The Issue The issues in this case are whether Respondent violated Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), Florida Statutes (1997), by operating as a broker without holding a valid broker's license, operating as a broker while licensed as a salesperson, collecting money except in the name of his employer, and committing misrepresentation, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust; and, if so, what, if any, penalty should be imposed. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a salesperson pursuant to license number 0575377. The last license issued was issued as an involuntary inactive salesperson at 361 Godfrey Road Southeast, Palm Bay, Florida 32909. After March 31, 1995, Respondent's license as a salesperson became inactive after Respondent did not renew it. Between March 1994 and January 1997, Respondent was employed as a salesperson by Prestige Homes of Brevard, Inc. ("Prestige"). Prestige is a Florida corporation wholly owned by Mr. Mark Pagliarulo and Mr. John Wales. Prestige is engaged in the business of residential construction. Mr. G. Wayne Carter was the sponsoring broker for Respondent from March 1994 through January 1997. Mr. Carter was licensed in the state as a broker until his license was revoked in 1998. Between March 1994 and January 1997, Prestige paid Respondent a sales commission of three percent of the sales price of each home constructed by Prestige and sold by Respondent. Prestige paid Respondent a weekly draw against commissions earned by Respondent. Mr. Carter, the sponsoring broker for Respondent, had no knowledge of the payments received by Respondent. Respondent did not deposit any sales commissions to Mr. Carter's escrow account. Respondent participated in various activities that violate relevant provisions in Sections 475.25 and 475.42. Respondent collected $1,100 from Marcia Pitts for a sprinkler system, a $1,000 initializing fee from Linda and David Grogan, and a $1,000 "design fee" from Mrs. Robert Leudesdorf. Respondent converted the foregoing sums to his personal use without the knowledge of his employers at Prestige and without the knowledge of Respondent's broker. Respondent operated as a broker without a valid broker's license, while licensed as a salesperson, and collected money for himself rather than for his broker or his employer. Respondent routinely designed variations on a "custom" home design without his employers' knowledge. Respondent then charged the purchasers approximately $1,000 for the plan changes. Respondent routinely deducted the $1,000 fee from the contract price Prestige charged the customer and converted the $1,000 fee directly to his personal use. Respondent failed to disclose to the purchasers that he was not acting on behalf of Prestige. The purchasers believed they were dealing with Prestige. The omission and failure to disclose amounted to a misrepresentation, false pretense, and breach of trust in a real estate transaction. For a time, Respondent's employers at Prestige condoned Respondent's "free lance" activities. Respondent's employers reduced Respondent's draws against commissions by the amount of the "free lance" fees converted by Respondent. After Respondent failed to discontinue his "free lance" activities, however, Prestige terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Sections 475.25(1)(a),(b), and (e) and 475.42(1)(a),(b), and (d), and revoking Respondent's license. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Steven Johnson, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Steven Michael Wallace 361 Godfrey Road Palm Bay, Florida 32909 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 24th day of September, 2010.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact In June 2005, the Respondent resided at a house located at 14213 Sports Club Way, Orlando, Florida, 32837. The Respondent had no ownership interest in the house. The house was owned by Jack Girton (Mr. Girton), who did not reside in the house, and was "for sale by owner," according to a sign in the yard. In June 2005, the Respondent was contacted by a licensed real estate agent, Eleanor Dioneda (Ms. Dioneda), who was seeking to locate a suitable house for purchase by Arnold Macabugao and his wife (buyers). Ms. Dioneda wrote a contract for purchase of the house between the buyers and Mr. Girton. A separate contract between the buyers and the Respondent, titled "SIDE AGREEMENT TO PURCHASE CONTRACT," required payment of $10,000 directly to the Respondent by the buyers. The document provided in relevant part as follows: This side agreement is between Buyers named above and Kim Capiello wherein the buyers agree to give $10,000 to Kim Capiello for services rendered in the search and purchase of the above named property. This agreement is contingent upon the buyers securing a loan, its lender determining a firm closing date and last but not the least, actual closing and funding of the above named property. The amount will be paid as follows: $5,000 to be paid at the time the Purchase contract is signed by all parties for the above property and contingent upon the buyers securing a loan and its lender determining a firm closing date. $5,000 to be paid the day after the closing under the condition being that the above property has been vacated and in move in condition. Kim Capiello further agrees that this side agreement is between her and the buyers only and has nothing to do with the actual purchase agreement entered into by the buyers and Jack Girton. Ms. Dioneda forwarded the document to the buyers and instructed the buyers on how to make the payments. She collected the first $5,000 installment from the buyers; apparently deposited the funds into her personal checking account; and then wrote a $5,000 check to the Respondent. The buyers eventually completed the purchase of the house from Mr. Girton and wrote a $5,000 check directly to the Respondent from their checking account. The Respondent received both checks for a total of $10,000 as stated in the "side agreement." The Respondent was not licensed in the State of Florida as a real estate broker or sales associate at any time material to this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding Kimberly D. Casella Capiello guilty of violating section 475.42(1)(a) and imposing a fine of $2,500. DONE AND ENTERED this 10th day of February, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th day of February, 2011.
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination in this case is whether the Respondent Wayne E. Belton violated Section s. 475.25(1)(b), Florida Statutes (1979), by inserting an option provision into a lease agreement without the specific authorization of the tenants and subsequent to the tenants signing the original agreement. At the hearing, Petitioner's Exhibits 1-10 were offered and admitted into evidence. Leslie and Glenn Strickland, the tenants and complainants, testified on behalf of the Petitioner. Wayne Belton testified on his own behalf. Proposed Recommended Orders have been submitted by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact The Respondent Wayne E. Belton is a licensed real estate broker with his principal place of business at 337 Northeast Second Avenue, Delray Beach, Florida. On or about November 23, 1979, the Respondent prepared a one-year rental agreement or lease for property located at 2717 Southwest Sixth Street, Delray Beach, Florida, which was owned by Mrs. Margaret Finlay. Mr. and Mrs. Glenn Strickland executed the agreement as the tenants. The lease was prepared pursuant to an open listing by the owner for either sale or lease. When the Stricklands signed the original agreement it did not contain any provision concerning purchasing the property in the future through an option agreement. Although the Stricklands had discussed an option agreement with the Respondent, they did not specifically agree to an option agreement which required the deposit of additional monies in escrow which would not be refunded if the option were not exercised. The owner of the property, Mrs. Finlay, was primarily interested in selling the property and demanded that Respondent obtain a binding option from the Stricklands. When faced with the conflicting demands of the tenants and the owner, the Respondent inserted an option provision in the lease agreement after the Stricklands had signed the original lease which did not contain such a provision. When the Stricklands failed to deliver the $1,500 option money required by the option provision, Mrs. Finlay, through her attorney, threatened to take legal action against the Respondent. In response to the owner's demand, the Respondent through his attorney, demanded that the Stricklands pay $1,500 for the option pursuant to the lease agreement. When the Stricklands received the demand letter from Respondent's counsel, they contacted an attorney who eventually settled the matter. The Stricklands were required to expend $138.00 in attorney's fees to correct the problem caused by the Respondent. The Respondent admitted inserting the option provision into the lease agreement after the Stricklands executed it, but denied acting with any intent to alter the agreement contrary to what he believed the parties intended. Rather, the Respondent believed that he was remedying his original omission to conform to what he believed the parties had orally agreed to.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner enter a final order finding that Respondent Wayne E. Belton violated Section 475.25(1)(b), Florida Statutes (1979) and imposing a reprimand and an administrative fine. DONE and ORDERED this 7th day of June, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 7th day of June, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Stephen G. Melcer, Esquire Suite 500 First Bank Building 551 Southeast Eighth Street Delray Beach, Florida 33444 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Should Respondent's license as Florida real estate salesperson be disciplined for the alleged violations of certain provisions of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint filed herein, and, if so, what penalty should be imposed?
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 of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 475, Florida Statutes. Respondent, at all times relevant to this proceeding, was licensed as a real estate salesperson in the State of Florida, having been issued license number SL-0669595, and subject to the provisions of Chapter 475, Florida Statutes. At all times relevant to this proceeding, Respondent worked as a real estate salesperson in the ReMax real estate office owned by a Lydia Trotter. At all times relevant to this proceeding, Respondent worked under the control and direction of Lydia Trotter, a real estate broker. On July 30, 1999, Respondent entered into a contract with Oye Jeon to sell her a certain parcel of real estate for the purchase price of $99,000.00 and received a deposit in the amount of $30,000.00 from Oye Jeon. Respondent failed to inform Oye Jeon that he did not own the property and did not have a contract to purchase the property from Mr. McClelland, the owner of the parcel of property. Respondent paid a finder's fee in the amount of $10,000.00 to Mr. and Mrs. Song for finding a buyer (Oye Jeon) for this parcel of property. At all times relevant to this proceeding, neither Mr. Song nor Mrs. Song was licensed as a broker, broker salesperson, or salesperson under the laws of the State of Florida. Respondent did not own or have a contract to purchase the parcel of property in question from Mr. McClelland, the owner of the property, at the time Respondent entered into the contract to sell this parcel of property to Oye Jeon on July 30, 1999. Respondent eventually purchased this parcel of property from Mr. McClelland (apparently after the contract with Oye Jeon was entered into) but has never honored the contract with Oye Jeon or returned her $30,000.00 deposit. Respondent has never deposited the $30,000.00 received from Oye Jeon with his broker, Lydia Trotter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a review of the Disciplinary Guidelines set out in Rule 61J2-24.001, Florida Administrative Code, it is RECOMMENDED that the Department enter a final order finding Respondent, Seyed R. Miran, guilty of violating Subsections 475.25(1)(b), (e), (h), and (k), Florida Statutes, and revoking his real estate salesperson's license. DONE AND ENTERED this 22nd day of May, 2003, 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2003. COPIES FURNISHED: James P. Harwood, Esquire Department of Business and Professional Regulation 400 West Robinson Street Suite N308 Orlando, Florida 32801-1772 Seyed R. Miran 8505 North Orleans Avenue Tampa, Florida 33604 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801-1772
Findings Of Fact Respondent Larry B. Lewis is a real estate salesman licensed under the laws of the State of Florida, having been issued license number 0052189. Respondent Melvin M. Lewis is a real estate broker licensed under the laws of the State of Florida, having been issued license number 0052222. Gateway Acres, Inc., was incorporated under the laws of the State of Florida in February, 1984, for the purpose of selling certain undeveloped property in Osceola County, Florida. Both Respondents are officers of that corporation, and Respondent Melvin M. Lewis is the sole stock holder. Because she had previously sold undeveloped property in Florida to him, a salesperson employed by Gateway Acres, Inc., contacted Ray O. Newbill, an insurance agent in Tennessee, in approximately early June, 1984. As a result of that conversation, Newbill received from Gateway Acres, Inc., an Agreement for Deed and other promotional material. That form Agreement for Deed related to an unspecified "1 1/4 acres more or less" at Gateway Acres in Osceola County. However, the terms and conditions of sale were specified on that form, which consists of one sheet of paper, with writing on the front and back of that sheet. The form initially sent to Newbill contained several "privileges". There was an Inspection Privilege whereby a buyer could receive a full refund at the time that the buyer completed a company guided inspection tour so long as that tour occurred within six months from the contract date. Pursuant to the Vacation Privilege, Gateway Acres, Inc., agreed to pay room and tax charges for three days and two nights at a motel in Orlando while the buyer participated in the inspection tour. The form next provided a 30 Day Unconditional Refund Privilege whereby the buyer could receive a refund for any reason whatsoever within 30 days from the date of purchase. Newbill signed that Agreement for Deed on June 18, 1984. In the signature portion of that document there appeared the following language requiring notarization: I HEREBY CERTIFY that on this day before me an officer duly qualified to take acknowledgments personally appeared an officer of Gateway Acres, Inc., a Florida corporation to me well known to be the grantor described in and who executed the foregoing instruments, and acknowledged before me that he is duly authorized by the corporation to do so and that this instrument is the act and deed of the corporation. WITNESS MY HAND and official seal at Miami in the said County & State, this day of , 19 . Although that language clearly calls for notarization of the signature of an officer of Gateway Acres, Inc., the seller of the property, Newbill had his secretary notarize his signature using that part of the form. Newbill mailed to Gateway Acres, Inc., the Agreement for Deed which now bore his signature and the false notarization by his secretary, together with his check in the amount of $500, the down payment on the property. When that document was received by Gateway Acres, Inc., Respondent Larry B. Lewis telephoned Newbill to explain that the false notarization invalidated that form and that particular Agreement for Deed could not now be executed by the seller. Since Newbill was anxious to immediately inspect the property and receive his vacation privilege, Newbill and Respondent Larry B. Lewis agreed that Newbill would come to Florida and he would be presented with a new form to execute. On approximately June 21; 1984, Newbill arrived in Orlando with his wife and eight children in a station wagon. He met both Respondents at the motel being paid for by Gateway Acres, Inc. Newbill and his wife then went with both Respondents to Gateway Acres and completed the company guided inspection tour of the area. When Respondents returned Newbill and his wife to their motel, Respondent Melvin M. Lewis gave to Newbill for his signature an Agreement for Deed. The front of that document obviously differs from the document that Newbill had executed in Tennessee. The second document is for a specifically described piece of property and carries that specific lot's legal description. The second document has a large blank space in the middle of the page where the first document had described the Inspection Privilege and Vacation Privilege. These paragraphs were no longer relevant since Newbill had already received his paid vacation and inspection tour. The third and most important difference in the second document was that only a Three Day Unconditional Refund Privilege was offered rather than the 30 Day Unconditional Refund Privilege offered in the first document given to Newbill. Respondents reviewed that document with Newbill, and Newbill signed. Newbill's offer was accepted on June 26, 1984, when Faye Lewis signed on behalf of Gateway Acres, Inc., as its secretary, and Respondent Melvin M. Lewis notarized that signature and executed the required certification regarding the corporate officer signing the instrument. On July 10, 1984, Gateway Acres, Inc., directed to Newbill, by certified mail, a copy of the contract entered into between them. That mailing reached Newbill on July 17, 1984. On July 12, 1984, Newbill sent a letter by certified mail to Respondent Melvin M. Lewis advising that he wished a refund of his $500. That letter reached Melvin M. Lewis on either July 16 or July 17, 1984 (both dates appear on the post office's receipt) On approximately August 10, 1984, Newbill left a message for Respondent Larry B. Lewis on the answering machine for the telephone at Gateway Acres, Inc., demanding that his $500 be returned or he would file a complaint with the Florida Real Estate Commission. To date, Gateway Acres, Inc., and the Respondents have failed to return to Newbill his $500 down payment. No other disciplinary actions have been filed by Petitioner against either Respondent Larry B. Lewis or Respondent Melvin M. Lewis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent Melvin M. Lewis and Respondent Larry B. Lewis not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against them. DONE and RECOMMENDED this 18th day of March, 1986, at Tallahassee, Florida. LINDA M. RIGOT, 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 March, 1986. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Harry E. Geissinger, III, Esquire Suite 201 415 West 51st Place. Hialeah, FL 33012 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent John Politis has been a licensed real estate broker in the State of Florida, having been issued license number 0069773. The last license issued to him was as a broker for Florida Mortgage & Realty Co., 1001 West Cypress Creek Road, Fort Lauderdale, Florida. At the time of the events which are the subject of this dispute, Respondent Center Associates, Inc., was a corporation registered as a real estate broker in the State of Florida, having been issued license number 0259310. The last license issued was at the same street address and suite number as Florida Mortgage & Realty Co. At all times, Respondent Politis has been licensed and operating as the qualifying broker, the sole officer, the sole director, and the 100 percent stockholder of Respondent Center Associates. In approximately March of 1989, Catherine P. Young, a real estate salesperson licensed in the State of Florida, was employed by the Respondents to solicit and negotiate agreements for leases of commercial shopping center space through the Respondents. For the first three or four months of that employment, Respondents paid Young an agreed salary. Thereafter, that salary agreement was cancelled, and a second agreement was entered into among Young and the Respondents. Under that new agreement any commissions resulting from Young's efforts were to be split so that Young received 80 percent of the commission and the Respondents received 20 percent of that commission. It was further agreed that Young would pay for her own travel expenses and her long distance calls, while Respondents would bear the expense of providing the office and paying for the local telephone service. During the term of that second agreement, Young negotiated several commercial lease agreements to their conclusions and received the commissions to which she was entitled. In the leasing industry, one-half of the commission is paid when the lease is signed and one-half is paid when the tenant moves into the leased premises. However, the commission is owed as of the time that the lease is executed. On or about March 2, 1990, Young terminated her employment relationship with the Respondents. On the day she left the employ of Respondents, she met with Respondent Politis and discussed with him her claim for commissions on leases already fully executed through her efforts, but which commissions had not yet been paid to Respondents. Respondent Politis agreed that she was entitled to 80 percent of the commissions which Respondents had not yet received but which had resulted from Young's efforts. Young asked Respondent Politis to put that agreement in written form, and he agreed to do so. When Young returned the following week to sign the agreement, Respondent Politis informed her that he had changed his mind and had decided that he would not pay her any more commissions since she was no longer employed by the Respondents. Young advised Respondent Politis that she was still entitled to commissions earned by her during her employment as a result of her efforts even though the commissions were not paid to Respondents until after she left their employment. In response to Young's anger that Respondents would refuse to pay her commissions which she had already earned, Respondent Politis told Young that she could sue him. Thereafter, Respondents received real estate commissions on four or five transactions where commercial leases were entered into as a result of Young's efforts. Despite Respondents being aware that Young had made a claim for her share of those commissions, Respondents failed to pay Young any portion of those commissions and failed to place the disputed commissions in escrow until their dispute was resolved. Rather, when Respondents received those commissions, Respondent Politis deposited them into the operating account of Center Associates, Inc., and used those monies to re-pay himself for loans he had made to that corporation. By letter dated February 4, 1992, Respondent Politis wrote to Petitioner advising that Respondent Center Associates was no longer in existence and would not be filing for renewal of its broker's license. Thereafter, Petitioner's records were notated to reflect that Respondent Center Associates' licensure as a real estate broker was cancelled effective March 31, 1992. Young filed a civil lawsuit against Respondent Center Associates in the Circuit Court in Broward County. Young's complaint for damages alleged that Respondent Center Associates had failed to pay her the commission to which she was entitled on one specific transaction and also alleged that Respondent Center Associates would be receiving other commissions "over the next several months" to which Young was entitled. That complaint also alleged that Respondent Center Associates had breached its contract with Young by failing to pay Young monies due to her. The non-jury trial on Young's complaint was conducted on February 24, 1993. The Final Judgment for Plaintiff entered by the Court on March 1, 1993, ordered Respondent Center Associates to pay Young the sum of $51,505.04. That Final Judgment also provided for interest on the amount of judgment at the rate of 12 percent per year. By the time the Final Judgment was entered, Respondent Politis had "dissolved" the corporation and had "cancelled" the real estate broker license of Respondent Center Associates, Inc. Neither Respondent Politis nor Respondent Center Associates has paid any monies to Young in accordance with that Final Judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Dismissing the Administrative Complaint filed against Respondent Center Associates, Inc.; Finding Respondent John Politis guilty of the allegations contained in the Administrative Complaint; and Suspending Respondent John Politis' license as a real estate broker in the State of Florida for a period of ten years, said suspension to be terminated and his license to be reinstated earlier upon proof that he has made restitution to Catherine P. Young. DONE and ENTERED this 14th day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 Administrat
The Issue The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner Donald Greig Shephard, Jr., is a 35-year-old Minnesotan who moved to Florida in May of 1979. He is a businessman who has been married approximately five years. He owns a home in Spring Hill, Florida. He received the bachelor's degree in business administration from the University of Minnesota in 1970. In the mid-70s, he started his own retail business in Minnesota, Phoenix Sound and Video. At this time, he was a regular user of cocaine and, over a period of six months, sold the drug in one-gram quantities as a means of paying for his own habit. When the authorities apprehended one of the persons to whom petitioner had sold cocaine, he identified petitioner as the source of the drug and petitioner was eventually convicted, on a plea of guilty to count one of a three-count indictment charging unlawful distribution of cocaine, in July of 1978. "On January 4, 1979, the Honorable Miles W. Lord, U.S. District Court Judge, District of Minnesota, committed [petitioner] to the custody of the Attorney General for imprisonment for a term of three years; on the condition that [he] be confined in jail type or treatment institution for a period of six months, the execution of the remainder of the sentence of imprisonment suspended and [his] being placed on probation for a period of two and one-half years." Joint Exhibit No. 1. Question No. 6 on the form application petitioner furnished respondent asked: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal vio- lations), without regard to whether convicted, sentenced, pardoned or paroled? To this petitioner answered: "Yes." Question No. 6 further directed, "If yes, state details including the outcome in full". In response to that, petitioner stated: Possession of a controled [sic] substance (cocaine) 1.5 gram, 3 year probation in Minnesota, July 1978 ending Oct. 1981[.] As a result of his conviction, petitioner was incarcerated at the Ramsey County Workhouse in St. Paul, Minnesota. On the second or third day of his incarceration, he entered a drug rehabilitation program. Less than 90 days later he was released. He has not had a drug problem since. Toward the end of his incarceration, he helped counsel other people with drug problems. In retrospect, he believes it was probably best that he was apprehended and that he had an opportunity to overcome his drug dependency. He has applied for clemency. His only previous arrests were for traffic offenses, and he has not been arrested since. On October 16, 1981, his probation terminated. In addition to Phoenix Sound and Video, Mr. Shephard has owned part or all of three other retail businesses, and has operated still others. Sherwood Commercial Brokers was his most recent employer. He left off working for them in January of 1982 because he had obtained no real estate salesman's license at that time, and has been unemployed since. Respondent's proposed findings of fact and conclusions of law have been considered in preparation of the foregoing findings of fact and the proposed findings have been adopted to the extent they were relevant and supported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for licensure as a real estate salesman. DONE AND ENTERED this 19th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of April, 1982. COPIES FURNISHED: D. Greig Shephard, Jr. 982 Deltona Boulevard Spring Hill, Florida 33526 Jeffrey A. Miller, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
