STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1294

)

NETTIE BYER, )

)

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 the 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 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: Robert D. Klausner, Esquire

Evan J. Byer, Esquire

28 W. Flagler Street, Suite 804 Miami, Florida 33130

ISSUE

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

FINDINGS OF FACT

1. The Respondent, Nettie Byer, was employed by Continental Marketing Services from November 3, 1975, until March 31, 1976, as a broker salesman.

2. The deposition of Maureen Palloti was received into the record subject to the objections ruled on in the Hearing Officer's Order heretofore entered in the record. The testimony of Edward Nadelman was received.

   
   

3. Nadelman stated that he was contacted by telephone by a person who represented that she was Nettie Byer. The caller stated that she was with Continental Marketing Services, a real estate sales organization. The caller further represented that if Nadelman paid a $350 advance fee, Continental Marketing Services would list Nadelman's property advertising it widely within the United States and abroad, selling it for several times what Nadelman paid for the property. Nadelman subsequently received a copy of that advertisement for his property. Nadelman's property was not sold.

   
   

4. The deposition of Maureen Palloti reflects that Mrs. Palloti and her husband were contacted by a caller who identified herself as Nettie Byer. The caller made representation similar to those made to Edward Nadelman. As a result, the Pallotis entered into a listing agreement with Continental Marketing Services, paid an advance listing fee, and subsequently received a proof of an advertisement of their property.

   
   

5. Evidence was presented that Nadelman's and the Pallotis' property was not worth the price suggested by the caller as the price at which the property could be sold. However, no guarantees of sale were made by the caller.

   
   

6. No evidence was introduced that the individual who called Edward Nadelman or that the individual who called the Pallotis was the Respondent, Nettie Byer. No evidence was introduced that the Respondent had any knowledge of the business activities of Continental Marketing Services. No evidence was introduced that Continental Marketing Services did not perform in accordance with the listing contracts with the Pallotis or with Nadelman.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Florida Real Estate Commission charges that Respondent with violation of Section 475.25(1)(a) and Section 475.25(3), Florida statutes. Specifically, the Commission alleges that the Respondent made false and misleading statements to Nadelman and the Pallotis to induce them to list their property with Continental Marketing Services and pay the advance fee, that the Respondent knew that Continental Marketing Services was not making a bona fide effort to sell the property, and that the Respondent's course of conduct was such that she could not be entrusted with the money, property or rights of individuals in the business transaction.

   
   

8. There is no substantial and competent evidence in the record to connect the Respondent, Nettie Byer, with the individual who called Maureen Palloti or Edward Nadelman. There is no evidence to establish that the Respondent had any knowledge of the business activities of Continental Marketing Services.

   
   

9. The Florida Real Estate Commission has the burden to prove the allegations contained in the administrative complaint. The Florida Real Estate Commission has failed to show any violation by the Respondent, Nettie Byer, of Section 475.25(1)(a), Florida Statutes. The Florida Real Estate Commission has thereby failed to prove any violation of Section 475.25(3), 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 license of Nettie Byer as a broker salesman.

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

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Robert D. KIlausner, Esquire

28 W. Flagler Street, Suite 804 Miami, Florida 33130

Mark A. Grimes, Staff Attorney Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 77-001294

Orders for Case No: 77-001294