The Issue Whether Respondent is guilty of obtaining a license by means of fraud, misrepresentation or concealment, in violation of Section 475.25(1)(m), Florida Statutes (1995).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is and was at all times material to this proceeding a licensed Florida Real Estate Salesperson. He was issued licensed number 0625149 in accordance with Chapter 475, Florida Statutes. His license is currently inactive. On or about April 6, 1995, Respondent submitted an application for licensure as a Real Estate Salesperson. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of any other state, you are responsible for verifying the expungement or sealing prior to answering "NO". If you answered "Yes," attach details including dates and outcome, including sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records, Failure to answer this question accurately could cause denial of licensure. If you do not understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the "NO" box beside question number 9. Respondent then signed the "Affidavit of Applicant" which read above his signature: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and recollection permit, without any evasions or mental reservations whatsoever, that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. On or about July 6, 1989, Respondent, going by the name of Pablo Alfaro, pled no contest to misdemeanor "joyriding" in Case No. 93CM04225, in Santa Ana, California. Respondent admitted to pleading no contest to a "joyriding” charge. By letter dated August 27, 1997, addressed to Petitioner, Respondent's employer at the time, John Maizie, Executive Sales Director of Cypress Pointe Resort, wrote that Respondent was an ethical and valued employee.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's license should be revoked. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1998. COPIES FURNISHED: Laura McCarthy, Chief Deputy Attorney Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1772 Juan Bonitto 2851 Runyon Circle Orlando, Florida 32837-5214 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent violated Section 475.25(1)(a) and Section 475.25(3), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact Marvin Cohen is a registered real estate salesman. He was employed from September, 1975 until March, 1976, with Continental Marketing Services. The depositions of Mary Schmucker, Lawrence Hyer, and Eguene Leu were received without objection into the record. These depositions reveal that each of the deponents received a telephone call from a person identifying himself as Marvin Cohen. The caller represented that he was with Continental Marketing Services, a real estate sales organization. The caller sought a listing by the individual deponent's of property owned by them in the State of Florida with Continental Marketing Services. The caller represented that their property would be advertised nationally and overseas and could be sold at an amount greater than they had paid for it. No representations as to ready, willing and able purchasers were made to the deponents, nor was a guarantee of positive sale made. No representations were made by the deponents Hyer and Schmucker that had ever met Marvin Cohen or recognized his voice. Eugene Leu stated specifically that he had never met Cohen. The deponents all eventually listed their property with Continental Marketing Services and paid advance listing fees for between $325 and $350. No evidence was presented that the representations made by the caller were false, that Continental Marketing Services did not perform all services that it contracted to perform for the deponents, or that the Respondent Marvin Cohen had any knowledge of the calls, the representations made therein, or the business practices of Continental Marketing Services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken by the Florida Real Estate Commission against the registration of Marvin Cohen as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979. COPIES FURNISHED: Mark A. Grimes Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Marvin Cohen 1422 NW 196th Street Miami, Florida 33169 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= July 9, 1979 TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3154 - FREC vs. MARVIN COHEN 00158048 DOAH CASE NO. 77-1293 Pursuant to the Commission's Order of May 9, 1979, the Defendant's license is to be suspended for a period of 180 days, effective June 29, 1979. The suspension shall elapse on December 27, 1979. No appeal was taken. Mark A. Grimes Staff Attorney
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's Florida real estate license should be subjected to disciplinary sanctions based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salespersons and brokers licensed pursuant to the authority of Chapter 475, Florida Statutes, and rules promulgated pursuant thereto. The Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and related rules. The Respondent, Shirlee Jeanette Pearson, is and at all times material hereto, a licensed real estate salesperson, having been issued Florida license number 0389549, pursuant to Chapter 475, Florida Statutes. The last license issued was as a non-active salesperson with a home address of 6124 The Oaks Lane, Pensacola, Florida 32504-7361. On or about December 4, 1989, the Respondent entered into a Listing Agreement with Alexis Reginald Harris and Margaret Harris (hereinafter "Sellers"). The Listing Agreement was executed by the Sellers and the Respondent on behalf of Old South Properties, Inc. The Agreement allowed the Respondent to represent the Sellers in the prospective sale of their property to Michael Jones. Subsequent to showing the property to Mr. Jones, the Respondent presented the Sellers with a Contract for Sale and Purchase dated December 6, 1989. The Contract reflected an earnest money deposit of $500.00 to be held by Old South Properties, Inc. The Contract was dated December 6, 1989 and included a provision whereby Mr. Jones would obtain conventional financing. On or about December 19, 1989, the Contract was amended to allow for veterans administration financing. The Contract was amended on or about January 17, 1990 to provide for a cash sale. Before agreeing to the amendments to the Contract, the Sellers demanded an additional $2,500.00 earnest money deposit. The amended Contract was initialed by the Sellers and taken by the Respondent to the prospective purchaser, Mr. Jones. Mr. Jones initialed the changes, signifying agreement to them. The Contract, as amended, reflected an earnest money deposit in the total amount of $3,000.00 to be held by Old South Properties, Inc. The Contract was thus finalized and the Sellers vacated the property around the first of February, 1990 in anticipation of the closing of sale, which was scheduled for the end of February. The Respondent was aware that the Sellers had moved from the property in expectation of the sale. On or about February 25, 1990, the Respondent told the Sellers that she had never actually received the additional $2,500.00 earnest money deposit called for by the January 17, 1990 amendments to the Contract. This was the first time that the Sellers became aware that the earnest money deposit had not been received by the Respondent. When the Respondent advised them that she had not received the earnest money deposit, as provided for in the Contract, she assured them that the closing would still occur as scheduled on February 28, 1990. On February 28, 1990, the Sellers signed the necessary documents to close the sale and left town. The Respondent told the Sellers that Mr. Jones would sign the papers later on the same day. The Sellers left the keys to the house with their daughter, who would remain in town, upon their departure. The Sellers advised the Respondent that Mr. Jones could obtain the keys from their daughter when the closing documents had all been signed. Subsequent to February 28, 1990, the Sellers' daughter called and advised them that the sale had not closed. The Sellers thereafter retained an attorney, and a civil lawsuit was filed against Old South Properties, Inc. and the Respondent. The court in that case found that the Respondent had breached her fiduciary duty to the Sellers and awarded damages accordingly. Ron Giles ("Giles") was employed as vice president and sales manager of Old South Properties, Inc. at the time the Respondent was employed there as a sales associate. Sometime in February of 1990, the Respondent went to Giles and informed him that she had acknowledged receipt of a $3,000.00 earnest money deposit on the Harris/Jones Contract, but, in fact, had only received $500.00. Giles told the Respondent to immediately contact the Sellers and advise them that the $2,500.00 earnest money deposit had not been received. The Respondent showed Giles a $2,500.00 Promissory Note that she had obtained from Mr. Jones, representing the deposit amount that she had not actually received. Giles went to James Porter, the broker for Old South Properties, Inc., and advised him of the problem with the Harris/Jones Contract. Mr. Porter is now, and was at all times material to the allegations of the Complaint, the President of and the qualifying broker for Old South Properties, Inc. Mr. Porter hired the Respondent as a sales associate for Old South Properties, Inc. sometime in August of 1989. Upon learning of the problem with the Harris/Jones transaction, Mr. Porter had a meeting with the Respondent; and the Respondent admitted to Mr. Porter that she had not informed the Sellers that she had not received the $2,500.00 additional earnest money deposit called for by the amended Contract. When the transaction failed to close, Mr. Porter made efforts to resolve the Sellers' complaint, but was unsuccessful; and the lawsuit ensued. The Sellers were awarded damages by the court, and Mr. Porter paid the Final Judgment entered against Old South Properties, Inc. and the Respondent. The Respondent then agreed to pay Mr. Porter back for the funds he expended in satisfying the judgment; however, the Respondent never actually paid Mr. Porter.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, recommended that the Respondent be found guilty of having violated Subsection 475.25(1)(b), Florida Statutes, as charged in the Administrative Complaint, by being guilty of culpable negligence, that the Respondent's real estate license be suspended for a period of three (3) years, and that the Respondent be required to pay an administrative fine in the amount of $1,000.00. RECOMMENDED this 1st day of July, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 1st day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4932 Petitioner's Proposed Findings of Fact 1-28. Accepted. COPIES FURNISHED: Darlene F. Keller, Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack L. McRay, Esq. General Counsel Department of Professional Regulation 1940 North Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Janine B. Myrick, Esq. Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Ms. Shirlee Jeanette Pearson 6125 The Oaks Lane Pensacola, FL 32504-7361
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating the practice of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included in those duties and enforcement authorities is the duty to investigate conduct by realtors allegedly in violation of Chapter 475, and related rules, and prosecuting administrative proceedings filed as a result of such investigations in order to seek imposition of disciplinary measures against the licensure status of miscreant realtors. The Respondents, at all times pertinent hereto, were licensed real estate brokers or salesmen in the State of Florida, having been issued the license numbers depicted in the Administrative Complaint. Respondent Hurbanis last was issued a license as a broker/salesman located at Sanibel Realty, Inc., Sanibel, Florida. Respondent Pauline Seely was last licensed as a broker/salesman located at VIP Realty Group, Sanibel, Florida. Respondent John M. Parks was licensed as a broker/salesman, last issued for a location at The Realty Shoppe of Lee County in Fort Myers, Florida. Respondent Jean Maxwell was licensed as a broker/salesman located at Suite 205, 1619 Periwinkle Way, Sanibel, Florida. At all times pertinent hereto, the Respondents were licensed and operating in the real estate brokerage business in the employ of VIP Realty Group, Inc., a licensed corporate real estate broker. Concerning the charges in Count I, one Eric Rosen, a real estate salesman employed by VIP Realty Group, Inc., the same firm employing Respondent Pauline P. Seely, obtained Nicholas Fontana and John Priebbe as purchasers of a certain piece of property by sales contract which was owned by Clarence Liebscher and Joseph Kubosch. The sales contract was entered into June 3, 1983, and reflected a purchase price of $315,000, including the sale of certain furniture and other personal property. The complaint alleges that former Respondent Rosen and Respondent Hurbanis, together with the purchasers and sellers, conspired to enter into a second bogus sales contract (so called "double contracting") substantially similar to the first contract, except the sales price was shown to be $350,000 and the terms concerning sale of furniture and other personalty was deleted. It is alleged that this contract was prepared by Rosen under the direction and approval of Respondent Hurbanis for the purpose of obtaining a mortgage loan from a lending institution in an amount greater than the normal percentage of the sales price that the banking laws and policies of such lenders provide as the maximum amount of mortgage financing which can be obtained on a given piece of property. It is alleged that these Respondents were thus attempting to obtain a loan commitment in an amount greater than could have been obtained had the actual sales price of $315,000 been revealed to the lender. The bogus contract showing the $350,000 sales price was allegedly submitted to the lender, AmeriFirst Savings and Loan Association, without the Respondents notifying AmeriFirst that the actual sales price was $315,000. Although witness Rosen for the Petitioner, testified that he believed the contracts involved in this count had been discussed with Mr. Hurbanis he could not say for certain and could not recall the conversation. In fact, another Petitioner witness, Brandy Vallois, stated several times that Mr. Hurbanis was on vacation during the time that the contract was negotiated, executed and submitted to the lender and that, although Respondent Hurbanis was the office manager at VIP Realty Group at the time, others were serving in his stead at the time he was on vacation (the time of the incident alleged in Count I). Although the Department elicited testimony to the effect that seminars had been given where the Respondent, as well as other realtors, had discussed "creative financing," there was no testimony or other evidence that such lectures by the Respondent or others advocated a policy of "double contracting" or in effect deluding lenders into lending more money for real estate purchases than they normally would have if true purchase prices were disclosed. In any event, both the seller and buyer were aware of the situation concerning this transaction and the lender was never deceived or misled because in fact the loan never closed and no funds were disbursed. There was no evidence that the true particulars of this transaction were not disclosed to the lender. Count II Count II concerns a transaction in which Respondent John Parks was the listing and selling salesman and Respondent Hurbanis was the office manager with the same real estate firm. Allegedly, Respondent Hurbanis directed and approved Respondent Parks' preparation of two sales contracts on or about December 16, 1982, calling for the purchase and sale of certain real estate by Mike Volker from Dr. Robert Pascotto and Gaspar Turanna. Both contracts were similar and pertained to the same parcel of property, but one reflected an actual sales price of $149,000, whereas the allegedly bogus, second contract reflected a total sales price of $157,000. It is thus alleged that these two Respondents conspired with the purchasers and sellers to enter into the higher priced, bogus contract for the purpose of obtaining a mortgage loan commitment principal amount at a greater percentage of the sales price than could have been obtained if the actual sales price had been disclosed to the lender. It is alleged that these two Respondents submitted the bogus contract reflecting the $157,000 false sales price together with loan application documents to First Federal Savings and Loan Association of Fort Myers without informing that institution that the actual sales price was $149,000. No competent, substantial evidence was offered, however, to show that Respondent Parks was anything other than the listing salesman. It was not established that he drafted the contract nor that he submitted either contract to the lender. Concerning Respondent Hurbanis, although it was shown that he was the office manager at the time of the incident, it was not established that he directed or approved the drafting of either contract, directed or approved the submission of either contract to the named lender nor that he was involved in the negotiation or closing stage of the transaction in any way. In fact, although the two contracts show differing purchase prices, neither contract depicts any different amount to come from mortgage financing by First Federal. In fact, both contracts reflect that a mortgage would be obtained from First Federal in the amount of $125,600. Nothing any different was disclosed to First Federal. The difference comes in a differing deposit amount held in escrow by VIP Realty Group, Inc., according to the terms of the contract. One contract, that with the lower purchase price, reflects $7,000 in deposit money toward the purchase and the second contract reflects $15,000 deposit money held toward the purchase. This accounts for the $8,000 difference in the amount of the two contracts, but, in any event, the amount to be obtained by mortgage funds from First Federal was the same on each contract. There was no evidence to prove that the deposit amounts depicted on either contract were bogus or other than the result of bona fide arm's length negotiations between the parties. In any event, there was no evidence that First Federal or its lending officers were not aware of any of the particulars in the transaction. There was no showing that that the lender relied on either contract to its detriment. Count III Respondent Pauline Seely, as listing salesman and owner of certain real property, with former Respondent (since dismissed) James O'Neill as selling salesman, and allegedly with Respondent Charles Hurbanis' direction and approval, prepared and obtained execution of two sales contracts on or about December 30, 1982, for the purchase and sale of her real property by Thomas and Sheila Floyd. Both contracts were substantially similar and pertained to the same parcel, but one contract reflected an actual earnest money deposit of $8,660 and a purchase money mortgage in the amount of $24,000, whereas the supposed bogus, second contract reflected a total earnest money deposit of $14,000 and a purchase money mortgage in the principal amount of $18,660. It is alleged that the Respondents then submitted this to the lending institution for the purpose of obtaining a greater percentage of the sales price in mortgage funds than could have been obtained had the actual sales price, terms and conditions been revealed to the lender. In fact, testimony of record and Respondent Seely's Exhibit 2 reveals that the lender was furnished all documents with regard to this transaction which revealed to the lender, as the loan officer involved stated in the letter constituting this exhibit, that the buyers and the seller had agreed that the seller would take back a second mortgage in the amount of $24,000 and that a contract addendum existed (which is in evidence) reflecting this second agreement. Thus, AmeriFirst, the lender, did in fact have a copy of the agreement stating that the seller would hold the second mortgage for the above amount and that AmeriFirst was aware of all details concerning the transaction. In point of fact, both contracts in evidence, one of which reflects a purchase money mortgage of $18,660 which the seller would hold and which reflects that $7,000 would be paid in cash to the seller at the time of contracting, and the second contract, are identical as to purchase price. The second contract also shows a purchase price of $125,000, the difference being essentially that the second contract shows the $24,000 purchase money mortgage amount instead of the figure of $18,660 shown on the first contract. Both contracts merely call for assumption of a mortgage already made in favor of AmeriFirst in the amount of $92,340. There is no evidence that any additional funds are being sought from AmeriFirst at all. There was no evidence that any action by the Respondents would result in any impairment of the security of AmeriFirst's first mortgage lien on the premises. The purchase money mortgage referenced in the testimony and evidence, regardless of its ultimate amount as that relates to the manner in which the total purchase price would be paid the seller, would, in all events, be a subordinate mortgage lien and it is difficult to see how AmeriFirst could rely on either contract to its detriment, even had it not known of one of the contracts. They both represented a purchase price of $125,000 and merely varied as to ways the purchase price would be paid, over and above the $92,340 outstanding first mortgage loan (which was to be assumed). In all events, however, AmeriFirst and its lending officer was fully aware of all details of this transaction and had no objection to the manner in which the transaction was to be closed and disbursements made, nor to the conditions of the assumption of its mortgage. The so called "double contract" that Ms. Seely is alleged to have entered into was shown thus to be an innocent modification of terms of the original sales contract. No wrongdoing or concealment was shown to have been committed by Respondent or any person who participated in the sale of Pauline Seely's property to Thomas and Sheila Floyd. Count V Concerning Count V, it is alleged that Respondents Seely, Parks and Hurbanis obtained two sales contracts on or about January 24, 1983, for the purchase and sale of certain real property by Computer Maintenance Corporation, purchaser, from James and Loretta Cottrell as sellers. Both contracts pertain to the same piece of real property. Both contracts showed a "purchase price" item of $310,000. One contract, however, actually reflected a total price of $344,000, arrived at by combining a $279,000 "90 percent mortgage loan" with a $60,000 purchase money mortgage and a $5,000 cash deposit. This contract contains a notation at the bottom that the "seller agrees that a separate contract for purchase will be given to the Savings and Loan for loan approval." The other contract related to this sale lists a total purchase price of $310,000 only, with a $5,000 deposit noted with no purchase money mortgage being shown, rather there is shown, in addition to the $279,000 90 percent mortgage loan, a balance of $26,000 cash being paid to the seller. This contractual situation is somewhat mysterious and it may indeed be that an attempt was made to conceal the $60,000 purchase money mortgage on the first contract and make it appear to the lender that the purchaser was actually putting up an additional $26,000 in cash at the closing as an inducement to obtain the principal first mortgage of $279,000 from Naples Federal Savings and Loan, AmeriFirst or some other lender. In point of fact, however, the witness, Ms. Heavener, from AmeriFirst indicated that the bank did not act upon the advice contained on the face of the contract, but rather loaned a percentage of their own independent appraisal value and thus did not act to its detriment upon any information contained on the face of either contract. She indicated that that lender was fully informed about all aspects of this transaction in any event. The evidence does not reflect that Mr. Hurbanis nor Ms. Seely had any part in drafting the contract nor presenting it to the lender. Seely's only involvement was as listing agent, that is, the realtor who obtained the listing from the sellers. There is no evidence to indicate that she participated in any fashion in the sale of the property, the negotiations, nor the drafting or presenting of the contracts. No evidence was offered to show for what purpose, whether illicit or innocent, the two different contracts were drafted. In any event, Ms. Seely was not involved in the preparation of the contracts. Mr. Hurbanis was not connected by any competent, substantial evidence, with any activity concerning the drafting of the contracts nor the presenting of them to the lender. A representative of the lending institution testified that she did not recall any discussions at all with Mr. Hurbanis concerning this transaction and upon cross-examination clearly indicated that the lending institution had protected itself against a "double contract" situation by reliance upon its own independent appraisal in making its lending decision, rather than the contract or contracts themselves. Count VI In this count, it is alleged that Hurbanis obtained a sales contract on January 22, 1983, between T N T Partners, a general partnership as seller and Christopher Smith as purchaser. The pertinent terms of the sale were $30,000 total purchase price, $3,000 deposit and $4,500 cash to be allegedly furnished at closing, together with a $22,500 new note and mortgage on the property. It is alleged, in essence, that Respondent Hurbanis falsely represented to Naples Federal Savings and Loan Association that the purchaser would pay $4,500 cash at closing. The transaction closed on April 15, 1983, but instead of the cash, the seller took back a purchase money mortgage in the amount of $4,500. Thus, the issue here is whether the $4,500 mortgage was properly disclosed to the lender. The evidence is silent as to any connection of Mr. Hurbanis with this transaction. In any event, however, it would appear from the face of the contract itself that the lending institution could not have been deceived by the parties to the contract nor any realtor involved, since the contract itself does not require cash in the amount of $4,500 but rather requires "cash or equivalent at closing." Thus, even if there had been a participation by Respondent Hurbanis in this transaction, which was not proven, it is impossible to detect any concealment or deception since the words "or equivalent" would clearly not preclude the use of a purchase money mortgage in the amount of $4,500 as consideration for this portion of the purchase price, rather than actual cash. Indeed, any other thing of equivalent value could have been used as consideration in this particular without violating the terms of the contract, of which the lender clearly had notice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence of record, it is, therefore RECOMMENDED that the Administrative Complaint be dismissed in its entirety as to all Respondents. DONE and ORDERED this 7th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0140 Petitioner: Petitioner filed no Proposed Findings of Fact and Conclusions of Law. Respondent Hurbanis: The Proposed Findings of Fact by Respondent Hurbanis are subsumed in those made in this Recommended Order to the extent that that Respondent's submissions constitute bona fide Proposed Findings of Fact. In the main, the "Findings of Fact" in the Post-Hearing Submission by this Respondent constitute largely recitations of evidence and testimony, discussion of the weight thereof, inextricably intermingled with Proposed Findings of Fact which cannot be separately ruled upon because of multiple factual findings, legal argument and evidence discussion intertwined in the same paragraph. Respondents Maxwell's and Seely's Proposed Findings of Fact: 1-12. Accepted. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John P. Milligan, Jr., Esquire Suite 201, Royal Palm Square 1400 Colonial Boulevard Fort Myers, Florida 33907 Kenneth G. Oertel, Esquire Suite C 2700 Blair Stone Road Tallahassee, Florida 32301 Johnny W. Parks c/o The Realty Shoppe of Lee County 12635 Cleveland Avenue Fort Myers, Florida 33907 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact At all times relevant hereto, Allen Darrell Probus, Respondent, was licensed as a real estate salesman and was employed by Florida Westbay Corporation (Westbay). Prior to becoming licensed as a real estate salesman in Florida, Respondent was employed by Westbay to search out and purchase real property for Westbay. James Parker Waddle was the owner of Westbay and served as active broker for Westbay. When Probus became licensed, he was given the designation of sales manager for Westbay, authorized to sign documents on behalf of Westbay and directed to sign those documents as Vice President of Westbay. At no time was Probus officially made an officer in Westbay or a director of the corporation. Donald Miller deeded property located at 7235 Heath Drive, Port Richey, Florida, to Westbay Corporation on which Westbay took out a first mortgage and Miller accepted a second mortgage on the property. The mortgage note on this property was signed by Waddle. A Westbay salesman negotiated the contract to purchase from Miller and a contract to sell this Heath Drive property to Brian Goldbaum on a contract for deed. Respondent signed this latter contract on behalf of Westbay. Neither Goldbaum or Miller had any other contact with Respondent. In carrying out his part of the agreement, Goldbaum made monthly payments to Westbay; however, Westbay failed to make first mortgage payments or second mortgage payments. When Miller learned the bank was getting ready to foreclose on the first mortgage, he went to Goldbaum and advised him that he, Miller, was the owner and that if Goldbaum wanted to stay in the house he would have to make arrangements to pay Miller. When Goldbaum declined the offer, Miller, through his attorney, sent an eviction notice to Goldbaum. Miller subsequently obtained a default judgment against Westbay and Waddle (Exhibit 16) for damages for civil fraud. Respondent also signed a contract to sell Westbay property to Dorothy James and James Bradford (Exhibit 9). This document, too, was signed on behalf of Westbay by Probus, V.P. Probus also signed an agreement for deed as Westbay, V.P., agreeing to transfer property to Jones and Bradford after certain conditions were met. Respondent was licensed as a real estate broker in Kentucky from 1973 to 1988 with no record of disciplinary actions (Exhibit 11). James P. Waddle's affidavit (Exhibit 15) corroborates Respondent's testimony that Respondent was hired to hire, train and manage sales people and sign contracts as agent for Waddle. Further, this affidavit corroborates Respondent's testimony that he was not an officer or director of Westbay, and the title given him as Vice President was in name only to give Respondent more "clout".
Recommendation It is recommended that a Final Order be entered finding Allen Darrell Probus not guilty of all charges and dismissing the Administrative Complaint. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Florida. K. N. AYERS 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 13th day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Darlene F. Keller Division Director Post Office Box 1900 Orlando, FL 32801 Jack McRay General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399 Allen Darrell Probus 6701 Leeword Isle Way Tampa, FL 33615 Anthony Elgin, Qualified Rep. The Elgin Company 2155 NE Coachman Road Clearwater, FL 34625
Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
