STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-199

) P. D. No. 2783

MARION MALT, )

)

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 Marion Malt, alleging that Malt was guilty of violation of Section 475.25(1)(a). Florida Statutes, by knowingly having made 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 she is unable to be entrusted with money or things of others contrary to the provisions of Section 475.25(2), Florida Statutes. The Florida Real Estate Commission introduced evidence that Marion Malt was an employee of International Land Services Chartered, Inc. and received commission payments from International Land Sales Chartered, Inc. The Florida Real Estate Commission introduced evidence showing the practices in which Malt had engaged. Malt testified on her own behalf regarding her duties and her employment with International Land Services Chartered, Inc.

ISSUE

Whether Marion Malt is guilty of violation of 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 E. Fried

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

FINDINGS OF FACT

1. Marion Malt is a registered real estate saleswoman.

   
   

2. Marion Malt worked for International Land Services Chartered, Inc., as a listing representative or "closer". She was paid commissions through International Land Sales Chartered, Inc.

   
   

3. In the course of her employment as a listing representative with International Land Services Chartered, Inc., Marion Malt contacted Joan Culpepper. Malt made representations to Mrs. Culpepper that she (Malt) had sold property and that the real estate market in Florida was good. She further represented that the Culpeppers could sell their property which they had purchased for $2,000.00 for approximately $20,000.00. Malt further represented that she could sell the Culpepper's property quickly, probably within sixty days. Similar representations were made to Genevieve Voli and David Bohrer.

   
   

4. Mrs. Malt identified her signature on a letter which Mrs. Culpepper had identified as a letter received after her initial contact by a person identifying herself as Marion Malt. Marion Malt testified that she sent such letters to the persons whom she contacted.

   
   

5. Marion Malt knew that International Land Services Chartered, Inc., had no sales staff, and further, Malt knew that she had not sold any property. Malt knew that the sales operation of International Land Services, Chartered, Inc. was totally dependent upon other brokers marketing the property listed by International Land Services Chartered, Inc., through advertisement in the catalogue prepared by International Land Services Chartered, Inc. Malt had no actual knowledge of any sales based upon the catalogue by International Land Services Chartered, Inc., yet she represented such sales had been consummated in her conversations with Culpepper, Voli, and Bohrer.

   
   

   CONCLUSIONS OF LAW

   
   

6. Marion Malt is charged with violation of Section 475.25(1)(a), Florida Statutes, by having been guilty of fraud and misrepresentation in a business transaction.

   
   

7. The facts represented at the hearing show that Marion Malt made representations of sales and as to the value of property to Culpepper, Voli, and Bohrer. The facts also connect Malt personally to the Culpepper transaction, and her testimony indicates that she sent letters to persons who she contacted. Such letters bearing the signature of Marion Malt were identified by Voli and Bohrer. The record that Malt also made misrepresentations regarding her sale of land and the value of the land belonging to Bohrer and Voli based upon her sales.

   
   

8. While puffing is permitted regarding real estate values, it is a misrepresentation for real estate salesperson to make misrepresentations of future value or prospects, coupled with false statements of sales of similar property. This is mentioned in interpretative memorandum 7.08 of the Florida Real Estate Commission Handbook. While these interpretative memoranda do not constitute a rule, they are intended to expand and clarify the rules and statutes regulating real estate brokerage.

   
   

9. Further, Malt clearly understood that International Land Services Chartered, Inc., was not engaged in real estate brokerage in the traditional

   sense. She was aware that International Land Services Chartered, Inc., had no sales department and that the sales of the listings which she was soliciting were dependent upon the activity of other real estate brokers based upon the advertisements contained in the catalog prepared by International Land Services Chartered, Inc. While the definition of the practice of real estate brokerage and sales is expansive enough to cover the activity of International Land Services Chartered, Inc., and while there is no prohibition per se against such a means of offering real estate for sale, the practices of International Land Services Chartered, Inc., was a sufficient departure from traditional real estate practice to require complete and full disclosure to persons solicited of the exact services provided by International Land Services Chartered, Inc.

   
   

10. In this regard, Malt's misconduct was making representations which lead persons to the belief that International Land Services Chartered, Inc. was engaged in the traditional practice of real estate brokerage and that International Land Services Chartered, Inc. was successful in selling property. Malt knew the nature of the brokerage activity of International Land Services Chartered, Inc., and she had no personal knowledge of sales consummated through International Land Services Chartered. Inc.

    
    

11. The record shows that Malt engaged in this type of misconduct in her dealings with Voli, Bohrer, and Culpepper. This continued conduct constitutes a course of conduct which shows that Malt cannot be entrusted with the money or things of others contrary to the provisions 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 revoke the registration of Marion Malt as a real estate saleswoman.

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

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

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 E. Fried

2699 South Bayshore Drive Suite 400C

Miami, Florida 33133

Docket for Case No: 77-000199

Orders for Case No: 77-000199