The Issue The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007. The transactions took place electronically and Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit. Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit." In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
Findings Of Fact In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray. Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell. In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project. This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker. Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA. The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected. From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary. Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate Murray's signature was made by Doyle in signing Murray's name on the McGhan application. During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office. Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7. Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977. During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA. Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
The Issue Whether Weston Professional Title Group, Inc. (Respondent) committed the violations alleged in Counts I, II, III, V, VI, and VII of the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times, Petitioner has been the entity of the State of Florida charged with the responsibility to regulate title insurance agencies. At all times relevant to this proceeding Respondent was licensed by Petitioner as a title insurance agent in the State of Florida. As of the formal hearing, Respondent had ceased its operations due to the lack of business. Petitioner's investigation of Respondent was initiated by a complaint from a man named Robert Anderson. Mr. Anderson represented to Petitioner that he discovered that his name and address had been used as the buyer of the two residences discussed above. Respondent was the title and settlement agent for both transactions. The Collonade Drive transaction settled on November 14, 2006, with disbursement of the funds on November 16, 2006. The Vignon Place transaction settled and the funds were disbursed on December 15, 2006. Mr. Anderson reported to Petitioner his belief that his identity had been stolen by a person named Pamela Higgins. Mr. Anderson reported to Petitioner that he had not participated in either transaction, and asserted that he did not sign any of the documents that purport to contain his signature as the buyer. Respondent was required to comply with the provisions of RESPA in completing the HUD-1 for the Collonade Drive closing and the Vignon Place closing. RESPA required that disbursements at closing be consistent with the HUD-1 as approved by the parties to the transaction and by the lender. COLLONADE DRIVE CLOSING On September 15, 2006, Robert Anderson (or someone impersonating Mr. Anderson) signed a "Contract for Sale and Purchase" (Collonade contract), agreeing to buy the Collonade Drive property from Mark Mariani and Kathy Mariani, for the purchase price of $1,375,000.00. The Collonade contract reflected that a deposit had been made to "FLORIDA TITLE & ESC." in the amount of $5,000 with an additional deposit of $5,000 to be made within ten days. Two loans with separate mortgages constituted the financing for the purchase of the Collonade Drive property. The first mortgage was $962,500.00. The second mortgage, as reflected on the HUD-1 Settlement Statement with the disbursement date of November 14, 2006, was $263,430.08.3/ First Magnus Financial Corporation, an Arizona corporation, was the lender for both loans. Agents of America Mortgage Corp. served as the mortgage broker for the transaction. Juan Carlos Rodriguez, an employee of Agents of America Mortgages, signed Mr. Anderson's loan application as the "interviewer." The following was a special clause of the Collonade contract: "BUYER AGREES TO PAY FOR TITLE INSUANCE [sic] FEE ONLY (LINE 1108 OF SELLERS' SETTLEMENT STATEMENT), ONLY [SIC] IF SELLERS AGREE TO USE BUYER'S TITLE COMPANY OF CHOICE. BUYER IS A LICENSED FLORIDA REAL ESTATE AGENT." Petitioner established that Robert Anderson was not a licensed Florida real estate agent. The Collonade contract represented that there were no real estate brokers representing either party. On or about November 1, 2006, Respondent received a "Request for Title Commitment" from Claudit Casanova, a mortgage broker with Agents of America Mortgage Corp., for the Collonade Drive transaction. This was a revised request. The first request had been sent to Respondent on or about October 3, 2006. A copy of the Collonade contract had been forwarded to Respondent with the first request. In connection with the Collonade Drive transaction, Respondent prepared two HUD-1s,4/ each of which was approved by the parties and the lender.5/ The first HUD-1 had an anticipated closing date of November 14, 2006. That HUD-1 was revised in response to the lender's instruction to move the disbursement date from November 14, 2006, to November 16, 2006. The revision of the HUD-1 slightly reduced the amount of cash the buyer needed to close as a result of interest beginning to run on the loans as of November 16 instead of November 14. This was a mail-away closing, in that a packet of the documents the buyer was to sign was sent to someone named Laurie Martin at a title agency in Glendale, Arizona. Ms. Marrero testified she mailed the packet pursuant to instructions without specifying who gave her those instructions. The packet of documents was returned to Respondent, with signatures purporting to be Mr. Anderson's. Laurie Martin appears to have served as the notary public when the documents were signed. The transaction closed pursuant to the revised HUD-1 with the disbursement date of November 16, 2006, which, as approved by the parties and the lender, reflected that the sellers were to receive $477,884.93 upon closing. Upon closing, Respondent drafted a check in the amount of $477,884.93 made payable to the sellers. The sellers voided the check and based on instructions from the sellers, Ms. Marrero redistributed the sellers' proceeds by wire transfer as follows: $116,112.85 to sellers; $170,250.00 to Pamela Higgins; and $191,508.08 to Unlimited Advertising USA. Fourteen dollars were spent on wire transfer charges. The actual disbursement of the seller's proceeds was inconsistent with the HUD-1 and unknown to the buyer and the lender. Respondent violated the provisions of RESPA by disbursing the proceeds of the sale in a manner that was inconsistent with the HUD-1. $195,000 DEPOSIT The Collonade contract reflected that a $5,000 deposit had been made to "Fla. Title & Esc." required for the buyer to pay an additional deposit of $5,000 within ten days. There was no evidence establishing any relationship between Respondent and "Fla. Title & Esc." Both HUD-1s for the Collonade Drive transaction reflected that the buyer had provided to the sellers a deposit in the amount of $195,000. These HUD-1s, reflecting that the sellers were holding a deposit in the amount of $195,000, were approved by the parties and the lender. Ms. Marrero testified that she was instructed to include the $195,000 deposit on the HUD-1s without specifying who gave her those instructions. Ms. Marrero did not attempt to verify that the $195,000 deposit was actually being held by the sellers. FRAUD Petitioner alleged that the Collonade Drive transaction was fraudulent. Mr. Wenger's testimony, based in part on reports of mortgage fraud prepared by the Federal Bureau of Investigation, supported that allegation. Other evidence supporting that allegation included the following facts The first mortgage quickly went into foreclosure; A mailing address given for Robert Anderson did not (as of April 19, 2011) exist. The address of Unlimited Advertising USA was also the address of Claudia Rodriguez, a former Florida title agent whose license had been suspended by Petitioner for failing to disburse in accordance with HUD statements and disbursing on uncollected funds; The address of Unlimited Advertising USA was also the address of Juan Carlos Rodriguez (the person who supposedly took the credit application from Robert Anderson); The address of Unlimited Advertising USA was also the address of Agents of America Mortgage Corporation (the mortgage broker for the Collonade closing. Juan Carlos Rodriguez supposedly notarized the document authorizing disbursement of part of the sellers' proceeds to Pamela Higgins. Mr. Anderson's purported signatures on different documents are inconsistent. The address for Mr. Anderson as it appears on the HUD- 1 Settlement Statements is 14233 W. Jenan Drive, Surprise, Arizona. Prior to the closing Ms. Marrero sent by Federal Express a copy of the unexecuted closing documents to "Pam Higgins c/o Robert S. Anderson" 12211 N. 85th Street, Scottsdale, Arizona. Following the closing, Ms. Marrero sent a copy of the closing documents by Federal Express to Robert S. Anderson, at the address 12211 N. 85th Street, Scottsdale, Arizona. Ms. Marrero testified that she acted on instructions in sending the two packages, without identifying who gave her those instructions. There was no evidence that anyone employed by Respondent knew anyone connected to this transaction prior to being asked to provide a title commitment. There was insufficient evidence to establish that Respondent had anything to do with the buy-sell agreement between the buyer and the sellers or the efforts by Mr. Anderson (or the person or persons impersonating Mr. Anderson) to obtain financing for the purchase. While there was significant evidence that the Colonnade Closing was a fraudulent transaction, there was insufficient evidence to establish that Respondent was complicit in that fraud. VIGNON COURT CLOSING On a date prior to November 6, 2006, Maribel and Timothy Graves signed a "Contract for Sale and Purchase" offering to sell their Vignon Court residence to Robert Anderson for the purchase price of $1,975,000.00. Mr. and Mrs. Graves were represented by counsel during this transaction. The copy of the contract admitted into evidence had not been signed by Mr. Anderson and did not bear a legible date. The contract provided an acceptance date of November 6, 2006. The fully executed contract was not admitted into evidence. On October 4, 2006, Claudit Casanova of Agents of America Mortgage requested Respondent to provide a title commitment for the Vignon Court transaction. In that request, the sales price was stated as being $1,975,000; the loan amount was $1,481,250 and the mortgagee was American Brokers Conduit. Preferred Properties, Int., Inc., was listed as being the real estate broker for the transaction. Respondent prepared a HUD-1 for the Vignon Court transaction that reflected a closing and disbursement date of December 15, 2006. DEPOSIT The unexecuted (by the buyer) and undated copy Purchase Agreement required a deposit of $100,000 at the time of acceptance with an additional $50,000 being due within ten days thereafter. There was no evidence as to the terms of the completely executed Purchase Agreement. Line 201 of the HUD-1 reflected a deposit of $250,000 paid on behalf of the buyer. Respondent did not verify that deposit had been made. The HUD-1 specified that the deposit was being held by the sellers. The buyer, sellers, and lender approved the HUD-1, which reflected the existence of a deposit of $250,000, prior to closing. GASPARE VALENTINO On December 6, 2006, Mr. and Mrs. Graves entered into a "Joint Venture and Property Resale Agreement" (Resale Agreement) pertaining to the sale of the Vignon Court residence with Gaspare Valentino. On February 5, 2002, Gaspare Rino Valentino was issued a license by the Department of Business and Professional Regulation of the type "Real Estate Broker or Sales" and of the rank "Sales Associate." That license was valid at the times relevant to this proceeding. Paragraph 2 of the Resale Agreement provides as follows: (2) SALE EFFORTS: CONTRACT PROCEEDS. Valentino agrees to use reasonable efforts to obtain a third party purchaser (a "Purchaser") for the Property. Valentino is not required to advertise the Property or list the Property for sale, but shall have such right to do so. Valentino does not guaranty [sic] the procurement of a Purchaser. The parties agree that the intention is for Valentino to secure a Purchaser who will pay a purchase price sufficient in order to (i) satisfy the existing debt upon the Property, (ii) pay ordinary and reasonable closing costs of the transaction, (iii) generate a net proceeds [illegible] to Owner not less than ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000); and (iv) generate such further sums beyond the foregoing in order to pay Valentino a fee for services rendered as set forth in this Agreement. In accordance with such understanding, Owner agrees to enter into and fully execute a Contract for Purchase and Sale with a Purchaser procured by Valentino which is consistent with the terms set forth in this Agreement, including without limitation, a designated sales price which enables Owner to receive at closing a net proceeds sum equal to ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) (the "Owner's Sale Proceeds") after payment of the Property Sale Expenses, hereinafter defined as set forth in Paragraph 3. Owner agrees that any net sales proceeds in excess of the Owner's Sale Proceeds shall be payable to Valentino (the "Excess Proceeds Fee), as Valentino's fee for the efforts of Valentino as set forth herein. Paragraph 3 (i) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" as follows: Owner shall receive the Owner Sale Proceeds consisting of exactly ONE HUNDERED THOUSAND AND NO/100 DOLLARS ($100,000) from the net sales proceeds . . . Paragraph 3 (ii) of the Resale Agreement reiterates that after the payment of the "Property Sale Expenses" and the "Owner Sale Proceeds": Valentino shall receive the Excess Proceeds Fees, constituting all remaining net sales proceeds in excess of the Owner Sale Proceeds, as a fee for services rendered by Valentino pursuant to this Agreement. Paragraph 7 of the Resale Agreement is as follows: 7. Licensed Agent: Valentino represents and discloses that Valentino is a licensed real estate agent in the State of Florida. Notwithstanding such, Valentino is individually entering into this Agreement using his own resources to assist Owner in the improvement and sale of the Property, and as such is a principal in this transaction earning the Excess Proceeds Fee. The parties acknowledge that Valentino is an investor in this transaction and as such at closing is entitled to and shall receive the Excess Proceeds Fee as set forth in Section [Paragraph] 3(ii) of this Agreement. Under RESPA, Section 700 of a HUD-1 is appropriately used for reporting the payments for commissions to real estate salesmen and/or brokers as part of the "Settlement Charges." Such payments can also be reported under Section 1300 ("Additional Settlement Charges"), if the payments are appropriately labeled. Respondent reflected the payment of $527,656.92 as "Payoff" to Gaspare Valentino at line 1307 of Section 1300." Prior to closing the buyer, sellers, and lender had approved the HUD-1 for the Vignon Court transaction. The lender was aware of the Resale Agreement. Mr. Marrero is an attorney licensed to practice law in Florida. Mr. Marrero construed the payments to Mr. Valentino to be other than a real estate commission. Although it is clear that Petitioner considers that payment to Mr. Valentino to be a real estate commission, the terms of the Resale Agreement entitled Mr. Marrero to treat that payment as being to an investor. Petitioner failed to establish that Respondent erroneously stated the payment to Mr. Valentino on the HUD-1. SURETY BOND As a condition of licensure, a title agency is required to provide to Petitioner a $35,000 security deposit or a $35,000 surety bond. In connection with its application for licensure on August 29, 2002, Respondent filed the required surety bond with Petitioner. The bond was issued by Fidelity and Deposit Company of Maryland with bond number 133046577. On July 14, 2004, Petitioner received from Respondent a surety bond issued by Western Surety Company in the amount of $35,000, effective as of August 29, 2004. The bond number was 69728435. On May 28, 2010, Petitioner received a letter from his surety dated May 24, 2010, which advised that bond number 69728435 would be voided or cancelled as of August 29, 2010. That letter of cancellation showed a copy being furnished to Respondent at the address "1820 North. Corporate Lakes Boulevard, Suite 105, Weston, Florida 33326." On June 11, 2010, Petitioner advised Respondent by letter sent to "1820 North Corporate Lakes Boulevard, Suite. 105, Weston, Florida 33326" that it had received the cancellation letter. The letter stated, in part, as follows: If we do not receive a replacement bond within 30 days of the dated letter, we will forward your file to the appropriate division for disciplinary action. If you do not plan to continue transacting business and wish to terminate your license, you must submit a request to us immediately. Prior to May 24, 2010, Respondent moved its offices from 1802 North Corporate Lakes Boulevard, Suite 105, Weston, Florida, to Suite 304 of the same building. Mr. Marrero testified that he had no recollection of receiving the letters cancelling the surety bond or the letter from Petitioner dated June 11, 2010. Respondent was without a surety bond between August 29, 2010, and November 18, 2010. Petitioner did not establish that Respondent's failure to maintain it surety bond during that period was willful within the meaning of section 626.8437(9). No prior disciplinary action has been brought against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating the provisions of subsections 626.8473(2) and (4) as alleged in Count I of the Amended AC; and guilty of failing to maintain a surety bond as required by section 626.8418(2) in violation of section 626.8437(1), as alleged in Count III of the Amended AC. It is further recommended that the final order find Respondent not guilty of all other violations alleged in the Amended AC. For the violations found as to Count I, it is recommended that Respondent's licensure be suspended for a period of six months. For the violations found in Count III, it is recommended that Respondent's licensure be suspended for a period of three months. It is further recommended that the periods of suspension run concurrently. DONE AND ENTERED this 8th day of February, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2012
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Pasquale A. Verona (Verona), is a licensed real estate broker having been issued license number 0389728 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). He is the qualifying broker and an officer of respondent, P. A. Verona and Associates, Inc., which holds broker's license number 0251674. The real estate firm is located at 3828 Seago Lane, Fort Myers, Florida. In May 1988 Donna Jean and Barry C. Minnich were shopping for a residential lot in Carillon Woods, a subdivision in Fort Myers, Florida. After seeing a lot advertised by Verona s firm, Donna Jean telephoned Verona's office and made an appointment to inspect the lot on May 13, 1988. After inspecting the lot, Donna Jean decided to purchase the same and, on the same date, she and Verona orally agreed upon a purchase price of $49,000 with a closing date of May 25, 1988. Verona desired to close on that date since he had a previously planned trip to California with his family beginning on May 26, 1988. The oral agreement was reduced to a written contract and executed by the parties on May 13, 1988. At Verona's request, and at the same time the contract was executed, an addendum was prepared by the Minnichs' attorney which provided, in part, that a $54,000 sales price would be used but that at closing Verona would refund $5,000 to the Minnichs. This refund was to be taken out of Verona's real estate commission and rebated to the buyers. Thus, the net sales price was still $49,000 as originally agreed to by the parties. As earnest money, the Minnichs gave Verona $5,000 which was deposited into Verona' s trust account. The Minnichs immediately made application for a loan with John E. Smith, a vice-president of a local C & S bank. On May 18, 1988 they placed an order for a title commitment with Southwest Title, Inc., a Fort Myers title company designated by the parties to prepare the title insurance and handle the closing. The title company was placed on notice that the contract called for a May 25 closing date. According to Mary Jane Kalpin, a Southwest Title, Inc. employee who worked on this transaction, there were unsatisfied water and sewer assessments on the lot owed by Verona to the City of Fort Myers. However, she said this was not unusual and happened quite frequently in subdivisions such as Carillon Woods. As it turned out, however, the city employee who oversaw these assessments was on vacation the week prior to the May 25 closing date, and Kalpin could not obtain payoff figures from any other city employee. In addition, Kalpin needed Verona to furnish her with a certificate of good standing on the property. 1/ He did not do so by May 25. Therefore, she was unable to prepare a closing package by the contract closing date. On May 23, 1988, C & S issued a loan commitment to the Minnichs. In the meantime, Kalpin had completed her title search and on May 23 she spoke with Verona who advised her the deal must close by May 25. When she responded she could not get payoff figures from the City by that date, Verona told her it was a "dead deal". On or about May 24, Donna Jean spoke with Verona and, after being told of the problems encountered by the title company, reiterated her desire to buy the lot. She requested that Verona extend the time for closing so that the missing items could be obtained. Although Verona denies that he gave such an extension, and nothing was reduced to writing, it is found that Verona orally agreed to an extension of time prior to leaving for California. This is supported by the fact that, after returning from California, Verona's wife delivered a certificate of good standing to the title company on June 9, and the title company representative was under the impression a closing would be held at 1:00 p.m. the same date. However, at Verona's insistence, the closing did not take place. On June 15, Verona sent the Minnichs a letter with a check in the amount of $5,000 which represented the deposit on the property. In his letter, Verona stated that he "realize(d) that the delay in the closing on Lot #6, Carillon Woods is not being caused by anything you have done" and that those things occurred whenever "we place a transaction in the hands of another". He added that he had received another offer in the amount of $58,000 from another party and if the Minnichs were willing to pay a "net figure of $56,000", he would give them the opportunity to purchase the lot. The Minnichs chose not to cash the check but instead advised Verona they intended to seek legal advice on their rights under the original contract. Donna Jean deposited the check around June 22 but learned the next day that Verona had stopped payment on the check. On June 24, 1988 Verona again wrote the Minnichs and advised them to reconsider their threat to take legal action since he had "never lost a real estate dispute". He also advised them that, pursuant to the contract, he was claiming the $5,000 as liquidated damages due to their failure to close by May Finally, he pointed out that the original contract "was terminated on June 15 by letter". On an undisclosed date, but prior to September 1988, Donna Jean spoke with Verona by telephone and requested a refund of her deposit. Her request was denied. The Minnichs then filed a complaint with the Division. On September 2, 1988 Verona advised the Division there was a dispute concerning the deposit and requested the issuance of a disbursement order. On January 11, 1989, the Division, through its counsel, wrote Verona and advised him that, because of disputed facts a disbursement order could not be issued, and he must immediately seek arbitration or file an interpleader action in circuit court. Choosing to utilize arbitration, Verona contacted the Miami office of the American Arbitration Association (AAA) on February 15, 1989 and requested a "package" from which an agreement to arbitrate could be prepared. After receiving a package of documents, Verona sent an agreement with a letter to the Minnichs on February 24, 1989. They did not respond to his offer to arbitrate. On March 6 he sent a follow-up letter again requesting the Minnichs to arbitrate. On March 9 Verona learned that AAA would not arbitrate the dispute. As of that date, Verona was aware of the fact that his only remaining alternative was to file an interpleader action in circuit court. On March 23, 1989 the Division, through its counsel, sent a second letter to Verona advising him that he had apparently ignored the earlier letter and that he must immediately take action to resolve the dispute. On May 5, 1989 Verona sent his attorney, George Knott, a check in the amount of $5,000 with a request that Knott "handle the interplea (sic) action as to the disposition of $5,000 previously held in my real estate firm's escrow account". The suit was eventually filed by Knott in circuit court on September 8, 1989. The suit requested that Verona be awarded the $5,000 deposit plus "damages" and attorney's fees. When asked at hearing why the suit had not been filed earlier, Verona responded that, once the matter was turned over to his attorney, he had no control over the actions of his attorney. He also acknowledged that he has never instructed his attorney to attempt to resolve the matter as quickly as possible. As of the date of hearing (June 20, 1990), the matter was still pending in circuit court. There is no evidence that Verona did not maintain the $5,000 deposit in his firm's escrow account until the money was turned over to his attorney on May 5, 1990. There is also no evidence that respondents have ever been disciplined by the Division.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsection 475.25(1)(d) and (e), Florida Statutes (1987) and Rule 21V-10.032, Florida Administrative Code (1987), and that their brokers' licenses be suspended for six months and thereafter be placed on one year's probation. DONE and ENTERED this 24th day of July, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990.
The Issue Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.
Findings Of Fact The Petitioner is the state agency charged with regulating and disciplining real estate salespersons. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 15th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Gary Allen Groves 1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Chapter 475, Florida Statute, and rules promulgated pursuant thereto. Respondent Dean O. Vanderwoude is now a real estate broker and was at all times material hereto a real estate salesman in Florida having been issued license number 0432878 in accordance with Chapter 475, Florida Statutes. On August 15, 1988, Respondent passed an examination to be licensed as a broker and was licensed as a broker on September 1, 1988. At all times material hereto, Respondent was licensed as a salesman and operated under the direction, control, or management of a licensed real estate broker, Anne M. Graffunder, and P.M.M. Properties under a 100 percent commission agreement whereby Respondent rented office space from his broker Graffunder. Respondent was affiliated with Graffunder and P.M.M. Capital, Inc., from approximately November 4, 1986, to October 16, 1987. When Respondent became affiliated with P.M.M., he had been licensed less than one year having first been affiliated with Security Realty Florida from December 20, 1985, to November 4, 1986. Under Graffunder's supervision, Respondent received little assistance in the form of guidance or instructions as to the methods and manner of presenting purchase contracts to sellers, little or no office support in the form of clerical assistance or technical training in the methods of handling escrow funds, no malpractice insurance coverage in the form of errors or omission's policy and no sales/training seminars. On approximately April 6, 1987, Respondent obtained a sales listing from Gary Alan Dahl (Dahl), a real estate investor, concerning real property, the record owner of which was Joe Belcik who had granted to Dahl equitable title to the property by Quit Claim Deed yet unrecorded. (Petitioner's Exhibit 2). The real property located at 2785 Adrian Avenue, Largo, Florida, had been purchased by Belcik from Dahl who had previously purchased the property from the Veteran's Administration. Respondent was aware of the condition of the title to the property listed by him for sale as he reviewed an abstract of the property. On April 6, 1987, prospective purchasers David and Donna A. Kiser (herein purchasers) viewed the real property at 2785 Adrian Avenue, Largo, Florida, and contacted Respondent at a telephone number observed on a "for sale" sign posted on the property. On that date, the purchasers executed a written offer to purchase the property, which offer was prepared by Respondent. (Petitioner's Exhibit 3). In conjunction with the offer to purchase, the purchasers tendered an earnest money deposit to Respondent, by cashier's check number 703917, dated April 10, 1987, in the amount of $100.00 made payable to P.M.M. Properties. The cashier's check was deposited into the escrow account of P.M.M. Capital, Inc., Sun Bank of Tampa Bay account number 265-014-3405 on April 15, 1987. The transaction closed on April 22, 1987. Following the closing, Graffunder issued a check number 140 written on the escrow account of P.M.M. Capital, Inc., Sun Bank/Southeast, account number 265-014-3405, dated April 22, 1987, made payable to Respondent in the amount of $100.00. The check was received by Respondent with Dahl's full permission and consent. Respondent represented to the purchasers that the seller, Dahl, had accepted their offer and desired to close the transaction immediately. Toward that end, Dahl came to Pinellas County from Sarasota County and executed all documentation necessary to effectuate the transfer on or before April 15, 1987. On April 15, 1987, Respondent met with the purchasers and had them sign all closing documents. This included execution of a closing statement and the Kisers requested an extension in order to obtain the $4,900.00 closing proceeds from Mrs. Kiser's father. On April 22, 1987, Mrs. Kiser presented the closing proceeds check and the transaction was finalized. That proceeds check and the $100.00 deposit check were both placed in Graffunder's operating account and pursuant to instructions from Dahl, Respondent received the closing proceeds as agent for Dahl. Dahl and the purchasers completed the closing by executing an Agreement for Deed on April 15, 1987. That agreement provides, in pertinent part, that the purchaser's would pay Dahl the total purchase price of $65,000.00 which included a down payment of $5,000.00 and monthly payments of $557.07 commencing May 1, 1987, and continuing for twenty-nine (29) months at which time the remaining principal balance of $60,073.18 would be payable in the form of a balloon payment. Dahl agreed to carry fire insurance for the full insurable value of the property and the purchasers were to have their names added to the policy as additional insureds. Additionally, both parties agreed that a Memorandum of Interest would be filed in the records of Pinellas County at the time of entering into the Agreement for Deed. Finally, the Agreement for Deed represented that there was a first mortgage in favor of Chrysler First and stated the condition that should the purchasers fail to make payments required of them within thirty (30) days after the same becomes due, the seller may, at his option, declare the contract null and void and all monies paid may be retained as full satisfaction and/or liquidated damages. Respondent did not provide the purchasers a warranty deed until approximately June 27, 1988, when he first became aware that Dahl had not given one to the Kisers. Respondent acknowledges that given the opportunity to reconstruct that transaction, he would have ensured that the seller provided a Warranty Deed to the purchasers as agreed in the Agreement for Deed. Respondent did not follow-up to ensure that a Memorandum of Interest was filed in the public records of Pinellas County as the parties agreed. Within months following the Riser's purchase of the subject property from Dahl, they became disenchanted with the property and ceased making payments under the agreement for Deed causing a large arrearage to accumulate and a subsequent mortgage foreclosure action was initiated.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: The Petitioner enter a final order finding that an administrative fine of $500.00 be imposed upon Respondent and his license number 0432878 be placed on probation for a period of sixty (60) days with the condition that the fine be payable to Petitioner within thirty (30) days of entry of the final order. RECOMMENDED this 29th day of June, 1989 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 29th day of June, 1989. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Brian E. Johnson, Esquire Brian E. Johnson, P.A. 7190 Seminole Boulevard Seminole, Florida 34642 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact Case No. 80-767 Count I In 1976, Ms. Kay E. Davis bought a house from Home America Realty, Inc., and Home America, Inc. at 11700 North 58 Street, Tampa, Florida, the Respondent's principal place of business. On or about May 26, 1976, the Respondent offered to Ms. Davis a color television set in exchange for sending Respondent a referral who would purchase a home. Ms. Davis was and is not registered as a real estate broker or salesman in Florida or any other state. Subsequent to the closing of the purchase by Ms. Davis, one of her friends, Brenda Kelly, purchased a home from the Respondent. Ms. Davis believed that she was responsible for the referral and contacted the Respondent's office concerning the color television. After the closing and over a period of several months, Ms. Davis called Home America to complain about problems with her house. In response to her complaints, the exterior of the house was cleaned and a check for $110.00 was sent to her in settlement of a claim concerning carpeting. During this period of time, a check for $200.00 was sent to Ms. Davis following a telephone conversation between Ms. Davis and the Respondent's secretary. Ms. Davis never received a color television from the Respondent or spoke to him directly about the $200.00 in lieu of a color television set. The $200.00 was not knowingly paid by the Respondent as a referral fee; rather, it was an attempt on the Respondent's part to settle the ongoing problems involving Ms. Davis' home. Count II Prior to the hearing, counsel for the Respondent moved that Count II be dismissed, based upon a letter he received on May 19, 1980, from counsel for the Board of Real Estate informing him that on May 19, 1980, following an investigation the Board dismissed this part of its complaint (CD 18645) against the Respondent. Ruling was reserved on this Motion and the Respondent presented testimony and evidence on this Count. Counsel for Respondent was never informed by the Board that Count II of the complaint was not in fact dismissed as represented in the May 19, 1980, letter until October 23, 1980, the day of the formal hearing. Case No. 80-1225 On November 21, 1977 Mr. and Mrs. Richard Caplano purchased a home at 4611 East Seneca Drive, Tampa, Florida, from Respondents Home America Realty, Inc. and Bekiempis through their salesman, Robert Knisley. At the time Mr. Knisley first showed the Caplanos the property, the site was under construction, unsodded and survey markers were not in place. Although a chain link fence was visible on the east side of the property, it would have been difficult to determine the legal boundary lines because of the condition of the site. The visible fence was 10 feet beyond and parallel to the actual property line. The lot purchased by the Gaplanos was 60 feet in width. The lot directly behind the Gaplanos was 70 feet wide. The Caplanos were furnished with an accurate survey of the property either five days after the contract was signed or at the closing. At the closing, the Caplanos understood that they were purchasing a sixty foot lot and never believed or were told that their lot was 70 feet wide. Prior to closing, the lot was sodded beyond the boundary lines to include easements on both sides of the street and the 10 feet up to the fence line. It was the customary practice of Home America, Inc. , to sod beyond property lines after the completion of construction of a lot to improve the appearance of a neighborhood. Such action was not intended to mislead purchasers as to the location of their property lines. The misunderstanding between the Caplanos and Mr. Knisley arose not out of any attempt by Mr. Knisley to misrepresent or mislead, but rather out of Mr. Knisley's erroneous and unintentional attempt to locate the property lines and survey markers. Case No. 80-789 On or about November 10, 1976, the Respondent contracted with Ronald Faber for the sale of a house and lot located at Lot 1, Allbright Shores Subdivision. At the time Ronald Faber worked for the Respondent as comptroller of Home America, Inc. This house was purchased using conventional financing since the specifications of the house and lot did not meet the requirements of VA financing and, thus, such financing could not be arranged. The contract for purchase of the house called for a down payment of $4,600.00 or 10 percent of the purchase price. A portion of this amount was paid in cash by Mr. Faber and the remainder was paid by way of an employee discount to Mr. Faber as evidenced by the exchange between Mr. Faber and Home America, Inc. of checks for $3,000.00. Mr. Faber received from his employment with Respondent salary income and additional income from managing apartments. Thus, his income was capable of varying during the year and was not calculated as straight salary. The evidence is inconclusive as to what Mr. Faber's actual income was for the year in question. The statement of salary made by the Respondent to the financing bank was substantially correct based upon his interpretation of Mr. Faber's salary and was not intended to mislead the bank. The testimony is contradictory concerning whether the Respondent agreed to pave the road in front of the Faber home beyond that which was already in place. However, no competent testimony or evidence was presented that the Respondent supplied any information to the bank's appraiser concerning the paving of the road. Mr. Faber executed a note and mortgage in favor of Home America, Inc., encumbering the property on November 24, 1976. There is conflicting testimony as to whether the affidavit furnished the bank which stated that no outstanding unrecorded contract for sale, deed, conveyance, or mortgage affecting title existed on the property, was executed by the Respondent on November 24 or November 29. The note and mortgage were delivered to Respondent after the affidavit was executed. The Respondent believed at the time the affidavit was executed that he held a promissory note which was not a valid lien on the property until the mortgage and note were signed and delivered to him.
