Findings Of Fact Until December of 1974, respondent William W. Lambert did business as a general contractor under the corporate name of Lambert Enterprises, Inc. As qualifying agent for the corporation, he built homes, poured concrete, laid sod, and did other general contracting. During 1974, respondent was in the process of acquiring a sod farm, as well as being engaged in the general contracting business. Lambert Enterprises, Inc. dealt largely with other contractors. When The Commonwealth Corporation went bankrupt, other contractors, notably the Collins brothers, also ended up in bankruptcy, and unable to make good on outstanding obligations to Lambert Enterprises, Inc. Respondent caused a voluntary petition in bankruptcy to be filed on behalf of Lambert Enterprises, Inc., on November 22, 1974. At that time he held all the stock in Lambert Enterprises, Inc., and served both as president and as a member of the board of directors of the corporation. Respondent Lambert has never been interested in any other corporation that has been declared bankrupt, and has never gone into bankruptcy personally. Mr. William E. Wingate, an investigator for the Florida Construction Industry Licensing Board, checks bankruptcy records twice monthly. By looking through bankruptcy records, he has learned of ten to twelve bankruptcies, in the Northern District of Florida, involving contractors in the last two years. He may have missed some, but every time he finds out about a contractor's bankruptcy, he reports it to the Board's Jacksonville office. On July 31, 1975, he first learned of respondent's corporation's bankruptcy. He obtained certified copies of pertinent papers which he then forwarded to other Board staff in Jacksonville. After Lambert Enterprises, Inc. failed, respondent obtained a general contractor's license as an individual, which is currently in force. Since December of 1975, respondent has been employed by Century Construction, first in Tallahassee, then in Jacksonville, where he is now a project manager for the company. Permits for work performed by Century Corporation are not pulled on respondent's license. Respondent's financial condition is now stable, and he is financially sound.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent be reprimanded. DONE and ENTERED this 25th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry S. Sinoff, Esquire Blackstone Building, Suite 1010 Jacksonville, Florida 32202 Daniel J. Wiser, Esquire Post Office Box 10137 Tallahassee, Florida 32302 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board 1010 Blackstone Building Jacksonville, Florida 32202
Findings Of Fact Rule 21E-12.08, Florida Administrative Code, a rule of the Construction Industry Licensing Board, was adopted in compliance with the procedural requirements of Chapter 120, Florida Statutes. This rule was effective on January 6, 1980, and was amended on December 19, 1982. On or about January 19, 1983, an order of the Construction Industry Licensing Board imposed fines of $2,000 on each of the Petitioners. This order did not specify a time certain by which these fines were to be paid. This order was appealed, and on or about April 4, 1984, a Mandate was issued by the Fourth District Court of Appeal which affirmed the order. On or about April 12, 1984, the Executive Director of the Construction Industry Licensing Board hand-delivered to each of the Petitioners a letter dated April 12, 1984, which stated in part "You shall pay an administrative fine in the amount of $2,000 within 30 days to the Executive Director, Florida Construction Industry Licensing Board. " These fines have not been paid. Rule 21E-12.08, Florida Administrative Code, cites as authority therefor Sections 455.227(2) and 489.129(2), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988. Findings As To Case No. 90-1637 On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of $27,050.00 from a contractor to complete the home, she and her husband invested 466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00. Findings As To Case No. 90-1889 John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987. A permit was obtained for the Grillo/Chapman home under Respondent's license. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract. Findings As To Case No. 90-1890 Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a $100.00 down payment. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded. General Findings Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems. Respondent never supervised the financial aspects of Olympic. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed. DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE 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 October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637 The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner 1. Covered in Conclusions of Law. 2.-8. Adopted in Findings of Fact 1, 2, and 3. 4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively. 7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8, respectively. 13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified. Adopted in Findings of Fact 21 through 25. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14. Adopted in Findings of Fact 13 through 15. Adopted in Findings of Fact 16, but modified. Rulings of Proposed Findings of Fact Submitted by Respondent 1. Covered in Preliminary Statement. 2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively. 9. Adopted in Findings of Fact 19 and 20. 10.-11. Adopted in Findings of Fact 18 but modified. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 9. 16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified. Not material. Adopted in Finding of Fact 3, but modified. Not material. Copies furnished to: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Fred A. Ohlinger, Esquire P.O. Box 1007 Beverly Hills, FL 32665
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Cathy M. Sellers, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal with Prejudice, a copy of which is attached, and incorporated by reference, in this Order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Coconut Creek Automotive, LLC d/b/a Coconut Creek Subaru, be granted a license to sell motor vehicles manufactured by Subaru of America, Inc. (SUBA) at 4980 North State Road 7, Coconut Creek, (Broward County), Florida 33073, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 30, 2012 9:03 AM Division of Administrative Hearings DONE AND ORDERED this 30 thday of April, 2012, in Tallahassee, Leon County, Florida. Julie/Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 30¥h day of April, 2012. alini Vinayak, Dealer Wcense Administrator N NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: J. Gregory Humphries, Esquire Shutts and Bowen, LLP 300 South Orange Avenue, Suite 1000 Orlando, Florida 32801 Ed Appleby Coconut Creek Automotive, LLC 4980 North State Road 7 Coconut Creek, Florida 33073 J. Andrew Bertron, Esquire Nelson, Mullins, Riley, And Scarborough, LLP Suite 202 3600 Maclay Boulevard South Tallahassee, Florida 32312 Eric Scott Adams, Esquire Shutts and Bowen, LLP Suite 300 4301 West Boy Scout Boulevard Tampa, Florida 33607 Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(j) and (m), Florida Statutes (2004),1/ and, if so, what penalty should be imposed.
Findings Of Fact The Parties At all times relevant to this proceeding, Respondent was a certified general contractor, having been issued License No. CGC 1506043 by the Florida Construction Industry Licensing Board ("Board" or "Construction Industry Licensing Board") and was the primary qualifying agent for Rankor Corporation. The Board is the state agency charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. At all times relevant, Rankor Corporation was a contractor-qualified business in the State of Florida, having been issued License No. QB 26667. The officers of the Rankor Corporation were as follows: Tina M. Despin, president; Stephen Despin, Sr., executive vice president; Jerold S. Bakelman, vice president and treasurer; and Eldora Bakelman, secretary. The directors of the Rankor Corporation were Respondent, Mr. Bakelman and Mr. Despin. Jerold Bakelman was licensed as a financially responsible officer by the Board from August 27, 2003, to January 7, 2005. Mr. Bakelman's license number was FRO 711. Transactions Related to Longoria Property In December 2004, Antonia Longoria met with Tina Despin and Stephen Despin, Sr., about replacing the roof and performing other repairs at a house owned by Ms. Longoria located at 4716 Nottingham Drive, Ft. Myers, Florida ("Nottingham Drive house" or "Nottingham Drive property").2/ On or about December 7, 2004, Ms. Longoria entered into a contract with Rankor Corporation to remove and replace the roof and to make the other repairs at the Nottingham Drive house (hereinafter referred to as "Contract No. 1" or "December 7, 2004, Contract"). The cost for the scope of work in Contract No. 1, including the cost of obtaining permits was $32,690.00. Pursuant to the terms of the contract, one-third of the contract amount, $10,896.67, was due when the contract was signed; one-third of the contract amount was due when the trusses were delivered; $8,396.67 was due when the job was completed; and $2,500.00 was due after the final inspection of the job was completed. The December 7, 2004, Contract was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria. On or about December 7, 2004, Ms. Longoria paid Rankor Corporation, by personal check, a payment in the amount of $10,896.67 for the work to be done pursuant to Contract No. 1. Ms. Longoria made the check out to Rankor Corporation and gave it to Ms. Despin. On or about December 17, 2004, about ten days after Contract No. 1 was executed, Ms. Longoria entered into a second contract with Rankor Corporation to do additional work at the Nottingham Drive house (hereinafter referred to as "Contract No. 2" or "December 17, 2004, Contract"). Under the terms of the December 17, 2004, Contract, Rankor Corporation was required to relocate the entrance to the house from the side to the front of the house. The cost for the scope of work under this contract was $10,770.00, with payments to be made in three installments. Pursuant to the terms of Contract No. 2, one-third of the contract amount, $3,590.00, was due when the contract was signed; one-third was due when the trusses were delivered; and the remaining one-third was due upon completion of the project. Contract No. 2 was signed by Tina Despin on behalf of Rankor Corporation and by Ms. Longoria on or about December 17, 2004. Two days later, on or about December 19, 2004, Ms. Longoria paid Mr. Despin, Sr., by personal check, a payment in the amount of $3,590.00 for the project under this contract. The check was made out to "Stephen E. Despin" and not to Rankor Corporation. Ms. Longoria paid the $3,590.00 to Mr. Despin, Sr., as a representative of Rankor Corporation. The scope of work under both Contract No. 1 and Contract No. 2 required permits from the City of Ft. Myers Building Department before work could commence. However, after the two contracts were executed, Rankor Corporation never applied for the permits necessary to commence work under those contracts. At or near the end of January 2005, Ms. Longoria began calling Mr. Despin, Sr., to find out when he would begin the project at the Nottingham Drive house. After several unsuccessful attempts by Ms. Longoria to reach Mr. Despin, Sr., he returned her call in February or March, but Rankor Corporation never performed any of the work required under Contract No. 1 and Contract No. 2. No one from Rankor Corporation ever performed any work on Ms. Longoria's Nottingham Drive house. Notwithstanding its failure to perform any of the work required under the December 7, 2004, Contract and the December 17, 2004, Contract, Rankor Corporation did not return Ms. Longoria's two payments made pursuant to the terms of those contracts. The total of these two payments was $14,486.67. In or about March 2005, the City of Ft. Myers Code Enforcement unit posted a notice on the Nottingham Drive property advising Ms. Longoria that the subject property was in violation of the city code. The notice gave Ms. Longoria, as owner of the property, 30 days to have the repairs done to bring the house into compliance with the code. The violations cited in the notice were related to damages the Nottingham Drive house sustained from Hurricane Charlie. On or about April 19, 2005, Ms. Longoria entered into a contract with Roofmaster of South Florida, Inc. ("Roofmaster") to repair the roof at the Nottingham Drive house in order for the roof to be in compliance with the City of Ft. Myers code. The scope of work under the contract with Roofmaster was smaller than the scope of work under the December 7, 2004, Contract between Ms. Longoria and Rankor Corporation. The contact price for the project with Roofmaster was $9,500.00. In or about May 2005, Roofmaster commenced and completed work under its contract with Ms. Longoria. For this work, Ms. Longoria paid Roofmaster the contract price of $9,500.00. At no point in time until May 2005, the time at which Roofmaster commenced work under the contract with Ms. Longoria, did Ms. Longoria prevent Rankor Corporation from commencing and completing the work projects under the December 7, 2004, Contract and the December 17, 2004, Contract. Respondent's Attempts to be Removed as Qualifying Agent On January 5, 2005, Respondent wrote a letter to Mr. Bakelman memorializing Respondent's and Bakelman's conversation concerning Mr. Bakelman's decision to no longer serve as the financially responsible officer for Rankor Corporation. In the letter, Respondent recounted that during that conversation, he (Respondent) had "executed documents supplied by you [Bakelman] from the State of Florida Construction Industry Licensing Board releasing you [Bakelman] from said position with immediate effect." By letter dated January 5, 2005, Respondent forwarded a copy of his January 5, 2005 letter to Mr. Bakelman to the secretary of the Construction Industry Licensing Board in Tallahassee, Florida. Respondent requested that the letter be recorded and filed with pertinent information maintained by that office for "the business qualified by me [Respondent], known as Rankor Corporation. Apparently concerned about Mr. Bakelman's stepping down as Rankor Corporation's financially responsible officer, Respondent contacted the Department's Customer Service section on January 5, 2005, about the situation. At that time, a person in that section told Respondent that he should inform the company officers that they had an obligation to secure a new financially responsible officer, and if they did not, he was obligated either to act in that position or to terminate his position as qualifying representative. On January 7, 2005, Bakelman was properly removed as the financially responsible officer for Rankor Corporation and, thereby, ceased being the financially responsible officer for Rankor Corporation. Upon Mr. Bakelman's being properly removed as the financially responsible officer, Respondent, as the qualifying agent, became responsible for the duties and obligations related to Rankor Corporation's financial matters. By letter dated February 7, 2005, Respondent advised Stephen and Tina Despin (Stephen and Tina) that he was terminating his position as the primary qualifying agent for Rankor Corporation. In this letter, Respondent recounted a January 5, 2005, letter to the Despins in which he indicated that in light of Mr. Bakelman's resignation, he (Respondent) was requiring them to secure a financially responsible officer within two weeks. According to the letter, the reason Respondent was terminating his position with the company was that the Despins had failed to do so. In addition to advising the Despins that he was terminating his position as qualifying agent for Rankor Corporation, Respondent's letter provided the following: Pursuant to guidelines of CILB [Construction Industry Licensing Board], it is required that no new contracts or construction endeavors requiring the use of my license be undertaken, this includes, but is not limited to, the "pulling" of permits. Furthermore, my license number is to be removed form any signage or advertising immediately, which would serve to give the impression that Rankor is acting as a certified general contractor. The only work you are permitted to perform is to conclude projects already underway, and I was advised by the board [Construction Industry Licensing Board] that you should secure another qualifier as soon as possible. I will advise the local building departments of the change of status as well. Respondent sent the February 7, 2005, letter to the Despins by certified mail. According to the return receipt, Tina Despin signed for and received the letter on February 8, 2005. Respondent also sent a copy of his February 7, 2005, letter to the Despins to the Construction Industry Licensing Board. On February 7, 2005, Respondent sent a letter to the Board informing the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requesting the appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The letter provided, in relevant part, the following: Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Fl [sic] 32399 Re.: Termination of Acting as Qualifier for Rankor Corporation Dear Sirs or Mesdames: As per attached letter I with immediate effect remove myself as qualifier for Rankor Corporation, QB 26667[.] Please provide me with any forms required to effect completion of the same, this should not be considered in any manner a renunciation or modification of my termination as qualifier. This act is irrevocable and immediate. I am a certified General Contractor, [sic] [M]y license number is CGC 1506043. The "attached letter" referred to in Respondent's letter to the Board, quoted in paragraph 30, is Respondent's February 7, 2005, letter to the Despins. Larissa Vaughn has been the administrative assistant for the executive director of the Board since February 2005. As an administrative assistant, Ms. Vaughn is familiar with the licensure process for construction contractors. Ms. Vaughn testified that the Board never received Respondent's February 7, 2005, letter to the Board, which informed the Board of Respondent's termination as the primary qualifying agent for Rankor Corporation and requested that he be sent appropriate documents to be removed as the primary qualifying agent for Rankor Corporation. The reason the Board never received the letter is not clear. However, Ms. Vaughn testified that a letter, such as Respondent's February 7, 2005, letter to the Board, would not have necessarily been received. According to Ms. Vaughn, "[a] lot of letters like this are received and [when] there is a request for forms, it goes to our customer contact center." Ms. Vaughn testified that even if the Board had received Respondent's February 7, 2005, letter, that correspondence would not have been sufficient in itself to remove Respondent as the primary qualifying agent for Rankor Corporation. According to Ms. Vaughn, the Department requires that to be removed as the primary qualifying agent for a contractor-qualified business in the State of Florida, a licensed contractor must submit to the Board a properly completed change of status application. Ms. Vaughn testified that a change of status application can be requested and received from the Department by phone, e-mail, or internet.3/ On September 13, 2005, Respondent submitted a change of status application to the Board. Almost two years later, Respondent's change of status application remains open and has not been approved by the Board. Respondent's efforts to terminate his status as the qualifying agent for Rankor Corporation were unsuccessful for the reasons stated above. In this case, even if Respondent's February 7, 2005, letter had effectively terminated his status as qualifying agent, the fact remains that he was the qualifying agent in December 2004 when Rankor Corporation entered into the two contracts with Mrs. Longoria. Moreover, Respondent became responsible for Rankor Corporation's financial matters after Mr. Bakelman was properly released as the company's financially responsible officer. There is no evidence that Respondent has been previously cited for violations under Chapter 489, Florida Statutes. The total investigative costs of this case to Petitioner, excluding costs associated with any attorney's time, for Department Case No. 2005-028129 was $408.37 (four hundred eight dollars and thirty seven cents).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulations, Construction Industry Licensing Board, enter a final order: (1) finding that Respondent, Joseph D. Sloboda, violated Subsections 489.129(1)(j) and (m), Florida Statutes; (2) imposing a $1,000 fine for each violation; (3) requiring Respondent to make restitution to Antonia Longoria in the amount of $14,486.67; and (4) requiring Respondent to pay investigative costs associated with this case of $408.37. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of November, 2007.
The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting under license number CR C056639, based on violations of subsections 489.129(1)(h)(2), (m), (n), and (k), Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based on the evidence and the testimony of the witnesses presented and the entire record in this proceeding, the following facts are found. At all times pertinent to this proceeding, Respondent was a contractor, having been issued license number CR C056639, by the Florida Construction Industry Licensing Board on January 22, 1993. Respondent is the licensed qualifier for Accurate Development Inc., a Florida corporation. On or about December 23, 1994, the Respondent contracted with Joseph and Kathleen Hauser to construct a 2,000 square foot house on lot 15 of the Iroquois South Subdivision, (606) Jillotus Street in Merritt Island, Florida. The contract between Respondent and the Hausers was for the construction of a house only. The real estate upon which a house was to be built was already owned by the Hausers. The construction contract between the Hausers and Accurate Development was executed on December 23, 1994. Respondent presented the contract to the Hausers, who affixed their signatures to the contract first. They then gave the contract back to Respondent for his signature, whereupon he signed it and then he inserted the six percent commission provision in favor of Castle Real Estate. The contracted price for the construction was $147,800.00. The Hausers paid the Respondent $6,940.00 by check as a deposit when they signed the contract on December 23, 1994. The check was payable to Accurate Development. At no time during the transaction between Accurate Development and the Hausers did the Hausers meet a representative of Castle Real Estate in any capacity, nor were the Hausers ever represented by a real estate agent of their own choosing or one furnished by Accurate Development or Castle Real Estate. The Hausers did not discuss a six percent commission for the benefit of Castle Real Estate with the Respondent at any time prior to signing the contract, and they did not initial the six percent provision to approve it. But the Hausers did not object to the insertion of the commission at the time of the signing of the contract or at a later time. The check was endorsed and deposited by Accurate Development on December 23, 1994. On or about February 2, 1995, the construction contract was amended to increase the size of the house. Mr. And Mrs. Hauser applied for a construction loan in the amount of $150,750.00 from the Space Coast Credit Union in Melbourne, Florida. Upon approval of said loan, they paid Accurate Development an additional deposit of $6,940.00 on March 3, 1995. On or about March 3, 1995, the construction contract was revised to separate the construction contract from the spa contract with Aqua-Blue Pools to build a pool. On the date the construction loan was closed, a payment was made by Space Coast Credit Union directly to Castle Real Estate in the amount of $9,045.00 as a six percent commission on the construction contract between Accurate Development and the Hausers. This amount was shown on the closing statement, and no objection was raised by the Hausers. The Respondent was at all material times a director of and closely affiliated with Castle Real Estate. Respondent's spouse was the owner/broker of the real estate company. All of Accurate Development's sales went through Castle Real Estate who provided sales personnel at the Respondent's company's model homes. Respondent did not pull the permit to construct the Hauser's home. During several meetings between the Respondent and the Hausers in May and June 1995, Respondent informed the Hausers that he was having financial difficulties and cash flow problems. At that time, he asked the Hausers if they would pull the permit for the construction of their home or if they would become an owner/builder. Respondent stated that he did not have the money to pull the permit and begin construction. On May 26, 1995, at a meeting between Respondent and the Hausers, Respondent suggested that the Hausers become owner/builder or that they have their home built by Andy Barber, a general contractor and friend of the Respondent or that they take a second or third mortgage on other property that Respondent owned for the amount of the deposit. On or about June 10, 1995, the Hausers contacted Andy Barber about building their home, but he informed them that he was too busy and would not be able to build their house. The Hausers contracted with another builder (Gary Shaul) to build their house, and Mr. Shaul pulled the permit and constructed the house. On June 7, 1995, the Hausers asked the Respondent for an itemized list of what had been done with their up-front money. Respondent informed the Hausers that he had paid general bills. Respondent did not provide an itemized list of his expenses. On August 7, 1995, Mr. Hauser informed the Brevard County Building Department that Respondent was no longer their contractor. Respondent did not object to the Hausers' notice to the Brevard County Building Department that Gary Shaul of Shaul Builders would be constructing the Hausers' home. Respondent has not refunded any portion of the monies paid to him by the Hausers as deposits or the six percent commission paid to Castle Real Estate. Respondent is defending the disciplinary action against him by relying on paragraph 16 of the contract, a liquidated damages clause, to justify retaining the Hausers' deposit money. Paragraph 16 of the contract upon which the Respondent relies, provides in part that "In the event of Purchaser's default hereunder, contractor shall have the option to terminate this contract and retain all monies previously paid by purchaser as its liquidated damages upon five (5) days written notice to purchaser, or contractor may sue for damages or pursue any other legal remedy it may have." Respondent never notified the Hausers in writing that he considered them to be in breach of their contract with him and that he therefore intended to retain the $13,880 deposit they had paid. The Hausers were ready, willing and able to live up to their contract responsibilities. Respondent abandoned the Hausers' job without just cause causing them financial harm.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating subsections 489.129(1)(h)(2), (k), (m) and (n), Florida Statutes; it is FURTHER RECOMMENDED that the Board impose an administrative fine in the amount of $6,500, require Respondent to make restitution to the Hausers in the amount of $13,880, require Respondent to pay the costs incurred in the investigation and prosecution of this case, and that Respondent's license be SUSPENDED for five years. RECOMMENDED this 16th day of October, 1997, at Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Chaves, Esquire Department of Business and Professional Regulation Northwood Centre 1940 N. Monroe Street Suite 60 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997. Tallahassee, Florida 32399-0792 Robert E. Poindexter 2545 Burns Avenue Melbourne, Florida 32935 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the state of Florida, in particular Section 20.30, Florida Statutes; Chapters 120, 455 and 475, Florida Statutes and the rules promulgated in accordance with those statutes. Respondent is now and was at all times associated with this administrative complaint a licensed real estate broker in the state of Florida having been issued license number 0251002 under the authority of Chapter 475, Florida Statutes. Respondent's last license was issued as a real estate broker with the firm of Eastern Marketing, Inc. which is located at 17841 U.S. Highway 441, 3 Mount Dora, Florida 32757. RESPONDENT'S ROLE At the time of the hearing, Respondent had been involved in the real estate profession for approximately 18 years. This real estate practice has been exclusively in the state of Florida. In addition to being a real estate broker, Respondent is licensed as a general contractor in Florida and as a mortgage broker in the state. His general contractor's license is a certified license. At times relevant to this inquiry, Respondent was a real estate broker with Collins and Associates, Inc., a real estate brokerage firm. He also had affiliation with Collins Builders, Inc., a licensed general contracting firm. He was a one half owner in Tallahassee Properties, a Florida general partnership in which the other ownership was held by W. Ronnie Collins, Respondent's brother. All of these firms did business in Florida and particular as these firms are involved with the issues in dispute, they did business in Tallahassee, Florida. At times relevant to this inquiry, Respondent was involved in a sales promotion program which has been referred to as a trade-in program. In essence, this program was designed to allow persons who had purchased residences from a firm or through affiliated Collins companies to turn over the initial residence to Tallahassee Properties in exchange for a new home bought from Collins Builders, Inc. with the builder using the real estate services of Collins and Associates, Inc. to sell the new home. The house that was being traded was deeded to Respondent or one of the companies with which he was affiliated. In this case, the company with which Respondent was affiliated with which had property deeded to it was Ralco, Inc. Those persons who were trading one home for another had been solicited by Collins and Associates, Inc. as a realtor in an advertising program. No realtor was involved in making commissions associated with the closing that took place between the sellers who were trading in a home and Tallahassee Properties, Respondent and Ralco, Inc. with whom he was affiliated. This arrangement was designed to stimulate sales of the new home being purchased. The traded homes typically had mortgages. Tallahassee Properties not only took possession of the traded or exchanged homes but was responsible for the activities associated with the closing of the transaction, to include assumption and payment of mortgages associated with the exchanged property. As grantee on the deeds in the traded homes Respondent and Ralco, Inc. were also responsible for assumption and payments. As Respondent identified in his testimony, he and his brother W. Ronnie Collins; Collins and Associates, Inc.; Collins Builders, Inc. and Tallahassee Properties were anticipated as being the individuals to apply for the assumption of loans with the lending agencies who held the mortgages on the traded property. W. Ronnie Collins was also one of the names in the overall scheme in which the traded-in property could be placed as grantee. Approximately 80 homes were traded over a period of 6 or 7 years. The properties in dispute in this case were among them. Respondent had authorized Tallahassee Properties and in particular his brother W. Ronnie Collins as managing partner of that partnership, to place the properties in Respondent's name, W. Ronnie Collins' name or any of several companies affiliated with Respondent in furtherance of identifying a grantee that the mortgage holder would allow to assume the mortgage. Respondent's expectation was that Tallahassee Properties and the title company involved in the closing of the transaction associated with the traded property would facilitate the assumption arrangement with the mortgage holder. The title company used in the cases that are at issue here was Capital Abstract and Title, Inc. In the closings for the traded homes, which are at issue in this case, the evidence presented at hearing which may be relied upon for fact finding did not reveal what attempts were made to have the mortgage holders for the traded homes ultimately accept the substitution of Respondent, his brother or one of the companies with which he was affiliated as parties responsible for the existing mortgages on the traded properties. The reason which Respondent gave for allowing his brother, W. Ronnie Collins to act in his behalf in Tallahassee Properties was that he felt that it was impossible for him to involve himself in that business and its day to day process and at the same time be active in Collins and Associates, Inc. and Collins Builders, Inc. Therefore, he allowed W. Ronnie Collins to act for him in the business of Tallahassee Properties. This explanation has not been disputed and being tenable is credited as true. In accepting deeds related to the traded property, as will be described in the individual instances that follow, Respondent recognized that he had obligated himself to take the responsibility for assumption of and payment of the mortgage. Respondent has no direct knowledge of whether any of the trade-in transactions were followed up by gaining permission from the mortgage holder to allow someone other than the original mortgagor to become responsible for the mortgage payments. The contracts for obtaining the traded-in homes were executed by Tallahassee Properties. Nonetheless, as described, Respondent was given a deed to some of the properties purchased, to include properties in dispute here. Respondent never orally or in writing advised the sellers of the traded property that the routine mortgage payments associated with the traded property and the overall mortgage obligation would no longer be the responsibility of those sellers. In one of the cases which is at issue here involving the trade-in property of John M. and Jeanne B. Miller, Respondent stated that he received their traded property as grantee on the deed. In fact Ralco, Inc. was grantee. When asked about whether he had assumed the obligation for the mortgage that existed on that home, Respondent replied that he had assumed the loan. When asked if he explained the fact to that assumption to the Millers, he pointed out that he had never talked to the individuals. When asked if he had directed anyone in any of his companies or his real estate company in particular to explain the details of the transaction, Respondent pointed out that Collins and Associates, Inc. as realtor, and as a licensed broker had trained each associate to explain all of the rules and procedures associated with Fannie Mae, Freddie Mac, FHA, VA and HUD loans and that Respondent as the broker of those associates would expect that the associates would explain everything to the Millers. Whether the Millers were informed about such matters by Collins and Associates, Inc. employees was not proven. The traded in properties were rented, repaired and sold or kept in inventory by Tallahassee Properties. After purchase of the traded-in properties, Respondent's expectations as a partner in Tallahassee Properties was that the partnership would take possession of the properties and manage them and make payments on existing mortgages associated with any of those properties. Respondent believes that until the latter part of 1985 when he and some of his operations were involved in a Chapter 11 Federal Bankruptcy declaration, payments on the existing mortgages for traded properties were being made, in that had it not been so that he would have been notified. The record offers no proof that can be relied upon to satisfactorily corroborate or rebut this assumption on his part. The Chapter 11 bankruptcy proceeding was not caused by problems associated with the traded properties. Ralco, Inc. was not involved in the bankruptcy. Some of the traded properties in question were owned by Ralco as grantee. Although Ralco was not involved in the bankruptcy, it was unable to make payments because of the bankruptcy in that the houses in question had a negative cash flow and Respondent was unable to take funds from the bankruptcy court and place them with Ralco, Inc. to make the payments on mortgages that existed on the traded properties. Collins Builders, Inc. and Collins and Associates, Inc. were not involved in the closings of the traded property. Their involvement was with the new house being purchased following the trade. The closing associated with the new house under purchase was a separate closing and Collins and Associates, Inc. received a real estate commission for its participation. None of the exact details of the solicitation process by Collins and Associates, Inc. in which homeowners were encouraged to trade existing residences on other homes built by Collins Builders, Inc. were made known, so that it might be understood whether Collins and Associates, Inc. promised to make the attempt to have the lender accept a substitute for the original mortgagor on the mortgage indebtedness, to include the possibility of the outright release of the original mortgages from the debt obligation. Therefore, that solicitation process has no part to play in examining the issue of Respondent's conduct associated with the closings of the traded homes. In the latter part of 1985, following the filing of the petition under Chapter 11, Bankruptcy Laws, Respondent and Duval First Corporation with which he was affiliated were granted an order of relief on December 23, 1985 in Case Nos. 85-07179B and 85-07178C, respectively in the United States District Court, Northern District of Florida, Tallahassee Division. As part of the disposition in front of the bankruptcy court, the bankrupt estates and Real Estate Financing, Inc. agreed that the bankruptcy estates would surrender certain properties and the automatic stay in all expressed injunctions associated with those properties were lifted. The bankruptcy court held that pursuant to 11 U.S.C. 506, Real Estate Financing, Inc. would not be entitled to an unsecured claim against the bankrupt estates for debts secured by the lien on those properties. Those properties had been encumbered by a first mortgage in favor for Real Estate Financing, Inc. The Court found that the value of those properties was equal to or exceeded the debts secured by the mortgage lien of Real Estate Financing, Inc. as of the date of the Order for Relief. In that Order for Relief, Real Estate Financing, Inc. was allowed a secured claim for the full extent of the debt due as of the date of the Order for Relief plus interest accrued up to the extent of the value of each property and up to the date of November 18, 1986. The bankruptcy court did not hold that Real Estate Financing, Inc. was entitled to any unsecured claim for any pre-petition debt that was secured by the lien on its mortgages. Among the properties affected by this action were those properties of David Walsh, Troy Brewer, Sam Hinson, Harold C. Miller, Peter Hartman, and John Miller, all of whom are listed as individuals whose transactions with Respondent are found in the Administrative Complaint and about which Respondent is said to have violated the aforementioned disciplinary provisions of Chapter 475, Florida Statutes. By this arrangement in bankruptcy court, Respondent hoped to avoid the circumstance by which the mortgage was foreclosed leaving a deficiency against the original mortgagor/homeowner of the traded-in property which would in turn lead to some claim against the bankruptcy estates for the amount of the deficiency. Nonetheless, Real Estate Financing, Inc. proceeded to foreclose on its mortgages as subsequently discussed in commenting on the individual counts to the Administrative Complaint pertaining to individual homeowners. While the bankrupt estates would have preferred to deed back the property in lieu of foreclosure, it accepted the foreclosures given the protections to the bankrupt estates that have been identified in this discussion. It should also be mentioned that two of the accounts in the Administrative Complaint pertaining to Eric Larsen and Robert Aubin, to be discussed, were not part of this arrangement in the bankruptcy court associated with Real Estate Financing, Inc. At the closings on the traded homes in question some explanations about the mortgage assumptions were made by persons who may have been representing Tallahassee Properties or other Collins affiliates, but these persons are not clearly identified in the record as to their actual position with those organizations and how Respondent was accountable for their remarks. Those remarks will be discussed in the assessment of the individual counts that follow. Respondent, following the petition for bankruptcy in his own name and that of companies with which he was associated, wrote to advise homeowners who had traded in their homes about his perception of the homeowners' status following that bankruptcy. These letters were written on February 18, 1986 on stationary of the Respondent and were signed by him. In this correspondence, which is the same format in all instances, he would make reference to the date upon which the transaction closed at which time the homeowner deeded over the traded property to Respondent or a company with which he was affiliated. He described the existence of the prior mortgage to Real Estate Financing, Inc. with a loan number and the existence of the paragraph 17, "due on sale" clause and, according to the letter, that the loan was not paid off at the time of the closing and the assertion that the lender would not allow the assumption of that loan by Respondent or one of his companies. Again this record is silent on the subject of what attitude the lender held about this, or even the matter of whether an attempt was made to have the lender accept a new obligor. He described how the lender was not considering Respondent or his company as purchaser but that the original mortgagor was being considered. This was taken to mean that Respondent was trying to express that the lender was looking to the original mortgagor as a responsible entity on the mortgage. The letter described how Respondent or one of his companies had been renting and making payments since the time of closing until December 23, 1985 when declaration of the Petition in bankruptcy went forward. It described how the Respondent and his companies were unable to continue funding payments related to the mortgages on the traded property which was in the name of the homeowners who had traded the property. The letter went on to describe how the payments would be brought current until February 28, 1986. The letter is interpreted to suggest that beyond that point, the property would either be deeded back to the original owner or the lender would foreclose. The letter expressed a preference by Respondent that because, interpreting the letter again, there was no cash flow that he preferred to see the property deeded back to the original owner. The name Bobbie May was given as a contact person and a telephone number provided for the homeowners to call regarding the return of the property back to the original homeowner. The letter goes on to describe an apology from Respondent to the homeowners. Movaline Hill who was a property manager for Tallahassee Properties traded in homes, to include the homes in discussion in the Administrative Complaint, offered her testimony at hearing. The principal business of Tallahassee Properties as established in her testimony was to rent homes. Ms. Hill advertised the property for rent, collected the rent, made payments on existing mortgages on the homes, and took care of maintenance matters. Tallahassee Properties took the rent and put the payments in escrow. One of the homes that Ms. Hill was involved with had belonged to David Walsh. It was a traded home and she had discussed with Walsh getting payment cards or coupons for the mortgage that existed on the traded home. The mortgage company had sent these cards or coupons to Walsh and Hill desired to have them so that the payments on the mortgage could be made. In this connection, Hill wrote Walsh a letter. A copy of that letter may be found as Petitioner's Exhibit 20. It indicates enclosure of a recorded deed on the traded property of Mr. Walsh showing Respondent as having the title in his name. It further states that Mr. Walsh should sign and mail a pre-prepared letter to Real Estate Financing, Inc. telling that lender to change the mailing address and requesting new payment cards. The letter describes that Real Estate Financing, Inc. did not know that the title was no longer in Mr. Walsh's name and that the lender would not transfer the mortgage to anyone and asks Walsh not to send the copy of the deed to the Respondent to the lender. Emphasis is placed in this correspondence on not sending that information to the lender. Ms. Hill was not instructed by anyone to write the letter. The reason why Ms. Hill said that she put an indication in the letter that the transfer of the mortgage could not be done was based upon her assertion that she had been told this by the lender. What connection Respondent had with the letter, if any, was not established. The cards that she received from Mr. Walsh on coupons for payments would have his name struck over and Respondent's name placed on it and Hill would send the check to the mortgage company for payment of the mortgage. With Real Estate Financing, Inc., Ms. Hill was sending one or two checks per month that dealt with 15 or 20 mortgages. There would be a lump sum payment with account numbers and backup materials sent with the check. The backup materials would include the payment cards or coupons. During Ms. Hill's tenure with the Tallahassee Properties, she says that she kept the mortgage payments current. No evidence was presented to the contrary which is competent. From this it is found that mortgage payments were kept current for a period of time which is not specifically shown. She received no contact from the mortgage companies on the topic of any assumption packages for these loans being assumed. She did receive some coupon books with the Respondent's name affixed. Those latter circumstances were not shown to be associated with any of the traded properties that are at issue in this case. Charles O. Middleton testified at the hearing. He had worked in 1981, 1982 and up to September, 1983, with Capitol Abstract and Title, Inc. which served as a closing agent on traded properties that were picked up by Tallahassee Properties. His recollection of the events is that, as closing agent for the title company, he worked from a contract which identified the terms of the transaction. His recollection is that the transactions associated with a trade property and the new home being purchased after trade was handled together. This is in contrast to the understanding of those homeowners whose traded properties are the subject of this Administrative Complaint and Respondent. The explanation by those homeowners and Respondent that two separate closings were held, one for the traded property and one for the newly purchased property is accepted as factually correct. Middleton recalls that explanations were given by him as closing agent concerning the nature of the transaction to include the matters of the paragraph 17 "due on sale" clause. He describes this arrangement as involving an affidavit or hold harmless agreement that had to be signed. This included the initialing of the paragraphs within that agreement by the buyer and the seller. Again, none of the homeowners who sold traded property that is described in the Administrative Complaint recalls such explanations and documents and their recollection is deemed more creditable and is accepted in lieu of the comments by Mr. Middleton. Likewise, the document for purposes of explanation which was offered as Respondent's Exhibit 8 containing disclaimers about the paragraph 17, "due on sale" clause, while admitted, offers no insight into the nature of what the homeowners were told in the cases that are at issue here because it isn't the same form that Middleton recalls using in the transactions he participated in as closing agent and hasn't been shown to be a form used in any of the cases here. Middleton explained that in the transactions he was involved in, the homeowners were provided a copy of every document to be utilized in the closing and that the original documents had their pages turned while the copies for the homeowners were being examined at the same time. A brief explanation would be given about each document and the homeowners were asked if they wished to take some time to read the documents and to ask any questions. Middleton as closing agent would offer to answer questions or put them in touch with the lender and let the lender answer questions. In Middleton's estimation, it was the closing agent's responsibility to make sure that necessary documents were presented to the lenders in the assumption of the mortgage for the traded in property. Respondent had not instructed Middleton in any of the closings on the topic of what to do with closing documents that were used at the time of transaction. Middleton said that he was unable to produce any of the documents of explanation concerning the closings which he participated in for Capital Abstract and Title, Inc. because he has no access to those files. Middleton identified the fact that in a circumstance in which a home had a mortgage and an assumption was called for, an assumption packet would be customarily ordered at the time of the request for assistance in the closing, which he refers to as an order. Middleton identifies the fact that he is only vaguely familiar with the transactions that are at issue in this Administrative Complaint. He thinks he may have closed some of them but he has no specific recollection about that. As a consequence, he has no worthwhile knowledge of how many of those transactions had assumption packages completed. COUNT I Samuel Hinson, Jr. owned property in Arbor Hills which he had bought from Collins Builders, Inc. on June 30, 1982. This house was taken in trade for a house on Starmount. This Starmount home was also purchased from Collins Builders, Inc. and Collins and Associates, Inc. served as the real estate firm for the purchase of the new home as agent for the seller. Andrew Jackson Federal Savings financed the new purchase. The traded in home was sold to Tallahassee Properties with Capital Abstract and Title, Inc., serving as closing agent according to documents presented at hearing. Mr. Middleton did not appear for Capital Abstract at that closing. In the purchaser's closing statement, W. Ronnie Collins is shown as the representative for Tallahassee Properties. Two warranty deeds were made from Hinson in selling his Arbor Hill property. In deeding his Arbor Hill property on May 20, 1983, one of those went to the Respondent and the other to Tallahassee Properties. In both warranty deeds, the grantee promised to assume and pay an existing mortgage in favor of Real Estate Financing, Inc. The existing mortgage on the Arbor Hills property had the paragraph 17 clause which absent certain exceptions allowed Real Estate Financing, Inc. at its option to declare all sums secured by the mortgage to be immediately due and payable, if the property was sold or transferred without prior written consent from the lender. None of the exceptions pertained to this transaction between Hinson and either Respondent or Tallahassee Properties. The paragraph 17 clause also stated that the mortgage holder was considered to have waived its option to accelerate if prior to the sale or transfer, the mortgage holder reached agreement with the purchaser in writing that the credit of the purchaser was satisfactory to the mortgage holder, thus allowing the purchaser to become responsible for the mortgage. In that instance, interest payable on the sum secured by the mortgage would be at the rate requested by the mortgage holder. The mortgagor, Hinson, would be released from all obligations under the mortgage note if the purchaser was substituted on prior written approval. Hinson went into the transactions involving the sale of his Arbor Hill house and the purchase of the Starmount house with the impression that he had to sell the Arbor Hill house in order to purchase the Starmount house. This was his surmise. Money realized in the sale of the Arbor Hill house was used as a down payment for the Starmount home. Petitioner believed that he had an arrangement to purchase the Starmount home with Ralph Collins. In reality, he was purchasing the home from Collins Builders, Inc. with Collins and Associates, Inc. being the seller's broker. In Mr. Hinson's mind, Respondent and Collins Brothers, Inc. and the then Collins real estate firm through Century 21 were all the same. Going into the transaction, Hinson was not familiar with Tallahassee Properties and its business purpose. Respondent was at both closings, the closing to sell the Arbor Hill house and the closing to purchase the Starmount home. No one discussed the matter of the assumption of the mortgage associated with the Arbor Hills house during the course of the closing of that home. Hinson got the impression from events that Respondent had bought his Arbor Hills house and that everything was being paid off. This impression was not based upon anything Respondent said to him. Hinson, after the closings, requested his insurance company to write to First Alabama concerning the cancellation of his homeowners policy on Arbor Hills. His understanding was that the insurance company sent a letter to do this and that First Alabama sent back a letter saying that they needed certain information. That latter correspondence was then taken to the Respondent. Respondent, under those circumstances, stated to Hinson that it was a mistake and that he would handle it, but that it would take some time to get some of the paper work done. Respondent did not comment to Mr. Hinson on that occasion that he had not assumed the mortgage for the Arbor Hill property nor did he indicate that none of the companies with which he was affiliated had assumed the mortgage. Respondent made no comment whatsoever about assumption of the mortgage in this conversation shown by facts presented at hearing. Hinson then got a new payment book from First Alabama, which he received a couple of days after the insurance letter. This was taken to Respondent and Respondent said that he would take care of it, that it was just a mistake. Again, what was meant by this remark was not developed at hearing. Hinson got one of the February 18, 1986 letters from Respondent that has been referred to previously. Having received this correspondence, Hinson complained to the Tallahassee Board of Realtors. Out of the process of his complaint, Hinson met with Keith Kinderman, Respondent's counsel and the Respondent together with Eric Hoffman, counsel to Hinson. Respondent told Hinson he would help get information and that his counsel, Mr. Kinderman would help in getting some form of restitution and help clear Hinson's name and seek relief from the Capital Abstract and Title, Inc. who had closed the Arbor Hill home. In attempting to obtain a Visa credit card and a Sears credit card, Hinson has been denied that credit. The reason given for the denial is the circumstance associated with the Arbor Hills home and non-payment of the mortgage. The exact circumstance of the Arbor Hills property, concerning who holds it now was not proven at hearing by evidence that can be relied upon for fact finding. COUNT II David P. Walsh and Leila DeJarnette Walsh, his wife bought a home in Huntington Woods from Collins Builders, Inc. on December 23, 1981. This home was financed through Real Estate Financing, Inc. and carried a mortgage from that lender. The mortgage included a paragraph 17 whose language was the same as the Hinson home financed by Real Estate Financing, Inc. The Walshes traded in the Huntington Woods property for a home on Faversham Drive which was financed by Citizens and Southern Mortgage Company. Separate closings were conducted. One was for the sale of the Huntington Woods property with Respondent receiving a warranty deed for that property which property was to be taken over by Tallahassee Properties. The second closing was associated with the sale of the Faversham Drive property from Collins Builders, Inc. to the Walshes. In executing the warranty deed in favor of Respondent as grantee pertaining to the Huntington Woods property, a condition of the warranty deed was an agreement by the grantee to assume the mortgage held by Real Estate Financing, Inc. and pay Capital Abstract and Title, Inc. through some person other than Middleton was the closing agent at the transaction involving the sale of the Huntington Woods property, according to documents at the hearing. Both that sale and the purchase of the Faversham Drive property took place on March 30, 1983. The Walshes signed a document reference the escrow account held by Real Estate Financing, Inc. on its Huntington Woods property. There is no indication whether this was or was not signed by Tallahassee Properties or the Respondent and sent to the Real Estate Financing, Inc. pertaining to funds in the escrow account and insurance coverage being transferred from the Walshes to Tallahassee Properties or Respondent as contemplated by the form. The separate closing associated with the Faversham Drive property was done through Tallahassee Title Company. Respondent was at the closing associated with the homes. Mr. Walsh is not in a position to pay for mortgages on two homes. Mr. Walsh's understanding of the trade in of his Huntington Woods home for the Faversham Drive home was to the effect that he could buy a new home from the transaction and that he would no longer be liable for the traded home, that all paperwork would be taken care of. Some salesman involved in these transactions made these remarks to Mr. Walsh; however, he doesn't know who that person was. Consequently, it is not possible to attribute responsibility for those remarks to Respondent. Subsequent to the closings, the Walshes received correspondence purportedly from First Alabama having to do with Real Estate Financing, Inc.'s mortgage held on the Huntington Woods' property. This correspondence of April 4, 1983, by its terms, reminds the Walshes that the mortgage holder has received notification of cancellation of the homeowner's policy and that the Walshes were to provide insurance coverage at all times. What the real circumstances of the homeowners policy was is not proven by competent evidence. In connection with the transactions, Mr. Walsh describes that he felt that he was dealing with a reputable real estate broker and that they had his best interest in mind. He was not represented by counsel at the closings. Mr. Walsh received one of the February 18, 1986 letters from Respondent as previously described. Mr. Walsh hired a lawyer to try to address the situation of the Huntington Woods property without success in the endeavor. To his knowledge the Huntington Woods property has been foreclosed on. No proof which is competent has been presented in the hearing to describe the exact nature of the developments with the property. Nonetheless, Mr. Walsh has had problems receiving credit twice since that time. Before the situation with the property he had never had credit problems. Mr. Walsh was proceeding in these transactions on the basis on the belief that Tallahassee Properties and the Respondent were the same entities. COUNT III Troy A. Brewer and Tina J. Brewer, his wife purchased a home from Collins Builders, Inc. in Huntington Woods on December 30, 1981. This home was financed by Real Estate Financing, Inc. A mortgage was given by the Brewers in favor of Real Estate Financing, Inc. and it included a paragraph 17 assumption clause as described in the Hinson mortgage financed by that lender. On March 25, 1983, the Brewers traded their Huntington Woods property for a home on Faringdon Drive. The seller of the Faringdon Drive property was Collins Builders, Inc. In these transactions, the Huntington Woods property was deeded to Respondent with the provisor in the warranty deed that Respondent would assume and agree to pay for the mortgage in favor of Real Estate Financing, Inc. Mr. Brewer is not in a position to meet mortgage payments associated with two mortgages; one on the Huntington Woods property and one on the Faringdon Drive property. Therefore, he would not knowingly obligate himself to assume mortgages associated with both of those properties. In the transactions associated with the traded property and new home purchased, Mr. Brewer proceeded on the basis that the first home was being taken over by the Respondent and that the mortgage would be paid off after a month or so as a means for him to purchase the second home. What led him to believe this is not clear. Mr. Brewer's recollection is that he was told that everything would be taken care of and he would not have to worry about anything and there wouldn't be any problems about the house being traded and that he could stay in the home that he was selling until the new home had been built and that once built, all transactions would be taken care of. Both the traded property and the property being purchased were financed by Real Estate Financing, Inc. He was not represented by an attorney in these matters. Some undisclosed realtor had told Mr. Brewer he could have an attorney but that he really didn't need one. As shown in the testimony of Mr. Brewer given at hearing, he had spoken to Respondent at closing. He also had conversations with Jackie Collins whom he believed to be a representative of Respondent. Jackie Collins was understood by Mr. Brewer to be a realtor. Again, the exact nature of the affiliation of Jackie Collins to the Respondent or his companies was not established in this hearing. Mr. Brewer did state that at the closing he was told by Respondent that there would be no problems. The nature of that remark was not further developed under interrogation of the witness. Nor was the matter of Mr. Brewer's comment to the effect that he had questioned the fact that his first mortgage on the Huntington Woods home was not assumable and had made that question known at the closing, other than to state that in response "they" had assured him everything would be taken care of and he wouldn't have to worry about it. This was associated with some remarks to the effect that Mr. Brewer should not worry that "we" would take it all in and that "they" would transfer everything over and take it out of the Brewers' name, again not pursued as to who "they" and "we" were and whether Respondent was a "they" or "we" or was in attendance when a "they" or "we" made the comments if he was not a "they" or "we." On this subject, Mr. Brewer was of the understanding that the transfer of the mortgage from Mr. Brewer to Respondent had in fact been tentatively approved by Real Estate Financing, Inc. but this was not proven by competent proof either. Mr. Brewer received one of the February 8, 1986 letters from Respondent as previously described. He in turn composed a letter of complaint concerning the transactions associated with the traded property. The complaint is dated March 31, 1986 and is addressed "To whom it may concern". As a result of the non-payment of the Huntington Woods property, Mr. Brewer received a letter purportedly from First Alabama for Real Estate Financing, Inc. dated February 13, 1986 that indicated that payment for the mortgage in the Brewer property had not been paid in January and February, 1986 and under paragraph 18 of the mortgage, Mr. Brewer was being notified of the failure to make payments and the possibility of the pursuit of these delinquent payments through legal means. Whether the assertions in this unauthenticated hearsay document are true was not proven by competent evidence. Beyond that date, in an action in which Respondent and the Brewers were named as defendants, Federal National Mortgage Association by and through its agent Real Estate Financing, Inc. obtained a Summary Final Judgment of foreclosure on the Huntington Woods property on June 1, 1988. This points out that the Brewers were not released from the mortgage obligation as envisioned by paragraph 17. It does not address what attempts were made by Respondent or his companies to gain their release. As a result of the foreclosure, Mr. Brewer has had problems with his credit. Notwithstanding the foreclosure on the Huntington Woods property, there has been no deficiency judgment entered against Mr. Brewer, to his knowledge. COUNT V On November 30, 1983, Collins Company of Pensacola, Inc. conveyed property at Eldorado Drive in Pensacola, Florida to Harold C. Miller, Jr., a Collins employee. That property was subject to a mortgage from Real Estate Financing, Inc. which included a paragraph 17 as included in the facts pertaining to the Hinson transaction involving that lender. This house was purchased because of a transfer of Mr. Miller to Pensacola as a condition of his employment with the Collins Company. The Collins Company of Pensacola was responsible for paying the mortgages during that time frame. In conversation with Respondent, it was determined that Miller would buy the house and the Respondent would buy it back and in the interim, Mr. Miller would live rent free. On May 23, 1985, a quit claim deed was executed by Mr. Miller in favor of the Respondent returning possession of the Pensacola home. Because Respondent had told Mr. Miller that Respondent would make payments on this home, Mr. Miller did not make any payments. Mr. Miller speaks of a contract that was in writing and was involved in the closing on the Pensacola home when it was purchased and that there was a promise to assume the mortgage held by Real Estate Finance, Inc. This comment is made in a deposition of Mr. Miller which was entered as Exhibit 71 by the Petitioner. Whether this refers to an assumption by the Respondent or someone else is not clear. As pointed out by the deposition testimony, more importantly, this contract was not produced then and is not available now for consideration in the deliberation of this case. Mr. Miller bought another house from Collins Construction in Leon County which is at Foxcroft. At the time of the deposition it was occupied by Susan, Mr. Miller's wife. Real Estate Financing, Inc. sued the Respondent and Harold C. Miller, Jr. and Susan F. Miller, his wife, in a foreclosure associated with the Pensacola property and received a Final Judgement for foreclosure on May 11, 1988. This points out that the Millers were not released from the mortgage obligation. By the circumstances, Mr. Miller was persuaded that the Respondent would take care of the mortgage on the Pensacola home until it was paid off. What the payment history was on the mortgage prior to foreclosure has not been established in this record. In terms of any promises from Respondent about further obligations on the mortgage on the Pensacola home, Mr. Miller describes that Respondent never told him that he was relieved of that obligation or that he wasn't. Mr. Miller did not question the Respondent about this because he trusted him. COUNT VI On September 25, 1981, Collins Builders, Inc. sold a home to Peter A. Hartmann at Grantham Lane in Tallahassee, Florida. Mr. Hartmann borrowed money from Real Estate Financing, Inc. to purchase that home secured by a mortgage that included paragraph 17 the language of which is the same as in the Hinson transaction with Real Estate Financing, Inc. That property was subsequently deeded to Respondent on March 25, 1983. In the deed Respondent as grantee promises to assume and pay the Real Estate Financing, Inc. mortgage on the property. The Hartmann property upon which Real Estate Financing, Inc. held a mortgage was foreclosed upon in a suit by Federal National Mortgage Association by and through its agent Real Estate Financing, Inc. against Respondent and in Peter A. Hartmann. Action was taken by order of court on May 3, 1988 and the property sold on May 27, 1988 as evidenced by a Certificate of Sale from the Clerk of the Circuit Court, Second Judicial Court in and for Leon County, Florida. This points out that Mr. Hartmann was not released form the mortgage obligation. There is a potential for a deficiency judgement against Mr. Hartmann following that sale. The details of the Hartmann transaction were not presented at hearing through his testimony or anyone else. COUNT VII On April 22, 1982, Collins Builders, Inc., sold John A. Miller and Jeanne B. Miller, his wife, a home in Lakewood Estates. That home was secured by a mortgage in favor of Real Estate Financing, Inc. It contained a paragraph 17 which had the language set out in the Hinson transaction with Real Estate Financing, Inc. which has been described. The home at Lakewood Estates was traded for a home in Huntington Woods II. Those transactions took place on March 2, 1984, and on that date the Millers executed a deed to Ralco, Inc., one of Respondent's companies. The warranty deed contained language to the effect that Ralco, Inc. promised to pay on the mortgage held by Real Estate Financing, Inc. Bobbie G. May signed the contract for sales and purchase as representative of Ralco, Inc. The Huntington Woods II property that was bought by the Millers was bought from Collins Builders, Inc. with Bobbie G. May serving as representative for Collins Builders, Inc. in the contract for sale and purchase. The payments were not made as promised by Ralco, Inc. and Respondent sent the Millers one of the February 18, 1986 letters as previously described. Ultimately, Florida National Mortgage Association through Real Estate Financing, Inc. sued Ralco, Inc. and the Millers in foreclosure and obtained a summary Final Judgement of Foreclosure against those defendants. This points out that the Millers were not released from the mortgage obligation. This as with other foreclosures does not speak to attempts by Ralco, Inc. to be allowed to assume the mortgages in a novation. The property at Lakewood Estates which had been traded in was then sold June 28, 1988, as evidenced by a Certificate of Sale from the Clerk of the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida. That judgment against the Millers is shown on the credit report of John Henry Miller. Mrs. Miller understood that the mortgage payments on the traded home would be made until the property was sold by Ralco, Inc. Visits to the neighborhood where that traded home was found did not indicate any activities toward the sale by way of for sale signs. No one was living in the traded home at that time. The Millers were not represented by counsel during the course of the closings associated with the two homes. They were represented in the foreclosures suit. In reference to the credit circumstance of the Millers, in trying to buy a vehicle they had been denied credit once. They were eventually able to buy the vehicle. The Millers had been told when purchasing the initial home at Lakewood Estates that the reason for buying it would be the possibility of being able to trade for a larger home at some later date if needed. Again, it is not clear who made those statements to the Millers. On the day before the closing of the traded home, Mrs. Miller spoke with Sissie Collins whom she understood to be affiliated with Respondent or one of his companies. The record does not show what that affiliation would have been, if anything. In this conversation with Sissie Collins, Mrs. Miller pointed out to Ms. Collins that the loan with Real Estate Financing, Inc. was not assumable without qualifying. Moreover, Mrs. Miller believed that Respondent did not qualify for the loan and that it was not assumable unless he did. Sissie Collins stated that this was not a problem and that Real Estate Financing, Inc. or First Alabama allowed Respondent to assume a mortgage and make the payments until the property was sold and the mortgage was paid off and that Real Estate Financing, Inc. was fully aware of the circumstance. Whether this was true or not was not proven by competent evidence. What Respondent knew about these matters wasn't shown either. At the time of hearing, the Millers had not been called upon to pay any deficiencies associated with the foreclosure of their Lakewood Estates property. COUNT VIII Eric R. Larsen and Young Oak Larsen, his wife, purchased a home from a Collins Company in Huntington Woods Unit II. That house was eventually traded for a home in Cross Creek. The traded home was deeded to Respondent with the promise that Respondent would assume an existing mortgage on the Huntington Woods Unit II property which is owed to Andrew Jackson State Savings and Loan Association and make payments. The closing associated with the traded property took place on December 2, 1982. The new home was being purchased through the same lending institution as the traded home. The Larsens were not represented in the closings associated with the traded home and the purchased home. The closing of the traded home took place in offices of the Respondent's business. The second closing for the purchased home took place at the Andrew Jackson Federal Savings. When Mr. Larsen asked why the deed for his Huntington Woods II property was being made to the Respondent, he was told that it was to facilitate the assumption of the mortgage. By his remarks, Mr. Larsen is not clear on whether the Respondent attended the closing associated with the traded property. He does recall someone whose name is Chip who he thought was the real estate broker who worked with Respondent was at the closing. No further indication of who this man named Chip might be as to association with Respondent or his companies was shown in this record. The Larsens received a February 18, 1986 letter from Respondent as previously described, when the problems occurred about payments for the traded property, and at that time the mortgage was shown as being held by Colonial Mortgage Company. Mr. Larsen also received a letter on April 8, 1987, purportedly from Colonial Mortgage Company, which states that Mr. Larsen is not released from liability on the traded property and some comment about assumption packages having been sent on various dates and reminds Mr. Larsen that the loan could not be assumed without the prospective purchaser's credit having been approved. The letter describes other perceptions about the ability of the Respondent to take over responsibility for the mortgage on the traded property. All of the matters set out in this unauthenticated correspondence are hearsay and they cannot form the basis of fact-finding in terms of whether Respondent or his companies were ever allowed to assume the mortgage on the traded property. People who had a direct knowledge of the mortgage circumstance with Colonial Mortgage Company pertaining to this traded property as with other traded property on which a lender held mortgages and sent letters have not been presented to explain that circumstance by competent evidence. Likewise, the outcome of what has happened with the traded property in the Larsen transaction has not been proven by competent evidence. The explanation of the outcome with that property is hearsay which may not be used as a basis for fact finding. COUNT IX Robert R. and Patricia A. Aubin, husband and wife, traded property under the program which Respondent was affiliated with for taking in one residence and selling another. Mr. Aubin thought that this kind of transaction was common and that led to his telling his financing institution that the same builder was taking back the original home in order to build Mr. Aubin another house, thinking that this might simplify the transaction. In speaking to someone about the obligation to deal with the existing mortgage on the traded property, he identifies the person he was talking to as Ed Hines. Again, it is not clear what Mr. Hines' association was with the Respondent and his companies. The traded home was going to be given to Tallahassee Properties. Mr. Aubin was not certain of the arrangement Respondent had with his individual companies. Ultimately, there was a problem with the payments on the house that had been traded in. Respondent wrote the Aubins one of the February 18, 1986 letters reference the property at Huntington Woods Unit I. An arrangement was being made whereby Real Estate Financing, Inc. received $3,704.48 from Ralco, Inc. by a check of June 26, 1986. That check was issued after Ralco, Inc. conveyed the traded property back to the Aubins on June 17, 1986 and this resolved the problem for the Aubins.
Recommendation In consideration of the facts found and the conclusions of law reached, it RECOMMENDED: That a Final Order be entered which dismisses the Administrative Complaint. DONE and ENTERED this 20th day of October, 1989, at Tallahassee, Florida. CHARLES C. ADAMS, 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 20th day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3850 The following discussion is given concerning the proposed fact-finding offered by the parties. PETITIONER'S FACTS Paragraph 1 is utilized. Paragraph 2 is not necessary to the resolution of the dispute. Paragraph 3 is not necessary to the resolution of the dispute. 4-5. Paragraphs 4 and 5 are set out in the findings of fact. 6-10. Paragraphs 6-10 are subordinate to facts found. Paragraph 11 has not been proven. Paragraph 12 is correct in terms of Hinson's decision to convey the property; however, what Hinson was allowed to believe concerning the matter of assumption as it might show culpability on the part of the Respondent has not been proven. This matter set forth in paragraph 13 has not been proven. Paragraph 14 is not necessary to the resolution of the dispute. Paragraph 15 is not necessary to the resolution of the dispute. Paragraph 16 has not been proven as to any financial losses due to dishonest acts or false promises of the Respondent. Hinson was found to have been denied credit cards. The latter sentence in paragraph 16 is speculation and not fact. Paragraph 17 is subordinate to facts found. Paragraph 18 in the suggestion that the Respondent through his real estate office and salesmen made representations and promises to the Walshes was not proven in the sense that persons involved with the Walshes and the transaction to trade in the home were not sufficiently identified to understand how those persons were affiliated with the Respondent. Paragraph 19 is accepted as to the documents and promises by the Respondent. Again, what the association was of the other person identified as the salesman may have been is not clear in this transaction. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is not proven in the first sentence. The second sentence is subordinate to facts found. Paragraph 23 was not proven. Paragraph 24 is subordinate to facts found. Paragraph 25 is subordinate to facts found except in its suggestion that the Walshes had been deceived in the sense of the idea of the mortgage not having been assumed or attempts made to have it assumed. Paragraph 26 is contrary to facts found. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found except as it identifies the nature of the salesperson and what the affiliation was with Collins and Associates insufficient proof was made to show the true nature of the position of the salesperson in Collins and Associates, Inc., if any, and what Respondent had in mind and any instructions to this person who was reportedly the salesperson. Paragraph 29 is subordinate to facts found as to promises in the document system responsibilities of Respondent. Otherwise it is not accepted. Paragraph 30 is subordinate to facts found except as to its suggestion that deceit has been proven relating to the Respondent's attempts to have the mortgage assumed. Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found. Paragraph 33 is subordinate to facts found. Paragraph 34 is subordinate to facts found except as to the suggestion that this problem of the foreclosure dissolved the marriage. Paragraph 35 in its first sentence is contrary to the Impression of the facts. There was a discussion and a decision reached to buy the house, whether Respondent was acting as a real estate broker individually or as a builder developer is unclear. Whether he made his employee buy the house or directed him to is not accepted as a fact. Paragraph 36 is subordinate to facts found. Paragraph 37 is subordinate to facts found. Paragraph 38 was not proven on the issue of whether Respondent applied for an assumption. The Final Judgment of closure was proven. Paragraph 39 is subordinate to facts found. Paragraph 40 is subordinate to facts found. Paragraph 41 is subordinate to facts found in a suggestion of an agreement to take over the Huntington Woods property. Reference to the allegations and the foreclosure petition are not necessary to the resolution of the dispute and do not constitute an explanation of how Respondent may have carried out his promise to take over responsibilities for the mortgage and the traded property which is the true issue. Likewise, paragraph 42 where it is acknowledged in that suit the agreement to assume the mortgage does not answer the issue of whether attempts were made to bring about that assumption. Paragraph 43 is subordinate to facts found. Paragraph 44 and its suggestion as to any intended action on the part of a mortgage insurer has not been proven by competent evidence. Paragraph 45 is subordinate to facts found. Paragraph 46 is subordinate to facts found. Paragraph 47 in the suggestion of activities by a salesperson of Collins and Associates has not been shown in terms of the affiliation with the Respondent's companies or with the Respondent in terms of the details of that affiliation sufficient to show that Respondent is culpable for any acts of his employees. Respondent through Ralco, Inc. had agreed to assume and pay for the existing mortgage on the traded property. Paragraph 48 is subordinate to facts found. Paragraph 49 is subordinate to facts found. Suggestion by counsel that Respondent's admission of 86 coincide with the fact finding in paragraph 50 is erroneous as is reference to page 11 in the transcript which speaks of the admissions. Paragraph 51 is subordinate to the facts found. Paragraph 52 is subordinate to the facts found with the exception that the Respondent was not shown to have been deceitful in saying that the mortgage had not been allowed for assumption in that no competent proof was offered as to the attitude of the lender concerning the assumption. Paragraph 53 is subordinate to the facts found. Paragraph 54 is correct in terms of the credit report on foreclosure, otherwise it is rejected as heresay. Paragraph 55 is inaccurate when it suggests that proof was made that Respondent did not take care of the assumption in the Larsen trade-in property. Paragraph 56 is subordinate to the facts found. Paragraph 57 constitutes legal argument. RESPONDENT'S FACTS 1-7. Paragraphs 1-7 are subordinate to facts found. The first sentence of Paragraph 8 is contrary to facts found. The remaining sentences within paragraph 8 are subordinate to facts found. Paragraph 9 is subordinate to facts found. In paragraph 10, Charles Middleton was not shown to have been the closing agent for Capital Abstract and Title, Inc. in the transactions which are at issue here. In paragraph 11, Respondent was responsible for applying for the mortgage assumptions but the proof was not made that he did not do so or that he did. Paragraph 12 is subordinate to the facts found. Paragraph 13 is subordinate to the facts found. Paragraph 14 is hearsay and may not form the basis of the fact finding. Paragraph 15 is hearsay and may not form the basis of the fact finding. Paragraph 16 is subordinate to the facts found. Paragraph 17 is subordinate to the facts found. Paragraph 18 is subordinate to the facts found. Paragraph 19 is subordinate to the fact found. Paragraph 20 is not accepted. Paragraph 21 is not accepted. Paragraph 22 is subordinate to the facts found. Paragraph 23 is not relevant. Paragraph 24 is the reputation of the Respondent is only relevant if culpability has been shown. It has not been. 25. Paragraph 25 is subordinate to facts found. Paragraph 26 is not accepted in terms of what position Chip Miller held and what capacity he was acting in when involved in the Hinson transaction as employee of Collins and Associates, or Tallahassee Properties or exactly what capacity. Paragraph 27 is subordinate to the facts found. Paragraph 28 is subordinate to the fact found. Paragraph 29 is heresay and not accepted. Paragraph 30 is contrary to the impression of the credit circumstance of Mr. Hinson. Whatever the current credit report may say, Mr. Hinson's credit had been hurt. Paragraph 31 is true. Paragraph 32 is subordinate to the facts found except for deprivation of credit. Paragraph 33 is not necessary to the resolution of dispute. Paragraph 34 is subordinate to facts found. Paragraph 35 is subordinate to facts found. Paragraph 36 is contrary to facts found. Paragraph 37 is contrary to facts found. Paragraph 38 is subordinate to facts found. Paragraph 39 is subordinate to facts found. Paragraph 40 is subordinate to facts found. Paragraph 41 is subordinate to facts found, except as to credit. Paragraph 42 is subordinate to facts found. Paragraph 43 is subordinate to facts found, except in its suggestion of what capacity Sissie Collins really served which is not established. Paragraph 44 is subordinate to facts found, except not proven that mortgage assumption tentatively approved. He did make representations as the mortgage grantee. Paragraph 46 is subordinate to the fact found. Paragraph 47 is subordinate to the facts found. Paragraph 48 is contrary to facts found. There is no paragraph 49. Paragraph 50 is subordinate to the facts found. Paragraph 51 is subordinate to the facts found, except as to credit. Paragraph 52 is subordinate to the facts found. 53.-55. Paragraphs 53-55 are subordinate to the facts found. Paragraph 56 is contrary to facts found. Paragraph 57 is subordinate. Paragraph 58 is not necessary to the resolution of the dispute. Paragraph 59 is subordinate to the facts found. 60.-62 Paragraphs 60-62 are subordinate to the facts found. 63.-64. Paragraphs 63-64 are subordinate to the facts found. Paragraph 65 is subordinate to facts found. Paragraph 66 is subordinate to the facts found. Paragraph 67 is subordinate to the facts found. Paragraph 68 is subordinate to the facts found. Paragraph 69 is subordinate to the facts found. Paragraph 70 is subordinate to the facts found. 71.-72. Paragraphs 71-72 are subordinate to the facts found. Paragraph 73 in the first sentence is subordinate to the facts found. The second sentence has to do with whether Andrew Jackson gave preliminary approval for the assumption of the mortgage on the traded property and is heresay not accepted. Paragraph 74 is not necessary to the resolution of the dispute. Paragraph 75 is subordinate to the facts found. 76.-77. Paragraphs 76 and 77 are accepted as true but are not needed. 78.-79. Paragraphs 78-79 are subordinate to the facts found. 80. In this instance and all that have discussed before, Respondent did make representations through the February 18, 1986 letters. 81-82. Paragraphs 81-82 are subordinate to facts found. 83. Paragraph 83 is subordinate to facts found. 84.-85. Paragraphs 84-85 are subordinate to facts found. Suggestion that the paragraph 86 relates back to initial paragraphs is acknowledged and accepted in the manner that has been described in the discussion at the paragraphs set forth in the proposed fact finding. Paragraph 87 is legal argument. COPIES FURNISHED: Darlene F. Keller, Executive Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 James H. Gillis, Esquire DPR-Division of Real Estate Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32817 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Eaton, Davis, Marks, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Keith Kinderman, Esquire 906 Thomasville Road Tallahassee, Florida 32303 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
