vs. ) CASE NO. 77-1580
CLIFFORD C. WOODARD, )
Respondent. )
Pursuant to Notice a hearing was held in the above styled cause at 717 Ponce de Leon Boulevard, Commonwealth Building, Suite 307, Coral Gables, Florida, on March 8, 1978, at 6:00 p.m. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Kenneth M. Meer, Esquire
For Respondent: Clifford C. Woodard
Respondent is a registered real estate salesperson who holds license no. 0098090. He was employed as a "listing solicitor" by World Wide Property Services, Inc., a registered real estate broker (now dissolved) for about a month, from December, 1975 to January, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida
Seymour L. Rottman was President of World Wide Property Services, Inc. and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide Property Services, Inc. was to secure
listings of and purchasers for various Florida properties. Mr. Rottman subpoenaed witness for Petitioner at subject hearing. During Respondent's period of employment he and Mr. Small were in charge of hiring salesmen for the company and hired Respondent. Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property.
The procedure followed was for a salesman to call an out of state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide Property Services, Inc. who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide Property Services, Inc. which would be credited against a 10 percent commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cateloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price baked on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the curse of the calls to prospects Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property. She represented herself as a salesman for that organization.
After the promotional literature was sent to the prospect, the salesmen including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls Respondent had no further contact with the property owner. The listing fee was
$325. The salesmen received approximately one-third of the fee, about $100 per listing.
The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script but Respondent was not monitored at all times.
During the course of operation of less than a year World Wide Property Services, Inc. secured about 200 listings and grossed approximately $80,000 to
$90,000 in the "advance fee" listings, but no sales were made.
Respondent said he visited the properties World Wide Property Services, Inc. had for sale in Florida and that most of it was salable.
Respondent testified that he read from the script heretofore referred to as "front" and "drive" but varied it from time to time. He was aware of
articles stating foreign investors were interested in buying Florida property and thought it entirely possible.
Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed.
Petitioner contends: that while a salesman for World Wide Property Services, Inc. Respondent solicited and obtained listings by telephone of property owners and that as an inducement to list the property, falsely represented that the property could be sold for a price far in excess of its purchase price; that a bona fide effort would be made to sell the property and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property; that Respondent solicited Frank Austin, a number of times by telephone and induced him to send to World Wide Property Services, Inc. $285.00 claiming Mr. Austin's property bought for $4,700 could be sold for $14,000 `but that no offer to purchase was ever made.
Respondent contends: that he never misrepresented or fraudulently represented anything to any client; induced any potential customer to get his money and that the property was mostly salable.
CONCLUSIONS OF LAW
Section 475.25, Grounds for revocation or suspension provides in part:
475.25 Grounds for revocation or suspension.-
The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:
Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in this state or any other state, nation, or territory; has vio- lated a duty imposed upon him by law or by
the terms of a listing contract, written, oral, express or implied, in a real estate transaction; has aided, assisted or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct, and has committed an overt act in furtherance of such intent, de- sign or scheme. It shall be immaterial to the guilt of the registrant that the victim or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled and paid, after disco- very of the misconduct, or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation
with the registrant, or was an identified member of the general public; or
* * *
(3) The registration of a registrant may be revoked if the registrant shall, for a second time, be found guilty of any misconduct that warrants his suspension under subsection (1) of this section, or if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, neg- ligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.
There is no competent substantial evidence to show that Respondent knew that his employer would not follow through on the sales promoted or that such efforts were not in fact made or that its representations were false.
There is a showing that the operation and tactics used by the salesman for his employer should have caused him to look carefully at the script he was employed to read. Respondent was in fact obtaining a commission for the listing fees before any service was rendered to the client and he should have known the representations of the script he read were somewhat less than candid. He has passed the requirements to secure a license and is presumed to know the code of ethics of the profession. Respondent has been in the real estate business for twenty five years.
There is insufficient evidence to find that Respondent knowingly violated the foregoing statute although his actions were not commensurate with the candor the public should be able to expect of a licensed real estate salesman.
Reprimand the Respondent in writing.
DONE AND ENTERED this 21st day of June, 1978, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Kenneth M. Meer, Esquire Florida Real Estate Commission Post Office Box 1900
Clifford C. Woodard
