Findings Of Fact At all times pertinent to this hearing, Respondent, George Aliferis, was licensed as a real estate salesman in Florida under License No. 0325121. During all of April and May, 1980, Respondent was an associate in the real estate office of George D. Willmer. Mr. Willmer, a registered real estate broker, had managed property located at 713 East Court Street in Longwood, Florida, a 7-year-old home owned by William and Gloria Thomas, for several years while the Thomases were away, living in South Carolina. On April 3, 1980, Mr. and Mrs. Thomas entered an exclusive listing of their property for sale with Mr. Willmer. The asking price was $42,500, with $10,000 down, assumption of a first mortgage of $16,750, and the Thomases would hold a second mortgage of $15,750. Before executing the sales listing, the Thomases were advised by Mr. Willmer, their agent, that a sales price of $40,000 was fair, as other comparably sized houses in the area were selling for between $37,000 and $41,000. The price of $42,500 was to give the Thomases some bargaining room. On April 15, 1980, Respondent, who was then a salesman in Mr. Willmer's agency, submitted an offer to purchase the Thomases' property for $40,000, the exact price suggested by Mr. Willmer, his broker, to the Thomases, with $500 cash paid at time of offer, assumption of the first mortgage described above, a second mortgage of $13,250.10, and $9,500 cash at closing. The contract executed that date by Respondent listed him, his assigns or nominees as buyer, and called for a closing by June 30, 1980. This date was unilaterally changed to May 30, 1980, by the Respondent on April 16, 1980, the day after the offer was made. On April 16, 1980, the Thomases telegraphed their acceptance of Respondent's offer and terms with the exception that they stipulated closing would be held on or before May 15, 1980. The contract document signed by Respondent, bearing the May 30, 1980, closing date, was signed by the Thomases on April 20, 1980. On Sunday evening, April 27, 1980, Respondent telephoned Mr. and Mrs. Philip Fillman, then recent arrivals in the Orlando area, whom he had heard were looking for a house to buy. The Fillmans met the next day with Respondent, who took them to see the Thomas house. After checking it over, they decided to make an offer. Respondent had advised them during this period that comparable homes in the area were selling for $55,000 to $61,000 and that this house listed at $45,500 was a good investment. When the Fillmans asked if the owners would possibly take less, Respondent replied they would not, having already turned down a lesser offer. At no time did Respondent indicate he already had the house under contract for $40,000 or that he was representing himself. At no time was any offer for the property, other than that submitted by Respondent for $40,000 which was accepted by the Thomases, ever submitted to them by Respondent, Mr. Willmer, or anyone else. The Fillmans agreed to the $45,500 price and, on April 28, 1980, executed a contract to buy the property in question for that price, making a cash down payment at the time of execution of $6,000 payable to George Aliferis, the Respondent. Respondent deposited that check to his personal account at Park Federal Savings and Loan Association. It was not put into the real estate agency's escrow account. The name of the seller on the contract signed by the Fillmans was not the Thomases, but was instead George Aliferis, who indicated he had "control" of the property. He did not explain what that term meant. The contract executed by the Fillmans and by Respondent in his own name the same day, April 28, 1980, called for assumption of both mortgages and closing by June 1, 1980. Because the Fillmans were renting, they asked for, and received from Respondent, permission to move into the house prior to closing. They did so on May 11, 1980. Closings on both transactions were held at the law office of David Kerben in Orlando on May 14, 1980, in succession. At the first closing not personally attended by the Thomases, they conveyed the property to Respondent, who paid a net of $6,499.90 in cash which represented the net to close for the $40,000 purchase price, less $550 required to fix the air conditioner which had been complained of by the Fillmans. At that closing, Respondent also executed a second mortgage to the Thomases in the amount of $13,250 as a part of the purchase price. Within minutes of the Thomas-Aliferis closing referenced above, Respondent then conveyed the property to the Fillmans, who were present at the closing and who paid a net to close of $10,126.40 after a $6,000 down payment, and the two mortgages totaling $29,842.10. At the closing, the Fillmans signed a form relating to property insurance which also bore the notation that a payment of $159.05 was due to the Thomases (their address was also listed) on June 14. When the Thomases received that payment from the Fillmans, they called to find out why the Fillmans had sent the payment and in the course of this conversation, which took place on July 14, 1980, both parties first learned of the course of events which led up to the Fillmans' purchase. Up until that point, neither Mr. Willmer nor Respondent had made clear the nature of the transaction, except that on May 14, 1980, when the Fillmans arrived at lawyer Kerben's office for the closing, Respondent met them outside and said something about having just taken title to the property. Respondent contends that at the time he contracted with the Thomases to buy the property, he intended to live in it if his wife approved of it, or to lease it out on a long-term basis as an investment. However, Respondent had just recently moved into a newly built house and, in fact, put the property in question up for sale within two weeks of his contract. Respondent also indicated that he had been a real estate, agent only a few months, yet his application for licensure shows he was a licensed real estate agent in Maryland for approximately five years. In light of this evidence, I find the Respondent's credibility to be questionable and that he failed to fully disclose all required information regarding the transaction to his parties, the Thomases.
Recommendation In light of the above, it is, therefore, RECOMMENDED: That Respondent's license to practice real estate in Florida be suspended for one year and that an administrative fine of $1,000 be imposed upon him. RECOMMENDED this 8th day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1983. COPIES FURNISHED: Tina Hipple, Esquire Gary Printy, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Erik C. Larsen, Esquire 243 West Park Avenue Winter Park, Florida 32789 Mr. Harold Huff Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Respondent Walter Penn was exclusively connected with International Land Brokers, Inc., as a real estate salesman, from May 15, 1975, to September 19, 1975, and again from December 29, 1975, until no later than April 11, 1976. During respondent's first period of employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex has a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. During respondent's second period of employment by International Land Brokers, Inc., Walter J. Pankz, a real estate broker, worked for the firm in a supervisory capacity. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc., manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner was interested in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salespersons had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. A week after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured he listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records. In late June or early July, respondent telephoned Carol Larson and solicited a listing of certain real estate in the Bahamas which Carol and Arthur Larson had purchased in 1970 for twenty-eight hundred dollars ($2,800.00). In a second telephone conversation, respondent told Mrs. Larson about several sales of property listed with International Land Brokers, Inc., and told her he would mail a listing agreement for signature. Arthur Larson signed the agreement and returned it together with his check in the amount of two hundred eighty-five dollars ($285.00). The listing agreement called for the property to be offered at twenty-five thousand dollars (25,000.00), a figure respondent had suggested over the telephone. After entering into the listing agreement, the Larsons received further correspondence from International Land Brokers, Inc., including a proof of a page from a catalogue, on which their property was listed. International Land Brokers, Inc., never communicated to the Larsons any offers to purchase their property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 26th day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Walter Penn 1300 Northeast 211th Street North Miami Beach, Florida 33160
Findings Of Fact Respondent, Robert T. Sharkey (Sharkey), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0079702. Sharkey was the qualifying broker of Respondent, Appraisal Associates & Consultants, Inc. (Appraisal Associates), a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0238854. The Real Estate Seminar In 1985 Respondents placed numerous advertisements in the help wanted section of local newspapers seeking to employ real estate appraisers, experienced or inexperienced, and offering to train the inexperienced. Elizabeth Townsend (Townsend) and Robert Newman (Newman) responded to such advertisements. The experiences of Ms. Townsend and Mr. Newman, both licensed real estate salespersons, were similar. Upon responding to the advertisement they were advised that a meeting would be held at Appraisal Associates, and the program would be explained. At the meeting, Ms. Townsend and Mr. Newman were advised that Appraisal Associates was conducting a seminar in residential property appraising and that a fee, $150.00 in the case of Ms. Townsend and $200.00 in the case of Mr. Newman, would be charged. Each paid their fee and executed a "Seminar Reservation and Employment Conditions" agreement which provided: SATISFACTORY COMPLETION OF THE PRESCRIBED COURSE OF STUDY THE TRAINEE WILL HAVE THE OPTION TO PLACE THEIR CURRENT REAL ESTATE LICENSE, UPON ACCEPTANCE BY THE MANAGEMENT, WITH APPRAISAL ASSOCIATES .... FOR THE APPRAISER TRAINEE TO OBTAIN EMPLOY- MENT WITH APPRAISAL ASSOCIATES OR ANOTHER ASSIGNED BROKER IN THE FIRM THEY MUST: SATISFACTORILY COMPLETE THE PRESCRIBED SEMINAR AND/OR COMPLETE A WRITTEN EXAM ADMINISTERED BY APPRAISAL ASSOCIATES AND CONSULTANTS, INC. 2 COMPLETE SATISFACTORILY AT LEAST FIVE SINGLE FAMILY RESIDENTIAL DEMONSTRATION REPORTS. HAVE A CURRENT FLORIDA REAL ESTATE LICENSE. COMPLETE AN APPLICATION FOR MEMBERSHIP OR DESIGNATION TO ANY APPRAISAL ORGANIZATION FOR CANDIDACY OR ASSOCIATE MEMBERSHIP .... The seminars attended by Ms. Townsend and Mr. Newman were similar. Each consisted of 16 hours of class work dedicated to filling out a standardized Fanny Mae form for single family residences, a drive by appraisal of a residential home, and an on site inspection and appraisal of a residential home. While Mr. Newman felt that not enough time was devoted to actual appraising, and Ms. Townsend felt the seminar was terminated prematurely, there was no proof offered that the seminars were not adequate to instruct the participants in the basics of real estate appraisal, or that they were otherwise a sham. Mr. Newman did not take the final examination, did not complete the five single family residential demonstration reports, and never requested employment with Respondents. Ms. Townsend conceded she was familiar with the requirements for employment and that, while she received a "Certificate of Seminar Completion", she never applied for membership in any appraisal organization and never requested employment with Respondents. Sharkey's Qualifications At hearing the Department introduced into evidence a document, titled "Qualifications of R. T. Sharkey, MRA, CRA", which its investigator had secured from Respondent Sharkey. (Exhibit 6) Pertinent to this case' the document provided: AFFILIATES * * * AMERICAN RIGHT OF WAY ASSOCIATION * * * LICENSED REAL ESTATE APPRAISER EXPERIENCE * * * APPRAISER RIGHT OF WAY CONDEMNATION FLORIDA DEPARTMENT OF TRANSPORTATION 1972-1975 The foregoing qualifications attributed to Sharkey are inaccurate, misleading or false. The organization known as the American Right of Way Association has not been known by that name for 3-4 years; the State of Florida does not license real estate appraisers; and Sharkey was never employed by the Florida Department of Transportation as an appraiser for right-of-way condemnation. While the document included qualifications attributed to Sharkey that were inaccurate, misleading, or false, there was no proof that the document was ever presented to any person in the conduct of Respondents' business, or that any person placed any reliance on such document.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Counts 1, 2, 7, 8, and 9 of the Administrative Complaint be DISMISSED with prejudice. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 10th day of November, 1986. APPENDIX Respondents proposed findings of Fact Consisted of 8 unnumbered paragraphs. These paragraphs have been designated paragraphs 1-8, and addressed as follows: Addressed in paragraphs 2-3. Addressed in paragraphs 4. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 3-5. Addressed in paragraphs 6-8. Addressed in paragraphs 6-8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James G. Kincaid, Esquire 4331 North Federal Highway Fort Lauderdale, Florida 33308 Harold Huff, Executive Director Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Carl D. Hill, Petitioner, applied for licensure to the Florida Real Estate Commission, Respondent, on or about October 19, 1983, and subsequently received a letter of denial dated December 6, 1983. The denial was based upon Sections 475.17(1) and 475.25, F.S., and specifically cited Petitioner's prior arrest in 1980 and criminal record. By Order of the Circuit Court dated June 12, 1984, the record of Petitioner's prior arrest and plea of guilty was expunged and sealed. Petitioner had originally been placed on probation for five years, but that probation was terminated early for good behavior after three years, on or about April 16, 1984. Petitioner has not been arrested for any offense since 1980, and has at all times been employed. His reputation in the community is very good. Petitioner is currently co-owner of Interstate Mobile Homes and handles sales, service and set-up of mobile homes. His partner is a licensed real estate broker who also operates Sun American Realty in the same building. There is no evidence in the record which would indicate that Petitioner has at any time engaged in activities which would require a real estate salesman's license. All such activities are handled by his partner and co-owner who is licensed as a real estate broker. Petitioner held a real estate salesman's license from November 1981 until January 18, 1983. Petitioner's previous license was revoked pursuant to Section 475.25(1)(m), F.S., but he was not precluded from reapplying for reinstatement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's application for licensure as a real estate salesperson be APPROVED. DONE and ORDERED this 26th day of February, 1985, at Tallahassee, Florida. DONALD D. CONN 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 26th day of February, 1985. COPIES FURNISHED: Jack W. Crooks, Esquire Crooks, Vetter, Cuellar and Blau, P.A. 4202 West Waters Avenue Tampa, Florida 33614 Ralph Armstead, Esquire Assistant Attorney General Suite 212 400 West Robinson Street Orlando, Florida 32801 Harold R. Huff, Director Dept. of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the crime of which Petitioner was convicted in the District of Columbia, namely simple assault under that jurisdiction's law, directly relates to the activities of a real estate sales associate, thereby warranting Respondent's intended decision to deny Petitioner's application for licensure as a sales associate.
Findings Of Fact Respondent Florida Real Estate Commission ("FREC") is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. On September 11, 2018, Petitioner Milain David Fayulu ("Fayulu") applied for licensure as a real estate sales associate. In his application, Fayulu truthfully answered the question asking whether he had ever been convicted of a crime. Fayulu disclosed that he had been convicted of simple assault in the District of Columbia as the result of "[a]n altercation with a fellow student at American University in Washington DC," which had occurred on April 7, 2014. He further reported that he had completed all terms of sentence, which included one year of probation and 100 hours of community service. Fayulu did not mention that he also had been sentenced to 180 days of incarceration, the execution of which had been suspended, but FREC has not faulted him for this. The Judgment of conviction entered on January 15, 2016, by the Superior Court of the District of Columbia in United States v. Fayulu, Case No. 2014-CF2-006367, confirms that Fayulu pleaded guilty to one count of simple assault and received the sentence just described. As evidence of what happened on April 7, 2014, FREC relies almost entirely on the Affidavit in Support of an Arrest Warrant (the "Arrest Report"), which was subscribed and sworn to on April 10, 2014, by a District of Columbia law enforcement officer whose name is illegible (the "detective"). According to the Arrest Report, the detective interviewed three people in preparing his description of the incident: the arresting officer, the complainant, and a witness to the offense. To the extent relevant,1/ however, the entire narrative of the Arrest Report (the "Probable Cause Allegations"), with one possible, but largely immaterial exception,2/ is hearsay that is neither admissible pursuant to a recognized exception to the hearsay rule, nor corroborative of any competent, persuasive, nonhearsay evidence in the record that needs to be supplemented or explained.3/ Thus, the Arrest Report is not competent substantial evidence of the truth of the matters concerning the offense asserted therein.4/ The Arrest Report is not hearsay evidence of one fact, however; namely, that the prosecutor, and the judicial officer who approved the issuance of an arrest warrant, concluded (along with the detective) that the Probable Cause Allegations justified a charge of aggravated assault while armed ("AAWA") under D.C. Code section 22-404.01——a far more serious offense5/ than the simple assault of which Fayulu ultimately would be convicted.6/ This means that the government did not need to prove all of the Probable Cause Allegations——and, for all we know based on the instant record, could not have proved them beyond a reasonable doubt——to obtain Fayulu's conviction. The actual charging document containing the government's formal allegations against Fayulu is not in evidence. Nor is the transcript of the plea colloquy. As a result, the undersigned cannot make any findings regarding the specific factual admissions Fayulu made when he pleaded guilty to the simple assault charge. To be clear, Fayulu's guilty plea is not an admission to the truth of the Probable Cause Allegations in their entirety, for, as just explained, the government did not have the burden of proving those allegations in toto to support a simple assault conviction. If this sounds like hair-splitting, it is only because the undersigned has not recited (and will not repeat) the unproved Probable Cause Allegations. To be sure, it is extremely tempting to evaluate Fayulu's testimony against the backdrop of the alarming Probable Cause Allegations and to conclude that he is being cagey or unforthcoming about what really happened during the incident that led to his arrest and conviction. This is because the Arrest Report enjoys unearned credibility, probably owing to a general respect for law enforcement, whereas Fayulu's testimony, which depicts the incident in a much less malevolent light (as perpetrators do, we imagine), is readily, albeit unfairly, presumed to be self- serving. FREC's intended decision to deny Fayulu's application is, in fact, based on the premise that, as a matter of historical fact, Fayulu behaved as described in the Arrest Report, even though there is no competent substantial evidence in the record proving the Probable Cause Allegations. Fayulu tried to make this legal point in the proceedings before FREC, but——not being a lawyer and representing himself——he did so somewhat clumsily and managed mostly to come off sounding like he had something to hide. At hearing, after some prodding, Fayulu testified that on the evening of April 7, 2014, he and his two roommates were in a car heading home from the library, where they had been studying, when the alleged victim (the complainant) approached their vehicle, which was stopped at the exit from the library's parking lot as the driver waited for a break in traffic to pull out onto the street. The complainant spit on the driver through an open window. The driver parked the car and the three men got out. They began yelling at the complainant. According to Fayulu, the complainant threw the first punch, so to speak, which triggered a brawl that lasted for two or three minutes. Fayulu was directly involved in the fight, which was violent and caused the combatants to fall to the ground. Fayulu and his friends then decided to stop the altercation. The complainant, who afterwards remained standing on the side of the street, "seemed perfectly fine" and was "in a physically decent condition" in Fayulu's opinion, having been neither bloodied nor knocked unconscious during the affray. Fayulu and his two companions walked back to their car and left. Fayulu's account of the incident provides a sufficient basis in fact to support a conviction for simple assault under D.C. law, which is analogous to misdemeanor battery under section 784.04, Florida Statutes. Fayulu's testimony about what happened is not inherently unbelievable, moreover, and there is no competent substantial evidence in the record refuting his version of the event. While it is likely that Fayulu has tried to put himself in the best possible light consistent with the truth, and despite some obvious testimonial ducking and weaving, the undersigned cannot find that he intentionally lied. At any rate, if it weren't for Fayulu's evidence about the facts and circumstances comprising the underlying offense (as opposed to the fact of his conviction, which is undisputed), there would be none at all.
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 approving Fayulu's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2019.
Findings Of Fact Respondent, JAMES M. THOMAS, was at all times material to this proceeding a real estate broker licensed with the Florida Board of Real Estate and had been issued license number 0088265. Respondent, JAMES THOMAS REALTY, INC., was at all times material to this proceeding a Florida corporation licensed as a real estate broker and was issued license number 0180981. At all times material to this proceeding, Respondent, JAMES M. THOMAS, was the qualifying officer of the Respondent, JAMES THOMAS REALTY, INC. On May 7, 1980, Respondents, by and through their attorney, filed a civil lawsuit against Monroe Gray and Shirley Gray in which the Respondents sought the payment of a real estate brokerage commission in the Circuit Court of Hillsborough County, Florida. On May 7, 1980, the Respondents, by and through their attorney, filed a Notice of Lis Pendens in connection with the above referenced lawsuit. The sole purpose in the filing of the above referenced Complaint and Notice of Lis Pendens was to protect and collect a real estate brokerage commission which the Respondents believed was owed to them by the owners of the property. To the knowledge of Respondents, the Grays had no other assets located in Florida. On June 3, 1981, the Respondents, by and through their attorney, filed a Release of Lis Pendens on this property.
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 Subsections 475.25(1)(a) and 475.42(1)(j), Florida Statutes (1979), and fining Respondents $250.00 each. DONE and ENTERED this 30th day of August, 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 30th day of August, 1982.
The Issue The issue is whether the application of Petitioner for a Florida real estate broker’s license should be granted.
Findings Of Fact Petitioner is an individual residing in the State of Connecticut. Respondent is the state agency responsible for licensing real estate associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes. In June 2007, Petitioner submitted to Respondent an application to be licensed as a real estate broker in Florida. In his application, Respondent requested mutual recognition of his broker’s license in Connecticut. Petitioner held an active real estate broker’s license in Connecticut for at least 24 months during the preceding five years from the date of his application. Petitioner was first licensed in the State of Connecticut as a real estate salesperson from May 13, 1987 through July 28, 1989. Thereafter, Petitioner held an individual license as a real estate broker in Connecticut from July 28, 1989 through April 30, 1993, and again from June 22, 1993, until his real estate broker’s license with the State of Connecticut expired on March 31, 2006. In addition, Petitioner’s limited-liability company, America’s Home & Communities Real Estate, LLC, was licensed as a broker with the State of Connecticut, with Petitioner as the designated broker, on December 30, 2005. That license was active when Petitioner submitted his application with Respondent in June 2007, and expired, effective March 31, 2008. In his application, Respondent answered “No” to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withholding of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. After receiving Petitioner’s application, the Commission ordered a criminal record check from the Florida Department of Law Enforcement (FDLE). The results of that check showed that Petitioner had no Florida criminal record history, but the National/FBI Criminal History Record Response (FBI Report) ordered by FDLE as part of that check under Petitioner’s name listed the following information in the following format: ARRESTED OR RECEIVED 1968/08/05 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 CHARGE 1-B OF P CHARGE 2-DC CHARGE 3-WIL DAM TO PRIV PROP ARRESTED OR RECEIVED 1972/07/27 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 NAME USED-PARKER,EDWARD LEON CHARGE 1-INCITING TO RIOT CHARGE 2-ESCAPE FROM CUSTODY ARRESTED OR RECEIVED 1974/09/12 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC #3 ARRESTED OR RECEIVED 1975/09/30 SID- CT00246406 AGENCY CASE-4684R94 NAME USED PARKER, EDWARD L CHARGE 1-DC CHARGE 2-POSS NARC CHARGE 3-CARRY GUN W/O PERMIT ARRESTED OR RECEIVED 1975/10/23 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-L III BY POSS ARRESTED OR RECEIVED 1975/12/18 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC IV CHARGE 2-CARRY DANG WPN CHARGE 3-INTERFERING W/POLICE ARRESTED OR RECEIVED 1976/01/27 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD CHARGE 1-INTERF W/PO CHARGE 2-DC * * * ARRESTED OR RECEIVED 1977/07/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT WEST HARTFORD (CT0015500) AGENCY CASE-0786-77 CHARGE 1-ILL USE OF CREDIT CARD 31 CTS CHARGE 2-CRIM IMPERSONATION 31 CTS CHARGE 3-FORGERY 3RD DEG 31 CTS CHARGE 4-LARC 4TH DEG 31 CTS COURT- CHARGE-ILL USE OF CREDIT CARD 31 CTS SENTENCE- 09/01/77 PG 1YR 9/S ON EA CT 2YRS PROB CHARGE-CRIM IMPERSONATION 31 CTS SENTENCE- NOLLED CHARGE-FORGERY 3RD DEG 31 CTS SENTENCE-NOLLED CHARGE-LARC 4TH DEG 31 CTS SENTENCE-NOLLED ARRESTED OR RECEIVED 1985/11/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT BLOOMFIELD (CT0001100) AGENCY CASE-7206 NAME USED-PARKER, EDWARD L CHARGE 1-ASLT 3RD RECORD UPDATED 2007/12/07 ALL ARREST ENTRIES CONTAINED IN THIS FBI RECORD ARE BASED ON FINGERPRINT COMPARISONS AND PERTAIN TO THE SAME INDIVIDUAL. THE USE OF THIS RECORD IS REGULATED BY LAY. IT IS PROVIDED FOR OFFICIAL USE ONLY AND MAY BE USED ONLY FOR THE PURPOSE REQUESTED. The preamble to the above-recited FBI Report provides: THIS RECORD IS SUBJECT TO THE FOLLOWING USE AND DISSEMINATION RESTRICTIONS UNDER PROVISIONS SET FORTH IN TITLE 28, CODE OF FEDERAL REGULATIONS (CFR), SECTION 50.12, BOTH GOVERNMENTAL AND NONGOVERNMENTAL ENTITIES AUTHORIZED TO SUBMIT FINGERPRINTS AND RECEIVE FBI IDENTIFICATION RECORDS MUST NOTIFY THE INDIVIDUALS FINGERPRINTED THAT THE FINGERPRINTS WILL BE USED TO CHECK THE CRIMINAL HISTORY RECORDS OF THE FBI. IDENTIFICATION RECORDS OBTAINED FROM THE FBI MAY BE USED SOLELY FOR THE PURPOSE REQUESTED AND MAY NOT BE DISSEMINATED OUTSIDE THE RECEIVING DEPARTMENT, RELATED AGENCY OR OTHER AUTHORIZED ENTITY. IF THE INFORMATION ON THE RECORD IS USED TO DISQUALIFY AN APPLICANT, THE OFFICIAL MAKING THE DETERMINATION OF SUITABILITY FOR LICENSING OR EMPLOYMENT SHALL PROVIDE THE APPLICANT THE OPPORTUNITY TO COMPLETE, OR CHALLENGE THE ACCURACY OF, THE INFORMATION CONTAINED IN THE FBI IDENTIFICATION RECORD. THE DECIDING OFFICIAL SHOULD NOT DENY THE LICENSE OR EMPLOYMENT BASED ON THE INFORMATION IN THE RECORD UNTIL THE APPLICANT HAS BEEN AFFORDED A REASONABLE TIME TO CORRECT OR COMPLETE THE INFORMATION, OR HAS DECLINED TO DO SO. AN INDIVIDUAL SHOULD BE PRESUMED NOT GUILTY ON ANY CHARGE/ARREST FOR WHICH THERE IS NO FINAL DISPOSITION STATED ON THE RECORD OR OTHERWISE DETERMINED. IF THE APPLICANT WISHES TO CORRECT THE RECORD AS IT APPEARS IN THE FBI’S CJIS DIVISION RECORDS SYSTEM, THE APPLICANT SHOULD BE ADVISED THAT THE PROCEDURES TO CHANGE, CORRECT OR UPDATE THE RECORD ARE SET FORTH IN TITLE 28, CFR, SECTION 16.34. - FBI IDENTIFICATION RECORD – WHEN EXPLANATION OF A CHARGE OR DISPOSITION IS NEEDED, COMMUNICATE DIRECTLY WITH THE AGENCY THAT FURNISHED THE DATA TO THE FBI. On March 5, 2008, Respondent wrote to Petitioner and asked Petitioner to provide a copy of the arrest reports and the final outcome for each of the arrests detailed in the FBI Report. Of the 9 reported arrests listed under Petitioner’s name on the FBI Report, only one, number 8 from July 14, 1977, indicates that Petitioner was convicted of a crime. According to that report, Petitioner was sentenced on September 1, 1977, for 31 counts of illegal use of a credit card. According to the report, the other charges listed under arrest number 8 (multiple counts for criminal impersonation, forgery, and larceny) were not prosecuted. Petitioner disputes that he was ever arrested on July 14, 1977, or convicted of any of the charges listed in item number 8. In correspondence and in his testimony at the final hearing, Petitioner pointed out that the record for July 14, 1977, is not supported by fingerprints, and further, that he is not white, as indicated in the police records for that arrest. Petitioner also disputes that he was ever incarcerated. Upon his request to obtain court records related to the disputed conviction, Petitioner was advised by the Records Center for the Superior Court of the State of Connecticut that the court records had been destroyed. At the final hearing, Petitioner submitted certified copies of correspondence from Connecticut’s Superior Court’s Record Center as evidence that the records had been destroyed. Nevertheless, in order to clear his name, Petitioner sought a pardon from the State of Connecticut for the listed conviction for illegal use of a credit card, as well as two other matters listed as arrests (apparently, the “interfering with police” charge listed in item number 6 and the “larceny” charge under item number 8) that Petitioner disputed. On June 8, 2009, Petitioner faxed to Respondent correspondence indicating Petitioner’s efforts to obtain records and clear his name. Included in the correspondence were three letters dated February 17, 2009, from Connecticut’s Superior Court Record Center indicating that records from the disputed charges had been destroyed; Petitioner’s letter dated February 18, 2009, to Connecticut’s Board of Pardons & Paroles requesting assistance in getting a pardon for the alleged crimes; and a letter dated June 3, 2009, to Petitioner from Connecticut’s Board of Pardons & Paroles conditionally granting Petitioner a pardon, pending confirmation from several criminal justice agencies that “the records of your conviction(s) have been erased, which takes at least 8 months.” On June 11, 2009, Petitioner sent to Respondent by facsimile three letters of reference which reflect positively upon Petitioner’s character. By letter dated July 17, 2009, Respondent advised Petitioner that his application would be considered at Respondent’s meeting scheduled for August 12, 2009, in Orlando, Florida, and that Petitioner should forward any additional letters of recommendation or other supporting documentation no later than July 20, 2009. Petitioner’s application file indicates that Respondent received a positive recommendation for Petitioner on July 23, 2009, from a real estate broker in Connecticut, and that, on July 24, 2009, Petitioner forwarded a letter to Respondent from the Greater Hartford Association of Realtors, Inc., stating that Petitioner “is a member in good standing with the Greater Hartford Association of Realtors® since December 11, 1998,” indicating that Petitioner’s local, state and national dues have been paid, and advising that Petitioner completed a code of ethics course on December 12, 2008. Petitioner appeared, pro se, and gave testimony at the August 12, 2009, meeting where his application was considered. Following that meeting, Respondent entered a Notice of Intent to Deny, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s Notice of Intent to Deny recited Key findings of fact 1, 2, 4, and 7, and Key conclusions of law B, C, E and M, as grounds for its proposed denial of Petitioner’s application. Those Key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s Notice of Intent to Deny, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. Failure to disclose. Applicant’s complete criminal record was not revealed in application. 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. 7. No Showing Rehabilitation. Applicant has not had sufficient time free of government supervision to establish rehabilitation. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. E. 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; 475.25(1)(b), 475.181 F.S. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. In sum, all of Respondent’s reasons to deny Petitioner’s application for a broker’s license are related to a finding that Petitioner was convicted of crimes and failed to disclose them on his application. The evidence, however, does not support the grounds recited in Respondent’s Notice of Intent to Deny. Other than Petitioner’s disputes of, and eventual pardon from, three crimes listed on the pardon obtained on May 27, 2009, there is no evidence that Petitioner was ever convicted of a crime. At the final hearing, Petitioner admitted that he grew up in a rough neighborhood and had negative contacts with law enforcement for a number of years. He apologized for any appearance that he tried to deceive Respondent, but explained that although he had been arrested in the past, he has never been incarcerated. Petitioner further explained that he did not believe that he had a record because of the passage of time. In addition, at the final hearing, Petitioner submitted evidence that he has received a full pardon for the listed (and disputed) conviction for illegal use of a credit card.3/ It has been over 20 years since Petitioner has had any negative contact with law enforcement.
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 that Petitioner was not dishonest in his application to be licensed as a real estate broker in Florida submitted in June 2007, but denying that application, without prejudice, consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of April, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2010.
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 Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The general issue for determination in this proceeding is whether, under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act, the Department of Professional Regulation, Division of Real Estate (DPR), should pay Dorothea L. Prisament and Warricks Real Estate, Inc., attorney fees and costs incurred in their defense to the Administrative Complaint DPR filed in DOAH Case No. 89-6293. As reflected in the Preliminary Statement, the parties stipulated that Prisament and Warricks operate as a "small business party" 1/ and that the amount of the fees and costs they seek is reasonable. It already has been ruled, by Order Denying [DPR's] Motion to Dismiss, that Prisament and Warricks "prevailed" in the underlying administrative proceeding. The only remaining issues under the statute are whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 89-6293 and, if not, whether "special circumstances exist that would make an award unjust."
Findings Of Fact On or about August 16, 1989, DPR's investigator Marjorie G. May conducted an office inspection and audit of the escrow account of Dorothea L. Prisament and Warricks Real Estate, Inc. (Prisament is a licensed real estate broker who serves as qualifying broker for Warricks, a corporate real estate broker owned by Prisament.) May's audit revealed to her that the escrow account had a $1,380.86 shortage. This determination was in error. In adding the entries she had copied down by hand from the Warricks records to arrive at the total amount required in the escrow account, May inadvertently entered an incorrect $7,000 figure into her calculator instead of the correct figure of $1,000. As a result, the total incorrectly indicated a $1,380.86 shortage instead of the actual overage that was in the account. May also noted that the office entrance sign did not have Prisament's name on it as broker; the sign did have Warricks's correct name, identified as a licensed real estate broker, on it. On October 17, 1989, a probable cause panel of the Florida Real Estate Commission deliberated on information presented to it as the report of May's investigation. The information included a draft proposed Administrative Complaint that alleged a $1,380.86 shortage in the escrow account as the basis for four counts (two each against Prisament and Warricks); two counts (one each against Prisament and Warricks) alleged the improper signage. Attached to the draft proposed Administrative Complaint was a copy of May's handwritten notes correctly listing the entries from Warricks's records. In addition, the information presented to the probable cause panel included a copy of the calculator tape showing how May entered these amounts into her calculator-- including the erroneous entry--to arrive at a total amount required in the account (the incorrect total.) The draft proposed Administrative Complaint also alleged: When the [DPR's] investigator suggested that Respondent Prisament go over the books again to make sure nothing was overlooked prior to making up the shortage, Respondent Prisament replied "I dont't have time." The Respondents replaced the shortage on August 24, 1989. The copy of the Investigative Report attached to the draft proposed Administrative Complaint supported these allegations. It also disclosed that Prisament agreed on the day of the inspection and audit, August 16, 1989, to make up the shortage and that she signed an Office Inspection and Escrow/Trust Account Audit Form by which she agreed "to take corrective action within 10 days." The Investigative Report also recites that Prisament told May on the day of the inspection and audit: "It is believed the deficit came from errors as opposed to any 'intentional' withdrawal." Additional information presented to the probable cause panel included a copy of a "speedy reply message" from Prisament to May, dated August 24, 1989, that said, among other things: "Due to several deals not closing, I was short of the amount you say I owe but now have obtained it and have deposited in into my Escrow Account. . . . Thanks for your help correcting us." Attached was a copy of the check and the deposit slip. May's Investigative Report was signed by May and by her supervisor, John W. Shrive, Inv. Mgr. The information was presented to the probable cause panel by the DPR's attorney as establishing an escrow shortage and with the comment: "We believe this supports a charge of culpable negligence and failure to maintain sufficient funds in a trust account." The probable cause panel found probable cause, reciting that the finding came "after a complete review of the file." One member commented: "I guess he'll have time to come to a hearing." On or about October 18, 1989, DPR filed the six-count Administrative Complaint. At the formal administrative proceeding in the case, the error in calculating the amount required in the escrow account was disclosed, and the true facts were made clear. The parties filed a Joint Proposed Recommended Order, which formed the basis of the Recommended Order in the case. Eventually, a Final Order was entered adopting the Recommended Order. The four counts involving the allegation of a shortage in the escrow account were dismissed. The two counts involving the improper sign (which were characterized as "technical violations" that were "immediately corrected") were sustained, and Prisament and Warricks were reprimanded. On or about December 6, 1990, Prisament and Warricks filed a Petition for Attorney's Fees and Costs.
