STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-197

) P.D. No. 2770

MURRAY ALTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A This case was heard pursuant to Notice in Room 208, Federal Building, Miami, Florida on January 24 and 25, 1978, by Stephen F. Dean, assigned Hearing Officer for the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Manuel Oliver, Esquire

Charles Felix, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For the Respondent: Ronald L. Fried, Esquire

(entered a late 2699 South Bayshore Drive, Suite 400C appearance) Miami, Florida 33133

This case was represented on an administrative complaint filed by the Florida Real Estate Commission against Murray Alter alleging that Alter had violated Section 475.25 (1)(a), Florida Statutes, by knowingly making false representations to persons to induce them to list their property with International Land Services Chartered, Inc., and thereby, having engaged in a course of conduct showing that Alter cannot be entrusted with money and things of others in violation of Section 475.25(2), Florida Statutes.

The Florida Real Estate Commission presented evidence that Murray Alter was employed by International Land Services Chartered, Inc., and received commission payments from International Land Sales Chartered, Inc. The Florida Real Estate Commission introduced the depositions of Mr. and Mrs. McKay and Mr. Icard, and the testimony of William Carey Hansard. Alter testified on his own behalf.

ISSUE

Whether Murray Alter violated the provisions of Section 475.25(1)(a), and (2), Florida Statutes.

FINDINGS OF FACT

1. Murray Alter is a registered real estate salesman.

   
   

2. Alter was employed by International Land Services Chartered, Inc. from 1974 to 1976 and received commission payments during that time from International Land Sales Chartered, Inc.

   
   

3. Alter was a listing representative or "closer".

   
   

4. Alter identified a letter signed by him to William Carey Hansard and stated that he (Alter) sent people he had contacted such letters.

   
   

5. Hansard testified that Alter stated to him that Hansard's property could be sold easily. Hansard did not attribute any other representations to Alter and indicated that he had talked mostly with other salesmen. Hansard said Alter told him the primary means of selling the property would be by advertisement in a catalogue sent by International Land Services Chartered, Inc., to U.S. and foreign brokers.

   
   

6. The deponents indicated that they had been contacted by a person who identified himself as Murray Alter. The McKays stated that the person identifying himself as Alter did not represent to them that International Land Services Chartered, Inc., had made other sales of property or that the company had ready buyers. They stated that the person identifying himself as Alter stated that their property would be easy to sell because there was a boom in Florida real estate. The McKays stated that the person who identified himself as Alter represented that International Land Services Chartered, Inc., would advertise their property in a catalogue which would be sent to U.S. and foreign brokers.

   
   

7. Icard stated the person who identified himself as Alter contacted him, but did not represent that International Land Services Chartered, Inc. had made other sales or that the property could be sold immediately, or that the property could be sold at several times its price.

   
   

8. Alter denied making any false representations to any of the persons whom he contacted. Alter explained his duties with International Land Services Chartered, Inc.

   
   

   CONCLUSIONS OF LAW

   
   

9. Murray Alter is charged with violation of Section 475.25(1)(a), Florida Statutes, by knowingly make false representations to persons to induce them to list their property with International Land Services Chartered, Inc. The evidence shows that the only statement made by Alter to the deponents or Hansard was that their property could be easily sold because of the boom in Florida real estate, and that International Land Services Chartered, Inc., would advertise their property for sale by means of a catalogue to be sent to U.S. and foreign brokers. This was represented to Hansard as being the primary means of advertising the property for sale.

   
   

10. No evidence was introduced to show that Alter's representations were untrue. Nothing was presented about the value of Florida real estate or the status of the market for Florida real estate when these representations were made to Hansard or to the deponents. The evidence presented generally indicates that some form of catalogue was prepared, updated, and sent to brokers in the

    United States and overseas. No evidence was presented that International Land Services Chartered, Inc., did not prepare or send out such a catalogue.

    
    

11. A connection is definitely established between Hansard and Alter, based upon Alter's identification of a letter signed by him to Hansard. A connection between Alter and the McKays and Mr. Icard may be presumed because they also received a letter bearing the name Murray Alter, which is consistent with Alter's testimony that he sent such letters to persons that he contacted. There is, however, no evidence that the statements made by Alter to Mr. Hansard, Mr. Icard, and the McKays were false. No evidence was introduced that the property was not saleable; no evidence was introduced that there was not a boom in Florida real estate; no evidence was introduced that there were not foreign investors purchasing Florida real estate; no evidence was presented that International Land Services Chartered, Inc. did not prepare and send catalogues of its listing to U.S. and foreign brokers. Regarding the alleged failure of International Land Services Chartered, Inc., to prepare and send catalogues to

    U.S. and foreign brokers, the evidence presented at the hearing generally indicates that catalogues were prepared and sent to U.S. and foreign brokers.

    
    

12. The Florida Real Estate Commission has the burden to go forward and prove the allegations contained in the Administrative Complaint against Alter by substantial and competent evidence. In the absence of such a showing, the allegations are not proven.

RECOMMENDATION

Based upon the foregoing facts and conclusions of law, the Hearing Officer recommends to the Florida Real Estate Commission that no action be taken against the registration of Murray Alter as a real estate salesman.

DONE and ORDERED this 7th day of March, 1978, Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Manuel Oliver, Esquire Charles Felix, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Ronald L. Fried, Esquire 2699 S. Bayshore Drive Suite 400C

Miami, Florida 33133

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION

Petitioner, PROGRESS DOCKET NO. 2770 DADE COUNTY

vs. DOAH CASE NO. 77-197

MURRAY ALTER,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida on May 18, 1978,

Present: Maggie S. Lassetter, Chairman

Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

Appearances: Manuel E. Oliver

Attorney for Petitioner

No Appearance for Respondent

This Matter came on for Final Order upon the Hearing Officer's Recommended Order and the plaintiff's Exceptions thereto, and consideration thereof, together with a review of the complete record and oral argument of attorney for Petitioner and the Commission, being fully advised in the premises, finds:

1.

That the Defendant Murray Alter is presently registered with the Commission as a salesman at 200 N.E. 14th Avenue, Hallandale, Florida 33009.

2.

That the Petitioner's Exceptions to the Hearing Officer's Recommended Order are well taken and should be accepted, while rejecting the Hearing Officer's Conclusions of Law and recommendation and adopting his Findings of Fact to the extent that they are not inconsistent with the Petitioner's Exceptions herein.

3.

That the Hearing officer's Recommended Order should be rejected as it does not conform with the provisions pertaining to evidence in Chapters 120 and 475, Florida Statutes, and the rule rules promulgated therein and the applicable case law.

4.

That the Petitioner's Proffer No. 1, consisting of certified copies of the Administrative Complaint, Recommended Order and Final Order filed in the case of Jack King v, Allen J. Shackett and International Land Services Chartered Inc., Progress Docket No. 2803, and certified copies of the orders issued by the District Court of Appeal of Florida, Third District, in the case of Allen J. Shackett and International Land Services Chartered Inc. v. Florida Real Estate Commission ex rel Jack King, Case No. 77-59, should be admitted into evidence by reason of the provision in Subsection 120.58(1)(a), Florida Statutes and pursuant to the Court's findings in Foreman v. State Board of Accountancy, 243 So.2d 4 (Fla. 3d DCA 1971).

5.

That the Respondent, Murray Alter was granted an initial registration as a real estate salesman on April 20, 1970 and was registered and operated as such in the employ of International Land Services Chartered Inc., a corporate real estate broker, from September 4, 1974 to July 23, 1976 and during thee aforesaid period of time earned and was paid, by his employer, commissions for the total amount of $16,457.60.

6.

That the Commission finds that the Defendant Murray Altar as a result of the length of time he had been, by then, engaged in real estate activities and in the employ of International Land Services Chartered Inc., knew or should have known that International Land Services Chartered Inc. was organized for the primary purpose of obtaining listings of property for a fee and that the representations made by the company and its salesmen, including the Respondent, that bona fide efforts would be made to sell the property listed, were false and were made for the sole purpose of inducing the clients to forward a listing fee.

7.

That the Commission further finds that the real estate broker's registration of Allen J. Shackett and International Land Services Chartered Inc. were revoked by Final Order of the Commission on December 7, 1976, Progress Docket 2803, upon a finding that those Respondents operated an advance fee listing business designed and carried out with the sole intention of extracting monies from landowners and with no intent to fulfill the stated promise to engage in earnest efforts to sell the property listed, which acts and conduct were in violation of the Florida Real Estate License Law.

8.

That the Commission further finds that Respondent Murray Alter owed a duty of fair and honest dealing which the evidence clearly reflected he breached in that once the Respondent received a share of the advance fee, his interest and involvement in the transaction abruptly ended. As stated by Justice Terrell in the case of Quinn v. Phipps, 93 Fla. 85, 113 So. 41 (1927):

The real estate business is not an avenue by which one may practice the tricks of his trade or prey on the innocent and unsuspecting purchaser, nor is it a cloak to cover fraud

and deception, or a means for designing persons to short-circuit those who would deal squarely and in good faith. It is indeed a highly respectable business or profession;

its ethics are well defined and presumed to be known to those who patronize or engage in that business. No business known to modern society has a longer or more respectable history.

Real Estate is a primary security for credit in all the civilized countries of the earth, and the real estate broker in our time, and long has been the medium through which annually many millions of dollars in earnings

and savings are secured or invested. He is the agent of his principal in every sense, and when that relation is undertaken, a fiduciary relationship is created which bars the agent from becoming interested in the business or property antagonistic to his principal without his knowledge or consent. Every man, in other words, to whom a business is entrusted is a trustee whose business is to advise concerning or to operate the business of another.

IT IS THEREFORE ORDERED:

1. That the Petitioner's Exceptions to the Hearing Officer's Recommended Order be, and they are hereby, sustained.

   
   

2. That the Hearing Officer's Findings of Fact be, and they are hereby, adopted by the Commission to the extent that they are not inconsistent with the Petitioner's Exceptions herein, and the additional findings of fact of the Commission as set out herein.

   
   

3. That the Hearing Officer's Conclusions of Law and recommendation be, and they are hereby, rejected by the Commission, for the reasons stated in this Order and the Petitioner's Exceptions as filed.

   
   

4. That Petitioner's Proffer No. 1 be, and the same is hereby, admitted into evidence.

   
   

5. That the Respondent be, and he is hereby adjudged guilty of violating Subsection 475.25(1)(a) and 475.25(3), Florida Statutes.

   
   

6. That for such violations for which he was adjudged guilty, the registration of Respondent be, and the same is hereby, revoked. Said revocation to become effective upon the effective date of this order as provided by law.

   
   

7. That Respondent Murray Alter shall immediately surrender his certificate of registration as a salesman to the Florida Real Estate Commission at its Executive Headquarters in Orlando, Florida upon receipt of this Order, by return mail.

DONE and ORDERED this 18th day of May, 1978.

Maggie S. Lassetter Chairman

Levie D. Smith, Jr. Vice Chairman

Arthur N. Hamel Member

I HEREBY CERTIFY that a copy of the foregoing Final Order was mailed to Murray Alter, 200 N.E. 14th Avenue, Hallandale, Florida 33009 by United States certified mail this 8th day of June, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective upon the 10th day of July, 1978.

However, you have the right of review by an appellate court, if you desire.

Docket for Case No: 77-000197

Orders for Case No: 77-000197