STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1293

)

MARVIN COHEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on January 17, 1979, as part of a consolidated hearing on Case Nos. 77-1286, 77-1293, 77-1294, and 77-1295. This case was heard in Miami, Florida, 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 Respondent alleging that the Respondent violated Section 475.25(1)(a), Florida Statutes, by making false statements to prospective clients of Continental Marketing Services to induce clients to list their property with Continental Marketing Services and pay an advance fee for such listing while knowing that the company would not make a bona fide effort to sell the property; and further that the Respondent had violated Section 475.25(3), Florida Statutes, by engaging in a course of conduct showing that the Respondent was so dishonest and untruthful that the Respondent could not be trusted in business transactions with the money, property or rights of others.

APPEARANCES

For Petitioner: Mark A. Grimes, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: Marvin Cohen, pro se

1422 NW 196th Street Miami, Florida 33169

ISSUE

The issue presented is whether Respondent violated Section 475.25(1)(a) and Section 475.25(3), Florida Statutes, as alleged in the administrative complaint.

FINDINGS OF FACT

1. Marvin Cohen is a registered real estate salesman. He was employed from September, 1975 until March, 1976, with Continental Marketing Services.

   
   

2. The depositions of Mary Schmucker, Lawrence Hyer, and Eguene Leu were received without objection into the record. These depositions reveal that each of the deponents received a telephone call from a person identifying himself as

   Marvin Cohen. The caller represented that he was with Continental Marketing Services, a real estate sales organization. The caller sought a listing by the individual deponent's of property owned by them in the State of Florida with Continental Marketing Services. The caller represented that their property would be advertised nationally and overseas and could be sold at an amount greater than they had paid for it. No representations as to ready, willing and able purchasers were made to the deponents, nor was a guarantee of positive sale made. No representations were made by the deponents Hyer and Schmucker that had ever met Marvin Cohen or recognized his voice. Eugene Leu stated specifically that he had never met Cohen. The deponents all eventually listed their property with Continental Marketing Services and paid advance listing fees for between

   $325 and $350.

   
   

3. No evidence was presented that the representations made by the caller were false, that Continental Marketing Services did not perform all services that it contracted to perform for the deponents, or that the Respondent Marvin Cohen had any knowledge of the calls, the representations made therein, or the business practices of Continental Marketing Services.

   
   

   CONCLUSIONS OF LAW

   
   

4. Florida Real Estate Commission has charged the Respondent with violation of Section 475.25(1)(a) and Section 475.25(3), Florida Statutes. Specifically, the Florida Real Estate Commission alleges that the Respondent made false and misleading statements to induce people to list their property with Continental Marketing Services and pay an advance listing fee while knowing that the company would not make a bona fide effort to sell their property. Further, the Florida Real Estate Commission alleges that the Respondent engaged in a course of conduct in his activities demonstrating that he cannot be trusted to deal with the money, property or rights of others in a business transaction.

   
   

5. There is no evidence presented to support the allegation that the Respondent is the individual who called the deponents and identified himself as Marvin Cohen. The deposition of Eugene Leu specifically reflects that Leu had never met Cohen. The depositions of Hyer and Schmucker do not reveal that they had met Cohen or that they could identify his voice on the telephone. There is no evidence in the record that any of the statements made by the caller to the deponents was false. There is no substantial and competent evidence presented that the Respondent, Marvin Cohen, had any knowledge of these telephone calls, had any knowledge that any of the statements made by the caller were false, or that Marvin Cohen had any knowledge of the business dealings of Continental Marketing Services or that the practices of Continental Marketing Services departed in any degree from the representations made to their clients. In summary, there is no substantial and competent evidence to support the allegations contained in the administrative complaint that the Respondent made false and misleading statements or knew that Continental Marketing Services was not marketing property in the manner it represented to the public.

   
   

6. In absence of any substantial and competent evidence to prove a violation of Section 475.25(1)(a), there is no substantial and competent evidence to support the allegation that the Respondent has violated Section 465.25(3), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken by the Florida Real Estate Commission against the registration of Marvin Cohen as a real estate salesman.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979.

COPIES FURNISHED:

Mark A. Grimes Staff Attorney

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Marvin Cohen

1422 NW 196th Street Miami, Florida 33169

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

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

=================================================================

July 9, 1979

TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney

RE: PD 3154 - FREC vs. MARVIN COHEN 00158048 DOAH CASE NO. 77-1293

Pursuant to the Commission's Order of May 9, 1979, the Defendant's license is to be suspended for a period of 180 days, effective June 29, 1979. The suspension shall elapse on December 27, 1979. No appeal was taken.

Mark A. Grimes Staff Attorney

Docket for Case No: 77-001293

Orders for Case No: 77-001293