vs. ) CASE NO. 79-033
ROBERT T. GABOR t/a GABOR )
Respondent. )
Pursuant to notice an administrative hearing was held in the above styled cause before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings, on April 12, 1979, beginning at 10:30 a.m. in Room 301,
400 West Robinson Street in Orlando, Florida.
For Respondent: Royce D. Pipkins, Esquire
Whether the license of the Respondents should be suspended or the Respondents should be otherwise disciplined for false advertising and misrepresentations in a real estate transaction.
Robert T. Gabor holds License #0029823 as a registered real estate broker and trades as Gabor Realty. Frances Gabor holds License #0029822, is the wife of Respondent Robert T. Gabor, and is associated with him as a real estate salesperson.
An administrative complaint filed October 5, 1978, by the Petitioner, Florida Real Estate Commission, alleged that the Respondents were guilty of false advertising and misrepresentation in a real estate transaction. The Respondents requested an administrative hearing.
On or about February 26, 1978, the Respondents placed an advertisement in the Sentinel Star in Orlando, Florida, advertising a home for sale as follows:
BRANTLEY area FHA VA $26,500.
* BUY OWNER * 3/4 ACRE *
Immaculate 3 bdrm carpet 894-5828
A couple, Mr. and Mrs. Reese, called the telephone number indicated in said advertisement and went to see the home but decided against buying it.
Thereafter, the Respondents placed a different advertisement in the newspaper:
BRANTLEY 894-5828 BY OWNER
* 3/4 ACRE * FHA * $800. DN
$25,000. mtg. 30 yrs $228/mo pays all, 3 bdrm, 1 1/2 bath, 7 yr young.
There was no indication in either of the foregoing advertisements for the sale of the house that the owners was real estate salespersons. The advertisements gave the home telephone number of the Respondents, although the Respondents had a real estate office in Orlando known as Gabor Realty which was listed under a different telephone number.
The Reese couple read the second advertisement on the same property and again became interested in it. They met the Respondents at the house, viewed the house, and talked with the Respondents. The Reeses and the Respondents then went to a nearby restaurant where a standard contract form was completed and signed while they were seated in the restaurant. Mr. and Mrs. Reese noted at the time the contract was signed that Respondent Robert Gabor signed it as a realtor and Respondent Frances Gabor signed it as a realtor associate. The Reeses were surprised because they had not known they were dealing with real estate salespersons. In spite of their surprise, Mr. and Mrs. Reese did not terminate the negotiations but proceeded to try to work out arrangements so they could buy the house. The contract was contingent upon the buyers' ability to secure a $25,000 FHA mortgage for thirty (30) years. The sellers were to pay the points, and the closing costs were to be divided equally. At the time of the hearing there was an unresolved dispute as to what the closing costs had been orally estimated to be.
On or about March 31, 1978, Mr. and Mrs. Reese gave the Respondent, Robert Gabor, an earnest money deposit of $400.00 which was placed in the Respondent's escrow account. The Reeses and the Respondents signed various documents, including the buyer's estimated closing statement and seller's estimated closing statement.
One (1) day prior to the scheduled closing date, May 5, 1978, Respondents learned that the transaction might not be closed because of the Reeses' dissatisfaction with the amounts of the downpayment, closing costs and monthly payments, all of which were in excess of the amounts they had first seen advertised and felt they could pay. Mr. Reese attended the closing on the scheduled day, but refused to close and demanded the return of the $400.00 deposit. The Respondents attempted to make an adjustment and offered to amend the agreement whereby the Respondents would pay all closing costs "allowed by law" for them to pay. Upon the refusal by Mr. Reese to close, the Respondents refused to return the $400.00 deposit.
Mr. Reese then informed the Respondents that he would file a complaint with the Florida Real Estate Commission. The Respondents, having proceeded to and attended the closing, felt justified in removing the $400.00 earnest deposit from the escrow account and placing it in the personal account of Respondent Robert Gabor.
Respondent Frances Gabor accompanied Respondent Robert Gabor during the foregoing transactions but took no active part in the negotiations other than having been present and having signed documents.
Mr. and Mrs. Reese knew or should have known that the costs of the home were in excess of the amounts indicated in the advertisements. They had both signed and received written documents indicating costs well in advance of the scheduled closing date.
Respondents submitted a memorandum of law on June 6, 1979, and thereafter, on June 25, 1979, moved to dismiss the cause for failure by the Petitioner Commission to submit memorandum of law as requested by the Hearing Examiner. The Motion to Dismiss was denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause pursuant to Section 120.57, Florida Statutes.
Rule 21V-10.10 Advertising provides in part as follows:
Every broker shall, when advertising real
estate or a business opportunity, either through liner advertisements or otherwise state in the advertisement the registered name of the broker and the term "Broker" or "Realtor" as the case may be. Provided, however, that the broker, if he is the owner of the property which he is advertising, has all the rights of the non-broker owner. Salesmen are prohibited from advertising to purchase any property or offering for sale, rent or lease any property under their own names. Provided, however, that a salesman, if he is the owner of the property which he is advertising, has all the rights of the non-salesman owner.
All advertising of property listed by a broker must be under the direct supervision and in the name of the employing broker.
Both Respondents, Robert Gabor and Frances Gabor, were selling a home they owned, and the subject advertisements were consistent with their right to sell it. They did not violate the foregoing rule.
Section 475.25 Grounds for revocation or suspension -- provides in part:
The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in
the final order of suspension, or both, upon a finding of facts showing that the registrant has:
Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction...
Been guilty of false advertising in, on or by, signs, bill boards, newspapers...of such character as to deceive or defraud investors, or prospective investors, in real property or interests therein, as more particularly described in subsection (2)
of s. 475.01, whether such property is owned, or purported to be owned by the registrant or by another;...
Failed to account or deliver to any person, including a registrant under this chapter, any personal property such as money fund, deposit, check, draft, abstract of title mortgage, conveyance, lease, or other document...
(i) Failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as a broker in escrow with a title company, banking institution, or savings and loan association located and doing business
in Florida or deposit said funds in a trust or escrow account maintained by him with some bank or savings and loan association located and doing business in Florida, wherein said funds shall be kept until disbursement thereof
is properly authorized;...
The Respondents were acting as owners and trying very hard to sell the subject property. They evidently made numerous oral statements to the Reeses to encourage them to buy the property while, however, protecting themselves with written documents. There is insufficient evidence to show that Respondents violated the foregoing statute or were not authorized to keep the earnest deposit money.
Rule 2-13.03 Real property sales disclosures. provides in part as follows:
It shall be an.unfair or deceptive act or practice for any person who engages in the trade or commerce of selling or procuring the sale of real property to fail to disclose in writing to the buyer before the buyer signs a contract for sale the following:
A warning that upon closing the sale of the real property additional costs may be demanded from the buyer in the form of closing costs. Such warning shall include a list of known major closing cost items (but not the
dollar amount unless known) to be charged to the buyer in the transaction such as attorney's fees, title insurance, other insurance, taxes, abstract charges, escrow fees, document stamps,
recording fees, discount points, survey charges, mortgage transfer or service fees or any other major cost assumed by the buyer.
There is insufficient evidence to show that the Respondents violated the foregoing rule.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends dismissal of the charges against Respondent Robert T. Gabor and Respondent Frances Gabor.
DONE and ORDERED this 6th day of July, 1979, in Tallahassee, Leon County, Florida.
DELPHENE C. STRICKLAND
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Royce D. Pipkins, Esquire
