STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3066

) THOMAS E. ENNIS, MARSHALL J. ) HUNGERFORD, MILDRED B. HARDIN, ) and A.G. ENNIS REALITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on February 25, 1983, in Naples, Florida. The transcript was filed on March 11, 1983, and the parties were allowed ten days thereafter to submit proposed findings of fact and conclusions of law. These were timely filed and have been considered. Where not adopted, they were found to be irrelevant or immaterial, or contrary to the weight of the credible evidence.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondents: Thomas E. Ennis, in pro per

and as a witness for

A.G. Ennis Realty, Inc. 821 South Barfield Drive

Marco Island, Florida 33937

Marshall J. Hungerford, in pro per Post Office Box 432

Marco Island, Florida 33937

Mildred B. Hardin, in pro per Post Office Box 121 Georgetown, Florida 32039

By Administrative Complaint filed on August 26, 1982, the Petitioner seeks to revoke or suspend the Respondents' real estate licenses, or otherwise discipline them, for alleged violation of Section 475.25(1)(b), Florida Statutes. Specifically, the complaint charges the Respondents with fraud, misrepresentation, concealment, false promises, dishonest dealing by trick,

scheme or device, culpable negligence, and breach of trust in a business transaction.

In support of its Complaint, the Petitioner presented the testimony of the complaining witness, Henry Roehr. Notwithstanding the admonition of the Hearing Officer, each of the Respondents consented to testify ads adverse witnesses for the Petitioner, as well as on their own behalf. Through these witnesses, seven of the Petitioner's nine exhibits were introduced and received in evidence as part of the Petitioner's case in chief. No witnesses were presented by the Respondents except themselves; two exhibits were offered and received in evidence.

FINDINGS OF FACT

1. The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139.

   
   

2. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium.

   
   

3. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something.

   
   

4. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of

   $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow.

   
   

5. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units.

   
   

6. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he

   had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980.

   
   

7. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract".

   
   

8. When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it.

   
   

9. Henry Roehr purchased Lot 35 in reliance upon these false representations.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

11. Section 475.25(1)(b), Florida Statutes, authorizes the Board of Real Estate (now Florida Real Estate Commission) to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee has 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" or "has violated a duty imposed upon him by law" in a real estate transaction. The false representations made by the Respondents to Henry Roehr that they had ten buyers for condominium units, when in fact they did not, was relied on by Henry Roehr, and he purchased property in reliance upon this representation that he would not have purchased otherwise.

    
    

12. This constitutes a violation of Section 475.25(1)(b) Florida Statutes, in which each Respondent participated. As a result, each of the Respondents is guilty as charged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall

J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked.

THIS RECOMMENDED ORDER ENTERED this 6th day of May, 1983, in Tallahassee, Florida.

William B. Thomas 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 6th day of May, 1983.

COPIES FURNISHED:

Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802

Thomas E. Ennis

A.G. Ennis Realty, Inc. 821 South Barfield Drive

Marco Island, Florida 33937

Marshall J. Hungerford Post Office Box 432

Marco Island, Florida 33937

Mildred B. Hardin Post Office Box 121

Georgetown, Florida 32039

William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-003066

Orders for Case No: 82-003066