STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE )

)

Petitioner, )

)

vs. ) CASE NOS. 81-2490

) 81-2630

GARY LEE SEXSMITH, GUISEPPE D. ) BELLITTO, AND SELECT REALTY, INC. )

)

Respondents )

)

RECOMMENDED ORDER

These matters came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.T. Carpenter, on January 28, 1982. The parties were represented by:

For Petitioner: Michael J. Cohen, Esquire

Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: William Grossbard, Esquire

Sexsmith 6191 Southwest 45th Street, Suite 6175M

6177 North Davie, Florida 33314

For Respondent: Anthony S. Paetro, Esquire Wunderlich Bedzow and Korn, P.A.

1125 Northeast 125th Street, Suite C North Miami, Florida 33161

There was no appearance by Respondent Guiseppe D. Bellitto (Case No. 81- 2630) or by Respondent Select Realty, Inc. Petitioner at the outset dismissed its charges against Respondent Joanna Mazzeo (Case No. 81-2490), and advised that charges against Respondent Elaine Wunderlich (Case No. 81-2630) had been resolved.

These matters arose on complaints of Select Realty, Inc., customers that this company and its agents were corruptly charging/retaining rental assistance fees. Petitioner charged these Respondents with violating Subsections 475.25(1)and 475.453(1), Florida Statutes (F.S.)(1979), and seeks disciplinary action against them. Due to the similarity of issues, Petitioner moved for a consolidated hearing. Respondent Wunderlich's initial objection was withdrawn and the motion was thereafter granted.

FINDINGS OF FACT

1. Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings.

   
   

2. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive.

   
   

3. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980.

   
   

4. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize.

   
   

5. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications.

   
   

6. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11).

   
   

7. Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 475.453, F.S., provides in part:

   
   

   1. Each broker or salesman who attempts to negotiate a rental, or who furnishes rental information to a prospective tenant, for a fee paid by the prospective tenant, shall provide such prospective tenant with a contract or receipt, which contract or receipt contains a provision for the repayment of any amount over

      25 percent of the fee to the prospective tenant if the prospective tenant does not

      obtain a rental. If the rental information provided by the broer or salesman to a prospective tenant is not current or accurate in any material respect, the full fee shall be repaid to the prospective tenant upon demand. A demand from the prospective tenant for the return of the fee, or any part thereof, shall be made within 30 days following the day on which the real estate broker or salesman has contracted to perform services to the prospective tenant. The contract or receipt shall also conform to the guidelines adopted by the board in order to effect disclosure of material information regarding the service to be provided to the prospective tenant.

      
      

      (3)(a) Any person who violates any provision of subsection (1) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      
      

      (b) In addition to the penalty prescribed in paragraph (a), the license of any broker or salesman who participates in any rental

      information transaction which is in violation of the provisions of subsection (1) shall be subject to suspension or revocation by the board in the manner prescribed by law.

      
      

9. Under the above provisions each of the two complaining witnesses were entitled, at a minimum, to return of 25 percent of the fee paid to Select Realty, Inc., having failed to secure rental and having made timely demand for refund. Respondents Select Realty, Inc., and Gary Lee Sexsmith as brokers were responsible for these violations. Since Respondent Guiseppe Bellitto was not involved in either of these transactions, the charge as to this Respondent should be dismissed.

   
   

   Section 475.25, F.S., provides in part:

   
   

   1. The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

      (b) Been guilty of fraud, misrepresentation concealment, false promises, false pretenses dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state. . .

      
      

10. Respondents are charged with violating that portion of Subsection 475.25(1)(b) quoted above. Since Respondent Bellitto was not involved in these

transactions, this charge against him must also be dismissed. Respondent Select Realty, Inc., is guilty as charged, having wrongfully deprived its customers of refundable fees. Respondent Gary Lee Sexsmith is guilty of culpable negligence, having assumed responsibility as director-broker of Select Realty, Inc., and having permitted customers to be wrongfully deprived of refundable fees.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be

found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further

RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further

RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further

RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year.

DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

William Grossbard, Esquire Suite 6175M

6191 Southwest 45 Street

6177 North Davie, Florida 33314

Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C

1125 Northeast 125 Street North Miami, Florida 33161

Lawrence J. Spiegel, Esquire Spiegel and Abramowitz

Suite 380

First National Bank Building 900 West 49th Street Hialeah, Florida 33012

Mr. Gary Lee Sexsmith

321 Southwest 70t Avenue Pembroke Pines, Florida 33023

Mr. Guiseppe D. Bellitto 2635 McKinley Street

Hollywood, Florida 33020

Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and

Trustee of Select Realty, Inc.

321 Southwest 70th Avenue Pembroke Pines, Florida 33023

Mr. Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002490

Orders for Case No: 81-002490