STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1582

)

LEONARD P, MARCUS, )

)

Respondent. )

)

RECOMMENDED ORDER

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 1:30 p.m. before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Salvatore A. Carpino, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For the Respondent: Tom Bush, Esquire

Murray and Bush, P.A. Landmark Bank Building One Financial Plaza

Ft. Lauderdale, Florida ISSUE

1. Whether the Respondent is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction in violation of Section 475.25, Florida Statutes.

   
   

2. Whether the license of Respondent should be revoked or suspended or whether the Respondent should be otherwise disciplined.

FINDINGS OF FACT

1. Respondent is a registered real estate salesman who holds license no. 005499. He was employed as a "listing solicitor" three days per week by World Wide Property Services, Inc., a registered real estate broker (now dissolved) from December 1, 1975 to June 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide except Florida.

   
   

2. 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 was a 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.

   
   

3. 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 medium 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 based 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 course 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. He represented himself as a salesman for that organization.

   
   

4. 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.

   
   

5. 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.

   
   

6. 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 made no sales but did secure a limited number of listings making a total of $2,400 during the six months employment at the rate of approximately $100 per listing.

   
   

7. Respondent said he never visited the properties World Wide Property Services, Inc. had for sale in Florida except properties in Port St. Lucie and in the Grand Bahamas. He felt that property in those two areas was salable.

8. Respondent testified that he read from the script heretofore referred to as "front" and "drive" and did not vary from it. He worked in a "listing office" which was one of the two offices of the employer. He was unaware of articles stating foreign investors were interested in buying Florida property.

   
   

9. Respondent did not attempt to make sales inasmuch as it was not the job for which he was employed. He had no knowledge or information that the advance fee operation of which he was a part was an illegal operation or an unethical operation. Respondent had no supervisory capacity in the corporation for which he worked and he testified that he never guaranteed the sale of property to anyone, a fact which was borne out by a deposition of a client Respondent solicited.

   
   

10. 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.

    
    

11. Respondent contends: that he did not know the "advance fee" operation was fraudulent; that World Wide Property Services, Inc. was a registered broker; that at the time of his employment the actions of his employer had not been held illegal; that he never misrepresented or fraudulently induced any potential customer to get his money.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 475.25, Grounds for revocation or suspension provides in part:

    
    

    475.25 Grounds for revocation or suspension.-

    1. 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:

       1. 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.

    
    

13. 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.

    
    

14. 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.

    Respondent is a registered salesman and as he put it the business of selling real estate is how he "eats". He has passed the requirements to secure a license and is presumed to know the code of ethics of the profession.

    
    

15. 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.

RECOMMENDATION

Reprimand the Respondent in writing.

DONE AND ENTERED this 15th day of June, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Tom Bush, Esquire Murray & Bush, P.A.

Suite 1602-One Financial Plaza Ft. Lauderdale, Florida 33394

Salvatore A. Carpino, Esquire Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

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

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

PROGRESS DOCKET NO. 3110

vs. DADE COUNTY

DOAH CASE NO. 77-1582

LEONARD P. MARCUS,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Orlando, Florida, on July 26, 1978,

PRESENT: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

APPEARANCES: Salvatore A. Carpino, Attorney for Petitioner Tom Bush, Attorney for Respondent

This matter came on upon Motion for Final Order on the Hearing Officer's Recommended Order, Exceptions having been filed by the Petitioner and the Respondent, and upon due consideration thereof together with the record and oral argument of counsel for the Petitioner and oral argument of counsel for the Respondent, and the Commission being fully advised in the premises finds:

1.

That the Respondent's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be denied.

2.

That the Petitioner's Exceptions to the Hearing Officer's Conclusions of Law are well taken and should be accepted.

3.

That the Hearing Officer's Findings of Fact are supported by competent, substantial evidence in the record and should be adopted as the Findings of Fact of the Commission.

4.

That the Commission modifies the Conclusions of Law wherein the Hearing Officer states that the Respondent did not have actual knowledge.

5.

That the Commission finds that the Respondent, because of his expertise as a registered real estate salesman and because of the fiduciary relationship imposed upon salesmen as pronounced in Chapter 475 of the Florida Statutes and the case law promulgated thereunder, the Commission finds that the Respondent knew, or should have known, that the acts complained of were in violation of the Florida Real Estate License Law.

IT IS THEREUPON ORDERED:

1. That the Hearing Officer's Findings of Fact be, and the same are hereby, adopted as the Findings of Fact of the Commission.

   
   

2. That the Petitioner's Exceptions to the Hearing Officer's Conclusions of Law be, and the same are hereby, sustained.

   
   

3. That the Respondent's Exceptions are now well taken and, the same are hereby, denied.

   
   

4. That the Respondent be, and he is hereby, adjudged guilty of violating Subsection 475.25(1)(a), Florida Statutes, as charged in the Administrative Complaint.

   
   

5. That for such violation the Respondent be, and he is hereby suspended for a period of 6 months, said suspension to become effective upon receipt of the Respondent's certificate of registration as provided by law.

   
   

6. That the Respondent Leonard P. Marcus shall immediately send his certificate of registration as a real estate salesman to the Florida Real Estate Commission Executive Headquarters in Orlando, Florida, by return mail.

DONE AND ORDERED at Orlando, Florida, this 28 day of July, 1978.

BY ORDER OF THE COMMISSION

Chairman

I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Tom Bush, Esquire, Attorney for Respondent, 321 S. E. 15th Avenue, Ft. Lauderdale, Florida, 33301, and to Respondent Leonard P. Marcus, c/o Value Realty Company, 9555 N. Kendall Drive, Miami, Florida, 33176, by United States registered mail this 17 day of August, 1978.

(Signed) C. B. STAFFORD

Executive Director

Docket for Case No: 77-001582

Orders for Case No: 77-001582