Findings Of Fact Petitioner and Respondent stipulated at formal hearing to Paragraphs 1- 6 of the Administrative Complaint, (TR-5-6) and it is accordingly found that: Petitioner seeks to suspend, revoke or take other disciplinary action against Respondent as licensee and against his license to practice the real estate brokerage business under the laws of the State of Florida. Respondent is now and was at all times alleged in the administrative complaint a licensed real estate broker having been issued license number 0191613. The last license issued was as a broker c/o Cluett Realty, Inc., 4720 Palm Beach Boulevard, Fort Myers, Florida 33905. On about July 14, 1983, Respondent received a check in the amount of $400.00 from Mary Snodgrass, a salesman, who at the time was associated with Respondent. Snodgrass had received the money from Robert James. James had submitted four contracts which were accepted for purchase of four duplexes listed with Respondent. The $400.00 represented a deposit of $100.00 on each of the four contracts. When the check was entrusted to Respondent, Snodgrass stated that the buyer had requested the check be held a couple of days before depositing into escrow to insure it would clear. Respondent indicated this was wrong and the check should be deposited immediately. 1/ The check was not deposited into Respondent's escrow account, but, was held by Respondent until September 15, 1983, two months after initial receipt of the check. The check presented by Mr. James (buyer) to Mrs. Snodgrass (saleswoman) was drawn on the Fort Myers Barnett Bank and on its face represents it is drawn on an account in the name "Clara A. James For: Caj-Raj-Casa De Chihuahua's." There is no indicator on the check itself that Robert A. James is an appropriate signatory on this account. At hearing, Mr. James represented that he was a proper signatory on the account because Clara A. James is his wife. Mrs. Snodgrass represented that she knew Mr. James had this authority but there was no predicate laid for this knowledge on her part and there is nothing about the check itself which would convey such knowledge to someone not intimate with the James' household, nor does the check itself reveal any relationship between Mr. James and "Caj-Raj-Casa De Chihuahua' s." At the time Snodgrass submitted the check to Respondent, she informed Respondent that it was possible that the check would not clear the bank due to insufficient funds. At the time of his conversation with Mrs. Snodgrass on July 14, Respondent was aware of previous problems arising from failure of an earlier check written by Mr. James for rent to one of Respondent's other clients to clear the bank. Respondent was also aware that Mr. James had refused to vacate the premises which James, James' wife, and approximately 80 Chihuahuas occupied by rental from this other client. Respondent perceived Mr. James resented Respondent due to Respondent's involvement in getting the James entourage out of the rental properties so that Respondent's other client as seller could close sale of that property to a third party buyer. Accordingly, Respondent retained the check when it was given him by Mrs. Snodgrass for a few minutes to think about the situation. He then returned it to her and explained it was an inappropriate deposit because it did not represent cash if they knew at the time it was tendered that it might be returned for insufficient funds. He told Mrs. Snodgrass to either secure a check which would clear or to inform both potential buyer and sellers that there was no deposit placed in escrow on the four contracts. Mrs. Snodgrass denied that the check was returned to her by Respondent or that this conversation ever took place; she assumed the check would be held by Respondent until evening and in the evening she went out and got the sellers to sign the 4 contracts previously signed by James. Mrs. Snodgrass placed the signed contracts in a file drawer in Respondent's office and never again initiated any title work or any conversation with Respondent about the transaction. The testimony of Mrs. Weise and Mrs. Cluett support the material particulars of Respondent's version of this second interchange between Mrs. Snodgrass and Respondent. Mr. James testified that he did, indeed, go the following day (July 15) to the bank to transfer funds if needed, but did not then notify Mrs. Snodgrass or Respondent because the money transfer was not necessary. Upon this evidence and due to the credibility problems recited in footnote 1, supra and in Findings of Fact Paragraph 8 infra, the Respondent's version of this interchange is accepted over that of Mrs. Snodgrass and provides additional, but not contradictory, information to Finding of Fact Paragraph 1-e as stipulated by the parties. In early September, Mrs. Snodgrass secured employment with Barbara Ware Realty, a competitor of Respondent. She then turned in all of her keys, gear, and papers to Cluett Realty. Shortly thereafter, Helen Weise, secretary to Respondent, discovered the July 14, 1983, check on what had been Mrs. Snodgrass's desk. This discovery is confirmed by both Respondent and Mrs. Weise. Respondent knew Mrs. Snodgrass and Mr. James were personal friends. He telephoned Mrs. Snodgrass about the status of the James' transaction when the check was discovered. Mrs. Snodgrass admitted she thereafter called Mr. James to verify the status of the transaction and then called Respondent to tell him she thought the sale would go through, but she now denies telling Respondent that the July 14, 1983, check was good or even that Respondent mentioned the check when he called her the first time. Respondent then deposited the check into his escrow account the next day, September 15, 1983. He immediately placed the request for title search and insurance. Thereafter, two duplexes out of the four involved in the four James contracts with Cluett Realty were sold by Mrs. Snodgrass through her new employer, Barbara Ware Realty, and two were sold by Mary Cluett, Respondent's wife, through Cluett Realty. During the period from July 14, 1983, until September 15, 1983, Mr. James was apparently aware that the check submitted to Cluett Realty had never been deposited by Cluett Realty because it did not show up in monthly bank statements. After September, Mr. James clearly was further aware of what was going on because he admits to trying to get Mary Snodgrass to pursue the transaction under her new employer's auspices, despite Cluett's retaining the exclusive listing for the sellers of the properties. It was not established whether or not the sellers were misled by Respondent's failure to immediately deposit the July 14, 1983, check, but Mr. James testified that when Respondent approached him about refunding his deposit or at least a portion thereof, he, (Mr. James), told the Respondent to keep it or give it to the sellers or at least not to give it back to him due to all the inconvenience. Mr. James and Mrs. Snodgrass were friends on July 14, 1983. They became friendlier thereafter. Apparently, in early September, Mrs. Snodgrass left Respondent's employ upon very unfriendly terms. The terms may be characterized as "unfriendly" even if one accepts Mrs. Snodgrass' version that her job hunt was successful before she was fired by Respondent and therefore she should be viewed as quitting upon being asked by Respondent to resign. Respondent has previously filed an unsuccessful complaint with the Department of Professional Regulation against Mrs. Snodgrass. It was she who initiated the complaint giving rise to these instant proceedings against Respondent. Mrs. Snodgrass' resentment of Respondent's filing a complaint against her was evident in her demeanor on the stand. An attempt at formal hearing to impeach Respondent's credibility upon the basis of a supposed prior admission to Petitioner's investigator that Respondent forgot to deposit the crucial check and upon the basis of Respondent's July 13, 1984, letter to the Department of Professional Regulation (P-7) left Respondent's credibility intact. When Investigator Potter's testimony as a whole is compared with Respondent's letter as a whole in light of Potter's investigation of three separate complaints over a period of many months 2/ there is no material variation of Respondent's representations. Also, what was "forgotten" and when it was forgotten is vague and immaterial in light of consistent information supplied to the investigator by Respondent that there was a request to hold the July 14, 1983, check for a couple of days due to insufficient funds.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing all charges against Respondent. DONE and ORDERED this 14th day of August, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1985.
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 DARLENE F. KELLER, EXECUTIVE DIRECTOR DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated April 20, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Chapters 120, 455, and 475, Florida Statutes. The Florida Real Estate Commission ("Commission") operates within the Department and is the entity directly responsible for licensing and disciplining those licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Janice H. Little is, and was at all times material to this action, licensed as a real estate broker in Florida and was issued license number 0370239. The last license issued to Ms. Little was as a broker %Dennis & Little, Inc., t/a Kays Realty, 421 Southwest 31st Avenue, Fort Lauderdale, Florida, 33312. On April 7, 1993, Ms. Little obtained an offer from Karlene Bascombe to purchase real property owned by Maxine Williams. Ms. Little was acting as the seller's co-broker in this transaction. Ms. Little provided Ms. Bascombe with the names of several mortgage companies. Ms. Bascombe decided to apply for financing to Vision Mortgage Corporation, one of the companies identified by Ms. Little, and she met with Henry Yee, the manager of Vision Mortgage Corporation, at Ms. Little's office. Ms. Little introduced Ms. Bascombe to Mr. Yee but did not participate in their meeting. As part of her loan application, Ms. Bascombe authorized Vision Mortgage Corporation to verify her past and present employment records, among other things. At some point during the time Ms. Bascombe's loan application was being processed, Ms. Little learned that Ms. Bascombe's income was not sufficient to warrant approval of the application. Ms. Little was aware that Ms. Bascombe was a bookkeeper and that she worked full time at Lerner's. After learning that Ms. Bascombe had insufficient income to secure financing for the purchase of Ms. Williams' property, Ms. Little approached Donaval Powell and asked if he would be interested in hiring a part-time bookkeeper. Mr. Powell owns Filament Electronics, a business that sells and repairs electronic equipment. The business is located in the same shopping center in which Ms. Little's office was located and in close proximity to her office. Filament Electronics has been in the same location since it opened in 1992. Ms. Little and Mr. Powell have known each other since shortly after he opened his business. Mr. Powell told Ms. Little he might want to hire a part-time bookkeeper, but Mr. Powell heard nothing further about this matter. He never met Ms. Bascombe, he did not hire her, and she was never employed by Filament Electronics.1 Blanca Tanadell, an employee of Vision Mortgage Corporation, prepared a Fannie Mae Request for Verification of Employment form for Ms. Bascombe. Ms. Tanadell filled out boxes one through eight of the form, and she identified Filament Electronics as the employer from whom verification of Karlene Bascombe's employment was sought. Ms. Tanadell sent the form to Ms. Little, even though the instructions included on the form direct the lender to send the form to the named employer. Ms. Little completed boxes nine through thirty of the employment verification form in which Filament Electronics was identified as Ms. Bascombe's employer. Ms. Little represented that Ms. Bascombe was employed there in January, 1991, and that her present position was as a bookkeeper. Ms. Little knew when she completed the form that Ms. Bascombe had not been employed by Filament Electronics prior to April 10, 1993, but she testified that she believed that Mr. Powell had hired Ms. Bascombe subsequent to that date. Ms. Little further represented that Ms. Bascombe's annual "current gross base pay" was $24,250.00 and that her gross earnings for 1992 were $24,250.00 and for 1991 were $23,500.00. At the time she completed the employment verification form, Ms. Little had no documentation to support the earnings she attributed to Ms. Bascombe.2 Finally, Ms. Little signed the name "Hyacinth Fuller" and identified her as "Supervisor."3 She then sent the completed employment verification form to Vision Mortgage Corporation. Ms Little did not ask Mr. Powell to complete the employment verification form, nor did she ask him whether he employed Ms. Bascombe and, if so, the amount of her earnings. Ms. Bascombe's loan application was approved, and she purchased the real property offered for sale by Maxine Williams. Ms. Little was paid a commission at closing in the amount of three percent of the sales price of the property. Ms. Bascombe subsequently defaulted on her loan, and it was in the course of the loan company's investigation of the default that Mr. Powell denied ever having employed Ms. Bascombe. Ms. Little is licensed in Florida as a mortgage broker, and, at one time, her license was with Vision Mortgage Corporation. She is familiar with the procedures for processing loan applications. The stipulation entered into by the parties and the evidence presented by the Department are sufficient to establish that Ms. Little is guilty of fraud or misrepresentation in a transaction related to her business as a real estate broker. Ms. Little seeks to excuse her actions by claiming that she believed that Ms. Bascombe had been hired by Mr. Powell after April 10, 1993, and that she was provided with the earnings figures by Henry Yee, who was the manager of Vision Mortgage and whom she considered trustworthy. She also claims that Mr. Powell wants to harm her because she spurned his sexual advances and told his wife that he constantly bothered her. These contentions are, however, contrary to the more credible and persuasive proof and, even if true, do not alter the fact that Ms. Little acted with, at the very least, extreme reckless disregard for the truth.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Janice H. Little guilty of violating Section 475.25(1)(b), Florida Statutes, and revoking her real estate broker's license. DONE AND ENTERED this 5th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1997.
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing facts and conclusions of law, I recommend that the information filed herein be dismissed in it's entirety. Done and Entered this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Walsh and Associates By Gerald M. Walsh, Esquire 404 Courthouse Square Building 200 Southeast Sixth Street Ft. Lauderdale, Florida 33301
Findings Of Fact The Respondent Karen Kay Colucci, whose license No. is 0062107,is a registered real estate salesman in the State of Florida. The Respondent is employed by Magnolia Homes, Inc., 300 Embassy Boulevard, Port Richey, Florida. The owner of the business is David Lukacher. On May 20, 1976, Harvey Thompson and his wife Mary Thompson looked at model homes built by Magnolia Homes, Inc. They were assisted by a registered real estate salesman for Magnolia Homes, Inc., Patrick D. DePianto. Mr. and Mrs. Thompson told the real estate salesman that they wanted to build a house but wanted to sell their own house first. Mr. and Mrs. Thompson found a lot and model home they desired and then proceeded to Mr. DePianto's office to make a deposit. The office in which the transaction took place is a large room in which several people worked for the builder including the Respondent Karen Kay Colucci who is the sales manager. Mr. DePianto's desk and work area was in rather close proximity to Mrs. Colucci's desk and work area. Mrs. Colucci was not involved in the assistance to the Thompsons in locating a lot and model home and was not directly involved with Mr. DePianto and Mr. and Mrs. Thompson at the time the transaction under consideration took place. At the time of making the deposit Mr. and Mrs. Thompson asked Mr. DePianto if they could get their deposit back if they did not sell their home. Mr. DePianto called over to Mrs. Colucci and asked if a refund could be made if the Thompsons could not sell their house and, satisfied with the answer, assured the purchasers that there would be no problem. A check was written out for five hundred ($500) dollars and handed to Mr. DePianto and a receipt was written out by Mr. DePianto and handed to the Thompsons. There was no representation on the receipt written by Mr. DePianto concerning the refundability of the deposit. The Thompsons did not request that the representation be included on the receipt. Mr. and Mrs. Thompson left the office feeling that there would be no problem obtaining a refund of the deposit if they could not sell their home , although they were confident that the sale of their home was imminent. Thereafter the expected sale of Mr. and Mrs. Thompson's home was not consummated and the Thompsons asked Mr. DePianto for a refund of the deposit. Mr. DePianto asked for the request to be in letter form and Mr. Thompson complied. Thereafter he was advised by Mr. DePianto that the builder, Mr. David Lukacher, would not return the deposit but would hold the $500 until they were able to buy one of their homes and credit that amount to the purchaser. Mr. Thompson requested Mr. DePianto to put the discussion in letter form which Mr. DePianto did. Mr. Thompson wrote Mr. Lukacher a letter and called him on the telephone requesting that the deposit be refunded but no refund was forthcoming. Approximately six months later Mr. DePianto sent Mr. and Mrs. Thompson a check for $250, half of the deposit, plus 7 months of interest at 6 per cent per annum. The remainder of the deposit has not been returned to Mr. and Mrs. Thompson and Mr. Lukacher retains the $250, having previously sent $250 of the $500 deposit to Mr. DePianto. Petitioner Florida Real Estate Commission contends: that the Respondent Karen Kay Colucci knowingly misrepresented to the Thompson's that there would be no problem obtaining a refund of the $500 deposit if the Thompson's could not sell their home; that such representation means the Respondent is guilty of misrepresentation, false promises, false pretences, culpable negligence, or breach of trust in a business transaction and that therefore her license should be suspended. Respondent contends that she was doing other work at the time the subject transaction took place and that she had no involvement with the transaction between Mr. DePianto and the Thompsons. Respondent further contends that in reply to the question posed to her by Mr. DePianto in the busy office that a refund could be made providing Mr. Lukacher, the builder, approved it. The hearing Officer further finds: There is no consistent testimony by the witnesses as to exactly what was said in reference to a refund at the time Mr. and Mrs. Thompson were seated at the desk of Mr. DePianto. There is no consistent testimony as to what exactly Mr. DePianto asked the Respondent or what her answer was. Mr. and Mrs. Thompson failed to request that the receipt reflect that the deposit was conditional and would be returned if the Thompson's could not sell their home. Mr. DePianto did not make the receipt a conditional receipt. Mr. David Lukacher, the builder, refused to refund the deposit to the Thompsons, kept $250 of it, and sent Mr. DePianto the salesman, $250. Mr. DePianto refunded his share of the deposit plus interest to the Thompsons.
Recommendation Dismiss the complaint. DONE and ORDERED this 23rd day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth A. Meer, Esquire Staff Counsel Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Karen Kay Colucci Magnolia Homes, Inc. 300 Embassy Boulevard Port Richey, Florida 33568
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact The Respondent, Joyce Chandler, prior to February 2, 1982, was a real estate salesman employed by Frank Ambrose, a real estate broker. On February 2, 1982, Chandler became licensed as a real estate broker with the State of Florida, and holds license number 0348072. On February 8, 1982, the Respondent drafted an offer to purchase for herself property located at 811 Perrine Avenue in Miami, which belonged to Dr. Harry Moskowitz. The purchase price of the offer was $140,000. The Respondent took the offer to Carol Rebhan, the listing salesman of the property who was employed by Tauber-Manon Red Carpet Realty. The offer provided that an earnest money deposit of $100 would be placed in the escrow account of Roberta Fox, the Respondent's attorney, with an additional $5,000 to be deposited in Roberta Fox's escrow account within three working days of acceptance of the offer. The contract also called for a ten percent brokerage fee to be divided equally between the Respondent and Tauber-non Red Carpet Realty. Carol Rebhan and the Respondent presented the offer to Eugene Lemlich, attorney for the seller Dr. Harry Moskowitz. After contacting Dr. Moskowitz in Texas, Lemlich accepted the offer on his behalf. Three working days after the offer was accepted, Carol Rebhan called Roberta Fox's office repeatedly to determine whether the additional $5,000 deposit had been placed in escrow. Fox's office advised Rebhan that they did not have the $5,000 deposit. Rebhan confronted the Respondent with this information, and the Respondent stated that she was going to deposit the monies with Frank Ambrose at Landmark Title. The next day, Rebhan contacted Landmark Title and was informed that they did not have the deposit in escrow. On or about the 14th of February, 1982, Rebhan contacted Frank Ambrose personally and inquired about the $5,000 deposit. Ambrose told Rebhan that Landmark Title was in possession of the deposit. This was not true. Rebhan requested that Ambrose send her an escrow letter acknowledging possession of the $5,000 deposit. By letter dated February 18, 1982, Ambrose informed Rebhan that Landmark Title was in possession of the $5,000 deposit. On February 18, 1982, the Respondent gave Ambrose a $5,000 check payable to Landmark Title Company. The check was for the additional deposit on the Moskowitz property and was post-dated to February 28, 1982. The check was deposited on February 19, 1982. On February 25, 1982, Ambrose was informed that there were insufficient funds in the Respondent's account to pay the check. Ambrose notified the Respondent that the check had been returned unpaid. She advised him that she was expecting some funds, and would make the check good within a few days. Ambrose took no action to notify the parties at this time. In the first week of March, 1982, when Ambrose had still not received funds from the Respondent to cover the check, he contacted Carol Rebhan and informed her of the series of events which had occurred with regard to the deposit check. When Rebhan subsequently contacted the Respondent and told her that her $5,000 check had bounced, the Respondent seemed shocked at the news. The Respondent has not made good the check returned to Landmark Title Company, nor has she placed the $5,000 deposit in escrow in accordance with the terms of the contract with Dr. Moskowitz. Throughout the entire transaction, the Respondent misled the parties involved with regard to the location and existence of the earnest money deposit, she represented that she would replace the dishonored check or make it-good but has not done so, and she has thereby breached her contract to purchase the subject property from Dr. Moskowitz. The Respondent contends that she informed all parties that the $5,000 check would be post-dated, but there is not sufficient evidence to support this assertion. Nevertheless, the post-dated check given by the Respondent has never been made good, so the Respondent's contention that she advised the parties at the outset that the $5,000 check would be post-dated, is irrelevant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of the Respondent, Joyce A. Chandler, be suspended for a period of one year. THIS RECOMMENDED ORDER ENTERED this 9th day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Joyce A. Chandler 11231 S.W. 201st Street Miami, Florida 33189 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Shirley L. Kundsen, is a real estate broker, having been issued License No. 0048550. The Respondent, Robert S. Kingsland, is a real estate broker, having been issued License No. 0047741. The Respondent, Kingsland-Henry and Associates, Inc., is a corporate real estate broker having been issued License No. 0047745. In 1972, Charles Pullen and Beverly Pullen owned Lots 84, 85, 86, 87 and 88, Kissimmee Heights Subdivision, in Osceola County, Florida. In 1972, Charles Pullen's sister, Myrtle Saulsbury, and her husband, Frank, owned lots 89, 90, 91, 133 and 134 in Kissimmee Heights Subdivision, Osceola County, Florida. Myrtle Saulsbury died on January 27, 1975, and Mr. Frank Saulsbury subsequently remarried to Mary E. Saulsbury. In 1972, the Respondent, Shirley L. Kundsen, then a salesperson for Kingsland-Henry and Associates, Inc., presented a contract to Mr. and Mrs. Pullen for the purchase of their five lots for a price of $12,500.00 At approximately the same time, the Respondent, Shirley L. Kundsen, presented a contract to the Pullens offering to purchase the lots owned by the Saulsburys. This contract was delivered to the Saulsburys by Mr. Pullen. Upon initially being presented the contract for purchase of their lots, the Pullens contend that they refused to accept the offer and asked that the purchase price be raised to $17,500.00, with no real estate commission payable by the seller. They contend that they offered any excess over that price to Shirley L. Kundsen and Kingsland-Henry and Associates, Inc., in lieu of a real estate commission. Shirley L. Kundsen subsequently crossed out the price of $12,500.00, and replaced it with the figure $17,500.00. With this change the contract was initialed by Mr. and Mrs. Pullen. The Saulsbury contract was drafted to indicate a purchase price of $17,500.00 as well. Mr. and Mrs. Pullen subsequently signed the contract, and contend that upon Shirley L. Kundsen's request, they placed the date "way over on the right hand side of the line", thereby leaving room for the later insertion of a commission percentage in the space to the left. The Saulsburys also subsequently signed their contract. At the time these contracts were executed by the Pullens and by the Saulsburys, they contend that there was no reference to any commission payable to Kingsland-Henry and Associates, Inc. The contracts with Mr. and Mrs. Pullen and with Mr. and Mrs. Saulsbury have been received in evidence as Petitioner's Exhibits 1 and 3. The language now appearing in these contracts requiring the payment of a 10 percent commission to Kingsland-Henry and Associates, Inc., was inserted after the signatures of the Sellers was placed on the contracts. This fact was established by evidence presented by a handwriting expert. The Pullens and the Saulsburys first learned of the addition of the real estate commission at the time of closing, and after learning of this addition they refused to close on the contracts. The Pullens and the Saulsburys never agreed to pay for any survey work performed for or by the prospective purchaser of the properties, and paragraph D on page 2 of the contracts obligated the buyer to bear this expense. When attempting to sell their property years later, in 1978, the Saulsburys, and subsequently the Pullens, learned that their property had been encumbered by recorded Affidavits prepared at the direction of Respondent, Robert S. Kingsland. Both Mr. and Mrs. Saulsbury's broker, and their title insurance agent, dealt directly and solely with the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., in attempting to obtain the release of the lots encumbered by these Affidavits. The Affidavits had been recorded in order to preclude sale of the lots in question to another purchaser without payment to Robert S. Kingsland for expenses incurred in having the subject properties surveyed. Robert S. Kingsland refused to release the lots encumbered by the Affidavits until he had been reimbursed for the expense of the surveys. The Saulsburys paid $1,100.00, or $220.00 per lot for their five lots, to Robert S. Kingsland. Thereupon, the property of the Saulsburys was released by Quit- Claim Deed. The Saulsburys have requested a refund of the $1,100.00 paid to Robert S. Kingsland and Kingsland-Henry and Associates, Inc., but this request has been refused. The Affidavit encumbering the property owned by the Pullens has never been released, although requests have been made by the Pullens, and the property remains encumbered to this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Shirley L. Kundsen, be found guilty of violating 475.25(1)(b), Florida Statutes; and that her license be suspended for six months. And it is further RECOMMENDED that the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., found guilty of Violation of 475.25(1)(b) and 475.25(1)(j), Florida Statutes; and that their licenses be revoked, and that an administrative fine of $1,000.00 be imposed upon these Respondents. THIS RECOMMENDED ORDER entered on this 12th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 A. Wayne Rich, Esquire Post Office Box 1911 Orlando, Florida 32802 Shirley L. Kundsen Post Office Box 1888 Kissimmee, Florida 32741
