Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
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. Respondent Ronald C. Sutterfield is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0153502 by Petitioner in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, % U.S. Land Brokers Incorporated (U.S. Land Brokers), 1809 Flagler Street, #B-7, West Palm Beach, Florida. Mr. Sutterfield caused Respondent U.S. Land Incorporated (U.S. Land) to be registered as a corporate real estate broker. U.S. Land was issued license number 0211331 by Petitioner in accordance with Chapter 475, Florida Statutes. The last license issued was at 827 Caroline Avenue, West Palm Beach, Florida. Mr. Sutterfield was, at all times pertinent hereto, the qualifying broker for U.S. Land. U.S. Land was involuntarily dissolved by the Florida Secretary of State's office on December 6, 1981. Despite this dissolution, Mr. Sutterfield continued to hold himself out as doing business as U.S. Land and he continued to maintain with Petitioner the registration and licensure of U.S. Land. Mr. Sutterfield misrepresented to Petitioner the status of U.S. Land on the applications he submitted to Petitioner for the continued registration and licensure of U.S. Land between 1981 and 1990. From approximately January 1986 through June 1990, Respondents maintained an office in a residence located at 827 Caroline Avenue in West Palm Beach, Florida. There was a conflict in the evidence as to whether there was a sign on or about the entrance. Mr. Sutterfield contends that his office was in a back area of the residence that has a separate entrance and that the sign was posted on that entrance. Petitioner's investigator testified that her inspection revealed that no sign had been posted, but it was not clear that she had looked in the remote area of the premises described by Mr. Sutterfield. This conflict is resolved by finding that the evidence failed to establish that Mr. Sutterfield had failed to post a sign at the separate entrance to his office at 827 Caroline Avenue. 1/ On June 12, 1990, Mr. Sutterfield reported to the Petitioner a change of address as well as a new corporation, U.S. Land Brokers, Inc. On July 19, 1990, Petitioner's investigator conducted an office inspection at Respondents' new address located at 1809 Flagler Drive #B-7, West Palm Beach, Florida. This location is an apartment complex whose rules forbid the operation of a business out of the apartments. The Respondents's homemade entrance sign was hung in such a manner as to be partially obscured to public view and, consequently, the name of the brokerage corporation as registered with the Petitioner was not visible. Respondents had, as of the formal hearing, never applied for an occupational license from the local governing authority for either the location at 827 Caroline Avenue or the location at 1809 Flagler Drive. Mr. Sutterfield's former wife would not forward his mail to him following their divorce in July 1980 and, consequently, he did not receive notification of the dissolution of U.S. Land. After Mr. Sutterfield was told by Petitioner's investigator that he needed an occupational license, he learned that U.S. Land had been dissolved and that he could not reincorporate under that name. Mr. Sutterfield told Petitioner's investigator of the problems he had encountered with the dissolved corporation and that he was attempting to resolve the problem with the Office of the Secretary of State before applying for an occupational license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent Ronald C. Sutterfield violated the provisions of Section 475.25(1)(e) and (m), Florida Statutes. It is further recommended that a letter of reprimand be issued for his violation of Section 475.25(1)(e), Florida Statutes. It is further recommended that any remaining licenses issued to U.S. Land Incorporated be revoked. It is further recommended that for his violation of Section 475.25(1)(m), Florida Statutes, Respondent Ronald C. Sutterfield be fined the sum of $1,000; that his licensure as a real estate broker be suspended for a period of 60 days; and that his licensure be placed on probation for a period of one year following such suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of July, 1991. CLAUDE B. ARRINGTON 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 1st day of July, 1991.
Findings Of Fact At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again, $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr. Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.
Recommendation In light of the foregoing, it is, therefore, RECOMMENDED: That Respondent be reprimanded. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of January, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. George R. Gurley 800 East State Road 540A, #106 Lakeland, Florida 33803 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 21st day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Robert T. Sharkey (Sharkey), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0079702. Sharkey was the qualifying broker of Respondent, Appraisal Associates & Consultants, Inc. (Appraisal Associates), a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0238854. The Real Estate Seminar In 1985 Respondents placed numerous advertisements in the help wanted section of local newspapers seeking to employ real estate appraisers, experienced or inexperienced, and offering to train the inexperienced. Elizabeth Townsend (Townsend) and Robert Newman (Newman) responded to such advertisements. The experiences of Ms. Townsend and Mr. Newman, both licensed real estate salespersons, were similar. Upon responding to the advertisement they were advised that a meeting would be held at Appraisal Associates, and the program would be explained. At the meeting, Ms. Townsend and Mr. Newman were advised that Appraisal Associates was conducting a seminar in residential property appraising and that a fee, $150.00 in the case of Ms. Townsend and $200.00 in the case of Mr. Newman, would be charged. Each paid their fee and executed a "Seminar Reservation and Employment Conditions" agreement which provided: SATISFACTORY COMPLETION OF THE PRESCRIBED COURSE OF STUDY THE TRAINEE WILL HAVE THE OPTION TO PLACE THEIR CURRENT REAL ESTATE LICENSE, UPON ACCEPTANCE BY THE MANAGEMENT, WITH APPRAISAL ASSOCIATES .... FOR THE APPRAISER TRAINEE TO OBTAIN EMPLOY- MENT WITH APPRAISAL ASSOCIATES OR ANOTHER ASSIGNED BROKER IN THE FIRM THEY MUST: SATISFACTORILY COMPLETE THE PRESCRIBED SEMINAR AND/OR COMPLETE A WRITTEN EXAM ADMINISTERED BY APPRAISAL ASSOCIATES AND CONSULTANTS, INC. 2 COMPLETE SATISFACTORILY AT LEAST FIVE SINGLE FAMILY RESIDENTIAL DEMONSTRATION REPORTS. HAVE A CURRENT FLORIDA REAL ESTATE LICENSE. COMPLETE AN APPLICATION FOR MEMBERSHIP OR DESIGNATION TO ANY APPRAISAL ORGANIZATION FOR CANDIDACY OR ASSOCIATE MEMBERSHIP .... The seminars attended by Ms. Townsend and Mr. Newman were similar. Each consisted of 16 hours of class work dedicated to filling out a standardized Fanny Mae form for single family residences, a drive by appraisal of a residential home, and an on site inspection and appraisal of a residential home. While Mr. Newman felt that not enough time was devoted to actual appraising, and Ms. Townsend felt the seminar was terminated prematurely, there was no proof offered that the seminars were not adequate to instruct the participants in the basics of real estate appraisal, or that they were otherwise a sham. Mr. Newman did not take the final examination, did not complete the five single family residential demonstration reports, and never requested employment with Respondents. Ms. Townsend conceded she was familiar with the requirements for employment and that, while she received a "Certificate of Seminar Completion", she never applied for membership in any appraisal organization and never requested employment with Respondents. Sharkey's Qualifications At hearing the Department introduced into evidence a document, titled "Qualifications of R. T. Sharkey, MRA, CRA", which its investigator had secured from Respondent Sharkey. (Exhibit 6) Pertinent to this case' the document provided: AFFILIATES * * * AMERICAN RIGHT OF WAY ASSOCIATION * * * LICENSED REAL ESTATE APPRAISER EXPERIENCE * * * APPRAISER RIGHT OF WAY CONDEMNATION FLORIDA DEPARTMENT OF TRANSPORTATION 1972-1975 The foregoing qualifications attributed to Sharkey are inaccurate, misleading or false. The organization known as the American Right of Way Association has not been known by that name for 3-4 years; the State of Florida does not license real estate appraisers; and Sharkey was never employed by the Florida Department of Transportation as an appraiser for right-of-way condemnation. While the document included qualifications attributed to Sharkey that were inaccurate, misleading, or false, there was no proof that the document was ever presented to any person in the conduct of Respondents' business, or that any person placed any reliance on such document.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Counts 1, 2, 7, 8, and 9 of the Administrative Complaint be DISMISSED with prejudice. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 10th day of November, 1986. APPENDIX Respondents proposed findings of Fact Consisted of 8 unnumbered paragraphs. These paragraphs have been designated paragraphs 1-8, and addressed as follows: Addressed in paragraphs 2-3. Addressed in paragraphs 4. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 3-5. Addressed in paragraphs 6-8. Addressed in paragraphs 6-8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James G. Kincaid, Esquire 4331 North Federal Highway Fort Lauderdale, Florida 33308 Harold Huff, Executive Director Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent filed application for registration as a real estate salesman on June 24, 1974 and was issued a license pursuant to this application on October 25, 1974. At the time of the filing of the application and subsequent thereto, Respondent was employed by Florida Savings and Loan Services, Inc. and its predecessor company, Florida Informanagement Services, Inc. in the capacity of a real estate appraiser and head of the appraisal department for said company. On July 26, 1975 Respondent performed appraisal services on behalf of Central Development, Inc. to ascertain the fair market rental appraisal of 5 Pizza Huts. For this service his company, then Florida Informanagement Services, Inc. billed Central Development, Inc. $3,000. Respondent performed other appraisals during the period in question which were not specifically delineated at the hearing.
The Issue Whether Respondent's registration as a real estate salesman should be suspended or revoked, pursuant to Section 475.25, Florida Statutes. At the hearing, respondent moved to dismiss certain portions of petitioner's second amended administrative complaint on various grounds. Ruling on the motion was reserved and it will be considered in Conclusions of Law herein. At the conclusion of petitioner's case, respondent's motion for a directed verdict was denied.
Findings Of Fact On October 12, 1973, respondent filed application with the petitioner for registration as a real estate salesman. Question 9 on the form application as completed by respondent reads as follows: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of municipality, state or nation, including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted If yes, state details in full Minor traffic tickets-No court involved." Thereafter, on March 15, 1974, respondent was issued certificate No. 0126461 as a registered real estate salesman in Ft. Lauderdale, Florida. The registration was renewed on April 1, 1975, with expiration date of March 31, 1977. (Petitioner's Composite Exhibit No. 1) On June 22, 1959, respondent was arrested by federal authorities in Miami, Florida, pursuant to a warrant issued by the U.S. District Court of the Middle District of North Carolina upon an indictment charging him with failure to file income tax returns in violation of Title 26, U.S. Code, Section 7203. Respondent pleaded guilty to the offense and, on February 19, 1960, was sentenced to pay a fine of $2,000 and to be confined for a period of one year. The execution of the prison sentence was suspended and respondent was placed on probation for a period of three years subject to payment of the fine and delinquent income tax. (Petitioner's Exhibit 2) On August 13, 1974, the United States Attorney, United States District Court for the Southern District of Florida, filed an information against respondent charging him with willfully filing a fraudulent and false document as to a material matter in an application for enrollment to practice before the Internal Revenue Service, in violation of Title 26, United States Code, Section 7207. On August 27, 1974, respondent pleaded guilty to the offense and was sentenced to pay a fine of $250.00 The offense of which respondent was convicted was based on a negative answer to a question on the application which was similar to question 9 on the application for registration as a real estate salesman. (Petitioner's Exhibit 3, Testimony of Respondent) Respondent testified in denial of any intention to mislead or deceive petitioner as to the fact of his federal conviction in 1960. It was his opinion, based on advice of counsel representing him during those proceedings, that the conviction would be "wiped out" or otherwise expunged from the records in a period of ten years. Accordingly, when his wife was filling out the real estate application for him and inquired about an answer to question 9, respondent told her not to list the arrest and conviction since it has been "wiped out." Petitioner states that he did not read his application before signing and submitting it to petitioner because he relied upon his wife who customarily prepared such documents for him. Petitioner's explanation for his failure to fully answer question 9 of the application is not deemed credible and is insufficiently supported by other evidence. (Testimony of respondent, Sheila Noritis) Petitioner is a competent and efficient accountant and real estate salesman who enjoys a good reputation for truth and honesty in his community. (Testimony of Stratton, Francis, M. Hartigan, J. Hartigan, Langberg, Deschamps, Cubbison, Mullenski, McTaggart; supplemented by respondent's Exhibits 2-4) Respondent sought to introduce into evidence the results of a voluntary polygraph examination to show that in the opinion of the polygraph examiner, respondent was being truthful in his answers to questions bearing on his honest belief that the federal conviction had been "wiped out." Petitioner's objection to the receipt of such evidence was sustained. (Respondent's Exhibit 1 for identification [rejected]).
Recommendation It is recommended that respondent's registration as a real estate salesman be suspended for a period of sixty (60) days, but that the enforcement thereof be held in abeyance for a like period. DONE and ENTERED this 16th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Bruno Di Giulian and John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33394
The Issue Whether respondent violated sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, by the manner in which she handled the real estate transaction involving the property located at 29 S. Lawsona.
Findings Of Fact Respondent is a licensed real estate salesman and was a licensed real estate salesman at all times relevant to the instant charges. In September 1983, respondent was registered as a real estate salesman with 100 percent Real Estate Incorporated. Robert Sinclair was the qualifying broker for 100 percent Real Estate Incorporated. On or about September 29, 1983, respondent obtained an Offer of Purchase on a home located at 29 S. Lawsona from Linda O'Leary and James T. Bagley along with a check from James T. Bagley in the amount of $500 as earnest money. The resulting contract was entered into evidence as Petitioner's Exhibit 1. On the day the purchasers signed the contract, but after they had signed the contract, the purchasers visited the home and discovered that there appeared to be extensive termite damage. Mr. Bagley was concerned about the termite damage, as was the respondent, and therefore the respondent promised Mr. Bagley that she would hold his check until she could get the termite estimate from Mr. Babcock and check with the termite company to find out how bad the damage was. Although the respondent was able to obtain the termite estimate from Mr. Babcock's office the following day, she was unable to contact the person who had conducted the termite inspection. She also was unable to contact the purchasers. She was unable to contact Mr. Bagley for approximately a week and it was another week before Mr. Bagley went to the house with a contractor to determine how much it would cost to repair the termite damage. The contractor thought that the minimum cost would be $10,000. At that point Mr. Bagley decided that he was no longer interested in the house, and the respondent returned his check. The $500 check was never turned over to Robert Sinclair or 100 percent Realty. Respondent knew she should not have held the check and was aware that by doing so she was, as she stated, "in hot water." However, respondent also believed that the seller had misrepresented the extent of the termite damage and was misinterpreting the terms of the contract. Mr. Sinclair was unaware of the existence of the contract until the end of October, although he had a discussion earlier with the respondent regarding whether an "as is" clause in a contract could override the specific printed provision of the standard contract related to termite infestation. That discussion was obviously related to the contract on the house on Lawsona.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that the respondent is guilty of violating sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, and suspending respondent's license for a period of three (3) months. DONE and ENTERED this 1st day of May, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of May, 1985. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation P. O. Box 1900 Orlando, Florida 32802 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Ms. Anne Rockafield 713 Woodward Orlando, Florida 32803 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, David J. Zachem, is now, and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0194936. The last license issued was as a broker c/o Sunstate Tax Consultants, Inc., 220 East Madison Street #512, Tampa, Florida, Respondent, during times material, was licensed as a broker/salesperson with Gary Levone Hall, t/a Gary L. Hall & Associates, 243 Timberland Avenue, Longwood, Florida. On or about July 24, 1991, the Resolution Management Associates, Inc. of Atlanta, Georgia, engaged Henry Mazas, the principal of H.R. Mazas & Associates, an accounting firm to perform an appraisal of real property located in Seminole, Florida (called Seminole Landing) which was owned or controlled by the Federal Resolution Trust Corporation, the federally affiliated agency which is selling off failed savings and loan associations financed or mortgaged properties. While Respondent was licensed as a broker/salesperson with Hall, Mazas engaged Respondent to assist in the appraisal of the Seminole Landing property. Respondent assisted Mazas by doing what is commonly referred to in the trade as the "leg work" such as visually inspecting the property, reviewing public records, compiling comparables and other raw data which was utilized by Mazas in completing his appraisal. Respondent signed on the appraisal letter evidencing his assistance as a consultant who assisted Mazas in completing his appraisal. C.W. Marlow, contracts manager of Resolution Management Associates, received a bill from Mazas for the appraisal service in the amount of $4,830.00, which amount was paid to Mazas on or about October 29, 1991. Mazas deposited the check into his account and thereafter paid Respondent $2,321.11 via a check dated November 5, 1991. On November 8, 1991, Respondent and his wife, Patricia Zachem, endorsed the check for payment. At the time that Respondent assisted Mazas in compiling the raw data to complete his appraisal, Mazas was unaware of Respondent's affiliation with Gary Hall. Respondent signed off on the appraisal to fully disclose to everyone concerned that he consulted with Mazas in compiling the raw data for the appraisal. Gary L. Hall, is a licensed real estate broker since approximately 1982. Hall has known Respondent since 1988. They are friends who assist and consult with each other primarily about political activities. Respondent placed his license with Hall as a matter of convenience and was never active in either buying, leasing or selling real property to the public. Respondent and Hall had no agreement respecting the splitting of fees that Respondent would earn for commissions that he received. According to Hall, Respondent "would have been able to keep the entire commissions that he receive for any work that he performed." Hall knew that Respondent was active in preparing appraisals when he became affiliated with his agency. Respondent is the holder of a real estate salesman's license since 1978 and a broker since 1979. Respondent while licensed as a broker, joined the Pinellas County Property Appraiser's Office. Respondent has been employed in two county property appraiser's offices (Broward and Pinellas counties). Respondent was a senior deputy in Broward County with his employment commencing sometime in 1981. He was so employed until January 1989 when he was employed by Pinellas County. In Pinellas County, Respondent was the chief deputy and the chief appraiser. Since 1980, Respondent has principally been a "mass appraiser" while working in Broward and Pinellas counties. Respondent is the qualifier for Sunstate Tax Consultants, which he is the president. Respondent is a Certified Florida Evaluator (CFE). To be qualified as a CFE, one must have worked in a property appraiser's office in the mass appraisal element for a period in excess of two years and have successfully passed four appraisal courses which are designated courses. Specifically, these courses are income to evaluation, the mechanical application of appraisals, appraisal assessment jurisdiction and vacant land. After successfully completing these courses, the property appraiser for whom the applicant is employed writes a letter of recommendation to the certification committee of the Department of Revenue. That committee reviews the applicant's qualifications and either grant or deny the CFE certificate. Respondent primarily placed his real estate license with Hall such that he could qualify as an expert in the numerous petitions filed with the Value Adjustment Board where the evaluation of properties are subject to litigation. Those appraisers who have an active broker license is an indication that they are fully qualified in the appraisal and real estate business. Respondent, as stated, never engaged in the typical brokerage business of buying, selling, leasing or renting property to the public. Specifically, Respondent's understanding with Hall was that if he engaged in any business that was governed by Petitioner, Hall would be notified. Respondent was never engaged to conduct an appraisal or to act as an appraiser for Mazas or the Resolution Management Associates. Respondent would have so advised Hall had he been involved in such a relationship or any activity that was governed by Chapter 475, Florida Statutes. Eugene Davidson, an ad valorem tax consultant. was tendered and received as an expert appraiser. Davidson was one of three founders that founded the National Society of Fee Appraisers more than 35 years ago. Davidson holds a senior designation as an ASA member. Davidson is a member of the Institute of Real Estate Management and hold the designation as a certified property manager (CPM). Davidson is certified with Florida as a general real estate appraiser. Davidson was a professor at the University of Miami, the University of Florida and in the Bahamas (Nassau and Freeport). Davidson knows Respondent as a person on high morals and integrity and who is knowledgeable in real e stte and appraisinng. Davidson has known Respondent more than twelve years. An appraisal is the act or process of estimating value, or an opinion of value. Consulting is the act or process of providing information, analysis of real estate data and recommendations or conclusions on diversified problems in real estate other than estimating value. Respondent's engagement, to compile raw data, was as a consultant. He was not engaged, nor did he offer an opinion of value or an estimate of value. It is normal industry practice for consultants to sign appraisals when they provide or otherwise furnish significant information to the appraiser and, in doing so, complies with standard 2-3 of Chapter 475, Part II. See Sections 475.611 and 475.624, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing Counts I-IV of the Administrative Complaint filed herein. 1/ DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 20, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating and disciplining real estate licensees. At all times material to the allegations of this case, the Respondent has been a real estate licensee having been issued salesman's license no. 0455312. In March, 1989, Respondent met with Thomas and Cheryl Bellaw regarding the purchase of real property. The Bellaws were interested in investment property which would enhance their retirement options. Respondent showed the Bellaws a 7.5 acre tract which he claimed could be subdivided into smaller lots and resold at a substantial profit. As an inducement to convince the Bellaws to make the purchase, the Respondent drew several plans to show how the tract could be divided, made resale projections to compute the buyers' estimated profits from the subdivision of the land, and gave the buyers sales comparables from other lots to justify the figures he presented. In truth, the tract could not be subdivided and was the subject of a county ordinance which prohibited its division. Respondent knew that the tract could not be subdivided but nevertheless encouraged the Bellaws to complete the purchase. Once the purchase was completed, the Bellaws listed the property for resale with the Respondent at a substantial increase. At no time prior to the purchase by the Bellaws or prior to the subsequent relisting, did the Respondent advise the Bellaws that the tract could not be subdivided. When the listing produced no offers, the Bellaws investigated and discovered that the tract they had purchased had been illegally subdivided earlier from a 10 acre parcel. Respondent admitted that the 10 acres had been owned by a married couple who, in the course of their divorce, quitclaimed part to the wife (the portion not sold to the Bellaws) and part to the husband (the portion purchased by the Bellaws), and that this subdivision was impermissible. The Bellaws then went to the county for relief. They sought after-the- fact permission to subdivide the 10 acre parcel so that their tract would be able to receive a building permit. That relief was denied. Consequently, the Bellaws have been unable to assure that a building permit can be issued for their property and are unable to use the tract for the purpose for which it was purchased. Respondent should have known of the county ordinance which prohibited the subdivision of the 10 acre tract as it had been enacted some seven to eight years prior to the transaction which is the subject of this case. A prudent real estate licensee checks governmental restrictions which might impair the marketability of a parcel.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order revoking Respondent's real estate license. DONE and ENTERED this 16th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is accepted but is irrelevant to the allegations of this case. Paragraphs 4 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: James H. Gillis Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Paul Edward Ebbert, Jr. 1000 Abernathy Lane, #206 Apopka, Florida 32703 Paul Edward Ebbert, Jr. 770 Lake Kathryn Circle Casselberry, Florida 32307 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
