STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-203

) P.D. No. 2954

KENNETH SCOTT GRUBER, )

)

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 ease was presented on an Administrative Complaint filed by the Florida Real Estate Commission against Kenneth Scott Gruber by alleging that Gruber knowingly had made false representations to persons to induce them to list their property with International Land Services Chartered, Inc. contrary to the provisions of Section 475.25(1)(a) Florida Statutes, and that by doing so, he had engaged in a course of conduct showing that he cannot be trusted with money or things of others in violation of Section 475.25(2), Florida Statutes.

The Florida Real Estate Commission presented evidence that Gruber had been employed by International Land Services Chartered, Inc. and was paid a commission by International Land Sales Chartered, Inc. Gruber testified that he was employed by International Land Services Chartered, Inc. as a listing representative and in that capacity he had obtained listings for International Land Services Chartered, Inc. Gruber denied having made misrepresentation of the facts to obtain these listings. He described his duties with International Land Services Chartered, Inc. No evidence was introduced of any misrepresentations made by Gruber.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Florida Real Estate Commission

400 West Robinson Street Third Floor

Orlando, Florida 32801

For Respondent: Kenneth Scott Gruber

9180 Dickens Ave.

Surfside, Florida 33154

ISSUES

Whether Gruber violated Section 475.25(1)(a) and (2) Florida Statutes.

FINDINGS OF FACT

1. Kenneth Scott Gruber is a registered real estate salesman.

   
   

2. Gruber was employed by International Land Services Chartered, Inc. and paid by International Land Sales Chartered, Inc. from mid-November, 1975 until March, 1976.

   
   

3. Gruber was a listing representative, or "closer". Gruber contacted prospects in behalf of International Land Services Chartered, Inc. and obtained listings for the company.

   
   

4. Gruber denied making any false representations. No evidence was presented of any representations which he had made.

   
   

   CONCLUSIONS OF LAW

   
   

5. Gruber is charged with violation of Section 475.25 (1)(a) Florida Statutes with having knowingly made false representations to induce people to list their property for sale with International Land Services Chartered, Inc. No evidence was introduced of any misrepresentation made by Gruber.

   
   

6. The Florida Real Estate Commission has the burden of proving the allegations of the Administrative Complaint by substantial and competent evidence. In the absence of such evidence, the allegations are not proven.

   
   

7. In the absence of any proof of violation of section 475.25(1)(a) Florida Statutes, there is no evidence of 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 Kenneth Scott Gruber 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 E. Oliver, Esquire Florida Real Estate Commission

400 West Robinson Street Third Floor

Orlando, Florida 32801

Kenneth Scott Gruber 9180 Dickens Ave.

Surfside, Florida 33154

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

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

FLORIDA REAL ESTATE COMMISSION

Petitioner,

PROGRESS DOCKET NO. 2954

vs. DADE COUNTY

KENNETH SCOTT GRUBER, DOAH CASE NO. 77-203

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

Ronald L. Fried Attorney for Respondent

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

1.

That the Respondent Kenneth Scott Gruber is presently registered with the Commission as a salesman at Rainbow Investments Inc., 735 N.E. 123 Street, Suite 201, North Miami, Florida 33161.

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 rules promulgated therein and the applicable case law.

4.

That 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 arid 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, Kenneth Scott Gruber was granted an initial registration as a real estate salesman on June 11, 1970 and was registered and operated as such in the employ of International Land Services Chartered, Inc., a corporate real estate broker, from November 21, 1975 to March 8, 1976 and during the aforesaid period of time earned and was paid, by his employer, commissions for the total amount of $1,920.00.

6.

That the Commission finds that Respondent Kenneth Scott Gruber 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 Kenneth Scott Gruber 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. 805, 113 So. 419 (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 relation 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 by another, has a trust to perform; and every man 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 Kenneth Scott Gruber 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 Kenneth Scott Gruber be, and the same is hereby,

   suspended for a period of six months, said suspension to become effective upon the effective date of this order as provided by law.

   
   

7. That Respondent Kenneth Scott Gruber 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. Lassiter, 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 Ronald L. Fried, Attorney for Respondent, 2699 S. Bayshore Drive, Suite 400 C, Miami, Florida 33133 and to Kenneth Scott Gruber, Respondent, c/o Rainbow Investments Inc., 735 N.E. 123 Street, Suite 201, North Miami, Florida 33161 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 appellate court, if you so desire. MEO/km

Docket for Case No: 77-000203

Orders for Case No: 77-000203