STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1553

) PROGRESS DOCKET 3223

RALPH E. HELLENDER, ) ORANGE COUNTY

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in the third floor conference room, State Office Building, 400 West Robinson Street, Orlando, Florida on March 1, 1978 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 Ralph E. Hellender alleging that he had violated Section 475.25(1)(a), Florida Statutes, by failing to communicate an offer to a client and advising another realtor through whom the offer was made that the offer had been accepted when it had not been accepted.

APPEARANCES

For Petitioner: Bruce I. Kamelhair, Esquire

400 West Robinson Street Orlando, Florida

For Respondent: Mark A. Koteen, Esquire

Post Office Box 3431 Orlando, Florida 32802

ISSUES

Whether Hellender violated the provisions of Section 475.25(1)(a), Florida Statutes.

FINDINGS OF FACT

1. Hellender is a registered real estate broker holding license number 0038269 issued by the Florida Real Estate Commission.

   
   

2. Hellender had a listing for the sale of real property owned by Horace

   E. and Margaret C. Young.

   
   

3. An offer to lease with option to purchase was made by Richard W. and Diane B. Milligan through their realtor, Susan Seligman, who was in contact with Seligman several times November 26 concerning the availability of the property and terms of the lease-purchase agreement.

4. Both the Youngs and the Milligans did not live in the Orlando area where the two realtors and property were located.

   
   

5. Susan Seligman, a broker-salesperson, presented Ralph E. Hellender with a Contract for Sale and Purchase when she met with Hellender between 6:00 and 7:00 p.m. on the evening of November 26, 1976. This offer, which was received into evidence as Exhibit 1, expired at 12:00 noon on November 27. Hellender took the contract and indicated that he would communicate the offer to the Youngs. Susan Seligman did not accompany Hellender to communicate the offer as is the general custom, because she needed to pick up her children from a football game that evening.

   
   

6. Mrs. Ingrid Hellender, a broker salesperson, received a call later on the evening of November 26, 1976, from Susan Seligman. The general topic of the call was the fact that the contract which Seligman had given Mr. Hellender earlier that evening provided for conventional financing of the purchase, and Seligman had second thoughts about the Milligans' desires on financing. She requested that she be given the opportunity to check with the Milligans to determine whether they intended to use conventional or FHA financing. At this point a conflict developed in the testimony of Mrs. Seligman and Mrs. Hellender regarding whether Mrs. Seligman requested that Mr. Hellender hold the contract or whether Mrs. Seligman requested that he present the offer with reservations concerning the nature of the financing. In any event, Mrs. Hellender advised her husband to hold the contract.

   
   

7. Similarly, a conflict exists in Mr. Hellender's and Mrs. Seligman's testimony concerning whether Hellender said that the offer has been accepted by the Youngs. Mrs. Seligman stated that Mr. Hellender advised her on November 27, 1976, that the Youngs had accepted the offer. Hellender stated that he did not present the offer and therefore there was no basis for him to communicate an acceptance to Mrs. Seligman and did not communicate an acceptance to her. It should be particularly noted that Mrs. Seligman stated that on November 27 she had Mr. Hellender agreed that the Milligans should execute a new contract on Hellender's forms when the Milligans were to be in Orlando on December 1, 1976. It is also noted that Mrs. Seligman did not request telegraphic confirmation of the acceptance by the Youngs of the offer which she initially submitted to Mr. Hellender, although telegraphic confirmation is the generally accepted practice when dealing with an out-of-city seller and was not standard practice in the real estate firm with which Mrs. Seligman worked.

   
   

8. The Hearing Officer discounts the testimony of Mrs. Seligman that Hellender told her the Youngs had accepted the offer because she did not request written confirmation of the acceptance, and because Mrs. Seligman stated that a second written offer was to be prepared on December 1, 1976. All the realtors who testified stated that it was the custom to obtain telegraphic confirmation of an offer from an out-of-town seller. Mr. Seligman, the broker for Mrs. Seligman's company, stated this was the general procedure for his company. Although the record is unclear whether Mrs. Seligman talked with Mr. Hellender before noon or after noon, she was aware the offer expired at noon November 27 and she did not press for written confirmation of acceptance before noon. Instead, she agreed to the preparation of a second offer is totally contrary and repugnant to any theory of acceptance of the first offer. Therefore, the Hearing Officer finds that there was no acceptance of the first offer communicated by Hellender to Mrs. Seligman. Mrs. Seligman may have formed the opinion that there was an acceptance because Mr. Hellender agreed to the terms presented in the first offer, but her agreement to a second offer to be prepared

   is in fact and law inconsistent with any assertion that the first offer was accepted.

   
   

9. Mrs. Seligman stated, that it is clear from the actions of Mr. Hellender, that they expected a second contract to be presented in behalf of the Milligans. This explains his call to Mrs. Seligman advising her on December 5 that there was activity of the property. It also explains why December 6 he did accept a second offer on the property which was presented by Joe Deligna which he and Delinga communicated to the Youngs together as is the general custom after no offer was presented by the Milligans on December 1. Lastly, it explains why Hellender contacted Mrs. Seligman immediately after the Youngs had accepted the offer by the Maccagnanos and confirmed it telegraphically.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Florida Real Estate Commission has authority to determine the matters raised in the administrative complaint and this cause.

    
    

11. The Florida Real Estate Commission has charged Ralph E. Hellender with violation of Section 475.25(1)(a), Florida Statutes based upon two factual allegations:

    
    

    1. That Hellender failed to communicate an offer to the Youngs,

    2. That Hellender communicated acceptance of an offer to Mrs. Seligman when the offer had not been accepted.

       
       

12. The events of November 27 are decisive to consideration of this case. The Commission alleges that Hellender failed to communicate the Milligans' offer to the Youngs. Hellender stated that he had not communicated that offer before his discussion with Mrs. Seligman on that date. If the Commission's allegations are limited to Hellender's failure to communicate the offer prior to his conversation with Mrs. Seligman on November 27, then Hellender is not guilty of the violation because his wife told him to hold the offer. Whether she was requested to tell her husband this or not, she did tell him to hold the offer. Further, even if Hellender had been advised to present the offer, considering the fact that the Youngs were out-of-town sellers and the limited time available to him to communicate the offer, Hellender's failure to contact the Youngs is not a matter of fraud, dishonest dealing or culpable negligence. Clearly, Hellender cannot be held accountable under Section 475.25(1)(a), Florida Statutes, for not communicating the offer prior to his discussion with Mrs. Seligman on November 27. If the allegations are based upon Hellender's failure to communicate the offer after noon November 27, 1967, there is clearly no violation because there was no offer in existence after that time.

    
    

13. Regarding the allegations that Hellender communicated an acceptance to Mrs. Seligman of the Milligans' offer by the Youngs, the evidence does not support the allegation, and therefore Hellender is not guilty of a violation of Section 475.25(1)(a), F.S.

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 Ralph E. Hellender.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of March, 1978.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Bruce I. Kamelhair, Esq.

400 West Robinson Street Orlando, Florida 32801

Mark A. Koteen, Esq. Post Office Box 3431 Orlando, Florida 32802

Docket for Case No: 77-001553

Orders for Case No: 77-001553