The Issue The issue is whether Petitioner’s application for licensure as a real estate broker should be approved.
Findings Of Fact Petitioner has been a licensed real estate sales associate since 2000. His license number is 693538. Most of Petitioner’s work in the real estate industry has involved business transactions, but he has also handled transactions involving residential properties. On August 23, 2004, Petitioner filed an application for licensure as a real estate broker. Petitioner disclosed in the application that, in July 2003, his sales associate license was suspended by the Commission for 30 days and that he was placed on probation for a period of six months. That disciplinary action was based upon a single incident that occurred on or about November 7, 2001. Petitioner agreed to the disciplinary action as part of a “Stipulation” to resolve an Administrative Complaint charging him with fraud and misrepresentation in violation of Section 475.25(1)(b), Florida Statutes (2001), and with having operated as a broker without a license in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001). The Administrative Complaint contained the following “essential allegations of material fact,” which were admitted by Petitioner as part of the Stipulation: On or about November 7, 2001, Respondent, a seller’s agent, facilitated a purchase and sale transaction between Buyer and Seller. On or about November 7, 2001, [Petitioner] was not registered with a broker.[1] The transaction referenced above failed to close. Buyer released a $1,000.00 payment to Seller. [Petitioner] submitted the $1,000.00 payment to Seller. [Petitioner] instructed [Seller] to execute a check in the amount of $500.00 payable to “Cash.”[2] [Petitioner] accepted the $500.00 payment as his own payment for services. The Final Order adopting the Stipulation was filed with the agency clerk on June 25, 2003. Petitioner’s suspension commenced on July 25, 2003, which is “thirty days from the date of filing of the Final Order.” The suspension ended 30 days later, on August 24, 2003. Petitioner’s probation ran “for a period of six (6) months from the Effective Date [of the Stipulation],” which was defined as the date that the Final Order was filed with the agency clerk. As a result, the probation period ran from June 25, 2003, to December 25, 2003. Petitioner was required to complete a three-hour ethics course and a four-hour escrow management course during the probation period, which he did. Petitioner has not been subject to any other disciplinary action. Petitioner has taken several continuing education courses in addition to those required as part of his probation. He is working towards certification by the Graduate Realtor Institute. Petitioner has taken the classes necessary to become a real estate broker, and he passed the broker examination. Petitioner has worked for broker Phillip Wetter since March 2005. Petitioner manages the day-to-day operation of Mr. Wetter’s brokerage firm. His responsibilities include preparing listings, negotiating contracts, and handling escrow funds. He has been involved in over 50 successful real estate transactions under Mr. Wetter’s supervision. According to Mr. Wetter, Petitioner is meticulous in his work, including his handling of escrow funds, and he always makes sure that he “dots all his ‘I’s’ and crosses all his ‘T’s’.” Petitioner acknowledged in his testimony before the Commission and at the final hearing that what he did in November 2001 was wrong. He credibly testified that he has learned from his mistake. In his testimony before the Commission and at the final hearing, Mr. Wetter attested to Petitioner’s honesty, ethics, good moral character, as well as his qualifications to be a broker. That testimony was unrebutted and is corroborated by the letters of support from Petitioner’s former clients that are contained in his application file, Exhibit R1. Mr. Wetter’s opinions regarding Petitioner’s fitness for licensure as a real estate broker are given great weight. Those opinions are based not only on his personal observations as Petitioner’s current qualifying broker, but also on his personal experience with Petitioner representing him in several business transactions while Petitioner was working for other brokers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order approving Petitioner’s application for licensure as a real estate broker. DONE AND ENTERED this 22nd day of November, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2005.
Findings Of Fact Frederick Hodgdon (Hodgdon) has held Florida real estate broker license 0206805 at all times pertinent to this case. Hodgdon is owner and qualifying broker for Pelican Realty of Marco Island, Inc., (Pelican Realty), through which Hodgdon conducts business and which also is named as a respondent. At all times pertinent, Pelican Realty has held Florida corporate real estate broker license 0223934. July 24 through August 6, 1984, respondents placed the following newspaper advertisement in the Sun-Daze: DO YOU KNOW ... that all Florida real estate brokers are agents for the seller and CANNOT legally propose any lower than listed prices or better terms for the benefit of the buyer? UNLESS ... the broker legally qualifies himself as an agent for the buyer. As a Buyer's Broker Pelican Realty CAN and DOES exactly this and a lot more! Buyers pay no fees or commissions. Call or send for our informative brochure, you will be glad you did. The real estate buyer's best bet for the best price is to have a Buyer's Broker. On February 19, 1986, respondents placed the following newspaper advertisement in the Marco Island Eagle: 1/ BUYER BEWARE! DON'T BUY REAL ESTATE ON MARCO ISLAND. ... before consulting an attorney or carefully reading Paragraph 5) and 7) of the 1985 Revision of the Sales Contract as approved by the Naples Area Board of Realtors and the Marco Island Area Board of Realtors and the Collier County Bar Association contract Revision Committee. The Contract states quote: "The Buyer has inspected the property sold by the Contract and there are no other inspections permitted or required. The property is acceptable in its AS IS condition as of date of this offer. INCREDIBLE! ... What happens to the unwitting Buyer who intends to have termite, structural and seawall inspections AFTER his offer is accepted? He just may have to buy a termite ridden house that needs a new roof and a seawall that is on the verge of collapse. Thats what! ... Taken at face value the Sales contract calls for the buyer to spend several hundred dollars for inspections BEFORE making an offer that may well be turned down. INCREDIBLE! .... Paragraph 7) states quote: "Buyer's decision to buy was based on Buyer's own investigation of the property and not upon any representation, warranty, statement or conduct of the Seller, or broker, or any of Seller's or broker's agents" (Excluding those rare occasions when the seller and his agents remain silent.) INCREDIBLE! ... The above subject sections of Paragraphs 5) and 7) of the 1985 Sales Contract in our opinion may well violate the Realtor's Code of Ethics Article 7) "to treat fairly all parties to the transaction." There is nothing Pelican Realty could say or do to better emphasize the Buyer's need to have an advocate on his side. ... As a Buyer's Broker we recommend striking out any and all terms and conditions of the Sales Contract that are prejudicial to the Buyer's best interests. ... Pelican Realty would appreciate the opportunity to discuss with any interested parties the many advantages of working with a Buyer Broker. Our services are at NO additional expense to the buyer. CALL US FOR FURTHER DETAILS. NOW!! On March 11, 1986, respondents placed the following newspaper advertisement in the Sun-News: CASH BACK FOR THE REAL ESTATE BUYER. THAT'S INCREDIBLE! Pelican Realty GUARANTEES CASH BACK to every buyer on every sale. The bigger the sale, the bigger the cash gift to the buyer. On top of this Pelican Realty (a Buyer's Broker) goes all out to get the lowest possible price for the buyer at NO additional cost to the buyer. Other realtors must get the highest price for the seller. The thousands you SAVE already belong to you. THINK ABOUT IT! Call us for further details NOW! "WE PAY OUR BUYERS TO DO BUSINESS WITH US" There is nothing false or fraudulent about the three advertisements. However, the following statements in the advertisements are deceptive or misleading in form or content: The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that buyers pay no fees or commissions. In form, the buyer perhaps does not pay brokerage fees or commissions. But in substance, the buyer does indirectly pay his broker a brokerage fee or commission when the seller pays fees and commissions out of the proceeds of the sale. The representation in the July 24 through August 6, 1984, Sun-Daze advertisement that a buyer's broker "legally qualifies himself as an agent for the buyer." Although perhaps technically correct, this representation implies separate state regulation and qualification procedures for licensure as a buyer's broker. In fact and in law, any licensed real estate broker can become a buyer's broker simply by entering into an agreement with a buyer to be the buyer's broker. The representation in the March 11, 1986, News-Sun advertisement: "Other realtors must get the highest price for the seller." Read carefully in context, this representation is true--realtors other than those representing a buyer must try to get the highest price for the seller he represents (while being open, honest and fair to the buyer). But, as written, the representation could lead one to believe that the respondents have an ability no other realtors have when, in fact and in law, any realtor or other licensed real estate broker who represents a buyer can try to get the best price for the buyer. Although respondents have offered cash rebates, no client has seen the offer or asked for a rebate. Although respondents have maintained their innocence, they changed the ads to meet the criticism of the Department of Professional Regulation.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order (1) reprimanding respondents, Frederick Hodgdon and Pelican Realty of Marco Island, Inc., and (2) fining them $500 each for violations of Section 475.25(1)(c), Florida Statutes (1985). RECOMMENDED this 21st day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1987.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? him? If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Florida-licensed real estate salesperson. He holds license number 0186760. From October 1, 1991, through September 30, 1993, Respondent's license was inactive. His address of record during this period was 290 174th Street L11, North Miami Beach, Florida 33160. On October 1, 1993, Respondent's license became involuntarily inactive due to non-renewal, and it remained in involuntary inactive status through August 11, 1996. Respondent's address of record during this period remained 290 174th Street L11, North Miami Beach, Florida 33160. On June 1, 1995, after having successfully completed a license reactivation course at the Gold Coast School of Real Estate,1 Respondent went to The Keyes Company to apply for a position as a sales associate. The Keyes Company is now, and was at all times material to the instant case, a corporation registered in Florida as a real estate broker. During his visit to The Keyes Company, Respondent completed (with the assistance of a Keyes Company secretary) and signed various forms, including a Department-issued "Request for License or Change of Status" form (400.5 Form). The 400.5 Form contained three sections: Section A, the "action requested" section; Section B, which was to be "completed by [the] licensee applying for [the] change"; and Section C, which was to be "completed by [the] broker/employer if the applicant [was] requesting active salesperson or broker-salesperson status." On the reverse side of the 400.5 Form were instructions, which indicated, among other things, that if the licensee was seeking to renew his or her license, the 400.5 Form had to "be accompanied by the required fee." In Sections A and B of the 400.5 Form, Respondent indicated, among other things, that he was seeking to renew his license and gain active status and that his "residence address" was 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179. Although there was a box on the top of the form that he could have checked to reflect that this was a "change [of] residence address," he failed to do so. After completing Sections A and B, Respondent signed and dated the partially completed 400.5 Form. The secretary who assisted Respondent in filling out the 400.5 Form (Secretary) told Respondent that The Keyes Company would complete Section C of the form and then mail it to the Department for processing. She further advised Respondent that she would let him know in a few days "exactly how much [he] would have to pay" the Department to obtain the "[c]hange of [s]tatus" he was requesting. Three or four days later, the Secretary contacted Respondent and informed him that he had to pay a $90.00 fee to the Department. Respondent relied upon the information that the Secretary had given him regarding the amount of the fee he had to pay. He made no effort to contact the Department to verify the accuracy of the information. On June 5, 1995, Respondent wrote a $90.00 check, payable to the Department, and left it with the Secretary for her to mail, along with the completed 400.5 Form, to the Department. The Keyes Company's payroll clerk, Rosa Miguelena, thereafter contacted the Department by telephone to confirm that $90.00 was the amount that Respondent had to pay. The person with whom she spoke told her that the total fee for late renewing a license was $90.00 ($65.00 for the renewal and a $25.00 late fee). The completed 400.5 Form (Section C of which had been filled in and signed on June 9, 1995, by Ray Shaw, a Vice President of The Keyes Company) and the $90.00 check, as well a copy of Respondent's reactivation course completion certificate, were subsequently sent to the Department. The check was deposited by the Department on June 19, 1995. The $90.00 was insufficient to cover the amount necessary to renew and activate Respondent's license for the upcoming two-year renewal cycle commencing October 1, 1995.2 Accordingly, on or about June 23, 1995, the Department sent, by United States Mail, a letter to Respondent, which read as follows: We are returning the attached for the following reasons: (X) Request not accompanied by the total fee of $153.00. You need to send additional $63.00 in order for us to process your renewal. (X) To be credited for the fee accepted, THIS DOCUMENT MUST BE RETURNED TO THE DIVISION OF REAL ESTATE. PLEASE RETURN ALL OF THE ATTACHED, ALONG WITH A COPY OF THIS LETTER. The letter was mailed to the address (2182 Northeast 186th Terrace, North Miami Beach, Florida 33179) that Respondent had indicated, on the 400.5 Form, was his "residence address." At the time the letter was mailed, Respondent still resided at this address. Nonetheless, Respondent never received the letter in the mail. This is not the only time that mail addressed to Respondent at 2182 Northeast 186th Terrace, North Miami Beach, Florida 33179 has not been delivered to him by the United States Postal Service. It has been a recurring problem. Had Respondent received the letter, he would have taken the additional steps needed to renew and activate his license. Not having heard anything from either the Department or The Keyes Company regarding the matter, he erroneously assumed that his license had been renewed and activated, and he acted accordingly. On or about January 18, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured Vito Verzura as a buyer for real property located in Dade County, Florida that was owned by Jack Poulas (Property). On or about February 1, 1996, The Keyes Company issued to Respondent a check in the amount of $676.00 as commission for his role in the Vito Verzura/Jack Pulos transaction. On or about June 25, 1996, Respondent, acting in his capacity as a Keyes Company sales associate, procured listing agreements with Vito Verzura regarding the Property. The listing agreements provided that the listing agent(s) would be paid 10% of the sales price. In late June or early July of 1996, after speaking with a Keyes Company secretary who questioned whether he was associated with the company, Respondent telephoned the Department to inquire whether his license was active. The Department representative with whom he spoke advised him that the Department's records revealed that his license had never been activated. Respondent then contacted The Keyes Company to discuss the matter. He expressed his desire to have his license activated as soon as possible. The Keyes Company told Respondent that he needed to pay the Department an additional $125.00. On or about July 9, 1996, Respondent wrote a check in the amount of $125.00, payable to the Department, which he gave to The Keyes Company to deliver to the Department. On that same date, he also signed (but did not date) another Department-issued "Request for License or Change of Status Form." The check, along with the signed form (Section C of which was left blank), were subsequently sent to the Department. The Department received these items on or about August 12, 1996. It deposited the check on August 14, 1996. Because Section C of the "Request for License or Change of Status Form" was left blank, the Department changed the status of Respondent's licensure, effective August 12, 1996, to voluntary inactive rather than to active. The Department sent Respondent a letter informing him of the change. The letter contained the following "explanation": The Division of Real Estate computer records do not reflect you to be in the employ of a licensed real estate broker, a registered broker corporation or broker partnership, or an unlicensed owner developer at this time. Please have the attached form 400.5 completed by both you and your employer and returned in the enclosed envelope if your license status should be shown as active. On February 27, 1997, the Department received from Respondent a completed "Request for License or Change of Status Form," which reflected that he was employed by Gerard International Realty, a duly registered broker. After receiving this form, the Department activated Respondent's license. At no time prior to February 27, 1997, did Respondent hold a valid and current active real estate salesperson license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by reprimanding him and fining him $750.00. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Florida. STUART M. LERNER 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 14th day of April, 1999.
Findings Of Fact The testimony revealed that during late December, 1975, Land Re-Sale Service, Inc., a Florida Corporation, filed application with the Florida Real Estate Commission seeking registration as a corporate real estate broker. The application revealed that Defendant Frank Viruet (FREC Progress Docket 2856) was to become the Active Firm Member Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and Director of the company; that Lee Klein was to become President and Director of the company. Testimony shows that Carol Bauman is the wife of Defendant Bernard Bauman (Progress Docket 2857); that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman (FREC Progress Docket 2858) is the son of Bernard Bauman. Subsequent to filing said corporate application For registration with the Commission, evidence reveals that the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc. and that along with each change, a new application For corporate registration was later filed with the commission. It was noted that the stated officers and active firm members broker remain as stated in the initial corporate application For registration. Thus, it can be concluded For all legal purposes that the above corporate entities are one and the same. Count I of the Administrative Complaint filed herein, reveals that according to the certificate filed with the Commission's chairman dated December 3, which was offered into evidence by Plaintiff and admitted, during the period November 1, 1975 to the date of said certificate, i.e., December 3, 1976, which covers all dates material to the complaint herein, no registration was issued to or held by either of said corporations, Land Re-Sale Service, Inc., Noble Realty Corporation or Deed Realty, Inc. This was further confirmed by the testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, who was to have become the active firm member broker For the above entities. Approximately December 2, 1975, Land Re-Sale Service, Inc. entered into a written lease For office premises known as Room 212, Nankin Building, 16499 N.E. 19th Avenue, North Miami Beach, Florida For the period January 1 through December 31, 1976 (A copy of the lease was entered into evidence by stipulation.) The unrebutted testimony of Plaintiff Reagan reveals that he observed during his investigation of this cause a building directory on the ground entrance floor to the Nankin Building displaying the name Noble Realty, Inc., Room 212 and a similar display on the building directory which was located on the second floor. Plaintiff's witness Peter King, a representative of and For Southern Bell Telephone Company testified that on December 27, 1975, three phones were installed in Room 212 of the Nankin Building in the name of Land Re-Sale Service, Inc. and that from January 2 to January 16, approximately 575 calls were made from the stated phones all during evening hours to out-of-state numbers. Jeffrey Bauman admitted to having made phone calls to out-of-state numbers For purposes of soliciting real estate sales listings, but failed to recall specifically the number of calls nor did he have records to substantiate this fact. Bernard Bauman testified that from such solicitations, approximately 4 listings were obtained accompanied by an advance fee of $375.00 For each listing. When he was advised by the Commission's Investigator that the operation they were conducting was in violation of the licensing law by reason that no registration had been issued to the company and that all who are engaged in real estate activities therein were in violation of the license law (Chapter 475, F.S.) the premises were closed and all real estate activities ceased. This was further confirmed and unrebutted by plaintiff Reagan. As to Count II, the evidence established that, as stated above, the Defendants Bernard and Jeffrey Bauman had solicited real estate sales listings with representations to out-of-state property owners that listings would in fact be published and disseminated to brokers nationwide. Both Jeffrey and Bernard Bauman admitted that their listings were never published or otherwise disseminated to brokers. Bernard Bauman's testimony reveals that no monies received were returned to senders. There is no evidence introduced to show that Defendant Jeffrey Bauman knew, at the time of soliciting, that no bona fide efFort would be made to sell the property so listed with Noble Realty Corporation. As to Count III, plaintiff alleges that the above acts as set Forth above established a course of conduct by defendant upon which his revocation or registration should issue.
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE 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 on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times relevant thereto, Respondent, Oswald S. Welsh, held real estate broker license number 0301189 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He presently is broker for Welsh International Realty, Inc. located at 4684 Northwest 183rd Street, Carol City, Florida. Prior to his involvement with Welsh International Realty, Inc., Respondent was employed as a salesman with Pedro Realty, Inc. until on or about September 15, 1980. Respondent mailed the required papers to establish his own real estate firm to the Board of Real Estate in Orlando, Florida, shortly after he left Pedro Realty, Inc. He assumed that he was authorized to commence business as a broker once the papers were mailed. This assumption was based upon his understanding of the practice followed by other brokers in Dade County. However, because the papers were mailed to Orlando rather than the Department of Professional Regulation in Tallahassee, his registration as a broker did not become effective until November 17, 1980. Respondent engaged the services of an attorney in Hialeah, Florida, to incorporate his real estate firm. The articles of incorporation were sent to the Department of State by letter dated September 19, 1980. Because of an error in the papers, the application was returned to Welsh's attorney on October 1, 1980. The incorporation was ultimately approved on October 22, 1980. Prior to the approval of the incorporation, a salesman for Respondent's firm negotiated a sale of real property on October 17, 1980. Welsh received no proceeds or other value from the closing. Welsh is a native of Jamaica who has lived in the United States since 1963. He became a United States citizen in January, 1982. His real estate firm presently employs approximately twelve persons, of whom seven are full time. Respondent did not intentionally violate the law but appeared to have relied upon the advice of his attorney as to when he could begin to operate his business in a legal manner. Because of errors in filing the papers, or paper not properly filled out by his attorney, he unintentionally began operating prior to approval by the State.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the Administrative Complaint and issued a public reprimand. DONE and ENTERED this 8th day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 William H. Davis, Esquire 111 NW 183rd Street Miami, Florida 33169 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether Petitioner is qualified to take the examination for licensure as a real estate sales associate.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: The Petitioner is presently sixty-eight years of age. She first became licensed as a real estate sales associate in the State of Florida in 1982, and in December of 1988 she passed the examination for a broker's license. Shortly after she passed the examination for a broker's license, the Petitioner began setting up her own real estate brokerage firm. At that time the Petitioner had her sales associate license placed with a broker named Robert F. Armand & Associates. Her arrangement with Mr. Armand was that she would pay him a flat monthly fee of $250.00 in exchange for the services brokers usually provide for sales associates. The agreement provided that Mr. Armand would not receive any share of any commissions earned by the Petitioner. While the Petitioner was in the process of making arrangements to terminate her relationship with Mr. Armand and start her own brokerage firm, the Petitioner was successful in obtaining a contract for the sale of a residence ("the Molina transaction"). At that time the Petitioner still had her license placed with Mr. Armand's brokerage firm and had not yet begun operation of her own brokerage firm. Because Mr. Armand had become very upset when the Petitioner told him she would soon be leaving, the Petitioner did not want to have any further dealings with Mr. Armand that were not absolutely necessary, so she did not tell Mr. Armand about the Molina transaction. Rather, she held the Molina transaction and processed it through her own brokerage firm shortly thereafter. The Molina transaction closed in due course and there was no financial harm to either the buyer or the seller. There was no financial harm to Mr. Armand, because he was not entitled to share in any commission related to the Molina transaction. By some means not revealed in the record of this proceeding, the Respondent became aware of the manner in which the Petitioner had handled the Molina transaction and initiated disciplinary action against the Petitioner.1 The Petitioner decided to resolve the disciplinary proceedings by agreeing to surrender her licenses for revocation. Towards that end, on April 10, 1989, the Petitioner signed a document titled Affidavit for the Voluntary Surrender of License, Registration, Certificate/Permit for Revocation. That document included the following statements by the Petitioner: That my name is Addy Miller. That I am currently the holder of a real estate license/registration/certificate or permit issued pursuant to Chapter 475, Florida Statutes and the Rules of the Florida Real Estate Commission. That in lieu of further investigation and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commission of the Department of Professional Regulation to issue a Final Order revoking any and all of the licenses, registrations, certificates and permits issued to or held by the undersigned. That the effective date of the revocation shall be April 10, 1989. All licenses, registrations, certificates and permits are hereby deemed surrendered and the undersigned hereby requests that the same be placed in and remain in inactive status pending final disposition by the Florida Real Estate Commission. That I will not apply for nor otherwise seek any real estate license, registration, certificate or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation. That I will not perform any act or service without first being the holder of a valid and current license, registration, certificate or permit thereof [sic] at the time the act or service is performed. That I waive any right to be noticed of any further administrative proceedings in this matter. That I waive any right to appeal or otherwise seek judicial review of the Final Order of revocation to be rendered in accordance with the provisions of this affidavit. [Emphasis added.] The above-quoted affidavit was considered at a meeting of the Florida Real Estate Commission on April 18, 1989. At that meeting the Commission issued a Final Order, the material parts of which read as follows: On April 18, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. On April 10, 1989, the Respondent voluntarily surrendered her license and entered a written agreement that her license would be revoked. A copy of this agreement is attached hereto as Exhibit A and made a part hereof. Based upon this information and upon the information provided to the Florida Real Estate Commission at its meeting of April 18, 1989, the Commission ORDERS that the license of the Respondent be revoked, effective April 10, 1989. Prior to the incident that led to the 1989 order described immediately above, the Petitioner had never before had a complaint filed against her. Consistent with paragraph 8 of the affidavit quoted above, the Petitioner did not appeal the Final Order issued on April 18, 1989. The Petitioner has complied with all of the terms of the Final Order issued on April 18, 1989. The loss of the Petitioner's real estate license has adversely affected her ability to make a living and support herself. In recent years she has been working in sales and marketing with several different companies. She appears to be highly regarded by some of her employers. During the fifteen years since the revocation of her license, the Petitioner has lived a moral and honorable life and has not been involved in any matters that would cast doubt upon her good character and her reputation for fair dealing. During the fifteen years since the revocation of her license, the Petitioner has not been the subject of any criminal charges. The Petitioner acknowledges that her conduct related to the Molina transaction so many years ago was improper and is committed to avoiding any improper conduct in the future. Further, the Petitioner is sincerely embarrassed about her conduct in that matter and is remorseful regarding her actions in that regard. In view of the long lapse of time (more than fifteen years) since her misconduct related to the Molina transaction, and in view of her good conduct and reputation during that fifteen-year period, it is unlikely that the interests of the public and investors will be endangered by the granting of her application for relicensure. On or about March 19, 2004, the Petitioner filed an application to be relicensed as a sales associate. At a meeting on May 19, 2004, the Florida Real Estate Commission considered the Petitioner's application to be relicensed. Following such consideration the Commission voted to deny the application. The Commission's order denying the application gave the following reason for the denial: "After completely reviewing the record and being otherwise fully advised, the Board ORDERS that the application be DENIED based on the applicant's answer to the question regarding a professional license disciplined." Apparently, at the May 19, 2004, meeting the Commission was somewhat less than "fully advised," because at a Commission meeting on June 16, 2004, there was staff discussion of the fact that at the prior meeting "we did not have the information that you have today," and that at the prior meeting "we could not locate the old information." At the June 16, 2004, meeting staff confirmed that "[s]ince the May meeting we have found the old file. That's in your packet today." At the June 16, 2004, meeting, the Commission tabled further consideration of the Petitioner's application because the Petitioner was sick and could not attend that meeting. The Petitioner's application for relicensure was reconsidered at a Commission meeting on July 21, 2004. During that meeting there was some discussion of the Petitioner's background. During the course of that discussion the Petitioner agreed with the observation of one of the Commissioners that during the past fifteen years she had "been absolutely squeaky clean." During the course of the meeting, without any statement of the reason for doing so, one of the Commissioners moved to deny the application, another seconded the motion, and without any further discussion the Petitioner's application was denied by a vote of five to one. Following the July 21, 2004, Commission meeting, the Commission issued a written order again denying the Petitioner's application to be relicensed. The written order contained the following reason for the denial: "After completely reviewing the record and being otherwise fully advised, the Board ORDERS that the application be DENIED based on the applicant's answer to the question regarding the discipline of a professional license." The question on the application regarding any prior discipline of a license called for a "yes" or "no" answer. The Petitioner truthfully checked the "yes" box. Instructions on the application form asked those who checked the "yes" box to also: . . . please provide the full details of any . . . administrative action including the nature of any charges, dates, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which any proceedings were held . . . and the designation and/or license number for any actions against a license or licensure application. The Petitioner complied with this request by including as part of her application a typed statement and a handwritten statement which, respectively, read as follows, in pertinent part: THE TYPED STATEMENT I held real estate licenses from 1982-1989. I voluntarily surrendered my license to the Department in 1989. I was not involved in any litigation, with the DPR or the courts, and there was no payment made from the Recovery Fund. However, my license was suspended for ten years that was fulfilled in April, 1999. The Department informed me that once I had served my suspension term, I would be able to start again with the salesman's classroom requirements and apply for and pass the state examination as I am presently doing with the Gold Coast School of Real Estate. If you require additional information, please do not hesitate to contact me. THE HANDWRITTEN STATEMENT I voluntarily surrendered my license in April 1989. I held on to escrow money for a longer period of time than the law allows. The transaction was successfully closed and it was to be my last. My suspension was for a maximum of ten years that was satisfied in 1999. There was no other consequence other than my ability to practice real estate for ten years. The answers quoted above appear to be truthful and candid answers consistent with the requirements of the instructions on the application form. The details in the answers provide some enlightenment regarding the basis for the Commission's disciplinary action against the Petitioner in 1989, but those details, standing alone, do not provide any enlightment regarding the basis for the Commission's vote to deny the pending application for relicensure. It appears that since the revocation of her real estate license in 1989, the Petitioner has rehabilitated herself and that therefore it is not likely that her relicensure would endanger the public.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that the Petitioner is qualified to practice as a real estate sales associate, subject to passing the licensure examination. DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ MICHAEL M. PARRISH 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 23rd day of February, 2005.
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, 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 21st day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/ Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill"). Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order. RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May 1995.
