STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) RICARDO SANDA, REPRESENTATIVE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1022

) PROGRESS DOCKET NO. 2716 EDWARD LIEFF AND KENDALE REALTY ) DADE COUNTY

CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, at the Florida Real Estate Commission's Regional Office (herein sometimes referred to as the commission), on July 7, 1976, in Coral Gables, Florida.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Taffer and Jacobs

by Jack J. Taffer, Esquire 1700 Northwest 7th Street Miami, Florida 33135

1. On or about August 26, 1975, the Commission caused to be issued, an Administrative Complaint against licensee, Edward Lieff and Kendale Realty Corp., who hold license numbers 0052351 and 0046922, respectively. The Commission seeks to revoke, suspend, or otherwise discipline licensee, Edward Lieff, and his right to practice thereunder based on the following allegations: that on or about January 16, 1965, Respondent Lieff and Helen Lieff, his wife, sold to Wilbur J. Chapman and Roberta A. Chapman and delivered a deed to the Chapman's for the following described property: Lot 10, Block 4, New South Miami Heights, according to the plat thereof as recorded in plat 46, at page 83 of the public records of Dade County, Florida; that at that time, Respondent did not own or have any right to sell the above described property and that since on or about November 25, 1969, the Chapman's had been unable to locate Respondent Lieff. By reasons thereof, the Commission alleges that Respondent Lieff is guilty of fraud and dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes.

   
   

2. Count 2 alleges that in March, 1975, Respondent Lieff renewed his broker's certificate as an active broker for Kendale Realty Corp. located at 7725 Southwest 86th Street, Apartment 314-A-1, South Miami, Florida. Further,

   that Respondent Lieff and Kendale Realty Corp. have failed to maintain an office at 7725 Southwest 86th Street, South Miami, Florida, their registered address and that by reason of their failure to remain an office, Respondents are guilty of failure to maintain an office, in violation of Rule 21V-10.07, Florida Administrative Code, in violation of Section 475.25(1)(d), Florida Statutes.

   Based on these facts, the Commission seeks to revoke or suspend or otherwise discipline the licensee.

   
   

3. The initial issue to be resolved is whether or not the Respondents at the time of their conveyance to the Chapmans in January of 1969, owned or had any right to sell the above described property and secondly, whether the series of events which took place in the ensuing transaction represents a pattern of fraudulent or dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes.

   
   

4. There is no question but that the Respondents Edward and Helen Lieff sold to Wilbur J. Chapman and Roberta A. Chapman the property described as Lot 10, Block 4, New South Miami, according to the plat thereof as recorded in Plat 46, at Page 83 of the Public Records of Dade County, Florida. Evidence revealed that at the time that the Respondents took title to the property in question, it was delivered to them from Vincent R. Smith, a single man by a quit claim deed which was recorded in the Official Record Book 5766 at page 526, of the Public Records of Dade County, Florida. The record is also clear that the problem in this case centers around an incorrect legal description for the property in question which should have read Lot 10, Block 54 in New South Miami Heights. Upon learning of this mistake, the Respondent attempted to correct the mistake by offering to submit a quit claim corrective deed to the Chapmans.

   Illustrative of this fact is a letter from Respondent's counsel wherein the requested corrective action was agreed to and another letter from the Florida Real Estate Commission dated October 29, 1975, indicating that the Commission had mistakenly submitted an incorrect address for the Chapmans also listed the correct address in said letter. Inasmuch as Respondent Lieff, as evidenced by the documents received into evidence, attempted to correct what is at best, a technical mistake, the claim that the Respondent Lieff engaged in a pattern of fraudulent or dishonest dealing cannot stand. To the contrary, the Respondent Lieff in this case stood at all times ready to correct the deficiency in the legal description and made attempts to contact the Chapmans to transfer all of their rights, titles and interests to the above described property. At the time of the transfer to the Chapmans, the Respondent owned the property in question and the only problem stemmed from an incorrect legal description. Accordingly, I shall recommend that this count be dismissed.

   
   

5. As to the allegations contained in count 2 that the Respondent, in violation of Administrative Rule 21V-10-07, F.A.C., and Section 465.21(1)(d), F.S., failed to maintain an office, the evidence reveals that the Respondent utilized his apartment as the office for his realty corporation. The only proof that the Respondent Lieff failed to maintain an office there was simply a lease agreement which indicated the amount of rent and the covenant contained in the lease coupled with a statement from the property manager of the apartment's complex, all to the effect that the apartment was leased to be a residence and for no other purpose. The property manager testified that in the very first paragraph of the lease, the stated purpose is to be used "as a private residence and for no other purpose." He was of the opinion that if the property's management became aware that an office was being maintained in an apartment within the complex, attempts would be made to evict said tenant. A brief perusal of Rule 21V-10.07 indicates that "an office may be in the residence of the broker if not contrary to local zoning ordinances." Nowhere in the evidence

   was there any substantiation that the Respondent violated any local zoning ordinances and therefore it must be concluded based on these facts that the office in question complied with the above referenced rule in the absence of any proof to the contrary. Based on these facts, I shall recommend that this count be dismissed also.

   
   

   CONCLUSIONS OF LAW

   
   

6. All parties were properly noticed pursuant to the notice provisions of Section 120, Florida Statutes.

   
   

7. The authority of the Commission is derived from Section 475, Florida Statutes.

   
   

8. When the property described herein was conveyed from Respondent to the Chapmans, Respondent and his wife were the legal owners and they transferred such ownership to the Chapmans.

   
   

9. The Respondent, Edward Lieff, by maintaining his registered offices in the same building as his apartment, did not violate Rule 21V-10.07 of the Florida Administrative Code.

   
   

10. By reason of the foregoing, the Respondent is not guilty of fraud and dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes, nor is the Respondent's guilty of failure to maintain an office in violation of Rule 21V-10.07, Florida Administrative Code, in violation of Section 475.25(1)(d), Florida Statutes.

RECOMMENDATION

By reason of the foregoing facts and conclusions of law, it is hereby recommended that the complaint be dismissed in it's entirety.

Done and Entered this 26th day of August, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Taffer and Jacobs

by Jack J. Taffer, Esquire 1700 Northwest 7th Street Miami, Florida 33135

Docket for Case No: 76-001022

Orders for Case No: 76-001022