STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 85-1174

)

LARRY B. LEWIS and )

MELVIN M. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 25, 1985, in Coral Gables, Florida. The parties completed their post-hearing filings on January 28, 1986.

Petitioner, Department of Professional Regulation, Division of Real Estate, was represented by Susan Hartman, Esquire, Orlando, Florida; and Respondents, Larry B. Lewis and Melvin M. Lewis, were represented by Harry E. Geissinger, III, Esquire, Hialeah, Florida.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent Larry B. Lewis as a licensed real estate salesman and against Melvin M. Lewis as a licensed real estate broker, and Respondents timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondents are guilty of the allegations contained within that Administrative Complaint and, if so, what disciplinary action should be taken against them, if any.

Petitioner presented the testimony of Kenneth G. Rehm and by way of deposition Ray O. Newbill. Additionally, Petitioner's Exhibits numbered 1-6 were admitted in evidence.

Both Respondents testified on their own behalf, and Respondents' Exhibits numbered 1-3 were admitted in evidence.

Although Petitioner and Respondents were given leave to file proposed findings of fact in the form of a proposed recommended order, the parties filed memoranda of law instead.

FINDINGS OF FACT

1. Respondent Larry B. Lewis is a real estate salesman licensed under the laws of the State of Florida, having been issued license number 0052189.

   
   

2. Respondent Melvin M. Lewis is a real estate broker licensed under the laws of the State of Florida, having been issued license number 0052222.

   
   

3. Gateway Acres, Inc., was incorporated under the laws of the State of Florida in February, 1984, for the purpose of selling certain undeveloped property in Osceola County, Florida. Both Respondents are officers of that corporation, and Respondent Melvin M. Lewis is the sole stock holder.

   
   

4. Because she had previously sold undeveloped property in Florida to him, a salesperson employed by Gateway Acres, Inc., contacted Ray O. Newbill, an insurance agent in Tennessee, in approximately early June, 1984. As a result of that conversation, Newbill received from Gateway Acres, Inc., an Agreement for Deed and other promotional material. That form Agreement for Deed related to an unspecified "1 1/4 acres more or less" at Gateway Acres in Osceola County. However, the terms and conditions of sale were specified on that form, which consists of one sheet of paper, with writing on the front and back of that sheet.

   
   

5. The form initially sent to Newbill contained several "privileges". There was an Inspection Privilege whereby a buyer could receive a full refund at the time that the buyer completed a company guided inspection tour so long as that tour occurred within six months from the contract date. Pursuant to the Vacation Privilege, Gateway Acres, Inc., agreed to pay room and tax charges for three days and two nights at a motel in Orlando while the buyer participated in the inspection tour. The form next provided a 30 Day Unconditional Refund Privilege whereby the buyer could receive a refund for any reason whatsoever within 30 days from the date of purchase.

   
   

6. Newbill signed that Agreement for Deed on June 18, 1984. In the signature portion of that document there appeared the following language requiring notarization:

   
   

   I HEREBY CERTIFY that on this day before me an officer duly qualified to take acknowledgments

   personally appeared an officer of Gateway Acres, Inc., a Florida corporation to me well known to be the grantor described in and who

   executed the foregoing instruments, and acknowledged before me that he is duly authorized by the corporation to do so and that this instrument is the act and deed of the corporation.

   
   

   WITNESS MY HAND and official seal at Miami in the said County & State, this day of

   , 19 .

   
   

   Although that language clearly calls for notarization of the signature of an officer of Gateway Acres, Inc., the seller of the property, Newbill had his secretary notarize his signature using that part of the form.

   
   

7. Newbill mailed to Gateway Acres, Inc., the Agreement for Deed which now bore his signature and the false notarization by his secretary, together with his check in the amount of $500, the down payment on the property. When that document was received by Gateway Acres, Inc., Respondent Larry B. Lewis telephoned Newbill to explain that the false notarization invalidated that form and that particular Agreement for Deed could not now be executed by the seller.

   
   

8. Since Newbill was anxious to immediately inspect the property and receive his vacation privilege, Newbill and Respondent Larry B. Lewis agreed that Newbill would come to Florida and he would be presented with a new form to execute.

   
   

9. On approximately June 21; 1984, Newbill arrived in Orlando with his wife and eight children in a station wagon. He met both Respondents at the motel being paid for by Gateway Acres, Inc. Newbill and his wife then went with both Respondents to Gateway Acres and completed the company guided inspection tour of the area.

   
   

10. When Respondents returned Newbill and his wife to their motel, Respondent Melvin M. Lewis gave to Newbill for his signature an Agreement for Deed. The front of that document obviously differs from the document that Newbill had executed in Tennessee. The second document is for a specifically described piece of property and carries that specific lot's legal description. The second document has a large blank space in the middle of the page where the first document had described the Inspection Privilege and Vacation Privilege. These paragraphs were no longer relevant since Newbill had already received his paid vacation and inspection tour.

11. The third and most important difference in the second document was that only a Three Day Unconditional Refund

    Privilege was offered rather than the 30 Day Unconditional Refund Privilege offered in the first document given to Newbill.

    
    

12. Respondents reviewed that document with Newbill, and Newbill signed. Newbill's offer was accepted on June 26, 1984, when Faye Lewis signed on behalf of Gateway Acres, Inc., as its secretary, and Respondent Melvin M. Lewis notarized that signature and executed the required certification regarding the corporate officer signing the instrument.

    
    

13. On July 10, 1984, Gateway Acres, Inc., directed to Newbill, by certified mail, a copy of the contract entered into between them. That mailing reached Newbill on July 17, 1984.

    
    

14. On July 12, 1984, Newbill sent a letter by certified mail to Respondent Melvin M. Lewis advising that he wished a refund of his $500. That letter reached Melvin M. Lewis on either July 16 or July 17, 1984 (both dates appear on the post office's receipt)

    
    

15. On approximately August 10, 1984, Newbill left a message for Respondent Larry B. Lewis on the answering machine for the telephone at Gateway Acres, Inc., demanding that his $500 be returned or he would file a complaint with the Florida Real Estate Commission. To date, Gateway Acres, Inc., and the Respondents have failed to return to Newbill his $500 down payment.

    
    

16. No other disciplinary actions have been filed by Petitioner against either Respondent Larry B. Lewis or Respondent Melvin M. Lewis.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

18. The Administrative Complaint filed herein charges Respondents with having violated Section 475.25(1)(b), Florida Statutes, by being " . . . guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction . . . ." Petitioner's theory in this case is that Newbill entered into two contracts with Gateway Acres, Inc., that the first "contract" had a longer refund period, that Newbill therefore timely requested his refund, and that Respondents should be disciplined for failing to return that

    $500 down payment to Newbill. The problem with Petitioner's theory is that it is contrary to the law in the State of Florida. There can be no "contract" for the sale of real estate in Florida unless it is signed by both the buyer and the seller. The form sent to Newbill which he signed in Tennessee was never signed by the seller and could not be since Newbill had his secretary notarize Newbill's signature in the blank provided for the corporate notarization. Respondent Larry B. Lewis therefore advised Newbill that his offer could not be accepted by Gateway Acres using that document. Newbill and Respondent Larry B. Lewis agreed that Newbill and Gateway would enter into a contract when Newbill came to Florida to get his free stay at the motel in Orlando while viewing the property. What Petitioner refers to as the "second contract" is the only contract. The contract actually entered into between Newbill and Gateway Acres, Inc., clearly reflects on the front of the document in bold print that there is an unconditional refund privilege for three days. That is the refund period for which Newbill contracted. Newbill simply failed to "change his mind" about purchasing the property within the three days during which he could have received a refund of his down payment. Since he did not change his mind until approximately a month later, Respondents are under no obligation to return to him his $500 deposit.

19. The fact that the first document sent Newbill carried a

    30 day cancellation provision, an Inspection Privilege and a Vacation Privilege while the second document given to Newbill did not, cannot lead to any conclusion of wrong doing. The fact that Newbill was no longer offered an Inspection Privilege and a vacation at the company's expense in the second document since he had already received his free vacation and tour of the property is probably just good business sense. Lastly, Petitioner has failed to cite any authority to reflect that a three day cancellation period is illegal. Since the parties contracted for that refund period, any request for refund outside the agreed upon period should not be honored.

    
    

20. Petitioner erroneously relies upon the "first contract" with its 30 day refund provision in support of its argument that Newbill's demand for a refund was timely made. Since there was no "first contract" but simply an offer to purchase which was never accepted by the seller, its timeliness of demand argument must fail. Likewise without merit is Petitioner's argument that either Respondent Melvin M. Lewis or both Respondents represented to Newbill that the "first contract" and "second contract" were the same, both for the reason that there is only one contract and for the reason that the totality of the evidence indicates that such a representation was hot made.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent Melvin M. Lewis and Respondent Larry B. Lewis not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against them.

DONE and RECOMMENDED this 18th day of March, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, 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 March, 1986.

COPIES FURNISHED:

Susan Hartman, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, FL 32802

Harry E. Geissinger, III, Esquire Suite 201

415 West 51st Place. Hialeah, FL 33012

Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, FL 32802

Fred Roche; Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Docket for Case No: 85-001174

Orders for Case No: 85-001174