STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, ) CASE NO. 77-1796

) 77-1808

vs. ) 77-1813

) P.D. NOS. 3075

HERBERT LIPSHUTZ, TED L. ) 3087

GOTTSTEIN and MILTON M. BECK, ) 3092

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonell, Hearing Officer for the Division of Administrative Hearings, at 9:30 a.m., on June 26, 1978, at 717 Ponce de Leon Boulevard, Third Floor, Coral Gables, Florida.

With the agreement of the parties, these three causes were consolidated for hearing.

Petitioner was represented by Kenneth Meer, Esquire, and Mr. Langford, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida. Respondent Ted L. Gottstein appeared in his own behalf and Respondents Herbert Lipshutz and Milton M. Beck did not appear.

Petitioner, Florida Real Estate Commission (hereafter FREC), seeks to revoke, suspend or otherwise discipline Respondents, Herbert Lipshutz (hereafter Lipshutz), Ted L. Gottstein (hereafter Gottstein), and Milton M. Beck (hereafter Beck), for alleged violations of Chapter 475, Florida Statutes, the Florida Real Estate License Law. It is alleged that Respondents were, while registered as real estate salesmen, involved in an "advance fee" real estate operation in which Respondents misrepresented to prospective clients that:

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

   
   

2. the property would be advertised nationwide 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 Respondents knew that no bona fide effort would be made to sell any of the properties listed with their company, First Allstate Realty Corporation (hereafter FAR) and that, therefore, Respondents conspired with FAR to engage in dishonest dealings.

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

FINDINGS OF FACT

1. From March 4, 1976, through March 18, 1976, and from April 19, 1976, until the business closed in 1976, Lipshutz was a registered real estate salesman in the employ of FAR. From October 29, 1975, through February 18, 1976, Gottstein was a registered real estate salesman in the employ of FAR.

   From February 20, 1976, until March 31, 1976, and from April 19, 1976, until the business closed in 1976, Beck was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida.

   
   

2. During those periods of 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 owners 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.

   
   

3. 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.

   
   

4. 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.

   
   

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

   
   

6. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents 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 Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents 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 Respondents were dishonest or untruthful.

CONCLUSIONS OF LAW

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

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

DONE and ENTERED this 5th day of October, 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:

Kenneth Meer, Esquire Mr. Langford, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando Florida

Mr. Herbert (Lipshutz) Lane General Delivery

San Diego, California 92101

Mr. Ted Gottstein

1900 South Treasure Drive

North Bay Village, Florida 33141

Mr. Milton M. Beck

2425 North East 125th Street North Miami, Florida 33181

Docket for Case No: 77-001796

Orders for Case No: 77-001796