STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) THOMAS M. MURRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-844

)

CHARLES SHANE, IREC, INC., )

and RICHARD W. KING, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 2:00

1. on August 18, 1976, in Suite 307, 717 Ponce de Leon Boulevard, Coral Gables, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Mr. John Gough, Esquire

   Staff Counsel

   Florida Real Estate Commission 2699 Lee Road

   Winter Park, Florida 32789

   
   

   For Respondent

   Shane: No appearance

   
   

   For Respondent Mr. John Flynn IREC, Inc.: 225 Menores Avenue

   Coral Gables, Florida 33134

   
   

   For Respondent Mr. C. Edward Porch, Esquire King: McCormick, Bedford & Bachmeyer

   Eastern Union Building

   111 Southwest Third Street Miami, Florida 33130

   
   

   INTRODUCTION

   
   

   By an administrative complaint filed on July 24, 1975, respondent Charles Shane was charged in Count I with violating F.S. 475.42(1)(a), 475.25(1)(a), 475.25(1)(d) and 475.18 in that he did, on March 20, 1973, and June 19, 1973, while employed at IREC, Inc. engage in the appraisal of real property for compensation without then being the holder of a valid registration certificate. By Count II of the administrative complaint, respondent IREC, Inc. and respondent Richard W. King were charged with violations of F.S. 475.42(1)(c) and and 475.25(1)(d) in that they did employ or continue in employment respondent

   Shane as a real estate appraiser between the dates of October 19, 1973, and December 20, 1973, when he was not the holder of a valid registration certificate.

   
   

   At the beginning of the administrative hearing petitioner dismissed the charges against IREC, Inc. inasmuch as IREC, Inc. is no longer registered with the Real Estate Commission.

   
   

   Respondent Shane, though receiving notice of the hearing, did not appear at the hearing.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following pertinent facts are found:

   
   

   1. Respondent Charles Shane was formerly employed by IREC, Inc. (International Real Estate Consultants). His assigned duties were administrative in nature and included the performance of research and field work pertaining to appraisals. It was not one of his assigned duties to procure appraisals and his salary was not contingent upon the appraisals performed by IREC, Inc.

      
      

   2. By application dated January 22, 1973, respondent Shane applied to the Florida Real Estate Commission for registration as a real estate salesman. By certificate number 0117007, Shane was registered as a real estate salesman effective December 20, 1973. He is presently registered as a non-active salesman.

      
      

   3. By letter dated January 9, 1973, on IREC stationary, respondent Shane, signing as Vice President, wrote a letter to John R. Vereen stating that, upon acceptance by Vereen, IREC would conduct a market value appraisal of certain property for a compensation of $2,500.00. This letter bears the handwritten notation "cancelled with no liability 3/5/73." On March 5, 1973, respondent Shane, again signing as Vice President of IREC on IREC stationary, wrote a letter to Mr. Vereen stating "I will conduct a market value appraisal. . ." of the same property as that described in the January 9th letter for a compensation of $2,500.00. The checks in payment of this amount were made payable to respondent Shane individually and not to IREC, Inc.

      
      

   4. As indicated by Exhibits 6,7,10,11,12 and 13, appraisal reports were submitted to various entities on dates ranging from December 29, 1971, through March 20, 1973. The cover letters are each signed by respondent Shane as Vice- President and by one other person as "M.A.I. Consultant." These reports contain several pages concerning the qualifications of the appraiser. Respondent Shane's qualifications are included. Mr. Edward Waronker, who co-signed five of the six reports listed above, did not write or prepare the reports. It was Waronker's duty as an independent appraiser for IREC to inspect the property and review the appraisal reports prepared.

      
      

   5. A letter on IREC stationary dated July 23, 1974, from respondent Shane makes reference to a June 19, 1973, appraisal report. In such letter, Mr. Shane states "I have reviewed the referenced appraisal, which was conducted under my direction as of June 19, 1973."

      
      

   6. As noted above, respondent Shane did not appear at the hearing and therefore no evidence was offered in his behalf. A "petition for mitigation"

      was filed with the Real Estate Commission stating that respondent did not sign the appraisal reports with any intention of holding himself out as an appraiser or salesman. In summary, said petition states that respondent Shane signed these documents as the person of the corporation and not as a real estate appraiser or broker and that, had he been fully informed of the Florida real estate law, "he would not have continued in the manner that he did."

      
      

   7. Respondent Richard W. King has been registered with the Florida Real Estate Commission since 1957 and, prior to the instant complaint, has never been cited for a violation of the statutes, rules or regulations governing brokers or salesmen.

      
      

   8. Respondent King was employed with IREC, Inc. in June of 1973. According to the testimony, the registration of IREC and King was not approved by the Real Estate Commission until October of 1973. From the time that

      respondent King went to work with IREC, he had effective control and supervision of all appraisals performed by IREC. To King's knowledge, respondent Shane was never involved in the decision-making process surrounding appraisal work, and did not sign appraisal reports after June of 1973.

      
      

      CONCLUSIONS OF LAW

      
      

   9. In essence, respondent Shane is charged with preparing or assisting in the preparation of appraisals for compensation at a time when he was not the holder of a valid current registration certificate. Respondent King is essentially charged with employing or continuing in employment respondent Shane as a real estate salesman and/or appraiser at a time when he was not currently registered; to wit: from on or about October 19, 1973 through December 20, 1973.

      
      

   10. The evidence adduced at the hearing clearly illustrates respondent Shane did engage in the appraisal of property for another for compensation at a time when he was employed with IREC and not registered with the Florida Real Estate Commission. This conclusion is based not only upon the transmittal letters signed by Shane and another which were attached to the appraisal reports and the inclusion in said reports of the qualifications of Shane. There is also the testimony of Waronker that he did not prepare the appraisal reports co- signed by him, as well as the letters admitted into evidence as exhibits 8 and 9 wherein Shane admitted that he would conduct or did conduct the appraisals. The evidence is also clear that these activities took place at a time when respondent Shane was not yet registered with the Florida Real Estate Commission.

       
       

   11. Although the designations for those required to be registered with the Florida Real Estate Commission are "real estate salesman" or "real estate broker," the definition of a person so engaged is broad and comprehensive. As set forth in F.S. 475.01(2), said definition includes one who for compensation appraises real property for another. See Foulk v. Florida Real Estate Commission, 113 So.2d 714 (Fla. App. 2nd, 1959). It is a violation of the real estate license law for any person to operate as a real estate broker or salesman without being the holder of a valid current registration certificate, F.S. 475.42(1)(a), and the word "operate" is defined to mean the commission of acts described in 475.01(2). See F.S. 475.42(3)(a). F.S. 475.25(1)(d) provides that a registrant's registration may be suspended for a period not exceeding two years upon a finding of facts showing that the registrant has violated any of the provisions of Chapter 475 of the Florida Statutes. It is therefore concluded that grounds for suspension of the registration of respondent Shane do exist. It is further concluded that sections 475.18 and 475.25(2) provide

       grounds for the revocation of petitioner's registration. F.S. 475.18 bars any person from registration who has done any of the acts or performed any of the services described in 475.01 during the period of one year next prior to the filing of the application or during the pendency of the application and the issuance of the certificate. Section 475.25(2) states that registration shall be revoked if obtained by fraud, misrepresentation or concealment. Inasmuch as respondent Shane did perform the activities described in 475.01 -- appraisal work --- during the time between the submission of his application and the issuance of the certificate, it is concluded that the revocation provisions of 475.25(2) are applicable.

       
       

   12. As to respondent King, the evidence clearly illustrates that he was not aware of Shane's activities surrounding appraisal work and, more importantly, that no such activities occurred during the months charged; to wit: October through December. The evidence adduced at the hearing wholly fails to support the allegations that respondent King violated 475.42(1)(c) or 475.25(1)(d).

RECOMMENDATION

Based upon the findings of fact and conclusions of law recite above, it is recommended that:

1. the registration of respondent Charles Shane be suspended for a period of three (3) months; and

   
   

2. the charges relating to respondent Richard King be dismissed.

   
   

   Respectfully submitted and entered this 10th day of September, 1976, in Tallahassee, Florida.

   
   

   DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

   (904) 488-9675

   
   

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

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

   THOMAS M. MURRAY,

   
   

   Petitioner,

   
   

   vs. PROGRESS DOCKET NO. 2709

   DADE COUNTY CHARLES SHANE, IREC, INC., CASE NO. 76-844 and RICHARD W. KING,

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on October 27, 1976,

   
   

   Present: John R. Wood, Chairman

   Maggie S. Lassetter, Vice-Chairman Levie D. Smith, Jr., Member

   
   

   Appearances: John M. Gough, Attorney for Petitioner No appearance by or for Charles Shane No appearance by or for Richard W. King

   
   

   This matter came on for Final Order upon the Examiners Recommended Order and Petitioner's Exceptions having been filed and the argument by Counsel for the Petitioner, and the Commission being fully informed and upon due consideration thereof finds:

   
   

   1.

   
   

   That according to the records of the Commission, Respondent, Charles Shane's present address registered with the Commission is as a non-active salesman, 7221 Southwest 82nd Street, Apt. #E-8, Miami, Florida 33143; and Respondent Richard W. King's present address registered with the Commission as an active broker, 9200 South Dadeland Boulevard, Miami, Florida 33156.

   
   

   2.

   
   

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

   
   

   3.

   
   

   That the Examiner's "Conclusions of Law" contained in the Recommended Order should be accepted by the Commission.

   
   

   4.

   
   

   That the Recommended penalty of the Hearing Officer as it relates to Respondent Richard W. King should be accepted by the Commission.

   
   

   5.

   
   

   That the Recommended penalty of the Hearing Officer that Respondent Charles Shane have his license suspended for a period of three (03) months should be rejected by the Commission.

   
   

   IT IS THEREFORE ORDERED:

   
   

   1. That the Findings of Fact made by the Hearing Examiner and contained in her

      Recommended Order be, and the same are hereby, adopted as the Order of the Commission;

      
      

   2. That the Respondent, Charles Shane, be and is hereby, adjudged guilty of violating Subsections 475.25(1)(a), 475.25(1)(d), 475.25(2), and 475.18(1), Florida Statutes, under COUNT ONE of the Administrative Complaint; and that the Respondent, Richard W. King, be and is hereby, adjudged not guilty of violating Subsections 475.42(1)(c) or 475.25(1)(d), Florida Statutes, and the complaint against Respondent Richard W. King is hereby, dismissed.

      
      

   3. That the Petitioner's Exceptions as to the Examiner's Recommended Order are hereby, accepted.

      
      

   4. That for such violations, the registration of Respondent Charles Shane be, and the same is hereby, revoked, said revocation to become effective upon the effective date of this

Order as provided by law.

DONE and ORDERED at Winter Park, Florida, this 2nd day of November, 1976.

JOHN R. WOOD

Chairman

MEGGIE S. LASSETTER

Vice-Chairman

LEVIE D. SMITH, JR.

Member

I CERTIFY that I mailed a copy of the foregoing Order to Charles Shane, Respondent, at the last address said Respondent has registered with the Commission as his Florida business address, 7221 Southwest 82nd Street, Apt. #E- 8, Miami, Florida 33143, Richard W. King, Respondent, at the last address said Respondent has registered with the Commission as his Florida business address, 9200 South Dadeland Boulevard, Miami, Florida 33156, John Flynn, Representative of IREC, Inc., 225 Menores Avenue, Coral Gables, Florida 33143, Mark J. Friedman, Esquire, Attorney for Respondent, Charles Shane, 350 Lincoln Road, Suite 203, Miami, Florida 33139, and C. Edward Porch, Esquire, Attorney for Respondent, Richard W. King, Eastern Union Building, 111 Southwest 3rd Street, Miami, Florida 33130, by United States registered mail on the 2nd day of November, 1976.

C. B. STAFFORD Executive Director

NOTICE TO RESPONDENTS:

This Order shall become effective on the 2nd day of December, 1976. However, you have a right of review by an Appellate Court, if you desire.

JMG:jdb

Docket for Case No: 76-000844

Orders for Case No: 76-000844