The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based upon the violation as established in this administrative complaint, it is recommended that the non-active real estate salesman's license, certificate no. 0113817 held by Edward J. Ball, Jr. be suspended for a period of six months. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1976 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Edward J. Ball, Jr. 1640 Dufossate, Apartment G New Orleans, Louisiana 30115
The Issue At issue herein is whether respondents' real estate licenses should be disciplined for-the alleged violations set forth in the administrative complaint. Based upon all of the evidence, the following facts are determined:
Findings Of Fact At all times relevant hereto, respondent, Juan Rios, was a licensed real estate broker having been issued license number 0155126 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Victoria R. Rios, is a licensed real estate broker-salesman having been issued license number 0331183 by petitioner. The Rios are husband and wife and presently reside at 855 80th Street, #1, Miami Beach, Florida. On December 13, 1982, Juan Rios obtained a six-month multiple listing agreement to sell a house located in Hacienda Estates at 11451 S.W. 33rd Lane, Miami, Florida. The agreement was executed by Rios "As Realtor" and by the property owner, Mercedes Garcia. At Mercedes' request, the Rios placed an initial sales price of $145,000 on the home. On December 15, a similar agreement was executed by Rios and Garcia on condominium unit 9B, Laguna Club Condominium, 10710 N. W. 7th Street, Miami, Florida. That property was also owned by Garcia. Although the agreement introduced into evidence does not contain Rios' signature, at final hearing Juan Rios acknowledged that he had executed such an agreement. The listing agreements provided that if the properties were leased during the term of the agreements, the listing realtor would receive a brokerage fee of 10% for such leasing. The agreement also provided that the realtors were not responsible for vandalism, theft or damage of any nature to the property. Garcia is a native and resident of Venezuela, where she owns a radio station. The two properties in question were previously owned by her father. When the father died, apparently sometime in 1982, Mercedes inherited the house and condominium. The Rios were friends of the father, and agreed to list and manage the properties as a favor to the deceased. Mercedes left the country after the agreements were signed, and has apparently not returned. Although she is the complainant who initiated this matter, she did not appear at final hearing. The house at 11451 S. W. 33rd Lane had been vandalized prior to the listing agreement being signed. According to documents introduced into evidence, the property has also been the subject of subsequent vandalisms, the nature and extent of which are unknown. A tenant was eventually procured by Mercedes' aunt in February, 1983 at a monthly rate of $800. The tenant, a Mrs. Ramirez, paid some $4,800 in rents and deposits before she was killed at the home in June, 1983. The Rios spent some $2,644.36 of the $4,800 on repairs to the vandalism and for general maintenance. They also retained a 10% commission for their services, or $480. That left $1,675.64 owed to Mercedes. No lease was apparently ever signed by Ramirez, or at least none was given to the Rios by the relative who procured the tenant. The home was eventually sold to Mercedes' aunt for $85,000.1 None of the rental monies were placed in the Rios' trust account. The condominium unit was rented in June, 1983. The tenant, Oscar Ruiz, had answered an advertisement run by the Rios in a local newspaper. Although Ruiz executed a lease to rent the unit at a monthly rate of $500, the Rios did not have a copy of same, and claimed none was kept in their records. According to the Rios, Ruiz continued to rent the unit through April, 1984, or for eleven months. Total monies collected by the Rios from Ruiz, including a $500 security deposit, were $6,000, of which $3,364.86 was spent for maintenance, utilities, two mortgage payments, and a $500 payment to the owner (Mercedes). An additional $40.33 was spent on a plumbing bill, and $600 was retained as a commission by the Rios. This left $2,724.53 owed to Mercedes. None of the rental monies were placed in the Rios' trust account. In the spring of 1984, Mercedes retained the services of an attorney in Miami to seek her monies due from the Rios. Up to then, she had received no income or accounting on the two properties. The attorney wrote the Rios on several occasions beginning in April 1984, asking for a copy of the lease on the condominium unit, the security deposit, an accounting of the funds, and all other documents relating to the two, properties. He received his first reply from the Rios on May 3, 1984 who advised him that they had attempted to reach Mercedes by telephone on numerous occasions but that she would never return their calls. They explained that rental proceeds had been used to repair vandalism damage and structural defects. When the attorney did not receive the satisfaction that he desired, he filed a civil action against the Rios on October 10, 1984. On October 26, 1984 the Rios sent Mercedes a letter containing an accounting on the two properties reflecting that she was owed $4,400.17 by the Rios. To pay this, they sent a $140 "official check," and a promissory note for the balance to be paid off in 40 monthly installments at 10% interest. They explained that their real estate business had closed, and due to financial problems, they were unable to pay off the monies due any sooner. They also asked that she instruct her attorney to drop the suit. Mercedes rejected this offer and has continued to pursue the civil action. It is still pending in Dade County Circuit Court. At final hearing, the Rios characterized their involvement with Mercedes as a "professional mistake," and one undertaken out of friendship for Mercedes' father. They acknowledged they did not use a trust account on the transactions and that they had used the $4,400 in rental money due Mercedes for their own use. They considered the excess rent proceeds to be compensation for other "services" performed by them on behalf of Mercedes. However, there is no evidence of any such agreement between the parties reflecting that understanding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Juan and Victoria Rios be found guilty as charged in Counts II and III, and be found guilty of culpable negligence and breach of trust in Count I. It is further recommended that Juan Rios' license be suspended for one year and that Victoria Rios' license be suspended for three months. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986
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 In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure. Question number 62 reads as follows: The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF: NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE. Possible answers to question number 62 were as follows: I only. II only. I and III only. I, II and III. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the Petitioner as previously determined. DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442 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 The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows: Rejected as unnecessary. Included in findings 5, and 7. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced. 7. Rejected as argument. Respondent's Proposed Findings The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows: 1.-5. Rejected as conclusions of law. 6. Included in findings 8, 9, and 10. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Phillip I. Salerno 11812 Timbers Way Boca Raton, Florida 33428 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kathi L. Kitts, should be revoked or otherwise penalized based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: Brickell Grove Realty Corporation ("Brickell Grove") is a licensed real estate brokerage corporation in Florida having been issued license number 0245921. From at least May 1988 through September 1, 1988, the sole qualifying broker for Brickell Grove was Frederick Morrison, Jr. (Morrison). At some point in mid to late 1988, (the exact date was not established by competent substantial evidence) Morrison was hospitalized with a terminal illness and his subsequent involvement in the real estate brokerage business was limited. Morrison died on September 1, 1988. Respondent, Kathi L. Kitts (formerly known as Kathi L. Abassi), was licensed by Petitioner as a salesman with Brickell Grove beginning on or about August 13, 1986. Respondent completed the required course for a real estate broker's license in April of 1988. On September 19, 1988, she passed the state exam required to obtain a broker's license. The evidence did not establish when Respondent first filed an application for a broker's license. After passing the exam in September of 1988, Respondent submitted an application which she thought would enable her to become the sole qualifying broker for Brickell Grove. The evidence did not establish the date that application was submitted. That application was not signed by the qualifying broker of Brickell Grove and/or the owner so it could not serve to qualify Respondent as the sole qualifying broker for Brickell Grove. On October 1, 1988, Petitioner issued Respondent a broker/salesman license as an employee of Brickell Grove. That broker/salesman license was revoked in November of 1988 when it was discovered that the corporate registration of Brickell Grove was cancelled effective September 30, 1988 as a result of the death of Morrison and the non-renewal of the corporate license. The exact date of the revocation was not established by competent substantial evidence but it was apparently on or after November 1, 1988. Prior to receiving the revocation notice, Respondent was advised by an investigator employed by Petitioner that her application to become the qualifying broker was deficient because it was not signed by the owner or broker. On October 20, 1988, Respondent filed another application to become licensed as the qualifying broker for Brickell Grove and to change the name on her license from Kathi Abassi to Kathi Kitts. This second application contained the signature of the owner of Brickell Grove. On November 4, 1988, Respondent sent a letter to the Division of Real Estate indicating that Mr. Morrison was seriously ill and that it was urgent that her application to be the active broker for Brickell Grove be approved as quickly as possible. Respondent did not, however, discover that Mr. Morrison had died on September 1, 1988, until sometime in the middle of November when she was advised by Petitioner's investigator. Petitioner approved Respondent's second application to become the qualifying broker for Brickell Grove on November 22, 1988. The approved broker's license was backdated to establish an effective date of October 20, 1988. Effective October 20, 1988, the corporate registration of Brickell Grove Realty Corporation was reinstated upon the Respondent becoming its sole qualifying broker. Respondent admitted that at least during the time period from September 1, 1988 through October 20, 1988, she operated as a salesman in the office of Brickell Grove Realty without any supervision from another broker in the office. However, no competent substantial evidence was offered to establish the nature or extent of business conducted by that office or by Respondent during this time period. Respondent did not open bank accounts or advertise as a broker until after October 20, 1988. While Respondent contends that she thought Mr. Morrison was continuing to carry on as the active broker for Brickell Grove during the time period he was hospitalized and continuing through November (after his death), she admitted that she only saw him on occasion and could not recall when he was last in the office. The limited contact between Respondent and the licensed broker for Brickell Grove is reflected by her lack of knowledge of his death until almost two months after it occurred. While there is hearsay testimony that Mr. Morrison was in the hospital for several months prior to his death and that his involvement with Brickell Grove Realty during the several months preceding his death was limited, or nonexistent, no competent substantial evidence was offered to establish the nature or extent of the business conducted by Respondent without the benefit of supervision by a licensed broker during the time period prior to September 1, 1988. Petitioner had previously initiated an investigation into unlicensed practice by one of the owners of Brickell Grove, Mahmoud Abassi (Respondent's former husband) in July of 1986. That investigation resulted in an August 29, 1986 affidavit executed by Mahmoud Abassi to cease and desist unlicensed real estate brokerage activity. However, no competent substantial evidence was offered to prove any involvement by Respondent in the activities which led to the execution of that affidavit nor was any evidence offered to show that Mahmoud Abassi was actually running Brickell Grove at any point subsequent to the execution of the affidavit. Moreover, no competent substantial evidence was offered as to Respondent's activities and/or supervision during the period from the execution of the affidavit until September 1, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order finding Respondent, Kathi Kitts, guilty of operating as a broker without a license during the period from September 14, 1988, to October 1, 1988, reprimanding her and placing her on probation for one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989.
The Issue Whether Respondents' licenses as real estate brokers should be suspended or revoked, or the licensees otherwise disciplined, for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated September 28, 1981. This proceeding is based on an administrative complaint filed by Petitioner, Board of Real Estate, alleging that Respondents, while engaged in a rental service business which advertised and sold rental property information or lists, for an advance fee to prospective lessees, utilized a contract or receipt agreement which included language defining when a "rental has been obtained" that was contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and that therefore Respondents had violated Subsection 475.453 and 475.25(1)(b), Florida Statutes. It further alleged that Respondents failed to refund 75 percent of an advance fee to specific prospective tenants as required by Subsection 475.25(1)(e), Florida Statutes and therefore constituted a violation of Subsection 475.25(1)(d), Florida Statutes. At the commencement of the hearing, the parties submitted a Proposed Stipulation of facts which was accepted by the Hearing Officer and constitutes the Findings of Fact hereinafter. No witnesses testified at the proceeding nor were any exhibits entered in evidence other than the four exhibits attached to the Stipulation. (Exhibit 1)
Findings Of Fact Respondent Jack Braunstein is a licensed real estate broker having been issued license number 0146924. The last known address of this Respondent is 916 North Federal Highway, Fort Lauderdale, Florida 33304. Respondent Rent Aid, Inc., is a licensed corporate real estate broker having been issued license number 0133234. The last known main office address of Rent Aid, Inc., is 916 North Federal Highway, Fort Lauderdale, Florida 33304. At all times material herein Respondent Braunstein was the sole active broker of and for Respondent Rent Aid, Inc., doing business at the corporate main office located in Fort Lauderdale, Florida. As said active broker, Braunstein was responsible and liable for the acts and/or omissions of the associates of Rent Aid, Inc. performed in the scope of their employment; and was responsible and liable for the acts and/or omissions of Rent Aid, Inc. At all times material herein, Respondent Rent Aid, Inc., was engaged in a full service real estate brokerage business which included representing potential buyers and sellers of real property and potential landlords and tenants with regard to rental properties. As part of the business Rent Aid, Inc. entered into contracts with prospective tenants for an advanced fee, as shown by Exhibit "A" to the Complaint and incorporated herein by reference. That the contract or receipt agreement forms provided by the Respondents, have inserted therein additional language as to specifically stating that "a rental has been obtained when company provides a guaranteed available rental unit upon the terms specified and requested by member. On or about September 16, 1980 Jan Spear and Deborah Nigro entered into the contract, an accurate copy of which is appended to the Complaint as Exhibit "A", with Rent Aid, Inc. That under the terms of the contract, Respondent had the discretion to refuse any and all refunds if they had shown to the prospective tenant an available rental unit which met the terms specified and requested by the prospective tenant, even if the prospective tenant declined to rent said unit and demanded a refund of the paid fee within the required time frame. That Respondent's practice was to refuse demands for refund made where, in Respondent's opinion, a bona fide effort had been made to obtain a rental, which efforts had been unsuccessful through no fault of Respondent's. Jan Spear and Deborah Negro made written demand upon Respondent's for a partial refund of the fifty ($50) fee which they had paid Respondent's pursuant to the contract. This demand was made within thirty days of the contract date as shown by therefund refusal dated October 12, 1980, attached to the Complaint as Exhibit "B" and incorporated herein by reference as true and accurate. The contract utilized by Respondent's does not strictly conform to the refund required by Rule 21V-10,30 in that the conditions under which a refund would be payable are restricted beyond the scope of said Rule, and SS 475.453(1), Florida Statutes. Respondent utilized the Contract form in question in reliance upon advice received from his prior counsel, Gregory Jones, as shown by a letter dated April 1, 1980. A true and accurate copy of which is attached hereto as Exhibit "C". Sal Carpino, attorney for the Department of Professional Regulation, had been provided with a copy of the form utilized by Respondent and had approved the format of said form without approving a discrepancy of the language in question in this proceeding, to wit: "a rental has been obtained with company (Rent Aid, Inc.) provides a guaranteed available rental unit upon the terms specified and requested by members." In response to this proceeding, Respondent has made full and complete refund to Jan Spears and Deborah Nigro and has agreed to voluntarily stop all use of the Contract form in question, and use only such a form as strictly complies with 475.453(1) and Rule 210-10.30 and to furnish a copy of said form to the Department conformance with said Rule."
Recommendation That the Board of Real Estate issue a private reprimand and impose a $100 fine against Respondents Jack Braunstein and Rent Aid, Inc. for violation of Subsections 475.25(1)(d) and (e), Florida Statutes. DONE AND ENTERED this day of March, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 5th day of March, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 John P. Gaudiosi, Esquire 3801 North Federal Highway Pompano Beach, Florida 33064 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C.B. Stafford, Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact The Respondent, Cluett Realty, Inc., is a licensed corporate real estate broker having been issued license number 0216798 and whose last known address is 4720 Palm Beach Boulevard, Fort Myers, Florida. The Respondent, Ernest H. Cluett II, is a licensed real estate broker having been issued license number 0191613 and at all material times was employed as a licensed real estate broker by Cluett Realty, Inc. In November, 1981, Mary Ann Knopic was shown a home in Cape Coral by the Respondents. She offered the owners $92,500 for the home with a $500.00 earnest money deposit. When the home was sold to another buyer, the Respondents and Knopic agreed that the Respondents would retain the $500.00 and attempt to find another home for the complainant. In December, 1981, the Respondents showed Knopic the Soviero home and Knopic made an offer on the home and secured the offer with an additional $1,500 security deposit. In late February, 1982, the complainant informed the Respondents that she would not close on the Soviero home. The complainant decided not to close because the cost of renovating the home exceeded the original estimate. Under these circumstances, the complainant was willing to lose her $2,000 deposit rather than spend $6,000 to renovate the Soviero home. On June 8, 1982, after the complainant agreed to the February disbursement, she sent the Respondents a letter demanding either a copy of the contract which amended the earnest money amount or a refund of her $1,500. Walter V. Horn, a Respondent, was not properly served and at final hearing the petitioner agreed that he was not a proper party to this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against the Respondents, Cluett Realty, Inc., Ernest H. Cluett II and Walter V. Born. DONE AND ENTERED this 11th day of July, 1984, at Tallahassee, Florida. SHARYN L. SMITH 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 11th day of July, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Legal Section Post Office Box 1900 Orlando, Florida Herbert A. Fried, Esquire 1625 Hendry Street, Suite 103 Fort Myers, Florida 33901 Mr. Walter V. Horn 4732 Dee Prado Boulevard Cape Coral, Florida 33904 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802
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
