STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1795

) P.D. NO. 3074

MICHAEL S. MENKES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 12:30 p.m., on June 20, 1978, at 717 Ponce de Leon Boulevard, Third Floor, Coral Gables, Florida.

Petitioner was represented by Manuel E. Oliver, Esquire, and Mark A. Grimes, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida. Respondent was represented by himself.

Petitioner, Florida Real Estate Commission (hereafter FREC), seeks to revoke, suspend or otherwise discipline Respondent, Michael S. Menkes (hereafter Menkes), for alleged violations of Chapter 475, Florida Statutes, the Florida Real Estate License Law. It is alleged that Menkes was, while registered as a real estate salesman, involved in an "advance fee" real estate operation in which Menkes misrepresented to prospective clients that:

1. the property could be sold for several times the purchase price,

   
   

2. the property would be advertised nation- wide and in foreign countries,

   
   

3. the Company had foreign buyers wanting to purchase United States property listed with the Company.

It is further alleged that Menkes knew that no bona fide effort would be made to sell any of the properties listed with his company, First Allstate Realty Corporation (hereafter FAR) and that, therefore, Menkes conspired with FAR to engage in dishonest dealings.

Finally, it is alleged that, because of the alleged misrepresentations and the alleged conspiracy, Menkes is guilty of dishonest and untruthful conduct and that, therefore, money, property, transactions and rights of investors or those with whom he may sustain a confidential relation may not safely be entrusted to him.

FINDINGS OF FACT

1. In Spring, 1976 Menkes was employed by FAR to secure property listings for resale. At that time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them.

   
   

2. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee.

   
   

3. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property.

   
   

4. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred.

   
   

5. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Menkes. FREC introduced no evidence to show that Menkes represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Menkes either made the representations or knew them to be false.

   There was no evidence introduced to show that Menkes knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Menkes was dishonest or untruthful.

   
   

   CONCLUSIONS OF LAW

   
   

6. Based on the foregoing findings of fact, it is concluded that FREC has failed to establish that Menkes violated Chapter 475, Florida Statutes. It is, accordingly,

RECOMMENDED that no action be taken to revoke, suspend or otherwise discipline Menkes' license or Menkes' right to practice thereunder.

DONE and ENTERED this 28 day of September, 1978, in Tallahassee, Florida.

MICHAEL R.N. McDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Mark A. Grimes, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Michael S. Menkes

3101 North Federal Highway Suite 304

Ft. Lauderdale, Florida 33306

Docket for Case No: 77-001795

Orders for Case No: 77-001795