STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICARDO SANDA, Investigator, ) FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1056

) Progress Docket No. 2654

KENNETH FRIEDMAN, ) Dade County

)

Respondent. )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on September 17, 1975, at 2:00 p.m. at the offices of the Florida Real Estate Commission, 21 Seybold Building, 36 N.E. First Street, Miami, Florida.

APPEARANCES

For Petitioner: Howard Hadley, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Alan E. Weinstein, Esquire

420 Lincoln Road

Miami Beach, Florida 33139 ISSUES

Whether Respondent, Kenneth Friedman, as a registered real estate broker conducted himself in such a manner that members of the public suffered a financial loss.

Whether Respondent, Kenneth Friedman, as a registered real estate broker, with Barclay Realty, Inc., a corporate broker, intentionally allowed his real estate brokers license to be used to the detriment of members of the public.

Whether Respondent, Kenneth Friedman, is guilty of fraud, misrepresentation, concealment, false pretenses, false promises, dishonest dealings, trick, scheme or device and culpable negligence by his failure to control, direct and supervise the real estate license activities of Barclay Realty, Inc.

Whether the activities of Respondent, Kenneth Friedman, are in violation of Chapter 475, Florida Statutes, and require that his real estate brokers license be suspended.

FINDINGS OF FACT

1. From September 5, 1972 to and including March 31, 1974, Barclay Realty, Inc. was a corporate real estate broker and was registered with the Florida Real Estate Commission. Kenneth Friedman was the sole acting firm member of Barclay Realty, Inc. during said period of time and was the only real estate broker involved with said corporate broker during that period of time.

   
   

2. During the period of time from September 5, 1972 to and including March 31, 1974, Edward D. Morris, Nikki Morris, Carl Hoy, and Dennis Morris were not registered with the Florida Real Estate Commission as real estate brokers or real estate salesmen and were not holders of valid registration certificates from the Florida Real Estate Commission.

   
   

3. Michael Anthony Morris was a salesman duly registered with the Florida Real Estate Commission and an active member of the Barclay Realty, Inc. prior to his death in January, 1973.

   
   

4. A bank account was opened in the name of Barclay Realty, Inc. at the First National Bank of Bay Harbor Island, Bay Heights, Bay Harbor Island, Florida. Respondent Friedman was not authorized to sign on the operating bank account of the corporate broker. The account was opened by one Dennis Morris and others without the knowledge of the Respondent.

   
   

5. Respondent Friedman, although the Vice President and duly registered broker with the Florida Real Estate Commission as a broker for the Barclay Realty, Inc. whose business address was Eden Rock Hotel, Collins Avenue, Miami Beach, Florida, did not know of and did not supervise the activities of Dennis Morris and others who were advertising for the firm and who were working selling real estate in the name of the firm.

   
   

6. The Barclay Realty, Inc. ceased operating from its registered address prior to March 31, 1974, and was operating from

   another address not properly registered with the Commission, to wit: 4525 Pinetree Drive, Miami Beach, Florida.

   
   

7. Kenneth Friedman sent a letter on March 26, 1974, notifying the Commission that he had severed affiliation with Barclay Realty, Inc. previously thereto in August, 1973.

   
   

8. In November of 1973, Louis Franco put up the sums of

   $4,000 and $3,900 for the purchase of condominiums located at 18071 Biscayne Boulevard, N. Miami Beach.

   
   

   The checks were made payable to Barclay Realty, Inc. and given to an individual known as Dennis Morris.

   
   

   These checks were deposited in an escrow account opened by Dennis and Edward Morris in the First National Bank of Bay Harbor Islands.

   
   

9. The Franco real estate transactions in question never closed nor were the deposits totalling $7,900 refunded to Mr. Franco.

   
   

   The Hearing Officer further finds:

   
   

   1. That Respondent Kenneth Friedman used poor judgment in failing to sever relationship with the Barclay Realty, Inc. at the death of the only registered salesman, Michael Morris, that he had not intent to defraud members of the public and no intent to allow others to defraud members of the public. He did not receive remuneration from the activities of those who perpetrated fraud in the name of Barclay Realty, Inc.

      
      

   2. That Respondent Friedman had no actual knowledge of the opening of the bank account in the name of the Barclay Realty, Inc. nor of the fraudulent transactions of those working in the name of Barclay Realty, Inc.

      
      

   3. That Respondent Friedman failed to notify the Florida Real Estate Commission when he withdrew as a member of the firm as required by the Florida Statutes and the Rules of the Florida Real Estate Commission. He failed to notify the Florida Real Estate Commission when the corporate place of business moved from the registered place of business to another location.

      
      

   4. That Respondent Kenneth Friedman, the Vice President and the only registered broker of Barclay Realty, Inc., negligently allowed the real estate corporation to operate in such a fashion

      that Mr. and Mrs. Louis Franco were defrauded of some $7,900 by non-registered salesmen of Barclay Realty, Inc.

      
      

   5. That Respondent Kenneth Friedman failed to keep himself informed as to the transactions of the corporation; failed to keep records as required by the Commission; failed to keep the interest of the public in mind in dealing with those working with the Barclay Realty, Inc., thus allowing his name and license to be so used that members of the public involved in real property transactions were or could have been mislead into believing that the Barclay Realty, Inc. was being properly operated under the Statutes of the State of Florida and the Rules of the Florida Real Estate Commission.

   
   

   CONCLUSIONS OF LAW

   
   

10. The activities of the Respondent in these proceedings are not consistent with the requirements of Chapter 475, Florida Statutes or the rules promulgated by the Florida Real Estate Commission and the acts of omission resulted in innocent parties suffering financial loss as well as inconvenience and loss of respect for the laws and rules of the State of Florida.

RECOMMENDED ORDER

Suspend the license of licensee Kenneth Friedman for a period of time not to exceed thirty (30) days from the date hereof.

DONE and ORDERED this 7th day of November, 1975.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

Howard Hadley, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Alan E. Weinstein, Esquire

420 Lincoln Road

Miami Beach, Florida 33139

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

RICARDO SANDA, Investigator, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 75-1056

Progress Docket No. 2654

KENNETH FRIEDMAN, Dade County

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on December 22, 1975.

Present: Edgar L. Schlitt, Chairman John R. Wood., Vice Chairman Maggie S. Lassetter, Member

Appearances: Howard Hadley, Esquire

Attorney for Petitioner Alan E. Weinstein, Esquire Attorney for Respondent

This matter came on for Final Order on the Examiner's Recommended Order and the Exceptions filed thereto by the Respondent, Kenneth Friedman; no Exceptions having been filed by the Petitioner; and upon consideration thereof, together with the record and arguments of counsel for Plaintiff, and counsel for the Defendant, the Commission finds:

1.

That according to the records of the Commission the Respondent, Kenneth Friedman, is a registered real estate broker,

and that the last address he has registered with the Commission is as a broker at 8101 Biscayne Blvd., North Miami Beach, Florida 33621.

2.

That the Examiner's Recommended Findings of Fact are supported by competent, substantial evidence in the record, and should be adopted as the Findings of Fact of the Commission.

3.

That the Exceptions to the Recommended Order filed by the Respondent as to Count I, Count II and Count III of the Information are well taken and should be granted; however, the Respondent's Exceptions to the Recommended Order of the Hearing Examiner as to County IV are not well taken and should be over- ruled.

4.

That the Examiner's Recommended Order that the Respondent's activities in these proceedings are not consistent with the requirements of Chapter 475, Florida Statutes, and that his license and registration should be suspended by reason of his being guilty of those violations and acts charged in County IV of the Information is supported by competent, substantial evidence, and should be adopted as the Order of the Commission, with the exception, however, that the Commission having read the entire transcript of the proceedings, does not agree with the Hearing Examiner to a penalty "...not to exceed thirty days", circumstances as contained in the complete record of this cause and as reviewed and read by the Commission (each of the Commissioners) warrants a more severe penalty to be imposed upon the Respondent, to wit: suspension of the Respondent's registration as a broker for a period of six months.

IT IS THEREFORE ORDERED:

1. That the Respondent, Kenneth Friedman's Exceptions to Counts I, Count II and Count III of the Examiner's Recommended Order be and the same are hereby sustained; that the Respondent, Kenneth Friedman's Exceptions to Counts IV of the Examiner's Recommended Order be, and the same is hereby over-ruled.

2. That the Examiner's Recommended Findings of Fact be, and the same are hereby adopted as the Findings of Fact of the Commission.

   
   

3. That the Respondent, Kenneth Friedman, be and he is hereby found not guilty of violating Subsection 475.25(1)(c), Florida Statutes, Subsection 475.25(1)(i), Florida Statutes, and Subsection 475.25(1)(a), Florida Statutes, as charged in Count I and Count II and County III of the Information.

   
   

4. That the Respondent, Kenneth Friedman, be and he is hereby adjudged guilty of violating the provisions of Subsection 473.25(1)(d), Florida Statutes, and Subsection 473.25(1)(a), Florida Statutes, as charged in Count IV of the Information.

   
   

5. For such violation the registration of the Respondent, Kenneth Friedman, as a real estate broker be, and the same is hereby suspended for a period of six months; said suspension to become effective on the effective date of this Order, as provided by law.

DONE AND ORDERED as Winter Park, Florida, this 19th day of January A.D., 1976.

Edgar L. Schlitt Chairman

John R. Wood Vice Chairman

Maggie S. Lassetter Member

I hereby certify that I mailed a copy of the forgoing Order Alan E. Weinstein, Esquire, Attorney for the Respondent, Kenneth Friedman, 420 Lincoln Road, Suite 386, Miami Beach, Florida 33139, by U.S. registered mail on this 19th day of January, 1976.

C. B. Stafford Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective on the 18th day of February A.D., 1976, unless Petition for Writ of Certiorari is filed on or before that time. See Subsection 475.31(3); 475.31(5); 475.35;

475.40; 120.68; Florida Statutes; and Rules 4.1 and 4.5(c), Florida Appeallate Rules.

Docket for Case No: 75-001056

Orders for Case No: 75-001056