STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-241

)

THOMAS C. HARTLAUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, on March 24, 1977, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II.

APPEARANCES

For Petitioner: Mr. Louis B. Guttmann, III, Esquire

Mr. Richard J. R. Parkinson, Esquire 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Mr. Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32304

PROCEDURAL BACKGROUND

By administrative complaint filed October 29, 1976, petitioner accused respondent of obtaining listings for International Land Brokers, Inc., during his employment by that firm, from November 17, 1975, to June 1, 1976, by telling prospects that their property "could be sold for several times the purchase price . . . would be advertised nationwide and in foreign countries . . . [and that] the company had foreign buyers wanting to purchase United States property listed with the company," even though respondent knew these representations to be false, all in violation of Section 475.25(1)(a), Florida Statutes (1975).

The administrative complaint alleged another violation of the same subsection in that respondent solicited fees in advance, to be applied against commissions, if any, knowing that no bona fide effort to sell listed property would be made; and thereby "conspired with another person, to wit, International Land Brokers, Inc., by and through its officers and directors . . ." Finally, the administrative complaint alleged that, by virtue of the foregoing, respondent was so dishonest and untruthful that disciplinary action should be taken under Section 475.25(3), Florida Statutes (1975).

At the final hearing, Petitioner's Exhibit No. 2 was tentatively received in evidence, subject to rulings on respondent's relevancy objections.

Petitioner's Exhibit 2 is the deposition of Walter J. Pankz. Attached to the

deposition were "sub-exhibits" one through nine. Only the ninth of those sub- exhibits has been considered as evidence against respondent. Although objection to petitioner's exhibit No. 4, the deposition of Charles P. Stanley, was overruled at the final hearing, a perusal of the deposition has persuaded the hearing officer that the testimony in the deposition is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs," Section 120.58(1)(a), Florida Statutes (1975), and that the exhibit should not be considered as evidence, after all.

FINDINGS OF FACT

1. Immediately before going to work for International Land Brokers, Inc., respondent was employed as a factory worker. Earlier, he had worked as a real estate salesman, including two stretches with Property Resale Services, Inc. During respondent's original employment by Property Resale Service, Inc., he telephoned nonresident landowners and tried to persuade them to list their property for sale with Property Resale Service, Inc. Landowners who listed their property paid Property Resale Service, Inc., a listing fee which was to be subtracted from the broker's commission, if any, in the event of sale. Respondent left the employ of Property Resale Service, Inc., because he "didn't think that they were in the business to actually sell properties." (R80) He later returned to Property Resale Service, Inc., but only after "[t]hey opened up a new . . . operation, calling people up, trying to sell property . . ." (R83).

   
   

2. Respondent was exclusively connected with International Land Brokers, Inc., as a real estate salesman, from November 17, 1975, until May of 1976. At International Land Brokers, Inc., respondent worked from six to ten weekday evenings and sometimes Saturdays and Sundays as well. The floor of the "one and only office" (R89) occupied by International Land Brokers, Inc., measured 15 to

   25 feet by 35 to 50 feet. The office was partitioned into 12 cubicles, each with a desk and a telephone. Respondent and other real estate salespersons sat at the desks and telephoned out-of-state landowners, working from a list of names they had been given. On the telephone, respondent identified himself as a real estate salesman and encouraged landowners to list their property for sale with International Land Brokers, Inc.

   
   

3. After making initial telephone contact with a prospect who showed interest, respondent and the other salespersons noted interested prospects' names and addresses on slips of paper. Clerical personnel mailed packets of promotional material to these persons the next working day. The materials in these packets speak of "extensive advertising and sales promotions" conducted by International Land Brokers, Inc., in its purported efforts to sell property listed with it. Respondent was familiar with these materials because samples were posted on the walls of the cubicles respondent and other salespersons used when telephoning. After allowing time for the packet to reach its destination, salespersons followed up by making another telephone call to answer questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc.

   
   

4. Landowners who agreed to list their property paid International Land Brokers, Inc., a listing fee, which was to be substracted from the broker's commission, in the event of sale. When respondent began working for International Land Brokers, Inc., the advance listing fee was two hundred fifty dollars ($250.00). During his employment, the advance listing fee climbed to two hundred eighty-five dollars ($285.00), and then to three hundred fifty dollars ($350.00). Whenever International Land Brokers, Inc., received an

   advance listing fee of three hundred fifty dollars ($350.00), respondent received one hundred twenty dollars ($120.00), if he was the salesperson who made the initial telephone call and persuaded the owner to list his property. A salesperson making initial telephone contact with a prospect was known as a "fronter;" and a salesperson who called afterwards to obtain the listing was known as a "driver." Although respondent "never got any fronters commissions," (R100), he successfully solicited between 35 and 50 listings. Walter J. Pankz, a real estate broker and president of International Land Brokers, Inc., supervised respondent and the other salespersons, and monitored some of their conversations with prospects "to make sure that there wasn't heavy overdo." Petitioner's Exhibit No. 2, p.33.

   
   

5. Respondent called Mrs. Joan Stevenson of Danvers, Massachusetts, two or three times before he succeeded in persuading her to mail a check to International Land Brokers, Inc., which she did on January 31, 1976. In the course of these telephone conversations, respondent told Mrs. Stevenson that properties in the vicinity of hers were generally being sold within four to six months of their listing, even though respondent knew that this was untrue. Respondent told Mrs. Stevenson that her "property is good property and that if he had to hold onto it any more than six months he wouldn't even bother taking a listing on it." Petitioner's Exhibit No. 3, p. 11.

   
   

6. Respondent inquired of Walter J. Pankz whether any of the property being listed with International Land Brokers, Inc., was being sold. Pankz answered that "we were working at a few going back in December, January" and that he personally "was working on transactions of reselling solicited properties" (Pankz's efforts resulted in the sale of exactly two parcels of real estate.) One night respondent noticed "cases of catalogs all over the place," (R108), but he does not know if they were ever mailed. Respondent testified that he

   
   

   thought these people were making a pretty earnest effort in trying to get the pro- perty sold, and especially when they started talking about opening up another phone operation to sell these properties . . . [T]hey kept talking about it and talking about it, but it never did materialize.

   
   

   On or about January 4, 1976, respondent saw a news report to the effect that petitioner "was cracking down on the advance-fee business." (R103) As early as December of 1975, respondent had heard of action by the authorities to discourage advance fee real estate operations. Although he was told by "the attorney for International Land Brokers" (R104) that "everything was above- board," (R105) respondent had ample reason to know that International Land Brokers, Inc., had no good faith "operation" for selling properties listed with it.

   
   

7. Respondent is now employed as a real estate salesman in Tallahassee and has earned the respect of the real estate broker who employs him.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner failed to meet its burden of proof with respect to count one, but did prove the allegations in counts two and three of the administrative complaint, and thereby established grounds for disciplinary action under Sections 475.25(1)(a) and 475.25(3), Florida Statutes (1975).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondent's real estate salesman's license.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of September, 1977.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mr. Louis B. Guttman, III, Esq. Mr. Richard J.R. Parkinson, Esq. Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Mr. Robert J. Vossler, Esq.

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32304

Docket for Case No: 77-000241

Orders for Case No: 77-000241