Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 25, 1983
Summary: Respondent represented that property was accessible, near highway and high and dry when he hadn't seen it and it was none of these. He is guilty of fraud.
82-1848STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1848
) DUDLEY COHN, a/k/a DOUGLAS COHN, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice on November 5, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Florida Real Estate Commission against the Respondent, Dudley Cohn, also known as Douglas Cohn, charging him with violating Chapter 475, Florida Statutes.
APPEARANCES
For Petitioner: Bruce D. Lamb, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Eli Breger, Esquire
Richard Breger, Esquire 17200 Northeast 19th Avenue
North Miami Beach, Florida 33162
The Administrative Complaint alleges that Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction, or has aided, assisted or conspired with any other person engaged in any such misconduct and in furtherance thereof, and that the Respondent has operated as an active registered real estate salesman while registered as a non-active salesman in violation of Section 475.25(1)(b), Florida Statutes. The issue in this case is whether Respondent is guilty of violating Section 475.25(1)(b), Florida Statutes, as alleged in the Administrative Complaint.
Both parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
FINDINGS OF FACT
The Respondent, Dudley Cohn, is a registered real estate salesman having been issued license number 0314085. The last known address of Respondent is 3351 NE 19th Avenue, Oakland Park, Florida 33306. Dudley Cohn also goes by the name of Doug Cohn, under which name he is not licensed. Cohn did not give the name of Douglas or Doug as an alias on his application for licensure.
During March and/or April of 1980, several advertisements for real property appeared in the Pompano Shopper in the classified section.
In response to the subject advertisements, John Michaelis and Albert Crowley called the telephone numbers listed in said advertisements to obtain information on real property advertised therein. One of the telephone numbers which appeared in the advertisements is a number which was maintained by former real estate licensees, Real Estate Merchandisers, Inc., and George May.
Respondent Cohn visited Mr. and Mrs. Michaelis and Mr. Crowley, individually, at their residences in 1980, and at that time he identified himself to them as a salesman associate of Real Estate Merchandisers, Inc.
For the purpose of identification, Respondent presented to the Michaelises and to Crowley, individually, business cards from Real Estate Merchandisers, Inc., and/or George May, Broker, on which Respondent had written his name as "Cohn" or "Doug Cohn." (Transcript, pages 16, 41, 44; Petitioner's Exhibits 1, 4.)
After identifying himself as a representative of Real Estate Merchandisers, Inc., Respondent proceeded to make a sales presentation to the Michaelises and Crowley, individually, for the purpose of persuading them to purchase investment property in the Miami area.
Respondent represented to the Michaelises that he had seen the property and it was beautiful, that it was high and dry, and that access by road existed to the property. Based on these representations, on April 10, 1980, the Michaelises agreed to purchase the real property located in Dade County, Florida, being sold by Respondent and executed an agreement for deed.
Respondent also represented to the Michaelises that the property was located approximately 2.5 miles west of the Krome Avenue cutoff of U.S. Highway 27, behind a cement plant. Respondent gave to the Michaelises and Crowley copies of maps indicating the location of the subject property and stating it was behind the cement plant. (Transcript, pages 21, 22, 27, 45, 46, 48, 49, 50, 55, 57, 61, 93, 94, 95, 96, 98; Petitioner's Exhibits 2, 5, 6.)
Based upon the representations of its location made by Respondent, Crowley agreed to purchase a piece of real property located in Dade County, Florida, and gave Respondent a check in the amount of $1,000 to serve as a binder on said property. Crowley instructed Respondent to hold the check until Crowley had inspected the real property. Respondent tried to cash the check, but the bank refused to honor the check. Crowley learned from the Miami Planning Commission that the property in question was not as Respondent had represented it to be and did not go through with the purchase. (Transcript, pages 29, 32, 33.)
Said properties in actuality were located approximately seven to 15 miles west of the Krome Avenue cutoff of U.S. Highway 27. The subject property
is accessible only by air boat or other off-road vehicles. No plans existed to develop roads in this area. (Transcript, pages 31, 58, 62, 63, 64, 99, 100,
101, 178, 179, 184, 185, 186, 192, 193, 200.)
When the Michaelises went to view the subject property, it was submerged below standing water. Said property is normally submerged below ground water at least nine months out of each year and lies in a vital water flow area for the South Florida Everglades area. (Transcript, pages 170, 171, 172, 174, 175, 176, 177, 184, 185, 189, 190, 191, 198.)
At the time that Respondent contacted the Michaelises and Crowley, Respondent was registered as a non-active real estate salesman with the Florida Real Estate Commission. Respondent had never personally seen the property he was selling. (Transcript, pages 203, 206, 248; Petitioner's Exhibits 1, 3.)
Respondent gave money to his broker to have his registration changed from inactive to active. When advised that his license was not active, Respondent immediately applied to activate his license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and over the parties hereto pursuant to Section 120.57(1), Florida Statutes. The Florida Real Estate Commission is charged with regulating its licensees pursuant to Chapter 475, Florida Statutes.
The Commission alleges that Respondent Cohn violated Section 475.25(1)(b), Florida Statutes, by misrepresenting property fraudulently or negligently and by engaging in the profession of real estate without the proper license. Respondent made representations concerning the location and condition of the property and that he had seen the property. Respondent admitted that he had not viewed the property prior to making the representations. Respondent misrepresented the location and condition of the property which was presented for sale to Mr. and Mrs. Michaelis and to Mr. Crowley. Based upon the Respondent's representations about the condition and location of the subject property, the Michaelises and Crowley entered into agreements to purchase the property.
Respondent, as a real estate salesman, owed a duty to the prospective purchasers of the subject property as well as a duty to his principal, the seller. Zichlin v. Dill, 25 So.2d 4 (Fla. 1946); Chisman v. Moyan, 105 So.2d
186 (Fla. 1958). As pointed out in Shelton v. Florida Real Estate Commission,
120 So.2d 191 (Fla. 2d DCA 1960), persons who deal with real estate licensees may assume that they are dealing with honest and ethical persons, and the rule of caveat emptor is set aside. Respondent made representations which were false concerning the location, the condition, and the accessibility of the property in these business transactions contrary to and in violation of Section 475.25(1)(b), Florida Statutes. Respondent is guilty of violation of Section 475.25(1)(b), Florida Statutes.
Respondent conducted real estate transactions and held himself out to the public as a licensed real estate salesman while his license was in a non- active status; however, this appears to have been an unintentional action based on Respondent's belief that his broker had changed his registration. While Respondent may have technically violated some provision of the statute regarding practice without a valid license, his conduct does not constitute a fraud in
violation of Section 475.25(1)(b), Florida Statutes, and Respondent is not charged with any other violation of the statute.
RECOMMENDATION
Having found the Respondent, Dudley Cohn, also known as Douglas Cohn, guilty of two counts of violating Section 475.25(1)(b), Florida Statutes, as alleged by the Florida Real Estate Commission, it is recommended that the license of Respondent be suspended for two years.
DONE and RECOMMENDED this 23rd day of December, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, 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 23rd day of December, 1982.
COPIES FURNISHED:
Bruce D. Lamb, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Eli Breger, Esquire, and Richard Breger, Esquire 17200 NE 19th Avenue
North Miami Beach, Florida 33162
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
C. B. Stafford, Executive Director Florida Real Estate Commission
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
William M. Furlow, Esquire Florida Real Estate Commission
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Docket for Case No: 82-001848
Orders for Case No: 82-001848
| Issue Date |
Document |
Summary |
|
Feb. 15, 1983 |
Agency Final Order
|
|
|
Dec. 23, 1982 |
Recommended Order
|
Respondent represented that property was accessible, near highway and high and dry when he hadn't seen it and it was none of these. He is guilty of fraud.
|
