STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION ) ex rel. REGINA HARE WILLS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1476

) P.D. NO. 2871 RODNEY K. MCINTYRE, T/A ROD )

MCINTYRE REAL ESTATE & )

DEVELOPMENT CO., )

)

Defendant. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case on November 9, 1976 at Jacksonville, Florida.

APPEARANCES

For Petitioner: Louis B. Guttmann, III, Esquire and

Richard J. R. Parkinson, Esquire Staff Attorneys

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Defendant: David Lee, Esquire

912 American Heritage Building Jacksonville, Florida 32202

By Administrative Complaint filed June 21, 1976, FREC ex rel. Regina Hare Wills, seeks to revoke, suspend, or otherwise discipline the real estate broker's license of Rodney K. McIntyre for violation of s475.25(1)(b) F.S. involving false advertising and breach of trust in a business transaction. The complaint alleges that on or about July 14, 1974 Defendant placed, or caused to be placed, an advertisement in the Florida Times Union and Journal which stated in part that the house being advertised for sale contained 2300 square feet when in fact the house contained only 1560 square feet. Eight witnesses, including Defendant, were called and nine exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here involved Defendant was a broker registered with the FREC.

   
   

2. In 1974 he obtained a listing on a house located at 227 River Hill Drive, Jacksonville, Florida. An associate measured the interior dimensions of

   all rooms in the house and the dimensions of the carport, basement, attached utility shed, covered entry way, covered patio, and walks.

   
   

3. The interior dimensions of the heated portions of the house, which did not include the basement, was approximately 1540 square feet. The basement contained 310 square feet, the utility shed 120 square feet, the covered entry

   38 square feet, a covered porch 295 square feet, two patios 497 square feet, and the carport 380 square feet.

   
   

4. Thereafter Defendant made up and had placed in the Florida Times Union and Journal on July 14, 1974 an advertisement offering this house for sale with the ad stating the house contained 2300 square feet.

   
   

5. Mr. and Mrs. Beaudreau saw the ad, arranged with Defendant's office to see the house, and on July 16, 1974 made an offer to purchase the house which offer was subsequently accepted by the seller. On September 3, 1974 the transaction was closed. Approximately one year later the Beaudreaus decided to put the house on the market and called a real estate broker to handle the sale. When the salesman visited the property he measured the floor area contained in the exterior dimensions of the house, excluded all unheated area and advised the Beaudreaus that the house contained approximately 1560 square feet.

   
   

6. When the Beaudreaus asked Defendant why he had advertised the house as containing 2300 square feet and were given short shrift they complained to the FREC and the investigation and administrative complaint here involved followed.

   
   

7. In appraising property the value of all components of the property are considered with the heated area generally receiving the highest value per square foot.

   
   

8. The Jacksonville Board of Realtors conduct indoctrination courses which are required for all members, however, they do not teach how to determine the square footage in a house. No uniform system of measuring the square footage of a house is taught at the approved real estate course's which are compulsory for all applicants for registration with the FREC.

   
   

9. There is no one uniform system for determining the square footage in a house. Some consider only the heated area should be included; others include areas not heated, such as porches, garages, basements, etc.

   
   

10. No regulation has been promulgated by the FREC to standardize the procedure for determining the square footage of a residence, although the better view appears to be that only the heated area be included and all open area, such as porches, carports, patios, garages, etc. be excluded.

    
    

11. The covered area of the residence at 227 River Hill Drive exceeded 2700 square feet. In placing the ad Defendant excluded the area of the carport to arrive at his figure of 2300 square feet.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 475.25(1)(b) F.S. provides in pertinent part that the registration of a registrant may be suspended for a period not to exceed two years upon a finding of fact that registrant has:

    
    

    "Been guilty of false advertising in, on or by newspapers...or other means of communication

    or publicity, of such character as to deceive or defraud investors, or prospective investors, in real property or interest therein, as more particularly described in Section (2) of s475.01, whether such property is owned, or purported to be owned by the registrant or by another..."

    
    

13. Absent a recognized standard by which real property square footage is to be measured it cannot be said that the Defendant is guilty as alleged of falsely advertising the property here involved. It is therefore,

RECOMMENDED that the complaint be dismissed.

DONE and ENTERED this 18th day of November, 1976, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Louis B. Guttmann, III Esquire and Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

David Lee, Esquire

912 American Heritage Building Jacksonville, Florida 32202

Docket for Case No: 76-001476

Orders for Case No: 76-001476