STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1798

) P.D. NO. 3077

ALAN SHERMAN, )

)

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 1:30 p.m., on June 21, 1978, at 717 Ponce de Leon Boulevard, Third Floor, Coral Gables, Florida.

Petitioner was represented by Mark A. Grimes, Esquire, and Manuel E. Oliver, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Post Office Box 1900, Orlando, Florida. Respondent was represented by Joel S. Fass, Esquire, 11601 Biscayne Boulevard, Suite 202, North Miami Beach, Florida.

Petitioner, Florida Real Estate Commission (hereafter seeks to revoke, suspend or otherwise discipline Respondent, Alan Sherman (hereinafter Sherman), for alleged violations of Chapter 475, Florida Statutes, the Florida Real Estate License Law. It is alleged that Sherman was, while registered as a real estate salesman, involved in an "advance fee" real estate operation in which Sherman 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 Sherman 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, Sherman conspired with FAR to engage in dishonest dealings.

Finally, it is alleged that, because of the alleged misrepresentations and the alleged conspiracy, Sherman 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.

At the final hearing, Petitioner's Motion to Amend the Administrative Complaint was granted adding the additional allegation that Sherman was guilty

of a violation of a duty imposed by law by virtue of Sherman's being found guilty of violating Section 501.204, Florida Statutes, by engaging in unfair and deceptive trade practices and unfair methods of competition.

FINDINGS OF FACT

1. From January 23, 1976, to March 31, 1976, Sherman was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period 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 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 here 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 Sherman. FREC introduced no evidence to show that Sherman 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 Sherman either made the representations or knew them to be false. There was no evidence introduced to show that Sherman 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 Sherman was dishonest or untruthful.

   
   

6. No evidence was introduced to establish the amended allegation that Sherman was guilty of a violation of a duty imposed by law.

CONCLUSIONS OF LAW

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

RECOMMENDED that no action be taken to revoke, suspend or otherwise discipline Sherman's license or Sherman's 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:

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

Florida Real Estate Commission

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

Joel S. Fass, Esquire 11601 Biscayne Boulevard

Suite 202

North Miami Beach, Florida

Docket for Case No: 77-001798

Orders for Case No: 77-001798