Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints relative to real estate transactions. (Official recognition of Florida Statutes, TR 6-7) Respondent is now and was at times material hereto, a licensed real estate broker in Florida, having been issued License No. 0149408. The last license to Respondent was as a broker, t/a Marathon Realty at Post Office Box 2386, Marathon Shores, Florida 33052. (Petitioner'S Exhibit 1) On or about May 2, 1985, Respondent solicited and obtained a sales contract entered into by Emily Cathy Cronnon, as purchaser, and W. J. and Delores Sarver , as sellers, for the purchase and sale of certain residential property (contract for sale). (Petitioner'S Exhibit 2) The sales transaction was scheduled to close on or about July 1, 1985, but the transaction did not close. On or about December 2, 1985, the purchaser and sellers terminated the sales contract. (Petitioner'S Exhibit 3) On or about May 13, 1985, the Respondent allowed Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, to take possession and occupy the property with the knowledge and consent of seller W. J. Sarver. In this regard, W. J. Sarver denies giving permission to Ms. Cronnon to occupy the property prior to closing. However, it is found herein and the testimony of Billy Hull and Respondent substantiate the fact that Emily Cronnon and Billy Hull visited Respondent's office during early May, 1985, to find out whether they could move into the Sarver property with their furnishings prior to closing. Initially, Ms. Diabo advised Cannon and Hull that she was not at liberty to permit them to move in. However, she told them that if they liked, they could phone Mr. Server and get his permission. This was done and it is found that Mr. Sarver gave his permission to Respondent to allow Ms. Cronnon and Billy Hull to occupy the premises prior to closing, provided they turned the utilities off and then had the same turned on in their name. This was done, and the contract purchaser (Cronnon) and her boyfriend, Billy Hull, moved in prior to the time that the transaction closed. Respondent received a $500 rental payment from the purchaser on August 19, 1985. (Respondent's Exhibits 1 and 2) Respondent deposited said check in an appropriate bank account and waited eleven (11) days for that check to clear. On August 30, 1985, she wrote a $500 check to the Sarvers indicating that the same was rental payment to them for the use of their property by Cronnon and Hull. Respondent customarily waits at least ten (10) days for any check to clear before she writes a check drawn on those same funds.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of July, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. APPENDIX Rulings on Petitioner's proposed findings: 1. Accepted as modified. 7. Rejected based on credible evidence herein which reveals that Emily Cathy Cronnon and her live-in boyfriend, Billy Hull, took possession and occupied the property with the prior knowledge and consent of seller, W. J. Sarver. Rejected based on credible evidence which reveals that Respondent did not conceal the rent payment, but rather deposited the rent payment until the funds cleared her bank and she immediately thereafter transmitted the proceeds to the Sarvers. Rejected as irrelevant and unnecessary to decide the issues posed. Rejected as a conclusion and not a finding of fact. Respondent's proposed findings and conclusions are largely a brief in the form of resolutions of credibility, conflicts, recommendations as to how those conflicts should be resolved, and conclusions in the form of ultimate findings of fact. As such, they are not specifically addressed in the Appendix, but were carefully considered and reviewed by the under signed in preparation of the Recommended Order. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE SENIOR ATTORNEY DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 MICHAEL H. DAVIDSON, ESQUIRE WATSON & CLARK POST OFFICE BOX 11959 FORT LAUDERDALE, FLORIDA 33339 HAROLD HUFF, EXECUTIVE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32502 HONORABLE VAN B. POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue Whether Respondent, a licensed real estate broker in the State of Florida, committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals, including real estate brokers and real estate salesmen. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0430387. The last license issued to Respondent was as a broker-salesman, in limbo, with a home address of 1127 S. Federal Highway, Lake Worth, Florida. At the times pertinent to these proceedings, Respondent had placed his license with Anderson Realty, Inc., Jupiter, Florida. On June 15, 1989, Terry and Franci Evans met with Respondent to discuss their interest in building a house. Respondent told the Evans that he was a real estate broker and that he would negotiate the purchase of the lot the Evans had selected and would arrange for the construction of the house. On July 9, 1989, Terry and Franci Evans, entered into a contract to purchase a residential building lot and a contract to construct a house on the lot that the Evans had selected. The ADA Group, Inc. (ADA) was identified as the contractor and the Evans were identified as the purchaser/owner. Respondent signed the contract on behalf of ADA and was identified by the contract as being an agent of ADA. There was no explanation of Respondent's relationship with ADA. Although the contract identified the Evans as the purchaser/owner, the Evans had not purchased the subject lot. The owner of the lot was not identified by the contract, and there was no competent evidence as to who owned the lot. On June 15, 1989, the Evans gave Respondent a check in the amount of $1,000.00. On July 9, 1989, the Evans gave Respondent a check in the amount of $1,500.00. Both of these checks were given to Respondent as a deposit on the purchase of the lot and construction of the house for which the Evans contracted with ADA on July 9, 1989. The contract executed by the Evans was contingent upon their receiving financing for the project. The form of the contract Respondent used for the subject transaction had been used by Anderson Realty and had been developed by Anderson Realty's attorney. Article V of the General Conditions of the contract executed by the Evans and Respondent on July 9, 1989, contained the following pertinent provision: ... If this contract is contingent upon financing for the purchaser/owner, then the purchaser/owner understands and agrees that no work shall be commenced until the loan commitment is issued. ... The Evans gave Respondent these two checks because they were lead to believe by Respondent that the checks would be refunded to them if the transaction did not close. At the time these checks were given to Respondent, his licensure was officially placed with Anderson Realty. Anderson Realty had requested in January 1989 that Respondent's license be placed inactive. On July 13, 1989, Respondent's license was placed in an inactive status. At no time did Respondent deposit these checks into the escrow account of Anderson Realty or notify it of the subject transaction. Respondent cashed both checks given to him by the Evans. The Evans attempted to secure financing as required by the contract, but they were unable to do so. The subject transaction with ADA failed because the Evans were denied financing for the project. After they had been denied financing, the Evans asked Respondent to return the money they had given to him. Respondent told the Evans that he had made expenditures from the funds the Evans had deposited with him in anticipation of the closing of the transaction. Respondent offered to return a portion of the money to the Evans, but, as of the date of the hearing, Respondent had refunded none of the money to the Evans. Respondent did not produce any verification as to how he expended the money that the Evans had left with him. There was no competent evidence as to who owned the lot that the Evans had agreed to purchase, and there was no competent evidence as to Respondent's relationship with ADA.
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 which finds that Respondent violated the provisions of Section 475.25(1)(b), Florida Statutes, which suspends all real estate licenses previously issued Respondent for a period of one year, and which imposes an administrative fine against Respondent in the amount of $1,000. RECOMMENDED this 21st day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3748 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraphs 1-14 and 18-20 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 15 and are rejected as being unsubstantiated by the evidence since these proposed findings are based exclusively on hearsay. The proposed findings of fact in paragraph 16 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 Andrew J. Jalassola 1127 South Federal Highway Lake Worth, Florida 33460 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/ Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill"). Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order. RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL MANRY 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 9th day of May 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against H. Ernest Morris, Sr. be DISMISSED with prejudice. DONE and ENTERED this 3rd day of May, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of May, 1984. COPIES FURNISHED: Tina Hipple, Esquire P. O. Box 1900 Orlando, Florida 32802 Carmine M. Bravo, Esquire 1450 State Road 434 Longwood, Florida 32750 Steven H. Coover, Esquire P. O. Drawer H Sanford, Florida 32771 Fred M. Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0034049 DOAH NO. 83-3273 H. ERNEST MORRIS, SR. Respondent. /
The Issue The issues in this case are: Did the Respondent, Alix Aldonis (Mr. Aldonis), commit fraud; misrepresentation; concealment; false promises; false pretense; dishonest dealings by trick, scheme or device, culpable negligence; or breach of trust in a business transaction by: (a) misrepresenting the sales price of real estate in a sale and purchase contract, (b) misrepresenting a commission amount in a sales and purchase contract, and (c) misrepresenting receipt by an escrow agent of a $5,000 deposit? Did Mr. Aldonis fail to obtain and retain written confirmation from the escrow agent of delivery of the Buyer's funds for purchase of the property?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, under the authority of section 20.165, Florida Statutes (2010), and chapters 455 and 475, Florida Statutes (2010). At all times material to this proceeding, the Department licensed Mr. Aldonis as a State of Florida real estate sales associate. He holds License Number SL-3117116, which is in effect until March 31, 2011. At all times material to this proceeding, Total Stop, Inc., d/b/a Total Stop Real Estate (Total Stop Real Estate), contracted with Mr. Aldonis to affiliate with it as a sales associate. At all times material to this proceeding, Lawrence Ligonde, of Total Stop Real Estate, was the licensed real estate broker with whom Mr. Aldonis was affiliated. Mr. Ligonde did not employ Mr. Aldonis. Currently, Mr. Aldonis is affiliated with Tropical Springs Realty, Inc. The agreement between Mr. Aldonis and Total Stop Real Estate did not provide for Total Stop Real Estate or Mr. Ligonde's receiving a percentage commission based on the price of sales that Mr. Aldonis made. Mr. Aldonis paid a flat fee of $495 to be affiliated with Mr. Ligonde. In 2006, Joseph Phen and Cheryl Phen listed a home that they owned, located at 3500 S.W. Viceroy Street, Port St. Lucie, Florida, for sale. They listed the property for $330,000. Ms. Phen was a real estate sales broker. She was the listing agent for the property. Mr. Aldonis represented a buyer in the sale of the Viceroy Street property. The buyer, Manuela Celestin, signed a Residential Sale and Purchase Contract for the property on August 2, 2006. Mr. and Ms. Phen signed the contract on August 3, 2006. They also initialed each page. The contract set forth a purchase price of $272,000. The contract also indicated that the buyer was providing a $5,000 deposit. Mr. Aldonis sent Ms. Phen a copy of the contract and a copy of a deposit check by facsimile transmission. The record does not reveal the sequence of contract signing, contract transmission, check transmission, the date of the check transmission, or whether the contract was transmitted more than once to Ms. Phen. Due to conversations with Ms. Augustine at Premier Choice Title & Escrow, the escrow agent identified in the contract, Ms. Phen grew concerned about whether the deposit had been placed in escrow. She spoke to Ms. Augustine about her concerns. Ms. Phen also told Mr. Aldonis she was concerned that the deposit check may not have been deposited in an escrow account. After the conversation, Mr. Aldonis sent Ms. Phen a copy of a check payable to Total Stop Real Estate from Charassard & Associates, P.A., for $5,000. "Phen/Celestin" is written in the "Memo" section of the check. The check bears the date August 6, 2006. Persuasive evidence does not establish if this was a copy of a second check or another copy of the check Mr. Aldonis transmitted earlier. Ms. Phen requested and received a copy of the Residential Sale and Purchase contract from the title company. The first page of this copy listed the sale price as $330,000. Although Ms. Phen testified about two HUD closing statements, the Department did not offer a copy of a HUD closing statement into evidence. The sale of the property occurred. The closing sale price was $272,000. The Department entered a second copy of the contract signed by the Phens and Ms. Celestin into evidence. The first page of the second contract reflected a sales price of $330,000. The initials at the bottom of the first page are not the initials of the Phens. The rest of the contract is identical to the contract signed by the Phens on August 3, 2006. Nothing in either contract provides for a four percent commission to be paid to any person or entity. There is no persuasive evidence indicating who created the second contract or how the title company obtained it. Mr. Ligonde testified that the contract with the higher purchase price "looks like" the one Mr. Aldonis provided him. The contracts "look" the same. Only a very close examination would identify the differences in the initials on the first page. The difference in amounts is more obvious, but it still requires a reading of the contract, not just looking at it, to note the different amount. Mr. Ligonde did not testify that the second contract entered into evidence came from his files. He also did not provide any information about how files are maintained at his business or who has access to them. He did not know when the contract arrived at his office or how. In addition, Mr. Ligonde's statement that a document "looks like" one provided him by Mr. Aldonis does not equate to testimony that the document is in fact the document Mr. Aldonis provided. At some point in the transaction, the employees of Mr. Ligonde's office, the employees of a title insurance company, and the employees of a mortgage broker had possession and control of the sales contract or a copy of it. The Department did not present credible, persuasive evidence that ruled out any of those individuals having created the new page one with the $330,000 sales price.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of February, 2011, in Tallahassee, Leon County, Florida. S John D. C. Newton, II 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 2nd day of February, 2011.
Findings Of Fact Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-5. Accepted. 6-7. Accepted, as modified in the Findings of Fact. Rejected, irrelevant. Accepted. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-3. Accepted. 4. Rejected, not supported by the weight of the evidence. 5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Peter K. Hofmann 73 Quinlan Drive, #1 Greenville, South Carolina 29611 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Pasquale A. Verona (Verona), is a licensed real estate broker having been issued license number 0389728 by petitioner, Department of Professional Regulation, Division of Real Estate (Division). He is the qualifying broker and an officer of respondent, P. A. Verona and Associates, Inc., which holds broker's license number 0251674. The real estate firm is located at 3828 Seago Lane, Fort Myers, Florida. In May 1988 Donna Jean and Barry C. Minnich were shopping for a residential lot in Carillon Woods, a subdivision in Fort Myers, Florida. After seeing a lot advertised by Verona s firm, Donna Jean telephoned Verona's office and made an appointment to inspect the lot on May 13, 1988. After inspecting the lot, Donna Jean decided to purchase the same and, on the same date, she and Verona orally agreed upon a purchase price of $49,000 with a closing date of May 25, 1988. Verona desired to close on that date since he had a previously planned trip to California with his family beginning on May 26, 1988. The oral agreement was reduced to a written contract and executed by the parties on May 13, 1988. At Verona's request, and at the same time the contract was executed, an addendum was prepared by the Minnichs' attorney which provided, in part, that a $54,000 sales price would be used but that at closing Verona would refund $5,000 to the Minnichs. This refund was to be taken out of Verona's real estate commission and rebated to the buyers. Thus, the net sales price was still $49,000 as originally agreed to by the parties. As earnest money, the Minnichs gave Verona $5,000 which was deposited into Verona' s trust account. The Minnichs immediately made application for a loan with John E. Smith, a vice-president of a local C & S bank. On May 18, 1988 they placed an order for a title commitment with Southwest Title, Inc., a Fort Myers title company designated by the parties to prepare the title insurance and handle the closing. The title company was placed on notice that the contract called for a May 25 closing date. According to Mary Jane Kalpin, a Southwest Title, Inc. employee who worked on this transaction, there were unsatisfied water and sewer assessments on the lot owed by Verona to the City of Fort Myers. However, she said this was not unusual and happened quite frequently in subdivisions such as Carillon Woods. As it turned out, however, the city employee who oversaw these assessments was on vacation the week prior to the May 25 closing date, and Kalpin could not obtain payoff figures from any other city employee. In addition, Kalpin needed Verona to furnish her with a certificate of good standing on the property. 1/ He did not do so by May 25. Therefore, she was unable to prepare a closing package by the contract closing date. On May 23, 1988, C & S issued a loan commitment to the Minnichs. In the meantime, Kalpin had completed her title search and on May 23 she spoke with Verona who advised her the deal must close by May 25. When she responded she could not get payoff figures from the City by that date, Verona told her it was a "dead deal". On or about May 24, Donna Jean spoke with Verona and, after being told of the problems encountered by the title company, reiterated her desire to buy the lot. She requested that Verona extend the time for closing so that the missing items could be obtained. Although Verona denies that he gave such an extension, and nothing was reduced to writing, it is found that Verona orally agreed to an extension of time prior to leaving for California. This is supported by the fact that, after returning from California, Verona's wife delivered a certificate of good standing to the title company on June 9, and the title company representative was under the impression a closing would be held at 1:00 p.m. the same date. However, at Verona's insistence, the closing did not take place. On June 15, Verona sent the Minnichs a letter with a check in the amount of $5,000 which represented the deposit on the property. In his letter, Verona stated that he "realize(d) that the delay in the closing on Lot #6, Carillon Woods is not being caused by anything you have done" and that those things occurred whenever "we place a transaction in the hands of another". He added that he had received another offer in the amount of $58,000 from another party and if the Minnichs were willing to pay a "net figure of $56,000", he would give them the opportunity to purchase the lot. The Minnichs chose not to cash the check but instead advised Verona they intended to seek legal advice on their rights under the original contract. Donna Jean deposited the check around June 22 but learned the next day that Verona had stopped payment on the check. On June 24, 1988 Verona again wrote the Minnichs and advised them to reconsider their threat to take legal action since he had "never lost a real estate dispute". He also advised them that, pursuant to the contract, he was claiming the $5,000 as liquidated damages due to their failure to close by May Finally, he pointed out that the original contract "was terminated on June 15 by letter". On an undisclosed date, but prior to September 1988, Donna Jean spoke with Verona by telephone and requested a refund of her deposit. Her request was denied. The Minnichs then filed a complaint with the Division. On September 2, 1988 Verona advised the Division there was a dispute concerning the deposit and requested the issuance of a disbursement order. On January 11, 1989, the Division, through its counsel, wrote Verona and advised him that, because of disputed facts a disbursement order could not be issued, and he must immediately seek arbitration or file an interpleader action in circuit court. Choosing to utilize arbitration, Verona contacted the Miami office of the American Arbitration Association (AAA) on February 15, 1989 and requested a "package" from which an agreement to arbitrate could be prepared. After receiving a package of documents, Verona sent an agreement with a letter to the Minnichs on February 24, 1989. They did not respond to his offer to arbitrate. On March 6 he sent a follow-up letter again requesting the Minnichs to arbitrate. On March 9 Verona learned that AAA would not arbitrate the dispute. As of that date, Verona was aware of the fact that his only remaining alternative was to file an interpleader action in circuit court. On March 23, 1989 the Division, through its counsel, sent a second letter to Verona advising him that he had apparently ignored the earlier letter and that he must immediately take action to resolve the dispute. On May 5, 1989 Verona sent his attorney, George Knott, a check in the amount of $5,000 with a request that Knott "handle the interplea (sic) action as to the disposition of $5,000 previously held in my real estate firm's escrow account". The suit was eventually filed by Knott in circuit court on September 8, 1989. The suit requested that Verona be awarded the $5,000 deposit plus "damages" and attorney's fees. When asked at hearing why the suit had not been filed earlier, Verona responded that, once the matter was turned over to his attorney, he had no control over the actions of his attorney. He also acknowledged that he has never instructed his attorney to attempt to resolve the matter as quickly as possible. As of the date of hearing (June 20, 1990), the matter was still pending in circuit court. There is no evidence that Verona did not maintain the $5,000 deposit in his firm's escrow account until the money was turned over to his attorney on May 5, 1990. There is also no evidence that respondents have ever been disciplined by the Division.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsection 475.25(1)(d) and (e), Florida Statutes (1987) and Rule 21V-10.032, Florida Administrative Code (1987), and that their brokers' licenses be suspended for six months and thereafter be placed on one year's probation. DONE and ENTERED this 24th day of July, 1990, in Tallahassee, Florida. DONALD ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990.
The Issue The issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
Findings Of Fact On July 14, 1989, a Final Judgment was entered in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, against Petitioner and in favor of Kandace Dimas, the Plaintiff in that action. That Final Judgment contained specific findings that Petitioner had acted as a mortgage broker without a license in a transaction which "was infested with usury." That Final Judgment awarded to the Plaintiff the sum of $29,700, together with interest at the rate of 12 percent. A Supplemental Final Judgment was entered against Petitioner on August 24, 1989, requiring Petitioner to pay the Plaintiff an additional sum of $7,728.90 to reimburse her for her attorney's fees and costs. Because Petitioner was a real estate broker licensed in the State of Florida at the time, the matter, and those final judgments, were brought to the attention of the Florida Real Estate Commission. On February 20, 1990, the probable cause panel of the Commission determined that probable cause existed, and an Administrative Complaint against Petitioner was issued by the Department of Professional Regulation on February 22, 1990, alleging that Petitioner had also violated the law regulating his conduct as a licensed real estate broker by his conduct in the mortgage transaction involving Kandace Dimas. In order to resolve the issues raised in that Administrative Complaint, Petitioner and the Department of Professional Regulation entered into a Stipulation whereby Petitioner neither admitted nor denied the facts contained in the Administrative Complaint but agreed that the Commission should take the following disciplinary action against him: 7. The [Petitioner] shall be reprimanded, pay restitution in the amount of $5,000 and pay an administrative fine of $300, which fine shall be made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days from the date of filing of the Final Order. [Petitioner] shall also be placed on probation for a period of 1 year at which time the [Petitioner] shall complete a 45 hour salesman's course and work only as a salesman. If any of the above conditions are not met, the [Petitioner's] license shall be revoked. The Florida Real Estate Commission approved that Stipulation in a Final Order entered March 5, 1991. Over the next year, Petitioner continued with his licensed real estate activities. He did not pay the administrative fine. Petitioner made no effort to pay the required $5,000 as restitution and made no effort to take the required 45-hour salesman's course. At the time that the Final Order approving the Stipulation was entered, Petitioner was employed at Amber Realty, Inc., d/b/a Re/Max Dynamic, and he continued his employment there until June of 1991. He then became employed by Re/Max Dovesway Realty, Inc., where he worked until January of 1992. He then returned to Amber Realty and worked there until he was terminated on October 2, 1992. While Petitioner was employed performing licensed real estate activities, he was also employed in the mortgage business. He began working as a loan originator for Paragon Mortgage Company in late 1991 and was employed there until April or May of 1993. He was terminated from that employment for several reasons, one of which was the branch manager's belief that Petitioner was also operating an outside business selling time shares out of Paragon's offices. After Paragon, Petitioner was employed by First Financial of Boston in the mortgage business until the end of 1993. He is currently employed by Pakmail Centers of America with duties described vaguely as franchise development and working with new franchise applicants. By letter dated April 24, 1992, Respondent notified Petitioner of the imminent revocation of his license as follows: You were placed on probation in 1991 and ordered to submit proof of completion of a 45 hour salesman's course before April 5, 1992. This you have failed to do. Unless I receive proof within 10 days that you complied with the Florida Real Estate Commission's order, and paid the ordered restitution, your real estate license will be revoked forthwith. Petitioner did not respond to that letter/notice within 10 days. On May 11, 1992, Respondent received from Petitioner a "written request for an extension to complete my educational requirements for probation." That correspondence made no mention of the requirement for restitution. The Commission considered Petitioner's request on June 16, 1992, and entered an Order denying it. The Order specifically recited that Petitioner's probation expired March 5, 1992, that Petitioner's request for an extension was filed more than two months after the probationary period had ended, that Petitioner had failed to comply with the terms of the Stipulation, and that Petitioner had not paid the restitution or the administrative fine although Petitioner had alleged that he had enrolled in a course. Petitioner subsequently requested that the Commission reconsider its order denying his request to extend probation. That request came before the Commission on July 21, 1992, and was denied. The Order entered August 4, 1992, concluded that Petitioner had sufficient time to comply with the terms he had agreed to, that Petitioner had chosen to not comply with the requirements of his probation until after a year had passed, and that Petitioner had stated no grounds for extending his probation. On September 1, 1992, Petitioner filed with the Florida Real Estate Commission a Notice of Appeal of the August 4, 1992, Order. On May 19, 1993, that appeal was dismissed for lack of prosecution by the Fourth District Court of Appeal. On October 2, 1992, someone advised Stan Amber, the real estate broker employing Petitioner at that time, that a notice had been published in the Florida Association of Realtors magazine that Petitioner's real estate license had been revoked. Amber looked in the magazine and verified that information. He also called the Department of Professional Regulation and again received verification. Amber terminated Petitioner's employment that day. On October 29, 1992, Petitioner filed with Respondent an application for licensure as a real estate salesperson. Section (a) of question numbered 13 reads as follows: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending? Petitioner answered that question in the affirmative. In explanation of his affirmative answer to question numbered 13 (a), Petitioner wrote the following: I entered into a stipulated agreement in 1991 with FREC wherein I was to pay a 300.00 fine serve one year as a salesman only and take a 40 hr. cont. education course I complied with all of the above except taking the 40 hour course within the 1 year probationary period. I appealed to FREC for more time to take the course and was denied. My licence was revoked. I have been working since then as loan officer for PMC Mgt. I am now completing the entire 63 hour FREC I course and would like to apply to retake the state exam and get a new salesman's lic. I was told by the Chairman of FREC after the hearing that if I did take FREC I, state exam, and reapply for a new license, then I probably would be granted that new license as I will have completed more than the original requirement of my stipulated agreement. Petitioner's explanation is not truthful since it omits mention of the requirement that he make restitution in the amount of $5,000. Between April 5, 1992, and at least October 2, 1992, Petitioner engaged in real estate activities requiring licensure although his license had been revoked. During that time, Petitioner knew that he had not complied with the conditions of his probation and that his license had been revoked. It is not certain that Petitioner has refrained from engaging in real estate activities requiring licensure since October 2, 1992. By the time of the final hearing in this cause, Petitioner had still not attempted to make restitution as required by the Stipulation accepted by Respondent on March 5, 1991. In approximately May of 1990, Petitioner gave his attorney $500 to apply toward the final judgment Kandace Dimas had obtained against Petitioner. After some time, Petitioner authorized his attorney to apply that money to the outstanding fees Petitioner owed to his attorney instead. No other attempt has been made by Petitioner either to satisfy that final judgment or to pay the restitution amount ordered by the Florida Real Estate Commission. Instead, Petitioner has attempted to avoid his obligation to Dimas by filing for bankruptcy approximately a year ago. Between June or July 1991 and January 1992, while Petitioner was employed at Re/Max Dovesway, he obtained $10,000 from the broker at that office for some investment purpose. Although Petitioner repaid some of that money, he has not repaid all of it. When attempts to collect the money from Petitioner pursuant to the final judgment he had obtained proved too stressful, that broker "cancelled" the remaining approximate $2,000 that Petitioner still owed in order to rid himself of that source of stress. Petitioner has not demonstrated that he is of good character. He is not financially responsible and has not lived up to his legal obligations. He has demonstrated an unwillingness to comply with the licensure laws of a regulated profession. Petitioner has not demonstrated rehabilitation since the revocation of his real estate license. He continued engaging in activities requiring licensure. He has still made no attempt to live up to his agreement, which became a legal requirement, to pay $5,000 in restitution. Petitioner maintains that his real estate license was revoked and his application for relicensure was denied because of one single mistake that he made in 1985 relating to Kandace Dimas. Petitioner fails to acknowledge that his license was revoked and his application for a new license denied for his own failure to comply with the conditions of probation to which he had agreed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 30th day of June, 1994, at Tallahassee, Florida. Hearings 1550 LINDA M. RIGOT Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- Hearings (904) 488-9675 Filed with the Clerk of the Division of Administrative this 30th day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-2115 Respondent's proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5-8 and 10-21 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Edward Scott Kies, pro se 2452 Northwest 98th Lane Coral Springs, Florida 33065 Steven D. Fieldman, Esquire Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
