The Issue Whether Petitioner’s application for licensure as a preneed sales agent should be approved.
Findings Of Fact Based upon the evidence presented at hearing, the following relevant Findings of Fact are made. Petitioner seeks a license as a preneed sales agent so that she may work at Good Shepherd Memorial Gardens Funeral Home (“Good Shepherd”). Petitioner plans to work as a family service advisor to help families with preneed services. A preneed sales agent assists families with planning for funeral or burial needs prior to death. Petitioner anticipates she would conduct meetings with potential customers at the cemetery or in their homes. Petitioner worked with Good Shepherd from January 2018 until June 2018. Although Petitioner is currently not employed at the funeral home, she anticipates that Good Shepherd would allow her to return to work if her application for licensure is approved. Respondent is the state entity responsible for regulating licensure of persons who provide preneed sales services under chapter 497, Florida Statutes. When applying for any license under chapter 497, Respondent considers whether the applicant has a criminal record. An applicant must disclose any felony offense that was committed within 20 years immediately preceding the application. The Board then considers the applicant’s criminal history and whether the applicant would pose an unreasonable risk to members of the public who might deal with the applicant in preneed transactions. Petitioner has a criminal history involving an incident that occurred two years ago. In September 2016, Petitioner’s husband placed Petitioner’s then eight-year-old daughter in a dog cage because the daughter had allegedly mistreated the family dog. Petitioner returned home from work, found her daughter in the dog cage, and removed her. In a separate but related incident, Petitioner watched her husband take her daughter to her bedroom. Petitioner entered the daughter’s bedroom and saw her husband spanking her child with a flip-flop sandal on her behind. At no point did Petitioner attempt to protect her daughter from her husband’s abusive actions or report him to the appropriate authorities. The abuse was ultimately reported by a roommate who lived in the home. On June 12, 2017, Petitioner (age 28) pled nolo contendere to one count of child neglect without great bodily harm, a third-degree felony, in violation of sections 827.03(1)(e) and 827.02(2)(d), Florida Statutes. The court sentenced Petitioner to: one day of jail time with credit for time served, probation for 24 months, 100 hours of community service (within the 18 months of probation), and peaceful contact with her daughter. Petitioner was also ordered to pay court costs and fees and fines in the amount of $937.00. Adjudication of guilt was withheld. Petitioner’s husband, who was not the child’s biological father, pled guilty to two counts of child abuse without great bodily harm. Among other things, he was ordered to have no contact with the child. Prior to the criminal offense at issue in this matter, Petitioner had no criminal history. In addition, Petitioner has had no known contact with law enforcement since the criminal offense. In a Notice of Intent to Deny issued on April 26, 2018, Respondent notified Petitioner that her application for a preneed sales agent license had been denied as follows: On June 7, 2017, Ms. Hoff pled no contest to a felony charge of child neglect without great bodily harm and was sentenced to 24 months of probation, 100 hours community service, assessed court costs and fines in the amount of $937.00, and her parental rights were terminated. The [A]pplicant stated that her criminal probation will not be completed until June 2019. The Applicant stated that she has not yet paid the fines and fees assessed in this [criminal] matter. The Applicant stated that she is still married to the gentleman she was married to at the time of the arrest. This gentleman was involved in the criminal allegations of child neglect. On May 1, 2018, Petitioner timely requested a hearing disputing the factual basis for the denial of licensure. Petitioner has completed 40 hours of the 100 hours community service requirement. She anticipates that she may be eligible for early termination of her probation after she completes the community service hours. Petitioner did not present any evidence of community service other than court- ordered community service. Prior to submitting her application, Petitioner completed approximately 150 to 175 hours of training in preneed sales, covering family planning, death certificates, Veterans Affair benefits, types of burial products, and financial plan development. Petitioner provided no explanation regarding why she did not protect her daughter from abuse. In addition, Petitioner continues to live with her husband and indicated that she has not yet divorced him due to financial reasons. Petitioner has not presented sufficient evidence to meet her burden to prove that she is not a danger to the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Funeral, Cemetery, and Consumer Services enter a final order denying Shayla Hoff’s application for licensure as a preneed sales agent. DONE AND ENTERED this 19th day of September, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 19th day of September, 2018.
The Issue The issue for determination at final hearing was whether Florida Diesel Truck and Industrial, Inc., has standing to protest the termination of its franchise agreement with Mitsubishi Fuso Truck of America, Inc.
Findings Of Fact William Dowdy is the President and owner of Florida Diesel Truck and Industrial, Inc. (Petitioner). He owns all of the stock and controls the day- to-day operation of the business. Dowdy bought out his family members' interest in the business. Petitioner is primarily engaged in industrial, marine and agricultural parts and service. Dowdy has been working with Petitioner as an administrator for approximately 20 years. He joined Petitioner in 1973 in the accounting office when it was Florida Diesel and Marine Service and was primarily engaged in marine repairs. Dowdy has no actual, hands-on repairing experience with Petitioner of any significance. In 1989, Mitsubishi Fuso Truck of America, Inc. (Intervenor), was searching for new dealerships, so it initiated contact with Dowdy. Intervenor's branch manager had numerous conversations, regarding a truck franchise, with Dowdy. At that time, Petitioner had two locations: one in Riviera Beach and one in Ft. Pierce. The Riviera Beach location was the original facility, the larger of the two locations, and the main office. As a result of the talks, in October 1989, Petitioner applied for a dealership. In December 1989, Petitioner entered into an Interim Sales and Service Agreement (Interim Dealer Agreement) with Intervenor, which was the dealership franchise agreement. The Interim Dealer Agreement was for a one-year period (December 1989 to December 1990) only. In order to become an authorized dealer, Petitioner had to comply with the Interim Dealer Agreement. A term and condition made a part of the Interim Dealer Agreement and incorporated by reference as "Exhibit B" was that Petitioner would "show a growth rate in the areas of net worth, working capital, retail sales, parts sales, service sales, and show a positive trend towards profitability at the end of this interim agreement." Also, a development plan was entered into setting forth, among other things, an annual minimum sales objective of 25 units or vehicles for 1990. Petitioner's interim dealership was located at its Ft. Pierce location. Intervenor provided the trucks, through its credit plan, and Petitioner purchased the parts. As a dealer, Petitioner needed a salesperson but did not have one. Dowdy decided that Petitioner's branch manager in Riviera Beach would double as a salesperson for the dealership in Ft. Pierce. In addition to handling parts and service at the Riviera Beach location, the branch manager was also now a truck and parts salesperson. Needing a full-time salesperson for the dealership, Dowdy continued to search for a salesperson. Sometime within the contract year, Petitioner hired a full-time salesperson. The salesperson had no truck sales experience but did have automobile sales experience and local contacts which Petitioner felt was an asset. However, because his sales were lacking, the salesperson was replaced. Intervenor provided Petitioner with assistance during its year of operation. Intervenor's district sales manager met periodically with Dowdy, visited the dealership frequently, assisted with sales and made contacts with customers and potential customers. In December 1990, at the end of its first year of operation as a dealer, Petitioner received written communication from Intervenor regarding deficiencies, among other things, in the submission of monthly financial statements and the timely payment of accounts. Notwithstanding, in December 1990, Intervenor renewed the Interim Dealer Agreement for a second year from December 1990 to December 1991. Petitioner's profit trend did not indicate to Intervenor that it should offer Petitioner a three-year dealer contract as opposed to a one-year interim dealer contract. During the second contract period, Petitioner continued to have a salesperson problem. Petitioner replaced its salesperson with someone who had truck sales experience. However, the new salesperson was not selling a satisfactory number of trucks, so he was dismissed. Again, Petitioner's branch manager in Riviera Beach became the Ft. Pierce dealership salesperson. Additionally, in the second contractual year, on more than one occasion, Petitioner received written communication from Intervenor regarding submission of monthly financial statements and timely payment of accounts. Finally, in December 1991, Intervenor notified Petitioner by written communication that payment for parts shipment would be thereafter on a C.O.D. basis. In January 1992, Intervenor again renewed the Interim Dealer Agreement for a third year from January 1992 to January 1993. Prior to the renewal, Intervenor discussed increased truck sales with Petitioner and both agreed that increased trucks sales were necessary. A term and condition made a part of the Interim Dealer Agreement and incorporated by reference as "Exhibit B" was that Petitioner agreed to [S]ell a minimum of fifteen (15) units during the term of this contract. [S]ubmit monthly financial statements. [P]ay monthly parts account according to MFTA [Intervenor's] terms. Prior to the third contractual year, Dowdy had been having financial difficulty, due to his purchase of his family members' interest in Petitioner. However, during the third contractual year, the financial difficulties worsened with the absence of a salesperson which lead to disappointing truck sales. In March 1992, Intervenor's credit department denied approval for the shipment of a vehicle to Petitioner's dealership because Petitioner had not submitted to Intervenor the 1991 year-end financial statement and monthly financial statement and had not paid prior interest charges. Additionally, in June 1992, Intervenor notified Petitioner by written communication that its floor plan insurance premium was past due, i.e., Petitioner had not paid the premium on its inventory. Also, in May 1992, because of financial concerns, Petitioner sold its Riviera Beach location. Since Petitioner had no full-time salesperson for its Ft. Pierce location, Petitioner's former branch manager, who had remained with the new Riviera Beach owners, agreed to continue to sell trucks for it. This arrangement continued for approximately two or three months before Petitioner's former branch manager severed his salesperson relationship. Petitioner was without a salesperson. The absence of a salesperson continued to plague Petitioner, which affected its sales and in return, its finances. In or around late August 1992, Intervenor's district sales manager who had been working with Petitioner during each of the yearly contractual periods, initiated the subject of Petitioner resigning its dealership. They engaged in several discussions on the subject of resignation; however, during those discussions, the subject of Intervenor terminating the dealership franchise came up. On or about August 31, 1992, Intervenor's district sales manager prepared a letter of resignation for Dowdy's signature. Even though the resignation letter was dated August 31, 1992, it was not presented to Dowdy for his signature until September 11, 1992, when the manager visited Petitioner in Ft. Pierce. On September 11, 1992, Dowdy reviewed the resignation letter, and after discussing it with the sales manager, he signed the letter and had it witnessed. That same day, Intervenor's district sales manager notified Intervenor's manager of dealer operations, who was located at its home office in New Jersey, of the resignation letter being signed, and when he returned to his office in Orlando, the district sales manager gave the resignation to the Regional Vice-President. Prior to signing the resignation letter, on or about September 3, 1992, Petitioner, with Intervenor's assistance, transferred two of its trucks to another dealer in Broward County. On September 15, 1992, Petitioner, by fax transmission, submitted its tool inventory to Intervenor, and shortly thereafter, Intervenor repurchased the tools from Petitioner. In a letter dated September 14, 1992, Intervenor notified Dowdy that it had accepted his "voluntary resignation" of the dealership, and included a proviso that the effective date of the franchise termination was October 11, 1992, 30 days from the date of resignation. The letter was mailed from Intervenor's home office in New Jersey. The Interim Dealer Agreement provides that any notice to be given under the agreement may be delivered, as it pertains to the case at hand, to the party of the agreement if a sole proprietor, to an officer of the party if a corporation, or may be given by sending the notice by registered mail or tested telex addressed to the principal office of the interim dealer or to Intervenor's principal office. It provides further that notice given as indicated is considered given when delivered or mailed. Intervenor's Dealer Sales and Service Agreement Standard Provisions (Standard Provisions) was incorporated by reference and made a part of the Interim Dealer Agreement. Section X.A. of the Standard Provisions provides that a dealer may terminate the agreement upon 30 days prior written notice to Intervenor. Further, Section X.C. provides that the date of the notice of termination is the date of mailing. Shortly after signing the letter of resignation, individuals wishing to invest in Petitioner's truck dealership contacted Dowdy. After receiving positive assurances from the investors, Dowdy attempted to rescind the resignation. He forwarded a witnessed letter dated September 18, 1992, to Intervenor by fax transmission requesting that his "voluntary resignation be abated." At that time, he had not received Intervenor's letter of September 14, 1992. By certified letter dated October 2, 1992, Intervenor notified the State of Florida, Department of Highway Safety and Motor Vehicles (DHSMV) of Petitioner's "voluntary resignation" of its dealership. In response to Dowdy's letter of September 18, 1992, by letter dated October 9, 1992, Intervenor refused to abate Petitioner's resignation and treated his letter of September 18, 1992, as an application for a new franchise. Intervenor indicated in its response that it was not interested in a new franchise. On October 21, 1992, Dowdy sent a letter by fax transmission to Intervenor's CEO regarding the resignation letter and his (Dowdy's) plan to reorganize the dealership. The CEO contacted Dowdy the same day by telephone and discussed the low and decreasing market for truck sales in the Ft. Pierce area and whether Dowdy had been coerced or forced to sign the letter of resignation. Responding to the inquiry of coercion or being forced, Dowdy responded that he was neither coerced nor forced to sign the letter of resignation. Subsequently, however, in a letter dated October 28, 1992, Dowdy informed Intervenor's CEO, among other things, that Intervenor terminated the dealership and that he was requesting a hearing before the DHSMV for unfair cancellation. By letter dated October 28, 1992, Dowdy requested such a hearing from DHSMV. By letter dated November 9, 1992, Dowdy informed the DHSMV that, among other things, he had signed the "voluntary resignation" prepared by Intervenor, but later changed his mind and requested Intervenor to cancel the "voluntary resignation" on September 18, 1992. By certified letter, dated November 12, 1992, the DHSMV notified Dowdy that its determination was that he lacked standing to protest a termination and that he had 21 days from the service of that letter to request a formal hearing. Dowdy received the DHSMV's letter on November 18, 1992. On December 9, 1992, Dowdy forwarded a letter, bearing the same date, by Federal Express to the DHSMV requesting a formal hearing, which was received by the DHSMV on December 10, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Florida Diesel Truck and Industrial, Inc.'s, request for an unfair cancellation hearing in that it lacks standing for such a request. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL 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 21st day of March 1994.
The Issue The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.
Findings Of Fact Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed: The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 17th day of October, 2007.
The Issue Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Findings Of Fact Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints. Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307. At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey. On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida. By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue: . . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement. The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that: . . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation. Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement. On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled. In response to the cancellation Respondent wrote the following letter to Ms. Barr: Mrs. Marguerite A. Barr 1364 Lamboll Avenue Jacksonville, Florida 32205-7140 Dear Meg: As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best. According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows: Two insertions in Homes & Land Magazine $249.21 500 Flyers to Realtors (250 twice) @ $.06 each 30.00 Total $279.21 Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm. Regards, W. Wane Wier Broker-Salesman Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account. Respondent had originally taken money from his personal account to advertise the Barr property. On or about August 31, 1995, Ms. Barr sold her home on S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel. Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated: . . . I feel that Ms. Barr has violated our listing agreement and should pay me and my company the full commission due under the terms of that agreement. Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do. On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with $150.00 paid for advertising costs. This correspondence stated: Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail. I have been instructed to proceed with appropriate action should you fail to make the payment as stated above Please Govern Yourself Accordingly. Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only. Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code. DONE and ENTERED this 2nd day of April, 1997, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, FL 32801-1772 Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Linda L. Goodgame, General Counsel Department of Business and Professional; Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent, a Florida-licensed yacht salesman, should be disciplined for violation of Rule 61B- 60.006(2), Florida Administrative Code, as alleged in the Administrative Complaint dated May 10, 2000.
Findings Of Fact At all times pertinent to the issues herein, DBPR, through its Division of Florida Land Sales, Condominiums and Mobile Homes (the Division) was the state agency in Florida responsible for the licensing and discipline of yacht salespersons and brokers in this state and the regulation of the yacht-brokering profession. Respondent, Justo Lamar (Lamar), has been licensed as a yacht salesperson since November 1976. Prior to this action, Lamar has never been the subject of disciplinary action arising out of the practice of his profession. This action was precipitated by a yacht owner, Juan A. Galan (Galan), who unsuccessfully attempted to sell his yacht to a client of Lamar's. In July 1998, Galan listed his yacht, the Caliente, for sale through Ardell Yacht and Ship Brokers (Ardell). The listing resulted in negotiations for the purchase of the Caliente by one Larry Griggs (Griggs), a prospective customer represented by Lamar. At all times relevant to this case, Lamar was acting as a sales agent for Allied Marine and its broker, Dwight Tracy (Tracy). As set forth in more detail below, the negotiations between Galan and Griggs took place over a three-month period from October 1998 through December 1998 with no meeting of the minds. On July 12, 1999, some seven months after negotiations between Griggs and Galan terminated, Galan lodged a complaint with DBPR. Although the complaint was ostensibly directed against salesman Lamar and broker Tracy, each and every allegation in the complaint was directed to the broker's conduct, not Lamar's. Galan, who did not testify at final hearing, alleged in his complaint that "Broker presented a contract representing that deposit had been received/deposited (upon acceptance). In fact, broker never deposited check and we wasted our time and money on survey/sea trial as buyer was not (at that time or any time later) financially capable of buying boat @ $1.75 million." Galan provided some, but by no means all, of the documents which revealed the details of the prolonged and ultimately unsuccessful negotiations between Galan and Griggs. In the narrative portion of his complaint, Galan asserted that he lost money on sea trials and implied, without actually stating, that the Caliente had been taken off the market during the pendency of negotiations with Griggs. For reasons which remain unclear, the Division did not focus its investigation on Tracy, who was the obvious target of Galan's complaint. Instead, it targeted Lamar, who was an obvious add-on target of Galan's ire. The exhibits reveal a complex series of offers and counteroffers and jockeying for negotiating advantage, not just between Galan and Griggs as prospective Seller and Buyer of the Caliente, but also between Lamar and the two brokers, all three of whom stood to profit if the transaction were consummated. Negotiations for the Caliente began in late October 1998. On October 30, 1998, Lamar's client Griggs, through a corporation he controlled, issued a $150,000 check for "Deposit, 72' (sic) Caliente Sportfisherman." This check accompanied a Brokerage Purchase and Sale Agreement dated October 29, 1998, offering to purchase the Caliente for $1,500,000. That same day, Galan's representatives faxed Lamar to advise that Griggs' offer was insufficient. Lamar forthwith provided the check to his broker, Tracy. Negotiations between Galan and Griggs continued in November. Galan chose to by-pass his own Broker and negotiate directly with Lamar over lunch on November 18, 1998. Lamar wrote Galan's demands on the back of a restaurant placemat. The primary sticking point was Galan's insistence on a "bottom line" of $1,665,000 to him, after all commissions and other expenses, if any, were paid. Griggs nevertheless persevered in his effort to buy the Caliente for $1,500,000. On November 24, 2000, Griggs executed another Brokerage Purchase and Sale Agreement in which he offered an entity called Majua, Inc., of which Galan was President, the opportunity to sell the Caliente to Griggs for $1,500,000. Galan signed the November 24 agreement, but added an addendum which materially changed the terms. The addendum unilaterally purported to raise the sales prices to Galan's previously stated "bottom line" of $1,665,000. Thanksgiving passed, and negotiations wore on. On December 4, 1998, Griggs executed a third Brokerage Purchase and Sale Agreement, raising his offer to $1,755,000. The new offer expressly stipulated that Griggs' $150,000 earnest money check could be deposited when and if all parties executed this new proposed agreement. Like the October 29 and November 24 brokerage purchase and sale agreements, the December 4 document never ripened into a contract. The December 4 document was a clear and unembarrassed reminder from Griggs that an earnest money check had been written by Griggs, but was not on deposit, and was not going to be on deposit until such time as Galan had signed off on the contract as written by Griggs. Galan nevertheless permitted a sea trial of the Caliente in furtherance of negotiations, now in their fifth week. Also as part of the negotiating process, Galan permitted some, but not all, of the inspections requested by Griggs. Expenses for the sea trial and inspections were borne entirely by Griggs. By Christmas Eve, relations between the parties had deteriorated to the point where Lamar retrieved the check from the Allied Marine corporate files and returned it to Griggs. At no time did negotiations with Lamar's client Griggs preclude or interfere with efforts by Galan to negotiate with and sell the Caliente to any other prospective purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DBPR enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 March, 2001.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Withdrawal of Notice of Establishment and Motion to Dismiss Protest, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Mazda Motor of America, Inc. d/b/a Mazda North American Operations and BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach to sell automobiles manufactured by Mazda (MAZD) at 1801 West Atlantic Boulevard, Pompano Beach (Broward County), Florida 33069. Filed September 21, 2009 2:40 PM Division of Administrative Hearings. DONE AND ORDERED this /7iy of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this {i{j.h day of September, 2009. 1¼in'·ap·k, uDealer AdmlnilllalDf NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Louis C. Bachrodt, III BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach 1801 West Atlantic Boulevard Pompano Beach, Florida 33069 John J. Shahady, Esquire Adorno & Yoss, LLP 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301-4217 2 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue The issue is whether Respondent operated as a real estate broker or sales associate without a license, in violation of Section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent has not been licensed as a real estate broker, broker sales-associate, or sales person in the state of Florida. Respondent entered into an arrangement with Tina Mathews, who holds a valid broker or sales person's license, to find buyers in return for which she would split the commission with him. Although Respondent never showed the properties to prospective buyers, after finding them, he performed other, unspecified tasks to ensure that the deals closed and he would be paid. Respondent's defense is that he did not know that what he was doing was illegal. In fact, this case arose by a complaint filed by Respondent against Ms. Mathews, who had paid him several times in the past for similar work in connection with other transactions. When Ms. Mathews declined to pay Respondent in connection with three other transactions described in the Administrative Complaint, Respondent contacted Petitioner, which, after an investigation, brought these charges against Respondent for two transactions, as identified in the Administrative Complaint, for which Ms. Mathews paid him. In one letter (received June 12, 2007) from Mr. Haque to Petitioner, he acknowledges that he has "done 10 more deals with [Ms. Mathews] in the past for which she compensated me 1/3 of her commission. Enclosed are the HUDS for Ronald Nicolas and Beryl George . . .." These are the two transactions that are the subject of the Administrative Complaint, so there is no doubt that Respondent received compensation for his work on these two transactions. It is difficult to determine exactly what Respondent did to "earn" his share of the commission, although clearly he found the buyers. Although Respondent claims to have substantial work on each of these transactions, he is vague about what he did, and the weight to be accorded this admission is limited due to Respondent's persistent misunderstanding of this case as some sort of vehicle by which he can obtain payment for his share of the commission for the three subsequent transactions about which he filed a complaint against Ms. Mathews. The only remaining element of Petitioner's case against Respondent involves any ownership interest that Respondent may have had in the two properties identified in the Administrative Complaint. A summary of the investigator's interview with Ms. Mathews, who did not testify, states that she told the investigator that the deals that she did with Respondent were with properties that he owned. However, Respondent supplies the needed evidence as to this critical point when, in his post- hearing statement, he refers to this statement from the investigator and disputes it by stating: "The fact is, this is the only property in my complain [sic] I own with Ms. Mathews as agent of record." It is impossible to determine whether this admission applies to one of the two transactions that are the subject of the Administrative Complaint or one of the transactions for which he is, even now, seeking payment. At minimum, though, even if the statement applies to one of the two subject transactions, it applies to only one of them, and, by negative implication, Respondent concedes that he was not an owner of the other property. On the basis of this record, Petitioner has proved all of the above-cited allegations of the Administrative Complaint in connection with both transactions that underlie Count I.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding Respondent guilty of operating as a broker or sales person without a license and imposing an administrative fine against him of $5000. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 802 North Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Syed Haque 10100 Country Brook Road Boca Raton, Florida 33428
The Issue The issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement. By Final Order dated October 16, 1991, the Commission paid the claimant $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension. RECOMMENDED this 31 day of August, 1992, 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 31st day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but noted that the service was made to Respondent's former address, a change from which had previously been noticed to the Commission. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Copies furnished: James H. Gillis, Esquire DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772 Gabor A. Banfi FMT Holding Company, Ltd. The Prudential Florida Realty 160 South 6th Avenue Delray Beach, Florida 33483 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
