STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

An Agency of the State )

of Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 77-198

) P.D. No. 2772

RICHARD H. WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

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 of the Division of Administrative Hearings.

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

The Florida Real Estate Commission showed that White was employed by International Land Services Chartered, Inc. and paid commissions by International Land Sales Chartered, Inc. The Florida Real Estate Commission introduced depositions and testimony relating to the allegations against White. White testified regarding his duties with International Land Services Chartered, Inc.

ISSUES

Whether Richard H. White violated Section 475.25 (1)(a), and (2), Florida Statutes.

APPEARANCES

For Petitioner: Manuel Oliver, Esquire

Charles Felix, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For Respondent: Ronald L. Fried, Esquire

2699 South Bayshore Drive, Suite 400C Miami, Florida 33133

FINDINGS OF FACT

1. Richard H. White is a registered real estate salesman.

   
   

2. White was employed by International Land Services Chartered, Inc. for over one year as a listing representative or closer. He received commissions for his work from International Land Sales Chartered, Inc.

   
   

3. The testimony and depositions introduced by the Florida Real Estate Commission against White indicate that the deponents and witness were called by an individual who identified himself as Ed or Bill White or Mr. White, an employee of International Land Services Chartered, Inc. This caller represented that International Land Services Chartered, Inc. could sell the individuals' property in Florida, that the sales of real property in Florida were booming, that there were foreign investors interested in purchasing Florida real estate, and that International Land Services Chartered, Inc. would advertise their property for sale in a catalogue which was distributed to real estate brokers in the United States and overseas. The caller further represented that International Land Services Chartered, Inc. would sell the property through its advertising effort. No evidence was introduced that any of these representations were false. There were no representations made by the caller that the caller had made sales, that there were prospects already interested in the individuals' property, or that the property was worth a given price based upon similar sales by the caller.

   
   

4. White testified that he had seen the catalogue prepared by International Land Services Chartered, Inc. and that to the best of his knowledge, these were distributed to brokers in the United States and overseas. There is evidence in the record to support the fact that International Land Services Chartered, Inc. prepared listings and distributed them to brokers. There is no evidence in the record that International Land Services Chartered, Inc. did not produce such a catalogue. Mr. White stated that Mr. Shackett, the broker for International Land Services Chartered, Inc., told him that there had been sales, but discouraged White's further inquiry by telling him that he had been hired to obtain listings and was not entitled to any commission from sales and that matters relating to sales was none of his business. White's testimony was supported by the testimony of others who received similar responses from Mr. Shackett. The testimony of White and others was uncontroverted.

   
   

5. The only evidence that Richard White was the caller who contacted the witnesses called against him, was the caller's use of the last name White and the testimony of Richard White that he was the only person named White working for the company.

   
   

   CONCLUSIONS OF LAW

   
   

6. Richard H. White is charged with violation of Section 475.25(1)(a), Florida Statutes, in that he made false representations to persons to induce them to list their property with International Land Services Chartered, Inc.

   
   

7. The representations made by the caller who identified himself as White were not fraudulent or false. The consensus of the testimony regarding the representations made by the caller was that the market for real estate was good in Florida, there were foreign investors buying real estate in Florida, and that the property could be sold by advertising in a catalogue prepared by International Land Services Chartered, Inc. No evidence was presented that the real estate market in Florida was not good, that there were not foreign

   investors purchasing Florida real estate, and that the catalogue was not prepared and sent out by International Land Services Chartered, Inc.

   
   

8. A fine line can exist between fraudulent and false representations and mere puffing. All of the witnesses against White could state only that their caller identified himself as Mr. White. Although this provides a connection of Richard H. White to the transactions, none of the witnesses related representations made by Mr. White that were proven fraudulent or false.

   
   

9. The definition of real estate brokerage is broad enough to include the activities of International Land Services Chartered, Inc. By taking listings for sales of real estate and by advertising them in a catalogue, International Land Services Chartered, Inc., engaged in real estate brokerage. There is no statute or rule which prohibits the offering of real estate for sale in the manner used by International Land Services Chartered, Inc. Per se, there is no statute or rule which prohibits taking an advance fee for such services. Representing that a person's property would be listed in a catalogue, that the market was good, and that the property could be sold is not fraud, if International Land Services Chartered, Inc. prepared and mailed a catalogue and if its representatives did not represent that International Land Services Chartered, Inc. would function as a traditional broker. The consensus of the testimony presented against White was that he did not represent that International Land Services Chartered, Inc. was engaged in traditional brokerage. White indicated specifically that the primary means used to sell the property would be the publication and distribution of the catalogue by International Land Services Chartered, Inc. There is no evidence that International Land Services Chartered, Inc. did not prepare and distribute a catalogue of listings, and in fact, the evidence supports the findings that the A company did prepare and distribute catalogues of listings.

   
   

10. White's representations that International Land Services Chartered, Inc. would sell the property cannot be said to be a misrepresentation in the absence of more specific representations and when the actual activities had been explained. The statement that the property would be sold is puffing and is common to all sales activities. No one would list property with a realtor who said, "Yes, we will list your property and we might sell it." Such a qualifying statement would turn away most prospective listers. It is understood that if property is listed with a broker, the realtor will do what he has promised to do in a good faith attempt to sell the property. When one is involved in a traditional real estate brokerage practice, this include advertising, showing the property, advising the seller how best to present the property, answering inquiries from prospective purchasers, and similar activities. Clearly, when one departs from the traditional practice, one must qualify what services are being provided. As stated above, the services to be provided by International Land Services Chartered, Inc. were stated. White had no duty to further qualify his representations if he personally had no doubts concerning the company's good faith to do what he was representing the company would do. There is no evidence in the record that White had such doubts or that he should have had such doubts, based upon information available to him.

    
    

11. The burden rests upon the Florida Real Estate Commission to prove the allegations contained in the administrative complaint. The evidence in this case does not support a conclusion that Richard II. White violated Section 475.25(1)(a), and therefore, does not show a violation of Section 475.25(2), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Richard H. White as a real estate salesman.

DONE and ORDERED this 7th day of April, 1978, in 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

Docket for Case No: 77-000198

Orders for Case No: 77-000198