The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Professional Regulation's Division of Real Estate and the Florida Real Estate Commission were the state agencies in Florida responsible for the licensing of real estate professionals and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson under license number SL 0566467. Mr. Brennan was licensed in Florida as a salesperson in 1990, and his initial license expired on March 31, 1992. It was renewed on time and due to expire a second time on March 31, 1994. Consistent with Florida Real Estate Commission requirements, a real estate salesperson is required to complete no less than 14 hours of continuing professional education in the two years prior to license renewal. Of these, 11 hours of course work can be in a specialized area, but at least 3 of the 14 hours must consist of core law, legal information designed to update the salesperson on the changes to Commission rules and policies and changes in the law as it relates to the practice of real estate in the interim since the prior renewal. Licensees periodically are put on notice of the requirement for continuing education and what it must entail, and with or before application for renewal, must certify as to the taking, testing and passing of the required courses. If a licensee certified compliance with the continuing education requirement but, in fact, was not in compliance, that individual would be in violation of the Commission rules even if the required fees were paid. On January 27, 1994, Respondent applied for renewal of his salesperson's license which was due to expire on March 31, 1994. Along with his application for renewal, Respondent submitted his check for $68.50 made payable to the Department, and affirmed he had completed the required 14 hours of continuing education for the license period beginning April 1, 1994. The license was renewed. By letter dated June 15, 1995, Respondent was notified by Barbara Rohloff, a records supervisor for the Department, that his 1994 renewal application had been selected for audit. As a result of that audit it was determined that Respondent had completed the required 11 hours of specialty education and an additional 3 hours in "Agency: Choices, Challenges and Opportunities," also a specialty course but not approved for credit toward the required "core law" portion of the continuing education requirements. Therefore, though Respondent had completed 14 hours of continuing education as required, that 14 hours did not include the required 3 hours of core law. The 11 hours of specialty education Respondent took was course number 100 of the Realtors Institute Course and was approved by the Florida Association of Realtors. The 3 hour course was taken through the Coldwell Banker School of Real Estate in Sarasota in November 1993, and was also an approved course, but it did not meet the requirements for the 3 hour core law course. As a result of this discovery, a determination was made to charge Respondent with misconduct as alleged in the Administrative Complaint. Respondent contends he took the above-described courses in the misinformed opinion that by doing so he was meeting the Commission requirements. When he was first licensed, he was advised he must take and pass 14 hours of continuing education every two years. The 11 hour course was taken in 1991, in advance of the renewal period, upon the representation of the Century 21 instructor with whom the course was taken that was acceptable. When Respondent went to take that 11 hour course, along with his wife, also licensed as a real estate salesperson, a representative of the Sarasota Board of Realtors advised them that the 11 hour course was acceptable toward the continuing education requirements and that they would need an additional 3 hours. When the real estate brokerage with which the Brennans had placed their licenses was sold to another brokerage, Coldwell Banker, they moved their licences to the new brokerage and went to work with that firm. Coldwell Banker offered the 3 hour course which Respondent took and which has been determined not to be acceptable, and Respondent claims the representative of Coldwell Banker advised him, wrongly, it would appear, that the 3 hour course in issue would meet the Commission's requirements. Though this allegation is self- serving to the Respondent, it was not contradicted and is accepted. Respondent denies any intent to mislead or misrepresent. He gained no advantage by taking the instant 3 hour course over the required course. He saved no time or money, it would appear, and there appears to be no reason for him to have intentionally taken the wrong course or to mislead the Commission. Through all his post-audit communication with the Commission, he relates, he was never advised, in a way he understood, just what he should have done in place of what he did, until the day of the hearing when it was explained to him by Petitioner's counsel. Respondent now admits that he did not have the required hours in the correct course, but adamantly asserts he did not, at the time, know or understand what was the problem. That would appear to be the case, and it is so found. The Petitioner presented no evidence to demonstrate an intent to mislead or to misrepresent by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against the Respondent, Edward John Brennan. DONE and ENTERED this 3rd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32803-1900 Edward John Brennan 4114 Pro Am Avenue Bradenton, Florida 34203 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Petitioner's application to sit for the real estate appraiser trainee licensure examination should be granted or denied.
Findings Of Fact Respondent is the agency of the State of Florida responsible for regulating the practice of real estate appraising in Florida pursuant to Part II of Chapter 475, Florida Statutes (2003).2 The FREAB is a board created by Section 475.613, Florida Statutes, and is responsible for registering real estate appraiser trainees. Petitioner applied for registration as a real estate appraiser assistant by application dated June 7, 2002. Pursuant to Section 475.616, Florida Statutes, the successful completion of a licensure examination is a prerequisite to registration. Petitioner's application has properly been treated as an application to sit for the licensure examination that is a prerequisite for registration as a real estate appraiser trainee. Petitioner disclosed by his answer to a question on the application that he had entered a plea of nolo contendere to a charge of grand theft in March 2000. Petitioner's disclosed offense was a felony of the third degree. At Respondent's request, Petitioner provided Respondent details of the felony conviction by letter dated July 24, 2002. That letter stated, in pertinent part, as follows: I have been requested to provide details of and an explanation for the felony conviction disclosed on my application for licensing as an appraiser. I pleaded [sic] guilty in March 2000 in the Circuit Court of Broward County, Florida, to the Theft of Goods from Brands Mart in South Florida; these offenses were committed jointly with an employee of Brands Mart and involved an accounting fraud. I have never been an employee of Brands Mart. The Sentence [sic] was 5 years Probation [sic], which I am told, will terminate in September 2002 as there have been no breaches by me of my sentence and I intend to apply for the early termination of the sentence by September 2002. All civil restitution I was ordered to pay has been made to Brands Mart and all criminal penalties have been paid in full and all requirements complied with. . . . At its meeting held October 1, 2002, the FREAB discussed Petitioner's application and the fact that he had been convicted of a felony and when the conviction occurred. Petitioner did not attend this meeting, but he did provide the FREAB letters of recommendation on his behalf and a copy of his college diploma. The FREAB denied Petitioner's application following a discussion of his criminal record.3 The FREAB considered Petitioner's application for the second time at its meeting of February 4, 2003. Petitioner appeared at that meeting and answered questions from members of the FREAB as to his criminal history.4 The transcript of the February 4 meeting reflects that Petitioner informed the FREAB that he had stolen property from a Brands Mart store with assistance from an employee of the store. Petitioner received merchandise from the store employee at a loading dock without paying for the merchandise and later sold the merchandise. Petitioner told the FREAB that he was sentenced to five years' probation and ordered to pay restitution in the amount of $20,000.00. Petitioner also represented to the FREAB that he had made full restitution as ordered by the court and that the court had terminated his probation in November 2002. Petitioner represented that this was his first criminal offense and that he had learned from his mistake. Petitioner said that he knew at the time that he was wrong to commit the crime, but that he had been out of work and committed the crime to support his family. The FREAB voted to deny Petitioner's application5 at the conclusion of the proceeding conducted February 4.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FREAB enter a final order denying Petitioner's application. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 day of December, 2003.
Findings Of Fact § 57.111(3)(f) Fla. Stat. (2003) "state agency" DBPR meets the definition found within Section 120.52(1)(b)1, Florida Statutes (2003), as an "agency." § 57.111(3)(b)2. and 3., Fla. Stat. (2003) "initiated by a state agency" As reflected in the file related to DOAH Case No. 06- 3387PL, on August 6, 2003, the Florida Real Estate Appraisal Board in Florida Department of Business and Professional Regulation, Division of Real Estate, Petitioner vs. Victor Harrison, Respondent, FDBPR Case No. 2001-80524, charged Victor Harrison with violations of Chapter 475, Part II, Florida Statutes (2005), in his capacity as a certified real estate appraiser. This was action "initiated by a state agency." The Administrative Complaint was directed to Victor Harrison who held Certificate No. RH-119 issued by DBPR on November 18, 1996. On December 10, 2003, Harrison responded to the Administrative Complaint concerning his position on factual allegations alleging violations found in Counts I through V to the Administrative Complaint. This was treated as a request for formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005). On September 11, 2006, DOAH received the case from DBPR. On March 20, 2007, a formal hearing was held to consider the Administrative Complaint. On May 30, 2007, a Recommended Order was entered recommending that the case be dismissed. § 57.111(3)(c)1., Fla. Stat. (2003) "prevailing small business party" On October 18, 2007, the Division of Real Estate on behalf of the Real Estate Appraisal Board, in the case before DBPR, Florida Department of Business and Professional Regulation, Division of Real Estate, Petitioner, vs. Victor Harrison, Respondent, DBPR Case No. 2001-80524, by Final Order dismissed the Administrative Complaint. § 57.111(3)(d), Fla. Stat. (2003) "small business party" Harrison conducts his appraisal business as Gulf Coast Appraisals, a sole proprietorship. On August 6, 2003, when the Administrative Complaint was signed accusing him, Harrison operated as Gulf Coast Appraisals. At times relevant, he had no other employees and his net worth did not exceed two (2) million dollars. § 57.111(4)(b), Fla. Stat. (2003) "itemized affidavit" An itemized affidavit was submitted, as amended, to DOAH revealing the nature and extent of the services rendered by Harrison's attorney. In all respects concerning the proceeding, the parties agree that the total amount of attorney's fees and costs was $31,919.23. DBPR accepts the amount as reasonable and just, should Harrison prevail in his overall claims, that is should Harrison be found to be a "prevailing small business party," in a setting where it was decided that DBPR was not "substantially justified" in its actions pursuant to the Administrative Complaint in the underlying case. § 57.111(4)(b)2., Fla. Stat. (2003) "filing of the application" The application for attorney's fees and costs was filed on January 16, 2008. § 57.111(4)(d)1., Fla. Stat. (2003) "nominal party" When DBPR undertook its prosecution directed to Harrison, it was not acting as a nominal party. § 57.111(3)(e), Fla. Stat. (2003) "substantially justified" On January 9, 1997, Harrison rendered a Uniform Residential Appraisal Report on property at 693 Broad Street, Pensacola, Florida. Daniel A. Ryland, another real estate appraiser doing business in Pensacola, Florida, made a complaint against Harrison in relation to the appraisal report prepared by Harrison. On November 21, 2001, he was interviewed by Benjamin F. Clanton, an investigator with DBPR concerning the nature of his complaint. During the course of the interview, Ryland provided Clanton a completed Uniform Complaint Form outlining the concerns expressed by Ryland about the aforementioned appraisal at 693 Broad Street in Pensacola, Florida, performed by Harrison. In his remarks, Ryland, in great detail, explained why he thought the earlier appraisal by Harrison was questionable. In carrying out an investigation of the Ryland complaint, Clanton interviewed Harrison, Fred R. Catchpole, and Rhonda Guy, all persons involved with the January 9, 1997, appraisal, and all persons performing various functions as appraisers. Clanton interviewed others as well. He collected a number of exhibits concerning specific information about the appraisal and related data. All of this information was made part of an investigative report completed by Clanton on December 26, 2001, and approved by a supervisor, Sydney B. Miller, two days later. The predicate for the investigative report by Clanton came from Ryland's complaint, in which there was some allusion to a violation of Section 475.624(14), (15) and (17), Florida Statutes, on Harrison's part. In summary, the complaint addressed the contention that the January 9, 1997, appraisal on property at 693 Broad Street, Pensacola, Florida, overvalued the property in comparison with other properties thought to be superior in their value. As the table of contents associated with the Clanton investigative report describes, Respondent's Exhibit numbered 3, materials in association with the investigation numbered over 320 pages. On August 4, 2003, the Florida Real Estate Appraisal Probable Board meeting on probable cause was held. In the course of that meeting, the matter of Victor Harrison, referred to as item number 200180524 was considered by panel members, with Cynthia A. Wright, sitting as the chairperson, Clay Ketcham, and Mary Calloway, serving as the additional members. At the same time the cases involving Rhonda E. Guy and Fred R. Catchpole were under consideration. In the panel discussion, it was noted that Catchpole and Harrison were licensed real estate appraisers and Guy was a registered trainee appraiser. Discussion was made of the January 9, 1997, appraisal of the aforementioned residential property. Information was imparted concerning the method or approach in performing the appraisal and perceived failings in the process. In the discussion, generally stated, Respondent was charged " . . . with failure to exercise reasonable diligence in developing an appraisal, violating a standard for the development or communication of an appraisal, breach of trust in any business transaction." There was additional discussion that Harrison " . . . failed to produce or provide the data that he (Harrison) and Guy both relied upon in communicating and developing the appraisal." Further there was a discussion to the effect " . . . that Respondent Guy completed an inspection of the property without the assistance of Respondent Harrison. Respondent Harrison did not inspect the comparables until after the report was submitted." As a result, the discussion at the meeting went on to say ". . . we charge Respondent Harrison with failure to obtain records for at least five years, guilty of obstructing or hindering the enforcement of [sic] license law." Then the presenter stated, "We asked that you find probable cause and issue the filing of an Administrative Complaint in Case . . . 200180524, regarding Victor Harrison . . . ". Following the presentation concerning Harrison, the August 4, 2003, excerpt of the meeting indicates: CHAIRPERSON WRIGHT: Mr. Ketcham? MR. KETCHAM: Do you want to take up the first one, the Victor Harrison case first; is that the one we want to deal with. MS. WATKINS: Yes, sir, that's fine. MR. KETCHAM: Okay. I did not really have any questions and I wanted to make sure also we're charging them with failure to maintain records and that's because they didn't deliver a copy of the requested report. MR. SMITH: Yes. If that question is -- I'm sorry for misspeaking. But if that question is designed for me, yes, that's one of the reasons. MR. KETCHAM: Okay. Then I don't have any other questions. And after a complete review of the file, I would find probable cause and recommend the opening of an administrative complaint. CHAIRPERSON WRIGHT: Thank you, Mr. Ketcham. Ms. Calloway? Ms. CALLOWAY: Calloway here. After a complete review of the record I find probable cause recommend the filing of an administrative complaint on Victor Harrison. CHAIRPERSON WRIGHT: And after a complete review of the record I find probable cause and recommend an administrative complaint be filed on Mr. Harrison. (Whereupon, this concludes this portion of Florida Real Estate Appraisal Board Meeting, In Re: Victor Harrison.) The action by the probable cause panel led to the Administrative Complaint in Case No. 200180524 in relation to the January 9, 1997, appraisal report for the property at 693 Broad Street, Pensacola, Florida, for alleged misconduct referred to in the Administrative Complaint. Harrison was alleged to have violated Sections 475.624(2), (4), (14), and (15), and 475.626(1)(f), Florida Statutes, as follows: COUNT I Based upon the foregoing, Respondent is guilty of failure to retain records for at least five years of any contracts engaging the appraiser's services, appraisal reports, and supporting data assembled and formulated by the appraiser in preparing appraisal reports in violation of Section 475.629, Florida Statutes, and, therefore, in violation of Section 475.624(4), Florida Statutes. COUNT II Based upon the foregoing, Respondent is guilty of having failed to exercise reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. COUNT III Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice in violation of Section 475.624(14), Florida Statutes. COUNT IV Based upon the foregoing, Respondent is guilty of misrepresentation, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes. COUNT V Based upon the foregoing, Respondent is guilty of having obstructed or hindered in any manner the enforcement of Chapter 475, Florida Statutes or the performance of any lawful duty by any person acting under the authority of Chapter 475, Florida Statutes in violation of Section 475.626(1)(f), Florida Statutes. § 57.111(4)(a), Fla. Stat. (2003) "special circumstances" DBPR has made no argument and no evidence was presented by DBPR in this case, to show that special circumstances exist that would make the award of attorney's fees and costs unjust.
The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
