Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 9th day of June, 1987.
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of licensed real estate salespersons in the State of Florida. At all times material to this case, the Respondent was a licensed real estate salesperson, holding Florida license no. 0566297. Most recently, the Respondent's license identifies her as a salesperson with Robert E. Bartlett at Bartlett Realty, 3500 First Avenue North, St. Petersburg, Florida 33701. From July 11, 1995, to September 27, 1996, the Respondent was employed by Century 21, Grant Realty of Florida, 6450 Seminole Boulevard, Largo, Florida 34642. Steve and Janice Perry (the Perrys) owned a house located at 12907 Hickorywood Lane, Largo, Florida. On or about June 5, 1996, the Perrys listed the house for sale through execution of an Exclusive Right to Sell Listing Agreement with the Respondent and Grant Realty. The Perrys were very anxious to sell the house and contacted the Respondent almost daily to determine whether there was activity on the listing. In time, the Respondent presented to the Perrys a written and signed offer (the "first offer") to purchase the property. The Perrys declined the offer, but proposed a counteroffer, and executed the document. The Respondent did not provide a copy of the offer or counteroffer to the Perrys. The Respondent eventually told the Perrys that the purchasers had been unable to obtain financing. The Respondent has no documentation of the first offer. The Respondent is unable to recall the names of the prospective buyers or of any agent representing the buyers. The files of Grant Realty contain no records related to the first offer. At some time after the first offer had failed to close, the Respondent presented a second written and signed offer to the Perrys. The Respondent indicated to the Perrys that she knew the second buyer. On the Respondent's advice, Mr. Perry amended the second offer, initialed the changes, and signed the document. Mr. Perry told the Respondent that if the amendments were not acceptable to the buyer, he would accept the original offer. The Respondent did not provide a copy of the second offer to the Perrys. The Respondent has no documentation of the second offer. The files of Grant Realty contain no records related to the second offer. The day following execution of the second offer, the Perrys inquired about the status of the matter. The Respondent told Mr. Perry that the buyer was part of an "investment group" and that the group was being contacted about the Perrys' amendments. The Perrys continued to contact the Respondent about the status of the second offer, but she offered little new information. The Respondent eventually told the Perrys that the prospective buyer thought she was being "too pushy" and was refusing to discuss the matter with her. The Respondent told the Perrys that the buyer's agent would handle the sale, but stated that it would be improper for the Perrys to contact the buyer's agent and declined to identify the agent. The Perrys continued to contact the Respondent and request information. She eventually indicated that the buyer's agent was "Dave," another Century 21 agent, and suggested it could be Dave Sweet, another Grant Realty agent. The Perrys contacted Dave Sweet. Mr. Sweet had no knowledge of the second offer and was unable to provide any information. At this point, the Perrys contacted the Respondent's employer and spoke with Karen Selby, a broker at Grant Realty. Ms. Selby was unaware of any offer on the property. Conrad Grant, owner/broker of the agency, was also unaware of any pending offer on the Perry property. Ms. Selby took possession of the Perry listing file. There was no documentation in the file suggesting that any offers were received. Ms. Selby questioned the Respondent about the second offer. The Respondent stated that the offer came from "John," a man who had come through an open house a few weeks earlier, that she'd prepared a written offer according to his direction but that he had not signed it, that Mr. Perry counteroffered, and that the counteroffer had been declined. The Respondent further told Ms. Selby that the buyer had been working with "Dave," an agent in another Century 21 agency. Ms. Selby asked for the full names of the buyer and the agent, but the Respondent was unable to provide them. Ms. Selby asked the Respondent to consult her notes or the open house sign- in sheet for the information. The Respondent was unable to provide any additional information related to the offer. Ms. Selby contacted the agency's attorney and arranged a meeting with the Respondent. During this meeting, the Respondent was again asked for, but was unable to provide, additional information related to the alleged offers. Subsequent to the meeting, the Respondent provided a name and telephone facsimile number for the alleged buyer. Using the phone number, Ms. Selby attempted to contact the buyer, identified as "Brian John Edridge." Ms. Selby received a response from a business which stated that no one by that name was involved in the business. Ms. Selby discussed the matter with Dave Sweet. Mr. Sweet told Ms. Selby he was not involved in the purported offer and had no information about the situation. The Respondent's employment at Grant Realty was terminated. There is no credible evidence that the "offers" presented by the Respondent to the Perrys were real. There is no credible evidence that the prospective "buyers" identified to the Perrys by the Respondent existed. There is no credible evidence that anyone identified as "Brian John Edridge," or any variation of the name, was involved in any prospective purchase of the Perry property. There is no credible evidence that an agent identified as "Dave" was involved in any prospective purchase of the Perry property. At the hearing, the Respondent testified in her own behalf. Her testimony lacks credibility and is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order revoking the Respondent's real estate license. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: James H. Gillis, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801-2169 Christine M. Ryall, Esquire Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.
Findings Of Fact Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed: The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue The issue is whether Petitioner’s application for licensure as a real estate broker should be approved.
Findings Of Fact Petitioner has been a licensed real estate sales associate since 2000. His license number is 693538. Most of Petitioner’s work in the real estate industry has involved business transactions, but he has also handled transactions involving residential properties. On August 23, 2004, Petitioner filed an application for licensure as a real estate broker. Petitioner disclosed in the application that, in July 2003, his sales associate license was suspended by the Commission for 30 days and that he was placed on probation for a period of six months. That disciplinary action was based upon a single incident that occurred on or about November 7, 2001. Petitioner agreed to the disciplinary action as part of a “Stipulation” to resolve an Administrative Complaint charging him with fraud and misrepresentation in violation of Section 475.25(1)(b), Florida Statutes (2001), and with having operated as a broker without a license in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001). The Administrative Complaint contained the following “essential allegations of material fact,” which were admitted by Petitioner as part of the Stipulation: On or about November 7, 2001, Respondent, a seller’s agent, facilitated a purchase and sale transaction between Buyer and Seller. On or about November 7, 2001, [Petitioner] was not registered with a broker.[1] The transaction referenced above failed to close. Buyer released a $1,000.00 payment to Seller. [Petitioner] submitted the $1,000.00 payment to Seller. [Petitioner] instructed [Seller] to execute a check in the amount of $500.00 payable to “Cash.”[2] [Petitioner] accepted the $500.00 payment as his own payment for services. The Final Order adopting the Stipulation was filed with the agency clerk on June 25, 2003. Petitioner’s suspension commenced on July 25, 2003, which is “thirty days from the date of filing of the Final Order.” The suspension ended 30 days later, on August 24, 2003. Petitioner’s probation ran “for a period of six (6) months from the Effective Date [of the Stipulation],” which was defined as the date that the Final Order was filed with the agency clerk. As a result, the probation period ran from June 25, 2003, to December 25, 2003. Petitioner was required to complete a three-hour ethics course and a four-hour escrow management course during the probation period, which he did. Petitioner has not been subject to any other disciplinary action. Petitioner has taken several continuing education courses in addition to those required as part of his probation. He is working towards certification by the Graduate Realtor Institute. Petitioner has taken the classes necessary to become a real estate broker, and he passed the broker examination. Petitioner has worked for broker Phillip Wetter since March 2005. Petitioner manages the day-to-day operation of Mr. Wetter’s brokerage firm. His responsibilities include preparing listings, negotiating contracts, and handling escrow funds. He has been involved in over 50 successful real estate transactions under Mr. Wetter’s supervision. According to Mr. Wetter, Petitioner is meticulous in his work, including his handling of escrow funds, and he always makes sure that he “dots all his ‘I’s’ and crosses all his ‘T’s’.” Petitioner acknowledged in his testimony before the Commission and at the final hearing that what he did in November 2001 was wrong. He credibly testified that he has learned from his mistake. In his testimony before the Commission and at the final hearing, Mr. Wetter attested to Petitioner’s honesty, ethics, good moral character, as well as his qualifications to be a broker. That testimony was unrebutted and is corroborated by the letters of support from Petitioner’s former clients that are contained in his application file, Exhibit R1. Mr. Wetter’s opinions regarding Petitioner’s fitness for licensure as a real estate broker are given great weight. Those opinions are based not only on his personal observations as Petitioner’s current qualifying broker, but also on his personal experience with Petitioner representing him in several business transactions while Petitioner was working for other brokers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order approving Petitioner’s application for licensure as a real estate broker. DONE AND ENTERED this 22nd day of November, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2005.
Findings Of Fact At all times relevant, Bangert was a licensed real estate salesman with State of Florida license number 0312002. On or about May 1, 1986, Cynthia Green (now Cynthia Tyson) listed her house at 408 Lakeview Drive, Altamonte Springs, Florida, under an exclusive right of sale contract with J. Scott Jones, a licensed real estate broker. Through his broker, Help U. Sell (Thomas Jafek and Thomas Jafek II), Bangert offered $64,900.00 to Ms. Tyson for the Lakeview house. The contract for sale offered a $1,000.00 deposit note, with two mortgages, including a balloon mortgage, payment of $3,000.00 fix-up costs by the seller, and cash to the seller at closing in the amount of $15,659.00 The offer was rejected by Ms. Tyson. J. Scott Jones negotiated over the telephone with Thomas Jafek II, and then with Bangert. The basic requirement of Ms. Tyson was that she wanted $50,000.00 net at closing. She also wanted a cash deposit, as she had a previous negative experience with a deposit note. J. Scott Jones does not recall that he told Bangert that a cash deposit was required, but he knows the issue came up sometime during the telephone discussion. He did not speak to both Jafek and Bangert at the same time. A second contract offer was signed by Bangert and was accepted by Ms. Tyson on August 30, 1986. The purchase price and method of payment was set out as follows: PURCHASE PRICE $ 68,500.00 PAYMENT: Deposit(s) to be held in escrow by Help-U-Sell of College Park, upon acceptance in the amount of $ 1,000.00 Subject to AND [sic] assumption of Mortgage in good standing in favor of To Be Obtained having an approximate present principal balance of $ 40,000.00 Purchase money mortgage and note bearing interest at 9 percent on terms set forth herein below, in the principal amount of 360 payments of 189.10 to Balloon at 60th mo. $ 23,500.00 Other Purchase Money Mortgage @ 10 percent in a single payment at 60th mo. $ 5,000.00 Balance to close (U.S. cash, LOCALLY DRAWN certified or cashier's check), subject to adjustments and prorations $ 68,500.00 (Petitioner's Exhibit #4) The Contract also provided for the $50,000.00 net at closing to the seller. Bangert gave Thomas Jafek a deposit note in the amount of $1,000.00. Jafek did not know how to put a note in a trust or escrow account, so he held it in his files at Help U. Sell. Jafek had dealt with Bangert before in real estate transactions and had acted before as the escrow agent. In those dealings Bangert only put down notes, never cash. Jafek understood that Bangert's role was as a principal buyer and that Bangert intended to assign the contract for sale. The transaction was initially scheduled to close on September 26, 1987. On September 30, 1986, the parties agreed to extend the closing until October 10, 1986. When J. Scott Jones met with Bangert to get the extension signed, he learned that a note, rather than cash deposit had been made. The transaction never closed. For reasons that are not material to this proceeding, Bangert did not appear at the closing. Cynthia Tyson retained an attorney, Garrick N. Fox, who sent letters to Jafek and to Bangert on October 17, 1986. The letter to Jafek provides, in pertinent part: As per the contract for sale and purchase, your company holds one thousand dollars in escrow and we may [sic) hereby make demand that you remit to this law office the one thousand dollars held in escrow as partial damages for the default of the contract. (Petitioner's Exhibit #6) The letter to Bangert does not mention the deposit, but states that the contract is in default. The final paragraph states: It is my sincere desire that we can settle this matter amicably without the necessity of litigation. If you can close on this contract forthwith, all of these problems can be settled. If not I would appreciate it if you would have your attorney contact [sic] so that we can immediately take the proper steps to minimize Miss Green's damages. (Petitioner's Exhibit #7) The attorney never made an oral demand on Bangert for the $1000.00. Jafek did not consider his letter to be a present demand, but rather a statement of intent to make a demand in the future. Jafek did not tender the note and the $1000.00 was not paid. Bangert had no intent to make a cash deposit. He claims that he told "Tom Jr." " (Thomas Jafek II) to type "a deposit note" on the second contract offer, but that even without that language, a note, rather than cash, was not precluded by the contract terms. Bangert intended that the transaction take place and did not have an intent or motive to defraud the seller. If the transaction had closed, he claims he would have honored the note. As far as he knows, Jafek still has the note. Bangert claims also that it was an oversight that he did not reveal his real estate license status on the contract. The Jafeks knew he was a real estate salesman. Further, he and Scott Jones were teaching at the same real estate school and he felt that Jones should have known his status. He did not intend to hide the fact of his license from anyone. His business in the last three years has been actively serving as a principal buyer and seller for other parties. Bangert's liability on his note is not at issue. In the absence of clear evidence of his knowledge of the seller's conditions, I cannot find that he is guilty of fraud in putting a note cash on deposit. Nor did he deliberately misrepresent a material fact to the seller by failing to disclose that he was a licensed real estate salesman. Ms. Tyson never met Bangert. Both parties were dealing at arms length through their own brokers. Conclusions of Law The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1) F.S. and Section 455.225(4) F.S. Section 475.25(1) F.S. provides that the Florida Real Estate Commission may impose discipline if it finds that a licensee, (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction... DPR has the burden of proving the allegations of this complaint through evidence that is clear and convincing. Ferris v. Turlington, 510 So.2nd 292 (Fla. 1987). It is apparent now that Ms. Tyson wanted a cash deposit as one condition of accepting an offer to buy her property. It is not clear that the condition was communicated to Bangert by either his broker, Thomas Jafek, II, or by Ms. Tyson's broker, J. Scott Jones. Without this material evidence it cannot be established that Bangert deliberately engaged in a subterfuge. Without evidence of dishonest or illicit intent, there is no guilt under Section 475.25(1)(b), F.S. Morris v. Department of Professional Regulation 474 So.2nd 841 (Fla. 5th DCA 1985). No rule nor provision of law has been cited to require a real estate licensee to reveal his status as such when engaging in the purchase and sale of property in his personal capacity. Nor was evidence produced that would establish and justify such a policy by the Board. In Santaniello v. Department of Professional Regulation 432 So.2nd 84 (Fla. 2nd DCA 1983), the court upheld the Board's right to determine that a broker violated Section 475.25(1)(b) F.S. when he failed to reveal that a purchaser was his mother-in- law. In that case, the court observed that the broker owed his allegiance to the sellers and was obligated to inform them of anything which might influence their decision to sell. Because of that, the existence of the mother-in-law relationship was deemed a material fact. No such foundation for a duty to inform was established here, therefore there was no violation of section 475.25(1)(b) F.S.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Administrative Complaint against Larry G. Bangert be dismissed. DONE and RECOMMENDED this 17th day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Office 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 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3044 The following constitute specific rulings on the findings of fact proposed by Petitioner. Adopted in paragraph #1. Adopted in paragraph #2. Adopted in substance in paragraphs #3 and #4. Adopted in substance in paragraph #4. Evidence did not establish that Bangert was aware of the cash deposit condition by Ms. Tyson. Rejected as contrary to the evidence. The face of the contract does not require cash. Adopted in paragraph #7. Adopted in paragraph #8. Adopted in paragraph #6. Adopted in substance in paragraph #7. Adopted in paragraph #11. Adopted in paragraph #7. Adopted in part in paragraph #10. Bangert contended that the contract did not specify cash. Rejected as cumulative. Adopted in paragraph #9. Rejected as immaterial. COPIES FURNISHED: Copies furnished: DOAH Case No. 87-3044 James R. Mitchell, Esquire Department of Professional Regulation Legal Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Larry G. Bangert 103 Cashew Court Longwood, Florida 32750 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office. Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times material to the complaint, Kevin Bunin was a registered real estate broker and the active firm member for Superior Realty of Broward, Inc. This company was a registered corporate broker and duly licensed at all times relevant. Matthew L. Hirschhorn was a registered real estate salesman and was so registered at all times relevant. Bunin and Hirschhorn entered an agreement in August, 1979, under which Hirschhorn was to operate a branch office of Superior Realty of Broward, Inc. (a Realty World, Inc. franchisee). Bunin was to provide supervision and assist Hirschhorn in obtaining a Realty World, Inc. franchise. Hirschhorn paid Bunin $3,200 for what Hirschhorn understood would entitle him to this franchise. Hirschhorn opened the branch office under Bunin's supervision in September or October, 1979, and operated it through February, 1980, when Bunin and Hirschhorn had a falling out. Hirschhorn complained to petitioner that Bunin converted $1,200 of the $3,200 to his own use instead of paying it to the franchisor as agreed. In retaliation, Bunin threatened to cancel their arrangement, which would leave Hirschhorn without required broker supervision. Hirschhorn, who is a complainant as well as a Respondent, was the only witness who gave substantive testimony in this proceeding. His testimony was entirely self-serving and lacking in credibility. Therefore, it cannot be established how the $3,200 was to be disbursed, nor is it clear at what point Bunin stopped threatening and actually withdrew as the supervising broker of Hirschhorn's branch office.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the administrative complaint. DONE AND ENTERED this 23rd day of April, 1982 at 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 23rd day of April, 1982.
The Issue The issue is whether Kenneth Baurley should be eligible to sit for the examination to become licensed as a real estate salesman.
Findings Of Fact On July 14, 1988, Mr. Baurley's application for licensure as a real estate salesman was received by the Florida Real Estate Commission (Commission). By letter dated October 3, 1988, the Commission notified Baurley that his application had been denied based on his answer to question 6 on the application. In responding to that question, Mr. Baurley disclosed that he had been involved in two criminal proceedings; in both an adjudication of his guilt had been withheld. The first case arose in 1982 on the charge of battery on a law enforcement officer, for which he received 18 months of supervised probation. The incident had its genesis in a shoving match involving Baurley and someone who turned out to be an off-duty police officer for a small municipality. The second was in 1983 for the municipal offense of prowling. Although under no obligation to do so, Mr. Baurley also stated that he had been arrested for driving under the influence in 1988. He was found not guilty on the last charge, so it has no bearing on the decision in this case. Mr. Baurley's response to question 6 was complete and truthful. At the time of these incidents, Mr. Baurley was 19 and 20 years of age. He successfully completed his probation. He has had no further relevant contacts with the criminal justice system for more than five years. Mr. Baurley is now 26 years old. He has resided in Pompano Beach, Florida since 1972, although he attended college in Tallahassee. He is employed currently as President of A Better Limousine Service, Inc. and as a supervisor at Baurley Marine Works, Inc., which is owned by his father. Prior to his employment in these two positions, Mr. Baurley worked in a business established by his brother, Baurley "No Frills" Auto Rental. Before he held these positions, Mr. Baurley attended college in Tallahassee and worked at Doc's Sports Bar and Grill and at Forest Meadows Athletic Club. He was also an adjunct instructor at Florida State University where he taught Tae Ywon Do for college credit. In the course of his employment in the positions set out in Findings 6 and 7 above, Mr. Baurley has been required to interact with patrons, sometimes under difficult circumstances. In all the positions delineated in Findings 6 and 7 (other than the position as adjunct instructor at Florida State University) Mr. Baurley has been required to handle other people's money on at least a weekly basis. Most of the positions have required him to deal with his employers' or customers' money on a daily basis. Petitioner has performed all his employment responsibilities honestly and without incident. Darlene Vlazeny, a real estate salesperson and housewife, met Mr. Baurley in a business capacity by telephone in October, 1988. At that time Mrs. Vlazeny was soliciting in-kind contributions on behalf of a school for hearing impaired children. Mrs. Vlazeny testified that Mr. Baurley's was the only limousine company which agreed to her request to provide limousine services in connection with a benefit for the school at reduced rates. Since the school benefit, Mrs. Valzeny has had social contact with Mr. Baurley. She is aware of the incidents detailed in his answer to question number 6 on his licensure application, but believes he is trustworthy, honest and has a high moral character based on her experiences with Baurley. Mrs. Vlazeny would have no reservation about working with Mr. Baurley in any professional capacity. John Belegesky, a practicing attorney for more than 30 years, has known Mr. Baurley since he was a small boy. Baurley and Mr. Belegesky's son have been friends since grade school. Mr. Belegesky is also aware of Mr. Baurley's past and believes that the acts disclosed in the response to question number 6 to be out of character for him, and the result of youthful indiscretion. Mr. Belegesky trusts Petitioner to have a key to his home, which contains many valuables, and to houseset when he and his wife are away for weeks at a time. Mr. Belegesky would have no reservation about referring his clients, including major developers, to work with Mr. Baurley, if he is licensed. Mr. Belegesky believes Mr. Baurley possesses a high moral character and is honest and trustworthy. Mr. Baurley has matured and regrets his past actions. Mr. Baurley is honest and trustworthy and is of good moral character.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner, Kenneth M. Baurley, be allowed to take the examination for licensure as a real estate salesman and if he passes the examination, be issued a real estate salesman license. DONE and ORDERED this 28th day of April, 1989, in Tallahassee, Florida. WILLIAM R. DORSEY 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 28th day of April, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5537 The proposed findings of Mr. Baurley have generally been adopted. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Department of Legal Affairs 400 West Robinson Street, Room 212 Orlando, Florida 32802 Marion E. Baurley, Esquire 1025 Vermont Avenue, North West Suite 915 Washington, D.C. 20005 Kenneth E. Easley General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32902
The Issue Whether Respondent, a licensed real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate in the State of Florida pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. Petitioner's responsibilities include the prosecution of administrative complaints. Prior to February 1993, Respondent was a licensed real estate salesperson in the State of Florida. In February 1993, Respondent filed an application with Petitioner for licensure as a real estate broker. The application provided the applicant with two boxes, one marked "yes" and the other marked "no" to the following question, instructions, and caveat: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty of nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES," attach the details and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could result in denial of licensure. If you do not fully understand this question, consult with an attorney of the Division of Real Estate. Respondent answered Question 9 in the negative. Respondent thereafter signed the application, including the following affidavit: The above named and undersigned applicant for licensure as a real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information, an records permit, without any evasion or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications, whether and additional oath thereto shall be administered or not. On the evening of September 28, 1986, Respondent and her husband became involved in a loud argument at their home after having consumed too much alcohol. As a result, someone called the Fort Lauderdale Police Department. Respondent was thereafter arrested and charged with disorderly intoxication. On November 20, 1986, Respondent pled nolo contendere to one count of disorderly intoxication in Broward County, Florida. Respondent was fined, but adjudication of guilt was withheld. The court records reflect Respondent's name as being Katherine [sic] Lawand, which is her married name, and Kay Starr, which is the name Respondent uses for business purposes. On the evening of April 25, 1992, a virtual repeat of the incident of September 28, 1986, occurred. Again, as the result of a loud, drunken argument between Respondent and her husband, the Fort Lauderdale Police Department was called. As a result of her behavior, Respondent was arrested on the charge of disorderly conduct. On May 21, 1992, Respondent entered a plea of nolo contendere to one count of disorderly conduct in Broward County, Florida. The court records reflect Respondent's name entered on this plea as Kathline [sic] Starr. Respondent testified that she thought Question 9 on the application for a broker's license only pertained to felony crimes. Respondent testified that she does not consider herself to be a criminal and that she did not intend to mislead or deceive the licensing agency. On May 3, 1993, Respondent passed the broker licensure examination. On May 23, 1993, Respondent was issued her initial license as an inactive broker. The license number was BK0459569. Since September 24, 1993, Respondent has been actively licensed as either a broker or a broker/salesperson. At the time of the formal hearing, Respondent was licensed as an individual broker with an office at 120 East Oakland Park Boulevard, Fort Lauderdale, Florida. Following an automobile accident in Broward County, Florida, on December 12, 1994, Respondent was charged with "DUI/ Blood Alch Above 0.20" (Count I); "Driving Under the Influence" (Count II); and "Disobey Stop/Yield Sign" (Count III). On October 3, 1995, Respondent entered a plea of nolo contendere to the charge of driving under the influence of alcohol (Count II). Count I was nolle prossed and Count III was dismissed. As a result of the plea entered on October 3, 1995, Respondent was adjudged guilty of D.U.I. She was fined, placed on probation for six months, and ordered to perform 50 hours of community service. Her driver's license was suspended for six months. As a condition of her probation, she attended a Court Alcohol Substance Abuse Program D.U.I. School. The court records reflect Respondent's name as being Kay Starr Lawand. There was only minor property damage as a result of the accident involving Respondent on December 12, 1994. No person was injured.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be adopted that finds Respondent guilty of the violation alleged in Count I of the Administrative Complaint and orders that all licenses issued to her by Petitioner be revoked without prejudice to her right to reapply for licensure. It is further RECOMMENDED that Count II of the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998
