Judges: ROBERT T. BENTON, II
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 20, 1978
Summary: Petitioner failed to call material witnesses and submitted deposits which did not prove Respondent directly involved with advance fee Real Estate deals in his office. Dismiss.
78-1661.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1661
) P.D. NO. 2951
DAVID H. CHARNACK, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Coral Gables, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 4, 1978. The parties were represented by counsel:
For Petitioner: John Huskins, Esquire
Post Office Box 1900 Orlando, Florida 32801
For Respondent: Joel S. Fass, Esquire
11601 Biscayne Boulevard, Suite 202 North Miami, Florida 33181
By administrative complaint filed September 9, 1976, petitioner accused respondent of obtaining listings for Property Resale Services, Inc., during his employment by that firm, from April 25, 1974, to March 10, 1975, by telling prospects that their property "could be sold for several times the purchase price. . .[and that the company advertised the listed property nationwide," even though respondent knew these representations to be false, all in violation of Section 475.25(1)(a), Florida Statutes (1977). The administrative complaint alleged another violation of the same subsection in that respondent solicited fees in advance, to be applied against commissions, if any, knowing that no bona fide effort to sell listed property would be made; and thereby "conspired with another person, to wit: Property Resale Service, Inc., by and through its officers and directors. . ." Finally, the administrative complaint alleged that, by virtue of the foregoing, respondent was so dishonest and untruthful that disciplinary action should be taken under Section 475.25(3), Florida Statutes (1975).
Petitioner called no witnesses at the final hearing. Aside from its own records, which were received in evidence, petitioner offered three depositions in evidence, as to each of which respondent's objections were sustained.
FINDINGS OF FACT
Respondent David Henry Charnack was connected with Property Resale Service, Inc., as a registered real estate salesman, from April 17, 1974, to March 7, 1975.
CONCLUSIONS OF LAW
In response to the question "Do you have any plan or intention at this time to be in Florida during the remainder of the year 1978?", Kathryne E. Sauber answered "No" on deposition. In response to the question "Do you have any plans or intentions to be in Florida during the remainder of the year 1978?", John J. Sauber answered "There are no immediate plans, no." Attached to the Saubers' depositions is a questionnaire signed by both of the deponents.
The questionnaire asks "In The Event A Formal Hearing Results. . .And It Is Believed That Your Testimony Is Essential To Our Being Able to Prove The Charges. . .Would You Be Willing To Come To Florida, Expenses Paid, And Testify Before A Hearing Examiner?" The Saubers answered affirmatively and commented "AT ANY TIME." Attached to the third deposition, that of Floyd J. Parliman, is a copy of the same questionnaire. The question above quoted is also answered affirmatively on the Parliman questionnaire. When asked on deposition, "will you be in the State of Florida. . .within the next three to six months? Are you planning to be in Florida. . .?," Mr. Parliman answered, on May 26, 1978, "It might be possible we would be in Florida within that time, but there is nothing definite at the present time."
These depositions were objected to on the ground that they were insufficient to establish the unavailability of the deponents to testify at the hearing, and nothing else was offered to establish their unavailability. The objections were sustained on the authority of Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967) and Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959).
Petitioner having failed to establish the allegations of the administrative complaint, it is
RECOMMENDED:
That petitioner dismiss the administrative complaint.
DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
John Huskins, Esquire Post Office Box 1900 Orlando, Florida 32801
Joel S. Fass, Esquire 11601 Biscayne Boulevard
Suite 202
North Miami, Florida 33181
Docket for Case No: 78-001661
Orders for Case No: 78-001661
| Issue Date |
Document |
Summary |
|
Dec. 20, 1978 |
Recommended Order
|
Petitioner failed to call material witnesses and submitted deposits which did not prove Respondent directly involved with advance fee Real Estate deals in his office. Dismiss.
|
