The Issue At issue is whether Respondent committed the offense alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120.455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Ethan Gordon, is not now, nor has he ever been, licensed as a real estate broker or salesperson in the State of Florida. At some time prior to, and extending at least into November 1994, Respondent was employed by Mark Sclar, a licensed real estate broker, as a salesperson.1 During that period, Respondent, on one or more occasions, the frequency of which is not of record, offered the real property (apartments) of others for lease; procured lease agreements on such real property; and collected monies incidental to those lease agreements. When successful in renting a property, Respondent was accorded a commission by Mr. Sclar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Section 475.42(1)(a), Florida Statutes, and, therefore, Section 455.228(1), Florida Statutes, and which imposes an administrative penalty of $500 for such violation. DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998.
Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On or about March 6, 1986, a conditional use application was submitted by Dijan Development Company and Robert J. Wegiener to the City of Clearwater seeking to utilize the property at the above location specifically 2198 Coachman Road, alcoholic beverages, specifically liquor. The Petitioner already has an approved use for consumption of beer and wine on premises. The Petitioner will sell no alcohol for off-premises consumption. In essence, it seeks to change its present beverage license issued by the State of Florida from a "2-COP" to a "4-COP" which is the type of license which would authorize on-premises consumption of liquor in addition to beer and wine. It seeks the appropriate conditional use zoning approva1 so as to operate that state beverage license. The application was transmitted to the City clerk, the planning director, the City attorney, traffic engineer, the building director and to the police department for review and comment prior to the originally scheduled public hearing before the Planning and Zoning Board. Prior to that hearing, both the police department and the traffic engineer reviewed the application and noted that they had no objections and no reason to recommend a denial of the conditional use application on the basis of any traffic or law enforcement problems. At the public hearing of April 1, 1986, the Planning and Zoning Board was informed that the traffic engineer and the police department had no objection to approval of the application and that the Planning and Zoning Board staff, through its director, also recommended approval of the application. Mr. Wegienor appeared and testified on behalf of the Applicant/Petitioner and assured the board that the Petitioner would not engage in package store sales for off- premises consumption. After hearing from Mr. Wegiener, there being no opposition to the application, the board unanimously voted to approve the conditional use application for on-premises consumption of liquor only. It developed, however, that the notice of this April 1, 1986, hearing was faulty, such that the board elected to convene another public hearing on the subject of the application. At that public hearing, Mr. Wegiener appeared for the Applicant/Petitioner once again, reiterating his stipulation that no sales of alcoholic beverages for off- premises consumption would occur, and establishing that the alcoholic content of liquor drinks to be sold, if the conditional use is approved, would be no more than that of a glass of wine or a can of beer, which he is presently authorized to sell. He also demonstrated that his establishment had no history of fights or other forms of disorderly conduct by patrons, no traffic problems nor excessive vehicular noise or light glare emanating from the bar's parking lot or approaches. After hearing the vociferous complaints of the church representatives and several other citizens from the neighborhood, however, the board voted to deny the application and this appeal ensued. The Petitioner, at the instant hearing, established that his tavern is more than 500 feet from the nearest church. Five hundred feet from a church was the former standard for physical location of such establishments for zoning purposes. The current provision in Section 136.025 of the Land Development Code provides merely that such an establishment must be a reasonable distance from a church. In any event, the Applicant established that his "pub" is small, being only 750 square feet in area and is hidden from view of anyone not entering the plaza where it is located, in the shopping center. The Applicant can only seat a maximum of fifty people. His insurance coverage expense and risk rating will not increase merely because he would sell liquor by the drink rather than only beer and wine, which fact is indicative of the unlikelihood of any additional law enforcement or personal injury incidents occasioned by the change of use. He does not cater to a loud, raucous clientele. Rather, twenty-five percent of his business involves serving lunches and he sponsors a ladies' softball team in the Clearwater Recreation League. He sponsors and encourages husband and wife dart teams. It seems obvious that he and his wife run a small, fairly sedate, "neighborhood bar." He is merely trying to increase his profit by serving liquor, for which he can obtain more revenue, than by serving only beer and wine. No law enforcement problems have occurred in the history of the tavern's operation nor has it generated any traffic problems. The Petitioner will not expand its physical size so no additional traffic problems will likely be created by any increase in numbers of patrons. Since the on-premises consumption of liquor does not involve any more alcohol per drink than the consumption of beer and wine, the proposed change of use will not likely result in any increase in the number of drivers exiting the bar in an impaired condition, as that relates to the fears expressed by the members of the clergy who testified. The Petitioner will conduct no "double drink" or "happy hour" sales promotions. Several citizens living in the neighborhood and the pastors of two churches in the vicinity of the Petitioner's establishment appeared and voiced opposition to the grant of the conditional use. The church representatives primarily objected on moral grounds, that is, they based their opposition on their Christian belief that allowing the consumption of "hard liquor," especially in the near vicinity of their churches and church- related schools is morally wrong and will pose an adverse influence on young people attending their church programs and church schools. They also expressed their opposition in terms of traffic problems and resultant dangers to young people caused by customers leaving the tavern while under the influence of alcohol. The opposition of the several citizens of the neighborhood was predicated on their personal conviction that any consumption of alcohol is morally wrong and harmful. None demonstrated, however, that any of the feared harmful effects had already been occasioned their various interests by the fact that the Petitioner already sells beer and wine for on-premises consumption, which has about the same alcohol content as will the proposed liquor sales "by the drink." The Petitioner has stipulated that it will not expand the size or customer capacity of its establishment and will not conduct any "happy hour" sales promotions and the like. The property in question is located within the commercial zoning of the City of Clearwater (zoned CG). The sale of alcoholic beverages within that zoning is not one of the seven permitted uses enumerated in Section 135.122 of the Land Development Code. However, alcoholic beverage sales for consumption on the premises, as well as package sales, may be permitted as conditional uses if the use otherwise complies with Chapter 136 of the Code. See Section 135.123 and 135.124. Any change of location or change of designation of an alcoholic beverage sales conditional use, such as the change from beer and wine sales to liquor sales, must also obtain approval as a conditional use. Section 136.024(b), Land Development Code. Only those conditional uses which comply with the "general standards" and the "supplementary standards," by category of use, embodied in Section 136.025(b) and (c), may be authorized by the Planning and Zoning Board. Among the supplementary standards for a conditional use, such as that at bar, is that the use be a sufficient distance from churches, schools, hospitals, residences and like land uses so as to not adversely affect the use, enjoyment or value of such properties. Section 136.025(c)(1) and (2), Land Development Code. The general standards applicable to a conditional use encompass such factors as traffic, noise, parking, landscaping, screening, compatibility with surrounding uses and compliance with the land use plan. Section 136.025(b) (1-7). Since no expansion of the subject business is involved in this application, the considerations of acceptable ingress and egress from the site, the direction and glare of lights from motor vehicles and such considerations as landscaping and screening for purposes of diminishing noise and reducing glare and objectionable views are not truly at issue. The bar is already established and the traffic routes to and from the bar, its parking facilities, and the number of motor vehicles going to and from this establishment will essentially not change. Thus the "traffic" criterion is not really germane and will be met. Only the standards involving ."compatibility" and proximity to churches, etc. were truly at issue before the undersigned. The "hours of operation" consideration as to general standard number seven, (concerning "compatibility"), is the only portion of the seven general standards at issue. The additional supplementary standards for conditional uses involving consumption of alcohol require, in addition to compliance with the seven general standards contained in paragraph (b), that the use be sufficiently distant from churches, schools, and like land uses so as to not adversely affect the use, enjoyment or value of such properties. In this connection, the hours of operation will not change. The Petitioner has experienced no complaints from the churches and surrounding citizens regarding traffic, intoxicated patrons or other problems attendant to the operation of the bar in the present mode nor has the Clearwater Police Department. Further, in view of the stipulated conditions against "happy hour" sales, extended hours of operation, expansion of customer capacity, etc. the tavern's impact on its neighbors, including the churches, in the above particulars, will not increase. In essence, the tavern operation will not change in terms of its compatibility with the interests of the churches and other neighboring residents. Its operations will engender no additional traffic, noise or other nuisances or dangers on surrounding property owners or church goers. Although the former 500 foot standard governing location of taverns from the vicinity of churches and schools is no longer applicable, it is noteworthy in terms of the "reasonable distance" standard, that the location of the Petitioner's establishment is more than 500 feet from the churches who testified in opposition to the petition. The Roman Catholic Church, which owns property and conducts church activities immediately adjacent to the Petitioner's shopping center location, as well as the nearby Episcopal Church, expressed no opposition. These factors, taken with the above factors involving the lack of any additional elements of nuisance or risk which would be experienced by the churches and other opponents, demonstrates that the use proposed would still be sufficiently distant from churches, schools, hospitals, residences and like land uses so as not to affect their use, enjoyment or values. Thus, both general standard number seven and the supplemental standard at issue have been met.
The Issue The issue for determination in this case is whether the Respondent Wayne E. Belton violated Section s. 475.25(1)(b), Florida Statutes (1979), by inserting an option provision into a lease agreement without the specific authorization of the tenants and subsequent to the tenants signing the original agreement. At the hearing, Petitioner's Exhibits 1-10 were offered and admitted into evidence. Leslie and Glenn Strickland, the tenants and complainants, testified on behalf of the Petitioner. Wayne Belton testified on his own behalf. Proposed Recommended Orders have been submitted by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact The Respondent Wayne E. Belton is a licensed real estate broker with his principal place of business at 337 Northeast Second Avenue, Delray Beach, Florida. On or about November 23, 1979, the Respondent prepared a one-year rental agreement or lease for property located at 2717 Southwest Sixth Street, Delray Beach, Florida, which was owned by Mrs. Margaret Finlay. Mr. and Mrs. Glenn Strickland executed the agreement as the tenants. The lease was prepared pursuant to an open listing by the owner for either sale or lease. When the Stricklands signed the original agreement it did not contain any provision concerning purchasing the property in the future through an option agreement. Although the Stricklands had discussed an option agreement with the Respondent, they did not specifically agree to an option agreement which required the deposit of additional monies in escrow which would not be refunded if the option were not exercised. The owner of the property, Mrs. Finlay, was primarily interested in selling the property and demanded that Respondent obtain a binding option from the Stricklands. When faced with the conflicting demands of the tenants and the owner, the Respondent inserted an option provision in the lease agreement after the Stricklands had signed the original lease which did not contain such a provision. When the Stricklands failed to deliver the $1,500 option money required by the option provision, Mrs. Finlay, through her attorney, threatened to take legal action against the Respondent. In response to the owner's demand, the Respondent through his attorney, demanded that the Stricklands pay $1,500 for the option pursuant to the lease agreement. When the Stricklands received the demand letter from Respondent's counsel, they contacted an attorney who eventually settled the matter. The Stricklands were required to expend $138.00 in attorney's fees to correct the problem caused by the Respondent. The Respondent admitted inserting the option provision into the lease agreement after the Stricklands executed it, but denied acting with any intent to alter the agreement contrary to what he believed the parties intended. Rather, the Respondent believed that he was remedying his original omission to conform to what he believed the parties had orally agreed to.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner enter a final order finding that Respondent Wayne E. Belton violated Section 475.25(1)(b), Florida Statutes (1979) and imposing a reprimand and an administrative fine. DONE and ORDERED this 7th day of June, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Stephen G. Melcer, Esquire Suite 500 First Bank Building 551 Southeast Eighth Street Delray Beach, Florida 33444 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On April 16, 1986, in conjunction with the preparation of plans for widening Southside Boulevard (State Road 115) in Jacksonville, Florida, the Department recorded a Map of Reservation pursuant to Section 337.241(1), Florida Statutes, which encompassed a portion of the Petitioner's property. It was stipulated by the parties that the Department complied with the necessary notice, filing, and approval requirements of Section 337.241(1), Florida Statutes. The property in question is located in Jacksonville, adjacent to the east side of Southside Boulevard at the intersection of Hogan Road. It is zoned commercial, but there is currently no development on the east side of Southside Boulevard in the immediate vicinity of Hogan Road. The west side of Southside Boulevard is developed commercially for its entire length. This property consists of a tract of land approximately 892 feet long by 15 feet deep which lies adjacent to a strip of land approximately 100 feet deep which is immediately adjacent to Southside Boulevard. The Department determined that there existed a need to widen Southside Boulevard from a two lane highway to a four lane, limited access facility accompanied by two one-way, parallel service roads. In designing the widening of this highway, the Department determined that the minimum right-of-way corridor width for the facility should be 250 feet. This minimum width was established by using official rules and criteria established by the Department, as well as the Rules of the American Association of State Highway Officials and those of the Florida Department of Highway Safety and Motor Vehicles. Presently, the Department has a 200 foot wide right-of-way corridor. Because of the requirement for at least 250 feet of width, the Department needed to take steps to assure that the extra 50 feet would be available by use of a Map of Reservation. The Department determined that land should be reserved on the east side of the right-of-way corridor for the needed 50 feet because the east side of Southside Boulevard in the area in question is undeveloped, while the west side is substantially developed. This was an economic decision based upon an alignment of the right-of-way corridor that would have the least economic impact on the acquisition of the additional right-of-way. The Department did not place all of the Petitioner's property under the Map of Reservation. Only the 50 feet required for the widening project is affected by the regulation. The owner of the subject property is an individual, E. W. Mayhew, and a corporation, Beta Development Company, Inc. The property was purchased in 1982 for development as office/warehouse space. The Petitioner E. W. Mayhew knew that the property was affected by a Limited Access Line across the property, which was established by the Department in the 1960's, well before the Petitioner's purchase of this property. Despite the presence of this Limited Access Line, the Petitioner did not realize until 1984 that the Line informed potential buyers that direct access to Southside Boulevard from the subject property would be eliminated eventually. Although it spent more than $43,000 to develop plans to promote its property, the Petitioner had not applied to the City of Jacksonville for any of the permits that are required in order to build its proposed office/warehouse project by the time the Map of Reservation was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Final Order dismissing the Petition in this case. THIS Recommended Order entered on this 24th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1587 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-4. Accepted. 5.-16. Rejected, as irrelevant because the elements of reasonableness and arbitrariness were not proved. 17. Rejected, as not a proposed finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 Theresa M. Rooney, Esquire 1550 Florida Bank Tower Jacksonville, Florida 32202 Paul J. Martin, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Whether or not Respondent's real estate license should be disciplined, because, as alleged, Respondent is guilty of fraud, misrepresentation, concealment, false promises and pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction; failed to place a trust deposit with her employing broker and operated as a broker while licensed as a salesman in violation of Subsections 475.25(1)(b), and (k), Florida Statutes.
Findings Of Fact During times material hereto, Respondent, Barbara B. Wise, was a licensed real estate salesman in Florida, having been issued license number 0484022. The last license issued Respondent was as a salesman, c/o Grover Goheen Realty, Inc., at 414 Twelfth Avenue, North, St. Petersburg, Florida. During October 1988, Respondent, while licensed and operating as a salesman in the employ of her broker, Goheen Realty, Inc., solicited and obtained a lease listing agreement from Michael Riggins. As a result of that listing, Marsha Tenny contacted Respondent and requested assistance in obtaining a seasonal lease for the period January 1989 through April 30, 1989. Ms. Tenny made Respondent aware of her needs respecting a lease property to include wheelchair access as her husband was wheelchair bound. As a result of visiting approximately three available units, Respondent secured a seasonal lease from Michael Riggins for Marsha Tenny. The lease agreement for the Tenny's was the first rental listing that Respondent had obtained and it suffices to say that she was a novice in the area of securing lease agreements. Likewise, her employing broker did very little volume in rentals as her broker was of the opinion that the net commissions were not sufficient to defray the time and effort involved for several reasons including the limited availability of rental properties. As a result, her broker was unable to provide guidance. Pursuant to the aforementioned lease agreement, Respondent named several options by which Marsha Tenny could secure the apartment to include sending a personal check to her and after negotiating it she would in turn pay the rental fees directly to the landlord. Other options included Ms. Tenny sending separate checks to the landlord for the apartment and a check for the commission fees to her employing broker or she could deal directly with the landlord and remit a separate check to her employing broker for fees. Ms. Tenny elected to send a money order in the amount of $1,500.00 to Respondent. After she negotiated the check she received from Marsha Tenny, Respondent retained her commissions and did not pay her broker the pro-rata share that the broker was entitled to. Respondent did not inform her broker of the Riggins/Tenny lease agreement when she received the deposit from the Tennys on or about October 23, 1988. Respondent negotiated the Tenny's deposit check by depositing same into her personal account and drew a check in the amount of $1,100.00 as the rental deposit and remitted it to Mr. Riggins on October 2.1, 1988. Respondent retained the $400.00 balance as her fee. Respondent tendered her employing broker its portion of the commission fees ($174.00) on February 24, 1989. During early February 1989, the Tennys expressed dissatisfaction with the apartment and demanded a refund from Respondent. Respondent wrote the Tennys a letter of apology and submitted a money order to Marsha Tenny in the amount of $50.00 on February 3, 1989. (Petitioner's Exhibit 4.) As stated, Respondent was inexperienced with the rental business in Pinellas County. She was at the time undergoing other family problems, including tending to a sister in Orange County, Florida, who was very ill. At the time, Respondent commuted from Pinellas County to Orange County several times per week to visit with and assist her sister. Additionally, Respondent's office was being relocated and the staff was having to relay messages to her through her husband and other salesman employed with her broker. In addition to sending the Tennys a money order in the amount of $50.00, Respondent agreed to repay the Tennys the entire remaining balance of the finders fee that she received from the Riggins/Tenny leasing agreement as soon as she was financially able to do so. (Petitioner's Exhibit 4.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be issued a written reprimand and placed on probation for a period of one (1) year. During the probationary period, Respondent shall enroll in an approved post-licensure course and shall satisfactorily complete the same prior to termination of probation. DONE and ENTERED this 4th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of April, 1990. Steven W. Johnson, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barbara B. Wise 1059 42nd Avenue, N.E. St. Petersburg, Florida 33703 Darlene F. Keller, Executive Director Kenneth E. Easley, Esq. Division of Real Estate Department of Prof. Reg. 400 West Robinson Street 1940 North Monroe Street Post Office Box 1900 Suite 60 Orlando, Florida 32802 Tallahassee, FL 32399
The Issue The four count Administrative Complaint presents the following issues: Whether Mr. Burgess is guilty of concealment, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes (2007).2 Whether Mr. Burgess operated as a broker without being the holder of a valid and current license as a broker in violation of Section 475.42(1)(a), Florida Statutes and, therefore, in violation of Section 475.25(1)(e), Florida Statutes. Whether Mr. Burgess failed to ensure his brokerage corporation had a current registration with the Department in violation of Florida Administrative Code Rule 61J2-5.019, and, therefore, in violation of Section 475.25(1), Florida Statutes. Whether Mr. Burgess is failed to account or deliver to the Bells any property or assets which has come into his hands and is not his property and which he is not entitled to retain, in violation of Section 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Clear and convincing evidence establishes the following findings of fact: The parties agree that Mr. Burgess is now, and has been at all times material to this case, a Florida licensed real estate broker, holding license number 701456. Mr. Burgess's business relationship with Willis C. and Nell F. Bell (the Bells) began in 2002 and 2003. In those years he served as realtor in selling a duplex and buying a house located at 42 East Drive, North Miami Beach, Florida. Later the Bells paid Mr. Burgess $1,000 to assist with re-financing the house. In the following years, Mr. Burgess borrowed money from the Bells. The Bells knew little about real estate and the real estate business. They trusted and relied upon Mr. Burgess, and he knew that. Mr. Burgess entered into a contract with the Bells to sell a townhouse located at 648 Northeast Second Street, Homestead, Florida. The contract is titled “Exclusive Right of Sale Listing Agreement” and dated October 3, 2006. The contract identifies Mr. Burgess as an “Authorized Listing Associate or Broker.” It gives Mr. Burgess the exclusive right to sell the Bells’ property and obligated him to market and sell the property. The contract identifies the sale price as $310,000.00. The contract term is October 3, 2006 to April 3, 2007. The first sentence of the contract identifies the parties as the Bells (Sellers) and Mr. Burgess and World Realty (Brokers). Mr. Burgess signed it as “Authorized Listing Associate or Broker.” The signature area identifies the Brokerage Firm Name as Beachfront Realty, Inc. The Bells purchased the Homestead townhouse at Mr. Burgess’s urging. He convinced the Bells that buying the Homestead townhouse was a good real estate investment. Mr. Burgess also loaned the Bells $3,000 or $3,500 to help them purchase the property. Mr. Burgess did not succeed in finding buyers for the property. Mr. Burgess proposed to the Bells that they rent the property. He repeatedly offered to locate a tenant for them. For some time the Bells resisted the idea because of concerns about wear and tear and possible damage to a new townhouse. Finally they agreed. Mr. Burgess identified a tenant, Ms. Kenya Horne. He repeatedly told the Bells that Ms. Horne’s occupation and lease of the townhouse were dependent on approval to participate in a government rent support program. Mr. Burgess prepared and the Bells executed a lease with Ms. Horne for the period beginning October 8, 2007 and ending September 30, 2008. It provided for lease payments of $1,300.00 per month and a security deposit of $1,300.00. Mr. Burgess signed the lease as a witness. But the Bells told Mr. Burgess that they did not want Ms. Horne to take possession of the townhouse until they met and approved her. Mr. Burgess agreed. He repeatedly assured the Bells that he would not give Ms. Horne possession of the property until they had met and approved of her. Also Mr. Burgess repeatedly advised the Bells that Ms. Horne had not moved into the property because she could not obtain needed approval for rent assistance. These assurances were false. Despite his repeated assurances and statements, Mr. Burgess gave the tenant possession of the property. She lived there four or five months. During the same time period, while the tenant occupied the property, Mr. Burgess was telling the Bells that Ms. Horne had not obtained rent assistance and that renting the property to her was not going to work. He never told the Bells that the tenant moved in. And he never gave the Bells any rental payments or a deposit or made any arrangements for them to receive rental payments or a deposit. Uneasy about matters, the Bells traveled with Laurence Linder, a friend who was a real estate broker and insurance salesman, to Homestead to inspect the townhouse. They found that the property had been occupied and damaged. The damage included holes in several walls and fire damage in the kitchen. The stove and microwave were destroyed. The carpet was damaged. The Bells called Mr. Burgess from the townhouse and asked him how the property was. Mr. Burgess did not know that the Bells were at the townhouse. He told them it was in fine shape. When the Bells told Mr. Burgess that they were in the townhouse, he broke down and cried and admitted he had let somebody live there without telling them. When the Bells confronted Mr. Burgess with his actions and the damage, Mr. Burgess admitted deceiving the Bells about the tenant and her occupation of the townhouse. He promised to make restitution for the damage. Mr. Burgess signed a document titled Remedy of Rental. In it he agreed to do the following: Pay the City of Homestead’s final outstanding utility bill of $1,700 on or before March 14, 2008. Pay the Bells $4,600 to repair damage and an additional $2,000. Pay the Bells $5,200.00, the rental amount from October 2007 to January 2008, on or before April 11, 2008. Pay all amounts by certified or cashiers check. Mr. Burgess did not make any of the payments agreed to in the Remedy of Rental.
The Issue The issue is whether Petitioner's request for nonconforming status on his property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts filed by the parties, the following findings of fact are determined: Mr. Mayhew resides in Hawthorne, which is located in the southeastern portion of Alachua County (County). (Some papers filed in this case identify his residence as being in Cross Creek, rather than Hawthorne, but with the same street address.) Since November 1998, he has owned property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida. More specifically, the property is in an older, single-family residential neighborhood known as Florida Park which is located several blocks west of U.S. Highway 441, which runs in a north-south direction through the City, and approximately one-quarter mile north of Northwest 8th Avenue. In broader geographical terms, the property is located around one mile north of the University of Florida campus. There are two structures (or units) on Petitioner's property. One is a three-bedroom, two-bath dwelling constructed by the original owner (Mr. Gainous) in 1949, who occupied that dwelling with his wife. That unit's address is listed on the County Property Appraiser's records as 1607 Northwest 12th Road. The second structure, a two-bedroom, one-bath dwelling (also referred to as a "cottage"), was built by Mr. Gainous in 1957, and was apparently used primarily as rental property by the owner. The address of the second unit on the Property Appraiser's records is 1607 1/2 Northwest 12th Road. Separate gas meters and a single water line and electric meter serve the two units. (Although the two units are given separate street addresses by the Property Appraiser, only one tax bill is issued by the County Tax Collector.) When these structures were built, the County did not issue building permits. The property was in the unincorporated area of the County until 1961, when the City annexed the property. In 1964, the City adopted its first zoning plan and placed the property in what was then known as the Single-Family Residential (R-1a) zoning district. This category was used since the property was "closely consistent" with that zoning classification. A few years later, the property was rezoned to the Residential Single-Family zoning district (RSF-1), which apparently replaced the R-1a zoning district, and it still remains in that zoning classification. Under current zoning regulations, unless a property has "legal" nonconforming status, two family dwellings are not permitted in the RSF-1 zoning district. However, if a structure and use of land was in existence before the City annexed the property and adopted its zoning code, and was not otherwise shown to have lost that status, the nonconforming use is grandfathered and allowed "to continue until [it is] removed" or otherwise conflicts with conditions pertaining to nonconforming lots, uses, or structures. See § 30-346, Code of Ordinances. (Nonconforming status allows the owner to rent each unit on the parcel to no more than three unrelated persons. Thus, six unrelated persons could legally occupy Mr. Mayhew's two units. However, Mr. Mayhew has always rented to smaller numbers of tenants, and then only to graduate students or "professionals.") One way a property can lose its status is for the owner to not use the property in a nonconforming status for nine consecutive months. In the case of a rental property, this means that the owner has not rented the property for at least nine consecutive months. If this occurs, the owner is presumed to have abandoned the nonconforming status. See § 30-346(5)(d), Code of Ordinances. The precise date on which the City began using the nine-month time period is unknown. According to Mr. Calderon, this time period has been in the Code of Ordinances for "awhile," it was in the Code of Ordinances when "Citywide zoning" was first used in 1982, and he implied that it was in the first zoning code adopted in the 1960s. The City has no formal process by which it monitors properties to ensure that they continue to meet the requirements for legal nonconforming status. Generally, the issue arises after a complaint is filed by a third party or an inspection is made by City officials, who then require that the owner confirm (or prove) that the property still qualifies for that status. In this case, in October 2006, the tenant who occupied the cottage filed a complaint with the City concerning the installation of a new gas stove and other possible code violations. Prior to that time, no other complaints had been lodged against Mr. Mayhew's property. In response to that complaint, a code enforcement officer, Michael Wohl, inspected the property. During the course of that inspection, Mr. Wohl noticed that there were two rental units on one parcel of land. As a routine part of the inspection process, Mr. Wohl made an inquiry to determine if Mr. Mayhew had a landlord permit for each unit. Under the Code of Ordinances, a landlord permit is required for each rental unit. (The specific provision in the Code of Ordinances which imposes this requirement was not given.) According to Mr. Calderon, this requirement has been in the Code of Ordinances since 1989. Mr. Wohl learned that Mr. Mayhew had purchased one landlord permit for the parcel in the year 2000 (and had renewed that permit each year) but did not have a second permit. (When he purchased the property in late 1998, Mr. Mayhew did not know that such permits were even required. He obtained one as soon as this was brought to his attention.) After Mr. Mayhew advised Mr. Wohl that he was unaware that a permit was needed for each unit on his property, Mr. Wohl spoke with Mr. Calderon, who instructed Mr. Wohl to verify if the property was a legal nonconforming use (and therefore could qualify for two landlord permits) since it was located in a single-family zoning classification. Shortly thereafter, a citation was issued to Petitioner. The specific nature of the citation was not disclosed. In any event, by letter dated September 25, 2006, Mr. Calderon requested that Mr. Mayhew provide documentation to support the nonconforming use of the cottage at 1607 1/2 NW 12th Road as an accessory dwelling unit. In response to Mr. Calderon's request, on October 2, 2006, Mr. Mayhew submitted a lengthy letter with supporting documentation, including photographs of the units; copies of rental agreements of tenants who had rented the cottage since he had purchased the property in November 1998; information regarding the date of construction of the two units; and Property Appraiser records showing two units on the parcel. On December 7, 2006, the Department advised Mr. Mayhew by letter that "[b]ased on the physical evidence, property appraiser records and documents provided by you, the property is therefore classified as an existing non-conforming two-family development and is subject to regulations governing non-conforming uses." However, because the City apparently has a policy of notifying residents who live within 300 feet of the subject property of this type of decision, the City also issued on the same date a Notice of Decision to Issue Non-Conforming Status to Petitioner's Property (Notice)." (The record is unclear whether this notice was given pursuant to a policy or a specific Code provision. Other provisions within the Code of Ordinances provide for such notice when the Board conducts hearings on variances, appeals alleging error by an administrative official, and requests for special zoning exceptions. See § 30-354(h)(6)(i)-(k), Code of Ordinances.) In response to the Notice, affidavits were filed by a number of residents who lived adjacent to, or near, the subject property. After reviewing those affidavits, on December 20, 2006, the Department advised Petitioner by letter that based on "new information . . . submitted by affected persons within 300 feet of your property . . . [the] staff [is going to] reconsider the nonconforming status of your property." On January 25, 2007, Mr. Calderon issued a letter denying Mr. Mayhew's request for the following reasons: I have reviewed the information you submitted and those submitted by surrounding property owners. Based on the information and affidavits, there appears to be no consensus or conclusive data establishing emphatically that the subject property has been used consistently as a two-family development since annexation into the city. Evidence from the property owner would suggest that since 1998, the subject property has been used as a two- family dwelling and that no nine-month period has elapsed where the property was not used as a two-family dwelling. However, due to uncertainty for the period around and prior to 1998, staff cannot make a determination about the status of the development around and prior to 1998. Staff cannot determine whether the subject property was illegal, legal non-conforming or lost its non-conforming status at the time of ownership change in 1998. Since the current zoning of the subject property is RSF-1 (Single-family residential, 3.5 dwelling units per acre), the current use as a two-family dwelling is not permitted. Staff is therefore denying the request on the basis that available information cannot demonstrate continued use of the property as a two-family development, since annexation into the [C]ity of Gainesville. On February 8, 2007, Mr. Mayhew filed his appeal of that decision. Because Mr. Mayhew alleged that there were disputed issues of material fact, the appeal was forwarded to DOAH, rather than the Board. In his appeal, Mr. Mayhew alleged that the City had improperly relied on affidavits from neighbors to reconsider its decision, that there was no new evidence submitted to support a change in the City's initial decision, and that he could not get a fair hearing from the Board because several members of the Board live in the affected neighborhood or are members of a neighborhood association that includes the Florida Park area. Section 30-346(5)(d), Code of Ordinances, as amended in November 2006, provides the following restrictions on nonconforming uses: Whenever a nonconforming use of land or a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer be permitted. Any subsequent use of such building or structure or land shall be in conformity with the provisions of this chapter. Although this section was amended in November 2006, the amendment did not affect (or otherwise change) the nine- month time period for losing a nonconforming use. Prior to the amendment, the section provided that if a nonconforming use was lost due to abandonment or discontinuation, the reestablishment of the use could be authorized by the Board, after hearing, if the Board found the design, construction, and character of the building not suitable for the uses in the district in which the nonconforming use is situated. Under the new amendment, that option no longer exists. The history note to this provision indicates that the original ordinance (No. 3777) was adopted on June 10, 1992, and was later amended on July 25, 1994.1 (However, Mr. Calderon indicated that the nine-month period dates back many years before the adoption of this particular Ordinance. See Finding of Fact 5, supra.) When an owner is required to demonstrate that his rental property has continuously retained its nonconforming status, he must show that the property has been continuously rented (with no nine-month breaks) not only for the period of time that he has owned the property, but also for the entire time the property has enjoyed nonconforming status, or in this case since the property was annexed by the City. Thus, Mr. Mayhew was obligated to show that the original owners (Mr. and Mrs. Gainous) rented the property continuously from the time the property was annexed in 1961 until it was sold to Mr. Mayhew in late 1998. The City's practice is to determine nonconforming status on a case by case basis but the burden is on the owner to prove that status through records such as building permits, landlord permits, zoning compliance permits, and occupational licenses, and "records from reputable sources." The parties agree that both units were continuously rented by Mr. Mayhew since the time he purchased the property in November 1998. The dispute here is whether the nonconforming use was abandoned for any nine-month period prior to Mr. Mayhew's purchase of the property. The City contends that Mr. Mayhew has presented no evidence to show that the cottage was rented by the prior owner from 1996 until the property was sold in late 1998. Although Mr. Mayhew clearly established (and the City agrees) that the property has been continuously rented since he purchased the parcel in late 1998, he conceded that the cottage was vacant when he purchased the property, that he had made no inquiry to the seller as to how long the cottage had been vacant, and that he had no personal knowledge regarding the rental history of the property during the three years preceding the purchase. He contended, however, that there are always periods of time when a unit remains vacant while the owner is actively seeking a new tenant or when necessary renovations must be made. While this is true, there is no evidence that this occurred during the years 1996, 1997, or 1998. (It is unknown where Mrs. Gainous presently resides, or even if she is still alive. When the property was sold in late 1998, Mrs. Gainous was described as being elderly and in poor health.) Significantly, City records show that Mrs. Gainous had secured landlord permits to rent the cottage from 1989 (when permits were first required) through 1995, but she had failed to obtain any permits for the years 1996, 1997, or 1998, at which time she sold the property to Mr. Mayhew. This raises a logical inference, not overcome by Mr. Mayhew, that she did not rent the cottage during those years. In addition, Dr. Kosch, who has lived across the street from the subject property for the last twenty years, testified that he personally observed several periods of time before the property was sold to Mr. Mayhew when there were no tenants in the cottage. Although Dr. Kosch could not specifically identify the exact time periods when this occurred (due to the passage of time), his testimony adds further support to a finding that there is insufficient evidence that the cottage was rented continuously (without any nine-month breaks) during the years 1996-1998. Mr. Mayhew purchased the property with the understanding that he could legally rent both units. While it may seem unfair for him to now have to prove that the property has been continuously rented (with no breaks exceeding nine consecutive months) since the 1960s, this interpretation of the Code of Ordinances has always been followed by the City without exception. According to Mr. Wohl, this situation has occurred at least 8 or 9 times in the last few years alone, and in each case, the property owner was required to prove a continued nonconforming use since the property was annexed by the City or placed in a more restrictive zoning classification.
