Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of October, 2010.
Findings Of Fact The Respondent Marinatown Realty, Inc., is a corporate real estate broker, holding license number 0208680 and located at 3440 Marinatown Lane, Northwest, North Fort Myers, Florida. Marinatown Realty is a wholly owned subsidiary of Seago Group, Inc., a publicly held land development and rental corporation whose president is Thomas P. Hoolihan. In late 1977, Hoolihan met L. E. Hutchinson, the complainant in this case, through another broker for whom Hutchinson at the time was employed. In December, 1977, Hoolihan and Hutchinson discussed the marketing of two condominium projects being developed by Hoolihan and reached an oral agreement whereby Hutchinson would be paid $18,000 in salary with a 1 1/2 percent commission on all sales. When the condominium units were completed and mostly sold, the parties' employment agreement was revised in late December, 1979. Under the new agreement, Hutchinson was to receive $30,000 a year salary, commissions on the remaining condominium units that had not yet closed and any commissions on outside property listings neither owned nor controlled by Seago. In return for the $30,000 guarantee, Hutchinson was to forego commissions on future properties owned or controlled by Seago Group, Inc. During the period from 1977-1978 when Hutchinson was receiving $18,000 plus a 1 1/2 percent commission, sales were handled through Lee Hutchinson Realty, Inc., which held license number 0182945. In early 1979, Marinatown Realty was incorporated to market Seago's real estate inventory, to identify and list outside properties and to act as a management agent for purposes of renting condominium units previously sold in recent projects. When Marinatown Realty was formed, the complainant became its active broker. While employed as the broker for Marinatown and receiving $30,000 a year as a salaried employee, Hutchinson held two other broker's licenses, one as L. E. Hutchinson Realty, Inc., and another as L. E. Hutchinson. In January, 1980, Hoolihan agreed to pay a $15,000 bonus to Hutchinson in lieu of a salary increase. Since at that time sales were minimal, Hoolihan decided to pay the bonus in installments as sales occurred. Because Hutchinson left in May, 1980, he received only $10,000 of the bonus which represented moneys previously paid. On April 23, 1980, Hutchinson and Chuck Bundschu, a licensed real estate broker, negotiated and obtained a sales contract between Hancock Harbor Properties, Ltd., a wholly owned subsidiary of Seago Group, Inc., seller, and Frank Hoffer, buyer and licensed real estate broker, in which Hoffer offered to purchase approximately 3.16 acres of unimproved acreage for $500,000. Thomas P. Hoolihan, general partner of Hancock Harbor, executed the contract on behalf of the partnership. Prior to presenting the contract to Hoolihan, Bundschu, Hoffer and Hutchinson decided on a 30 percent, 40 percent 30 percent respective co- brokerage split on the $50,000 commission due on the sale of the Hancock Harbor Property. The co-brokerage fee split was typed on the bottom of the contract submitted to Hoolihan and was signed by the three brokers. The commission due to Hutchinson was made payable to L. E. Hutchinson Realty, Inc. On April 25, 1980, the contract with the original co-brokerage split was presented to Hoolihan who refused to agree to its co-brokerage split provision. In the presence of Hutchinson, Hoolihan informed Bundschu and Hoffer that he would not pay a commission to Hutchinson because he was a salaried employee of the Seago Group and not entitled to a commission on the sale of this property. Accordingly, the co-brokerage fee provision of the executed contract was never signed by the seller, Thomas P. Hoolihan. Instead, on April 25, 1980, Bundschu, Hoffer and Hoolihan agreed to a split of $20,000 to Hoffer and $15,000 to Bundschu in lieu of the split specified on the bottom of the contract. At the closing on July 18, 1980, which was held at Coastland Title Company, a closing statement was prepared which shows that real estate commissions were disbursed to Chuck Bundschu Realty, Inc. ($15,000), Marinatown Realty, Inc., ($15,000) and Hoffer's firm, Landco, Inc., ($20,000). The checks were written and disbursed following a conversation between an official of Coastland Title Company and Hoolihan in which Hoolihan informed the official that Hutchinson was a Seago employee and he would not agree to pay a $15,000 commission to him under such circumstances. On July 18, 1980, a check for $15,000 was issued by Coastland Title Company to Marinatown Realty, Inc. The $15,000 represented Hutchinson's share of the co-brokerage agreement. When received on July 18, 1980, by Billie Robinette, the broker for Marinatown Realty, the check was signed over by her to Seago Group, Inc., since in her opinion it did not represent commissions earned by Marinatown Realty. The oral agreement between Hutchinson and Hoolihan was to terminate at the end of April, 1980, or approximately five days after the Hoffer contract was presented. Hoolihan offered to renew the contract without a provision for a guaranteed salary because Marinatown Realty had been consistently losing money since its incorporation. On May 6, 1980, Hoolihan received a letter of resignation from Hutchinson and concluded that his offer had been rejected. In early May, 1980, Hoolihan received a call from Ms. Robinette, who had been employed as Hutchinson's secretary, regarding filling the open brokerage position at Marinatown Realty, Inc. Hoolihan discovered from Ms. Robinette that Hutchinson had paid himself 50 percent of the commissions due Marinatown Realty, Inc., for the management of condominium rentals. After examining the check stubs from Marinatown's bank account, Hoolihan took personal possession of all the books and records of the company and had the office locks changed. When he examined the books and records of the realty company, Hoolihan realized that his assumption that Hutchinson Realty, Inc., became inactive when Marinatown Realty, Inc. was formed in January, 1979, was erroneous and that Hutchinson had operated his own realty company, L. E. Hutchinson Realty, Inc., while employed by Marinatown Realty, Inc. Although he held multiple licenses, Hutchinson denied that a conflict ever existed between his duties to Marinatown Realty, Inc., and his own company, L. E. Hutchinson Realty, Inc. When questioned during the final hearing regarding how he decided where to list properties while he was the broker for both companies, the following exchange occurred between Hutchinson and counsel for Marinatown Realty, Inc.: Q Let me ask you, Mr. Hutchinson, how would it be decided when you were to go out and list property as to whether or not that property would be listed under Marinatown Realty or L. E. Hutchinson Realty, Inc.? Who would make that determination? A I would. Q Solely on your own? A I had no contract with anyone. I had nothing in writing to direct me where to place any business. Q So this would be solely your decision as to how you would list the property? Either Marinatown Realty or L. E. Hutchinson Realty? A If I secured the listing it was my dis- cretion as to where I listed the real estate. I had the choice of one of two companies. * * * Q If you were to list property in my hypo- thetical with Marinatown Realty, is it not a fact that they would receive, and being Marinatown Realty, would receive one half of the commission and you, as the broker, would receive the other half? A That was what I did. Q So it would certainly be beneficial to Seago to have you list as much property as you could with Marinatown Realty because they, in fact, owned the stock with Marinatown Realty, is that not true? A Yes, sir. Q When you would list property with L. E. Hutchinson Realty, Inc., would you do this with the full knowledge, consent and permission of Marinatown Realty, Inc.? A Yes, sir. Q How would you say that you gave full consent when you just testified that it was solely up to you as to how you would list property? A If I solely decided, I give my consent. I don't have anybody else to answer to. (T. pp. 108-110) During the period that Hutchinson was a broker for Marinatown Realty and L. E. Hutchinson Realty, Hutchinson believed his primary duty was toward his own company as illustrated by the following exchange between counsel for Respondent and the complainant: Q It's a fair statement to say that you, as a broker for Marinatown Realty, Inc. didn't make a whole lot of money for Marinatown Realty, did you? A I didn't run the P & L statement. Q I'm asking you as being the broker. You didn't make a lot of money for Marinatown Realty, Inc., did you? A I made as much money for them as I did for the responsibility. Q Well, did L. E. Hutchinson Realty, Inc. make a lot of money during that period of time? MR. FERNANDEZ: Objection as to relevancy, this whole line of questioning. MR. NEEL: Your Honor, it isn't. It's germaine. HEARING OFFICER: Objection overruled. THE WITNESS: I'm sorry, the question? Q Did L. E. Hutchinson Realty, Inc. make a lot of money during this period of time? A That's relative. Q In comparison to what money Marinatown Realty made? A Yes, sir, because L. E. Hutchinson Realty had a thirty thousand retainer that was coming in up until April 30th. Q From Seago? A Certainly. Q So L. E. Hutchinson Realty, Inc. made a lot more money than Marinatown Realty, Inc., didn't they? A That's the way its supposed to work. Q And, again, it was at your sole dis- cretion as to how you would list the properties; under which principal. A Yes, but I asked for a specific con- tract and never got it. (T. pp. 124-125) The Administrative Complaint in this case was filed on July 22, 1981. The preliminary investigative report compiled by Robert Corno, DPR Investigator, was filed on September 24, 1981 and the final investigative report was filed on September 30, 1981. The following is a synopsis of the investigator's findings and recommendation: That the COMPLAINANT [Hutchinson] worked for the SUBJECT [Hoolihan] and their contractual agreement was verbal. COMPLAINANT was paid on a salary/commission basis by companies of which SUBJECT is Chief Officer. That the COMPLAINANT filed civil action suit against SUBJECT in this case and it was dismissed with prejudice. That prior investigation by the DPR re- commended that no action be taken against the SUBJECT in this case. That two weeks after this investigation was undertaken, an Administrative Com- plaint was being filed by the DPR against the SUBJECT. That the existing BROKER for MARINATOWN REALTY, INC. was not involved in this case, and that since the time of the above referenced transaction, the SUBJECT has acquired his BROKER'S license #020462 which had no effect in this case. That conflicting statements by inter- viewers, namely former and present em- ployees and other agents involved in this case revealed that there is a reasonable doubt for probable cause against the SUBJECT. (Respondent's Exhibit 1) As noted by Investigator Corno, this was the second time Marinatown Realty had been investigated in relation to this case. In both instances a recommendation that no action be taken against the Respondent was apparently made. At the final hearing on December 1, 1981, counsel for the Department saw the complete investigative report, including the investigator's recommendation of a lack of probable cause, for the first time. Count II of the Administrative Complaint alleges that Hutchinson is entitled to compensation for services rendered on the following sales contracts: Seago Group, Inc. as seller, to Michael T. and Judith Marchiando as buyers, Seago Group, Inc. as seller, to John E. and Charlotte A. Ferguson as buyers, and Seago Group, Inc. as sellers, to Kenneth J. Dawson as buyer. In regard to the first transaction, the Marchiandos were personal friends of the son-in-law of Seago's major shareholder, Mr. R. Berti. Hutchinson's role in this transaction was limited to preparing the contract and mailing it to the Marchiandos for signature. Hutchinson had no part in selling this property and never met the Marchiandos. The sale of the Ferguson's arose in a manner similar to the Marchiandos. Mr. Ferguson is the manager of a Detroit company owned by Mr. Berti. Similarly, Mr. Dawson works for Mr. Berti in Detroit as an accountant. These sales were made by Mr. Berti and Hutchinson furnished administrative assistance by completing the contracts and sending them to these individuals for signature. Under the terms of the agreement between Hoolihan and Hutchinson, a commission was not due on these properties to Hutchinson since these were not outside listings and his agreement with Hoolihan did not contemplate that commissions be paid in such situations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Marinatown Realty, Inc. be dismissed. DONE and ORDERED this 28th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire NUCKOLLS JOHNSON & FERNANDEZ Suite 10, 2710 Cleveland Avenue Fort Myers, Florida 33901 James A. Neel, Esquire 3440 Marinatown Lane, N.W. Fort Myers, Florida 33903 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 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 5th day of December, 1989.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent received his real estate sales license through fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, by allegedly misrepresenting his criminal record on his application for licensure.
Findings Of Fact The Respondent is a licensed real estate salesperson, holding license number 0638567. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with regulation of the entry into licensure and with the practice standards pertaining to real estate salespersons and brokers in the state of Florida. The Respondent applied for licensure as a real estate salesperson on April 8, 1996. He was approved to take the examination for licensure. He passed his examination and was duly licensed, and at all material times has been the holder of the above-referenced license. In response to question nine on the licensure application, he was asked whether he had ever been convicted of a crime, found guilty, or had entered a plea of guilty or nolo contendre. He responded to question nine with the answer "yes" and attached a handwritten notation regarding a 1972 arrest, plea and one-year probationary sentence. The Respondent did not give any information on that application concerning an arrest occurring on April 12, 1986, in Gwinnett County, Georgia, and his subsequent conviction on January 6, 1987. That conviction was a result of a negotiated guilty plea and resulted in 12 month probation. During the period of time encompassed by the April 1986 arrest, the Respondent's life had gone awry. He was dependent on drugs and alcohol and at the time of the April 12, 1986, arrest, on a shoplifting charge, he was habitually under the influence of drugs or alcohol. There are many aspects of this period of time in his life which are blocked out of his memory and which he simply had no recollection of. When he executed the licensure application, he simply failed to remember the arrest and conviction. When it was brought to his attention by investigator, Benjamin Clayton, of the Division of Real Estate, he readily admitted it and indicated that he had simply not recalled it when executing his licensure application. The evidence of record indicates that the Respondent was involved in a very serious motor vehicle accident on December 19, 1995. This resulted in numerous, serious injuries to the Respondent, including severe head injuries. He was treated by a number of doctors for the injuries resulting from this accident including Dr. William Smith and Dr. Robert Flurry. Dr. Flurry indicated that for approximately 4 to 5 months after his accident, the Respondent had symptoms of "Post-Concussion Syndrome." He was having great difficulty with dizziness, difficulty in concentrating, some confusion and memory loss. These problems eventually resolved themselves. In an office note of Dr. William Smith, an Orthopedic Surgeon, dated January 8, 1996, Dr. William Smith documents that the Respondent had some problems with memory loss. Mr. Stuart Bainter and Mr. Bill Haven, are well acquainted with the Respondent, knew him before his automobile accident and have continued their acquaintance with him thereafter. They established that for a number of months following his injuries due to the accident, he had substantial difficulty remembering things and that the problem persisted through and beyond the date the application for the real estate sales license was completed. In more recent times the memory loss and related problems of confusion and difficulty in concentrating have gradually resolved themselves. Ms. DeLany Sheffield, the Respondent's wife, testified about the extensive emotional problems the Respondent had around the time of his arrest in Gwinnett County, Georgia, on the shoplifting charge. She described in detail his rehabilitation efforts since then which have resulted in his being drug-free since the date of his arrest through the present time. She also described the incident surrounding the auto accident on December 19, 1995, and the resulting memory lapses, forgetfulness and inability to concentrate suffered by the Respondent for a substantial period of time thereafter. The Respondent described the events concerning the 1972 arrest which he did report on his initial real estate sales licensure application, and described the events surrounding his arrest in April 1986, which resulted in the negotiated plea of guilty in January, 1987. The second arrest was the one not referenced on his application. The Respondent is frank to admit that he does not know whether his failure to recall the April 1986 arrest and conviction was due to his addiction to drugs and alcohol at the time of these events, or whether it is due to memory loss resulting from the injuries due to his accident. He described "blocking out" entire periods of time from memory during the period he was suffering from drug and alcohol addiction, and described as well the lapses in memory occurring for a number of months after his automobile accident. Since his licensure he has been an exemplary real estate salesperson and has earned numerous honors, awards, and accomplishments. He testified that he has refused to engage in certain real estate transactions when he determined that the proposed buyers or investors were in some manner trying to circumvent law, rules or regulations. He has endeavored to conduct his real estate sales-related business in a manner consistent with all relevant, legal, regulatory, and moral standards. On March 9, 1998, the Respondent applied for licensure as a real estate broker disclosing both arrests. In due course he was approved, based upon that application to take the examination for licensure as a real estate broker. He passed that examination and has been duly licensed and at all material times since, has held Florida Real Estate Brokers License #0638567. Both the application and issuance of that broker's license occurred after the subject investigation had begun by the Division of Real Estate. When the Respondent executed his original application for licensure as a real estate salesperson on April 8, 1996, he had no intent to conceal or otherwise make a dishonest representation on that application for licensure concerning question nine. He inadvertently failed to mention the 1986 arrest and events surrounding it due to his failure to recall it. The failure to describe that arrest and surrounding circumstances was due to memory loss attributable to one or both of the above-found reasons. His failure to describe the 1986 arrest, conviction and probationary status was not due to any intent to defraud, conceal or misrepresent facts on his licensure application.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and argument of the parties, it is RECOMMENDED that a Final Order be entered by the Division of Real Estate, finding that William C. Sheffield is not guilty of obtaining his licensure as a real estate salesperson by fraud, misrepresentation, or concealment. Accordingly the Administrative Complaint should be dismissed in its entirety. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 day of January, 1999. COPIES FURNISHED: Geoffrey Kirk, Esquire Department of Business and Professional Regulation 400 West Robinson Street Ocala, Florida 32801-1900 John F. Windham, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 James Kimbler, Acting Division Director Divison 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 At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone, Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.
Findings Of Fact The Petitioner Department of Professional Regulation, Division of Real Estate (hereafter Department), is a state governmental licensing and regulatory agency charged with the responsibility to prosecute complaints concerning violations of the real estate licensure laws of the State of Florida. The Respondent Melvin M. Lewis is now and was at all material times a licensed real estate broker in Florida holding license number 0052222. The Respondent Melvin M. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Faye F. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052101. The Respondent F. Lewis' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Larry B. Lewis is now and was at all material times a licensed real estate salesman in Florida holding license number 0052189. The Respondent L. Lewis' last known address is Melvin M. Lewis, Registered Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Cindy L. Morales is now and was at all material times a licensed real estate salesman in Florida holding license number 0123347. The Respondent Morales' last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. The Respondent Melvin M. Lewis Licensed Real Estate Broker, Inc., is now and was at all material times a corporation registered as a real estate broker in Florida holding license number 0243694. The Respondent corporation last known address is Melvin M. Lewis, Licensed Real Estate Broker, Inc., 633 N.W. 167th Street, North Miami Beach, Florida 33162. At all material times, the Respondent M. Lewis was licensed and operating as a qualifying broker and officer for the corporate broker, Melvin M. Lewis Licensed Real Estate Broker, Inc. The Respondents M. Lewis, F. Lewis, L. Lewis and Morales, from May 4, 1977 to September 9, 1979, as sellers individually and/or in concert as owners, officers and directors of various corporations, including South Florida Property, Inc., and West Dade Acres, Inc., solicited and obtained through telephone and mail, 58 purchasers who entered into agreements for deed for one and one-fourth acre lots located within a sixty-acre parcel of land in Section 21, Range 37, Township 54, Dade County, Florida. On September 24, 1979, the Respondent Melvin M. Lewis, acting on behalf of South Florida Properties, Inc., a Florida corporation, entered into a deposit receipt contract, as purchasers with InterAmerican Services, Inc., by Lester Gottlieb, as sellers, for the purchase of 60 acres, more or less, more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, Range 37E, Dade County, Florida. The total purchase price of the parcel of land was $120,000.00. The purchase price was to be paid by a down payment of $1,520.00 and a first priority purchase money mortgage and note of $118,479.80. From May 4, 1977, to September 24, 1979, the Respondents had no ownership interest in the above described 60- acre parcel of land. The purchase and sale closed on April 22, 1982, as evidenced by a warranty deed wherein title to the 60-acre parcel more particularly described as: The N.W. 1/4 of the N.W. 1/4 of the N. 1/2 of the S.W. 1/4 of the N.W. 1/4 Section 21, Township 54, S., Range 37 E. lying and being in Dade County, Florida. was transferred to South Florida Properties, Inc., by Lester Gottlieb, President. The subject land lies in the East Everglades moratorium area and is subject to Dade County Ordinance 81-121 which is highly restrictive to owners of parcels or lots of land less than 40 acres. It is approximately ten miles west of Krome Avenue and is underwater on the average of nine months a year. As a result of its isolated location, it is accessible only by airboat. A building moratorium was enacted for the subject land in September, 1981, and is still in effect with no significant change planned for the reasonably foreseeable future. Upon discovering the increased restrictions on the 60-acre parcel, the Respondents demanded of InterAmerican Services, Inc., a refund of their purchase price. As a result, Respondents delivered a Quit Claim Deed dated October, 1982, from South Florida Properties, Inc., executed by Melvin Lewis, President. InterAmerican Services, Inc., delivered a satisfaction of mortgage to South Florida Properties, Inc. on December 7, 1982, which was executed by Lester Gottlieb, President. Although Respondents had on December 7, 1982, no ownership interest in the real property described in Paragraph 12 supra, they continued to collect payments from purchasers of the 1 1/4 acre lots. Respondents attempted to, and were successful in, having some of the purchasers of the 1 1/4 acre lots in the area described in Paragraph 12, supra, agree to exchange their "lots" for lots in a parcel of land more particularly described as portions of Sections 32, 33, 34, of range 37, township 55, Dade County, Florida, that was owned by Respondent Cindy Morales' company, West Dade Acres, Inc. These lots which were sold for approximately $7,500 each, were accessible only by airboat, were near the Everglades National Park and were incapable of being actually surveyed because of their isolated location. Several purchasers, in particular, Chester Herringshaw and Edward Gruber, refused to exchange their original "lots" and continued making payments to South Florida Properties, Inc. Respondent Cindy Morales deposited into the bank account of West Dade Acres, Inc., one or more of the payments made by Chester Herringshaw and/or Edward Gruber without authority or consent by them to do so. Respondents Cindy Morales and Melvin M. Lewis have failed to refund to Edward Gruber the money he paid for the purchase of real property and have failed to provide Edward Gruber clear title to the real property sold to him. To induce purchasers to enter into one or more of the 58 agreements for deed, the Respondents orally represented the 1 1/4 acre lots as valuable property, that the value would greatly increase in the near future, that the property was suited for residential and other purposes and that the purchase of the property was a good investment. The subdivisions established by the Respondents through corporations they controlled existed only on paper and were formed as part of a telephone sales operation to sell essentially worthless land to unsophisticated out-of- state buyers who believed they were purchasing potentially valuable land for investment and/or retirement purposes. The various corporations which were formed and dissolved by the Respondents, including South Florida Properties, Inc., and West Dade Acres, Inc., were attempts by the Respondents to shield themselves from liability for their fraudulent land sales activities. The Respondents collected the initial deposits and monthly payments in accordance with the agreements for deed, but the Respondents failed and refused to deliver warranty deeds as promised upon the full payment of the purchase price. The Respondents attempted to obtain the exchange of property agreements without fully and truthfully advising the agreement for deed purchasers of the quality of any of the property they were buying or exchanging. The Respondents allowed South Florida Properties, Inc., to become defunct without furnishing good and marketable warranty deeds as promised, and without returning the money received, or otherwise accounting for the money received to the various and numerous agreement for deed purchasers, notwithstanding the purchasers' demands made upon Respondents for accounting and delivery of the money paid. At the request of Respondent Larry Lewis, Randy Landes agreed to sign a document as President of Miami Kendall Estates, Inc. From that point on, Randy Landes did nothing else with or for the company and had no idea of what business Miami Kendall Estates, Inc., transacted. On November 15, 1982, Miami Kendall Estates, Inc., issued a warranty deed to Vernon Mead granting a parcel of real property to the grantee. Persons unknown executed the warranty deed by forging Randy Landes' name which forgery was witnessed by Respondents Faye Lewis and Cindy Morales and acknowledged by Respondent Melvin Lewis as a notary public. On September 24, 1982, the Respondent Larry B. Lewis unlawfully and feloniously committed an aggravated battery upon Carlos O'Toole by touching or striking Carlos O'Toole against his will by shooting him with a deadly weapon, to wit, a revolver, in violation of Subsection 784.045(1)(b), Florida Statutes. On December 8, 1982, Respondent Larry B. Lewis was convicted of a felony and adjudication was withheld. He was on probation for a period of ten years beginning December 8, 1982, by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida. Respondent Larry B. Lewis failed to inform the Florida Real Estate Commission in writing within thirty days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the real estate license of all Respondents be revoked. DONE and ENTERED this 11th day of September, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1987. APPENDIX Case No. 86-3941 Petitioner's Proposed Recommended Order Paragraphs 1-29, 31 - accepted as modified. Paragraph 30 - rejected; it was not established what felony the Respondent Lewis was convicted of. Respondent's Proposed Recommended Order Paragraph 8 - Rejected. The evidence established that the corporations which the Respondents established and controlled sold the various properties. Paragraphs 9-13 - Accepted. Paragraph 14 - Accepted. Although sales were made prior to 1981, the land in question was essentially worthless when purchased. Paragraph 15 - Rejected. The moratoriums, vested rights provision offers virtually no protection to owners of the property. Paragraphs 16-17 - Rejected. The Respondents merely traded one set of undevelopable property for another. Paragraphs 18-19 - Rejected. Irrelevant. Paragraphs 20-21 - Rejected. Neither Mr. Herringshaw nor Mr. Gruber agreed to exchange their property. Paragraph 22 - Rejected. Contrary to the weight of the evidence. Paragraph 23 - Rejected. Contrary to the weight of the evidence. Paragraph 24 - Accepted. Paragraph 25 - Rejected. The corporations were formed by the Respondents to receive monies for these fraudulent land schemes. Paragraph 26 - Rejected. Contrary to the weight of the evidence. Paragraph 27 - Rejected. See No. 25. Paragraphs 28-30 - Rejected. Contrary to the weight of the evidence. Paragraphs 31-38 - Rejected. Contrary to the weight of the evidence. Paragraphs 39-42 - Accepted. Paragraphs 43-46 - Rejected. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Tallahassee, Florida 32802 Herman T. Isis, Esquire ISIS & AHRENS, P.A. Post Office Box 144567 Coral Gables, Florida 33114-4567 Tom Gallagher, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
