ROBERT O. FIGUEREDO, )
vs. ) CASE NO. 77-2289
Respondent. )
A hearing was held in the above captioned matter, after due notice, at Coral Gables, Florida, on February 6, 1978, before the undersigned Hearing Officer.
For Petitioner: Richard J. Mandell, Esquire
Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows:
16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so?
The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior
to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1)
Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo)
In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3)
On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15)
On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to
Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11)
On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7)
On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
CONCLUSIONS OF LAW
The respondent seeks to deny petitioner's application for registration based on the provisions of Section 475.18, Florida Statutes, which provides in part as follows:
475.18 Proceedings upon application for registration.-- (1). . . .no application shall be granted
if it shall appear that the applicant has acted, or attempted to act, or has held himself out as entitled to act, as a real estate broker or salesman, in violation of this chapter, during the period of one year
next prior to the filing of said application.. . .
(2) The foregoing subsection (1) shall be deemed to bar any person from registration of the services described in s. 475.01 as
constituting the person a real estate broker, or salesman, during the said period of 1 year next prior to the filing of the application,
or during the pendency of said application, and until a valid current registration certificate has been duly issued to him, whether the same
was done for compensation or valuable considerations, or not.
The respondent's order denying the application states that petitioner performed the following acts within the above-mentioned one year period: "That for compensation or commission, he engaged in general real estate business by showing real property to prospective purchaser, quoted terms of purchase/sale, negotiated contract of purchase/sale, co-brokered real estate transactions and engaged in referral of prospective purchasers to various brokers."
Section 475.01(2) describes the various acts that constitute one as operating or acting as a broker or salesman and requires that such activities be conducted in Florida to come within the statutory criteria. It is considered that the actions allegedly attributable to petitioner as set forth in Respondent's order would fall within the broad definition contained in Section
475.01. However, in most respects, the evidence failed to establish that
petitioner had acted as a real estate salesman in Florida in connection with his referral of prospective purchasers from Latin America to Florida brokers. He did concede that he had served as a translator at times when prospects were being shown Commodore Club condominium units by the Florida broker, but there is no indication that he actually participated as a salesman at those times. It would have been more prudent for him to have refrained from such duties as "translator," but it is not believed that such action necessarily falls within the ambit of Section 475.01. The evidence indicates that petitioner's firm claimed commissions for one or more "domestic" sales at the Costa del Sol condominium project, but in the absence of specific facts to show the extent of petitioner's participation therein, it cannot be concluded that he thereby acted as a salesman or broker in Florida. On the other hand, petitioner admittedly signed a purchase agreement for a condominium unit which was executed by the holding company of his firm, Insco S.A. The agreement provided that deposit monies would b held in escrow by petitioner's firm. This action on petitioner's part is sufficient to establish that he himself out to the public as a broker as to that particular contract within the meaning of Sections 475.01(2) and 475.18. Accordingly, it is concluded that his application as a real estate salesman should be denied.
That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Richard J. Mandell, Esquire 748 Seybold Building
