STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 77-205

) PD No. 2956

CHARLES LA GUARDIA, )

)

Respondent. )

)

RECOMMENDED ORDER

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

This case was presented upon an Administrative Complaint filed by the Florida Real Estate Commission against Charles La Guardia which alleged that La Guardia knowingly made false representations to persons to induce them to subscribe to services of International Land Services Chartered, Inc., in violation of Section 475.25(1)(a), Florida Statutes, and that he engaged in a course of conduct such that he cannot be trusted with the money and things of others in violation of Section 475.25(2), Florida Statutes.

The Florida Real Estate Commission presented the depositions of Mr. Michael Karavangelos, Mrs. Dorothy Karavangelos, and Theo E. Miles. These depositions reflect that the deponents had been contacted by a person who identified himself as La Guardia, that this person made certain representations to them and as a result, they had subscribed to the services of International Land Services Chartered, Inc. Charles La Guardia testified that he had worked at International Land Services Chartered, Inc. for a few months in late 1974 prior to moving to California in December of that year. La Guardia stated that he had no reason to suspect that International Land Services Chartered, Inc. was not doing all that he had represented to people that the company would do, and that he never had knowingly made any false representations to persons whom he contacted.

APPEARANCES

For Petitioner: Manuel Oliver, Esquire

Charles Felix, Esquire

Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

For Respondent: Charles La Guardia

(Representing himself) 936 Bambi Drive

Destin, Florida 32541

ISSUES

Whether Charles La Guardia violated the provisions of Section 475.25(1)(a) and (2), Florida Statutes.

FINDINGS OF FACT

1. Charles La Guardia is a registered real estate salesman.

   
   

2. La Guardia was employed by International Land Services Chartered, Inc. in late 1974 and drew commissions from the company only in that year.

   
   

3. La Guardia ceased to work with International Land Services Chartered, Inc. in December, 1974, when he moved to California.

   
   

4. La Guardia's duties at International Land Services, Inc. were to contact people by phone and to attempt to sell them the services of International Land Services Chartered, Inc. La Guardia represented that Florida land was appreciating in value, that foreign investors were buying Florida land, and that upon payment of a fee, International Land Services Chartered, Inc. would list an individual's land in a brochure which would be sent to brokers in the United States and in foreign countries.

   
   

5. The depositions presented in behalf of the Florida Real Estate Commission indicate that someone calling themself La Guardia contacted the deponents. The person represented that Florida land was appreciating in value, that foreign investors were buying Florida land, that their land could be sold at a profit, and that International Land Services Chartered, Inc. would list their property in a brochure and send it to brokers in the United States and overseas.

   
   

6. The deponents, the Karavangelos and Theo Miles, sent money to International Land Services Chartered, Inc. where their property was listed in a brochure prepared by International Land Services Chartered, Inc. and sent to at least one broker in Georgia, because Miles received a copy of his listing from a Georgia realtor. See Miles deposition, Page 11. The Karavangelos also received a copy of one of their listings with International Land Services Chartered, Inc.

   
   

7. Theo Miles stated specifically that he set the price for this parcel of land. See Miles deposition, Page 6. The Karavangelos also stated that they had set the price for their land based upon suggestions of the value of land generally expressed to them by the person who called them. Mr. Karavangelos stated that the person identifying himself as La Guardia gave him "a high sales talk like which all real estate brokers do."

   
   

8. Evidence was received from various witnesses at the hearing that brochures were prepared by International Land Services Chartered, Inc. and were mailed by the company to real estate brokers in the United States and in foreign countries.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Florida Real Estate Commission has charged Charles La Guardia with making false representations to induce persons to subscribe to the services of International Land Services Chartered, Inc. contrary to the provisions of Section 475.25(1)(a), Florida Statutes. Section 475.25(1)(a) prohibits misrepresentation, concealment, fraud, false promises, false pretenses,

   dishonest dealing, trick, scheme or device. The misrepresentations specifically alleged to have been made by La Guardia to the persons whom he contacted were that:

   
   

   1. Their property could be sold at several times their purchase price,

   2. Their property would be advertised nation-wide and in foreign countries,

   3. The company had buyers ready to purchase property listed by the company.

      
      

10. Regarding the alleged misrepresentation that International Land Services Chartered, Inc. had buyers ready to purchase property, none of the deponents acknowledged such a statement having been made to them.

    
    

11. Regarding the alleged misrepresentation that the listing would be advertised nationally and in foreign countries, one of the deponents actually obtained a listing of his property from a Georgia realtor. No evidence was introduced by the Florida Real Estate Commission that International Land Services Chartered, Inc. had failed to advertise as represented. Copies of listings by International Land Services Chartered, Inc. were attached to the depositions of both Theo Miles and the Karavangelos.

    
    

12. Regarding the alleged misrepresentation of the value of the property, the Florida Real Estate Commission has not introduced any evaluation of the property owned by Theo Miles or the Karavangelos. Both Miles and the Karavangelos indicate that they established the sales price of their property based upon representations made to them. In the deposition of Theo Miles, it is evident that these were these were general representations. In the deposition of Mr. Karavangelos, he recognized that the representations made to him were part of "a high sales talk like which all real estate brokers do."

    
    

13. There is a general absence of specific proof required to show fraud and misrepresentation in the evidence presented by the Florida Real Estate Commission. There is only tenuous identification that La Guardia is the person who spoke with the Karavangelos or Theo Miles. There is no showing what the actual value of their property was. There is no showing that a representation was made to either the Karavangelos or Mr. Miles that buyers were ready to purchase property listed. There is no showing that International Land Services Chartered, Inc. did not advertise nationwide or in foreign countries. In summary, the evidence does not show a violation of Section 475.25(1)(a), Florida Statutes; therefore, no violation is demonstrated 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 Charles La Guardia as a registered real estate salesman.

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 Avenue Orlando, Florida 32801

Charles La Guardia 936 Bambi Drive

Destin, Florida 32541

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

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

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 77-205

PROGRESS DOCKET NO. 2956

CHARLES LAGUARDIA, DADE COUNTY

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 Charles LaGuardia, Respondent

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

1.

That the Respondent Charles LaGuardia is presently registered with the Commission as a salesman at 936 Bambi Drive, Destin, Florida 32541.

2.

That the Petitioner's Exceptions to the Hearing Officer's Recommended Order are well take 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 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 provisions 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, Charles LaGuardia was granted an initial registration as a real estate salesman on February 10, 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 January 9, 1975 and during the aforesaid period of time earned and was paid, by his employer, commissions for the total amount of $712.50.

6.

That the Commission finds that Respondent Charles LaGuardia 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 Charles LaGuardia owed a duty of fair and hones 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 Charles LaGuardia 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 as adjudged guilty, the registration of Respondent Charles LaGuardia 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 Charles LaGuardia 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

Louie D. Smith, Jr. Vice Chairman

Arthur N. Hamel Member

I HEREBY CERTIFY that a copy of the foregoing Final Order was mailed to Charles LaGuardia, 936 Bambi Drive, Destin, Florida 32541 by United States certified mail this 8th day of June, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Order shall be come effective upon the 10 day of July, 1978. However, you have the right of review by an appellate court, if you so desire.

MEO/km

Docket for Case No: 77-000205

Orders for Case No: 77-000205