Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L. Nuccitelli, be REVOKED. THIS RECOMMENDED ORDER entered on this 1st day of November, 1982. 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 1st day of November, 1982. COPIES FURNISHED: John L. Huskins, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982.
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
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 John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. 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 27 day of September, 1982.
Findings Of Fact Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each $500. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert J. Norton, Esquire Suite 408 First National Bank Building Punta Gorda, Florida 33950 Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R.T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April.
The Issue Should Respondent's license as a real estate broker be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency charged with the responsibility of investigating and enforcing the provisions of Chapter 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate broker in the State of Florida, issued license number 0152815 in accordance with Chapter 475, Florida Statutes. Robert L. Purlee and Doris A. Purlee (Purlees) conveyed certain real property located at Unit 1303-A, Jamestown Condominiums, within Pinellas County, Florida, to Ralph F. Marotte and Eve K. Marotte (Marottes), on June 18, 1993, for an agreed upon sum of $15,000, with installments due over a period of 120 months, at the rate of $181,99 per month, beginning July 15, 1993. Since there was no express language in the deed to express a contrary intent, the conveyance to the Marottes created an estate by the entirety which was not available to answer for the individual debts of either of the tenants. The Marottes executed a mortgage and ad promissory note creating a lien against the property in favor of the Purlees, to secure the timely payment of the sum owed by the Marottes. At the time the Marottes purchased the property in question from the Purlees, there were no other liens or encumbrances against the property. At the time the deed was recorded, there was two personal judgments filed of record against Ralph F. Marotte, individually, but no personal judgments filed of record against Ralph F. Marotte and Eve K. Marotte, jointly or as husband and wife, or Eve K. Marotte, individually. Since no copies of these judgments, certified or otherwise, were introduced as evidence, and David Eaton appeared to be confused about these judgments, this finding is based on the testimony of Eve K. Marotte which I find credible. On November 10, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We are unable to financially own this unit, therefore, we wish to deed it back to you and your wife, and record it in the courthouse. Rather than go thru foreclosure proceedings and lawyer’s fees etc., thought the simplest best way for both of us is to just return the property back to you both, and have the tenant send her rent payment directly to you. We have prepared the deed - and after it is recorded - have the courthouse send it to you directly. (Emphasis Supplied) * * * On December 8, 1993, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: Attached is a copy of the Quit Claim Deed - which is being recorded and will be mailed to you directly. (Emphasis Supplied) * * * On January 6, 1994, the Marottes authored and caused to be delivered to the Purlees a letter which provides in pertinent part: We went to the courthouse to record the deed, and realized that we did not take the mortgage off, so we are enclosing a satisfaction of mortgage, so that we can turn the property back to you- and you will then own it free and clear as you did before. As soon as we received this paper from you, will turn over everything, to you, that is, keys, etc. (Inventory remains the same). (Emphasis Supplied) * * * From the notation on the quit claim deed it appears that the Marottes attempted to record the deed at the courthouse but changed their mind as indicated in the letter. The Purlees executed the satisfaction of mortgage and posted it with the United States Postal Service for delivery to the Marottes. Subsequently, the Purlees discussed the matter with their attorney, David A. Eaton, who advised the Purlees to have the satisfaction of mortgage retrieved from the postal service. This was accomplished, and the Marottes did not receive the satisfaction of mortgage. Therefore, the Marottes did not record the quit claim deed transferring title back to the Purlees. Based on the testimony of Eve K. Marotte which I find credible, Eve K. Marotte continued in her effort to deed the property back to the Purlees, and even discussed the possibility of satisfying the personal judgments against Ralph F. Marotte in the process. In fact, Respondent even arranged for the sale of the property but that did not prove fruitful either. At the time the Marottes attempted to deed the property back to the Purlees, the Marottes did not advise the Purlees of the personal judgments against Ralph F. Marotte, individually. Since the conveyance of the property to the Marottes created an estate by the entirety, the property would not have been subject to any judgments against Ralph F. Marotte, individually upon the Marottes deeding the property back to the Purlees. There was no intent on the part of the Respondent to “saddle” the Purlees with Ralph F. Marotte’s personal judgments. Likewise, there was no intent on the part of Respondent to mislead or misrepresent the circumstances surrounding the attempt to “deed back” the property or to induce the Purlees to execute a satisfaction of mortgage so that the Marottes could record such satisfaction or mortgage without recording the quit claim deed and thereby have the property free and clear of the mortgage. Although the Marottes did make some of the mortgage payments, they did not make all of the payments as contemplated by the mortgage and promissory note. Their failure to make mortgage payments was due to their financial condition and not that the Marottes were intentionally attempting to deprive the Purlees of the property without paying for the property. The Marottes collected some rent from the property but apparently did not apply this money toward the mortgage payment. However, there was no evidence, other than the requirement of making the mortgage payments, that the Marottes were required to pay the rent over to the Purlees. On or about November 6. 1995, the Purlees filed a complaint with the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, against the Marottes alleging, inter alia, that Respondent committed fraud and dishonest dealing in a real estate transaction. On a Motion for Summary Judgment filed by the Purlees, the court entered a Final Judgment Against Licensed Real Estate Broker, Eve K. Marotte, for Monetary Damages Arising Out of Fraudulent Conduct in a Real Estate Brokerage Transaction on March 1, 1996. Additionally, the court entered a Final Judgment Against Eve K. Marotte and Ralph F. Marotte for the total sum of $95, 454.95 which included $22, 284.54 in actual damages, $66,853.62 in trouble damages pursuant to Section 772.11, Florida Statutes, $5,250.00 in attorney’s fees, and $1,066.79 in taxable costs. Because of this judgment and other financial and personal circumstances surrounding the Respondent’s life at that time, the Respondent filed for bankruptcy which eventually “wiped out” this judgment. Subsequently, the Purlees filed a separate proceeding for foreclosure of the mortgage, and obtained title to the property by foreclosure sale on or about August 1997. Between the time of the initiation of the foreclosure proceeding and gaining title to the property, the Purlees had a receiver appointed to receive the rent on the property. Although David Eaton testified that the Marottes failed to turn over rents during this period, there is insufficient evidence to show that the Marottes received any rent during this period or that the property was rented at all times during this period. Clearly, after engaging an attorney and obtaining the large judgment, the Purlees were not interested in taking the property back without the judgment being satisfied. Likewise, it is equally clear that Respondent was not financially able to pay the judgment. Respondent did not intentionally or otherwise misrepresent the facts in order to induce the Purlees to accept the deed back and release her from her obligation, or act in a fraudulent manner in order to convince the Purlees to release Respondent from her obligation, or act dishonestly in her dealings with the Purlees.
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 dismissing both Count I and Count II of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geofrrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801 Eve K. Marotte, pro se 2616 46th Terrace North St. Petersburg, Florida 33714
The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. * * * Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
