ruling on Respondent's proposals are not possible. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR - Division of Real Estate 400 W. Robinson Street #N-308 Orlando, FL 32801-1772 J. Stanford Lifsey, Esquire 101 E. Kennedy Blvd., Ste. 1465 Tampa, Florida 33602 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto, Petitioner was licensed as a real estate broker by the Florida Real Estate Commission. In May 1988, he was working as a broker-salesman with G.V. Stewart, Inc., a corporate real estate broker whose active broker is G.V. Stewart. On April 20, 1989, Respondent submitted a Contract for Sale and Purchase to the University of South Florida Credit Union who was attempting to sell a house at 2412 Elm Street in Tampa, Florida, which the seller had acquired in a mortgage foreclosure proceeding. This offer reflected a purchase price of $25,000 with a deposit of $100 (Exhibit 2). The president of the seller rejected the offer by striking out the $25,000 and $100 figures and made a counter offer to sell the property for $29,000 with a $2000 deposit (Exhibit 2). On May 9, 1989, Respondent submitted a new contract for sale and purchase for this same property which offer reflected an offering price of $27,000 with a deposit of $2000 held in escrow by G.V. Stewart (Exhibit 3). This offer, as did Exhibit 2, bore what purported to be the signature of William P. Murphy as buyer and G. Stewart as escrow agent. In fact, neither Murphy nor Stewart signed either Exhibit 2 or Exhibit 3, and neither was aware the offers had been made at the time they were submitted to the seller. This offer was accepted by the seller. This property was an open listing with no brokerage firm having an exclusive agreement with the owner to sell the property. Stewart's firm had been notified by the seller that the property was for sale. Respondent had worked with Stewart for upwards of ten years and had frequently signed Stewart's name on contracts, which practice was condoned by Stewart. Respondent had sold several parcels of property to Murphy, an attorney in Tampa, on contracts signed by him in the name of Murphy, which signatures were subsequently ratified by Murphy. Respondent considers Murphy to be a Class A customer for whom he obtained a deposit only after the offer was accepted by the seller and Murphy confirmed a desire to purchase. Respondent has followed this procedure in selling property to Murphy for a considerable period of time and saw nothing wrong with this practice. At present, Respondent is the active broker at his own real estate firm.
Recommendation It is RECOMMENDED that William H. McCoy's license as a real estate broker be suspended for one year. However, if before the expiration of the year's suspension Respondent can prove, to the satisfaction of the Real Estate Commission, that he fully understands the duty owed by a broker to the seller and the elements of a valid contract, the remaining portion of the suspension be set aside. ENTERED this 29th day of November, 1989, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: John Alexander, Esquire Kenneth E. Easley 400 West Robinson Street General Counsel Orlando, Florida 32802 Department of Professional Regulation William H. McCoy 1940 North Monroe Street 4002 South Pocahontas Avenue Suite 60 Suite 106 Tallahassee, Florida 32399-0792 Tampa Florida 33610 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
