STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6183

)

PETER P. SEDLER and )

MARSHALL & SEDLER, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 10, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: Frank W. Weathers, Esquire

Frank W. Weathers, P.A. Post Office Box 3967

Lantana, Florida 33465-3967 STATEMENT OF THE ISSUE

The issue is whether the real estate broker's licenses held by Peter P. Sedler and Marshall & Sedler, Inc. should be disciplined for violation of Section 475.25(1)(b), Florida Statutes, for misrepresentation, concealment, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a real estate transaction involving Mary Myers.

PRELIMINARY STATEMENT

At the final hearing the Department offered exhibits 1-9, which were received in evidence, as well as a copy of the Respondents' admissions dated December 4, 1990, and the testimony of Peter P. Sedler, Mary Myers, and Thomas Teixeira. The Respondents offered six exhibits, and the testimony of Peter P. Sedler, Bonnie Sedler, Gina DiPace Kemp and William Kemp. No transcript of the hearing was filed. The parties each filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467.

   
   

2. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter

   P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc.

   
   

3. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign.

   
   

4. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter.

   
   

5. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for

   $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.)

   
   

6. The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property.

   
   

7. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that

   she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this.

   
   

8. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors.

   
   

9. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not.

   
   

10. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account.

    
    

11. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of

    $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction.

    
    

12. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler.

13. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced.

    
    

14. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler.

    
    

15. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

17. The charge against Mr. Sedler, however, has not been sustained. The gravamen of the charge is that he misrepresented that he was Tom Teixeira, and through that stratagem induced Ms. Myers to sell property to his clients, Mr. and Mrs. Kemp, when she meant to sell the property to Mr. and Mrs. Rose. Mr. Sedler's statement to Ms. Myers that he was "Tom," but that she could call him "Pete" was nothing more than an attempt at humor during his introduction. He made clear on each of his meetings that he represented Marshall & Sedler, Inc., and at each meeting he gave Ms. Myers his distinctive pink card. Ms. Myers understood that she was being offered a contract, with different people, and for more money.

    
    

18. Why Mr. Teixeira declined to present the higher offer the Kemps wanted to make on the property to Ms. Myers, who he was supposed to represent, remains a mystery. Nonetheless, the conduct of Mr. Sedler did not constitute a misrepresentation, concealment, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a real estate transaction. Ms. Myers knew who he was, was happy to take more money for the property from the Kemps than was being offered by the Roses, and then found herself in an awkward position when Mr. and Mrs. Rose tried to close the transaction.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed.

RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183

Rulings on findings proposed by the Department:

1. Rejected as unnecessary.

2 and 3. Adopted in Finding 1.

4 - 6. Adopted in Finding 2.

1. Adopted in Finding 3.

2. Adopted in Finding 3.

3. Implicit in Finding 5.

4. Adopted in Finding 5.

5. Adopted in Finding 5.

6. Adopted in Finding 5.

7. Adopted in Finding 5.

8. Adopted in Finding 6.

9. Implicit in Finding 6. This does not mean that the contract subsisted, however.

10. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so.

11. Adopted in Finding 7.

12. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere.

13. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed.

14. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary.

15. Adopted in Findings 10 and 11.

16. Rejected. See, Findings 9 and 10.

17. Rejected as unpersuasive.

18. Rejected as cumulative to Finding 9.

19. Adopted in Finding 14.

20. Adopted in Finding 11.

21. Rejected as unnecessary.

COPIES FURNISHED:

James H. Gillis, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802-1900

Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967

Lantana, Florida 33465-3967

Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32801

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006183

Orders for Case No: 90-006183