STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) CALVIN V. LANE, REPRESENTATIVE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-923

) PROGRESS DOCKET 2611 ROSE F. NELSON REALTY, INC. AND ) BROWARD COUNTY

HAZEL F. SOMMONS, SALESMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing by the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, at the Commission Office,

305 South Andrews Avenue, Suite 210, Ft. Lauderdale, Florida, on July 2, 1976.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Gerald M. Walsh, Esquire

Walsh and Associates

404 Courthouse Square Building

200 Southeast Sixth Street

Ft. Lauderdale, Florida 33301

1. The Florida Real Estate Commission (hereinafter sometimes referred to as the Commission) caused to be filed an information alleging in pertinent part that the Respondent, Hazel F. Sommons, caused to be advertised on or about September 7, 1973, in the Ft. Lauderdale News, property for sale which according to the advertisement represented that the property was to be zoned R-3 when in fact on September 7, 1973, the property was zoned R-1C. The information alleges further that Robert G. Huber who is the owner of Robert G. Huber Construction Inc., and the ultimate purchaser of the property in question called the number listed in the advertisement and spoke with Respondent Sommons who had informed him that she owned one lot. Sommons related further that there were two more lots available and that she was a real estate salesman. On September 8, Huber submitted offers on all three lots and at that time was told that the R-3 zoning was not final. A notation to this effect was placed in the contract which stated in essence "subject to final approval to R-3 zoning by the Broward County Zoning Board". A copy of the deposit receipt was entered into evidence and is made a part hereof by reference. (FREC Exhibit #2). The contract called for a closing date on or before thirty days from the date of acceptance. Huber was informed that the seller's had accepted the deposit receipt contract on or about September 15, 1973. At this time and by follow up letter dated September 19,

   Sommons requested Huber that in order to meet an earlier closing date, it was necessary for him to submit a written request deleting the zoning contingency in the contract and a further contingency requiring that the soil meet certain soil bearing conditions. Huber complied with this request by letter dated September 26, 1973. The information alleges further that closing was held on October 24, 1973, and that the Broward County Zoning Board disapproved a zoning change on the property to R-3 on October 19, 1973, approximately five days prior to the closing. In concluding, the information alleges that the Respondent's Sommons and Rose F. Nelson Realty, Inc., knew or should have known of the zoning disapproval and did not inform Huber of such disapproval. Finally, the information alleges that for the reason of the above referenced facts, Respondent Sommons is guilty of publishing false and misleading information in violation of Subsection 475.47, in violation of Subsection 475.25(1)(d), Florida Statutes, and Respondent's Sommons and Rose F. Nelson Realty, Inc. are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme, devise, culpable negligence, a breach of trust in a business transaction, in violation of Subsection 475.25(1)(a), Florida Statutes. The commission therefor moves that based on the evidence presented, the registrations of Rose F. Nelson Realty, Inc. and Hazel F. Sommons be revoked and or suspended.

   
   

2. Huber was called and testified that when he noted the ads in the paper, he phoned the number and spoke to Mrs. Sommons. He expressed his interest in the property and made an appointment to discuss the lot with Mrs. Sommons at her house. Following the conversations with Mrs. Sommons, Mr. Huber obtained the addresses of the lots and immediately went to view them. After looking at the lots, he decided to buy them in a short time and he immediately entered into an agreement with Mrs. Sommons, who prepared the contracts above referred to. Huber, by his own testimony, admits that when he submitted offers on all three lots he was told by Mrs. Sommons that the R-3 zoning was not final and further illustrative of this point is the notation in the deposit receipt contract indicating that the R-3 zoning was not final and had to be approved by the Broward County Zoning Board. By letter dated September 26, 1973, Mr. Huber agreed to delete the two contingency provisions on the original contract such that he could go to closing at an earlier date. By letter dated September 19, 1973, Hazel F. Sommons, an associate of Rose F. Nelson Realty, Inc., requested Huber to delete the contingency from the contract in order that the closing date could be accelerated. The letter indicated that the next scheduled Broward County meeting would be held on October 19, 1973, for a formal acceptance to R-3 for the lots in question. While the letter indicates that approval had been tentatively approved on September 5, the letter further states that formal approval could not be had until the October 19 meeting.

   
   

3. Huber, a general contractor, testified that he was sophisticated in the purchasing and development of land in the Ft. Lauderdale area and that he understood that the R-3 zoning was subject to approval by the Broward County Zoning Board. There was no evidence introduced which would demonstrate or substantiate the allegations in the information that the Respondents engaged in any dishonest dealing in the transfer and sale of the land to Mr. Huber. On the contrary, the contract containing the contingencies was clearly contained in the deposit receipt contract and Huber entered the agreement which set forth the contingencies which according to him, was one of the critical factors that he looked forward to in the purchase of the land. With these facts, the undersigned concludes that the Respondent's fully disclosed the contingencies to Mr. Huber and that he knowingly, and intelligently entered into the purchase contracts with full knowledge of the contingencies. I shall therefore recommend that the information be dismissed in it's entirety.

   CONCLUSIONS OF LAW

   
   

4. This cause was noticed in accordance with the notice provisions of Chapters 120 and 475, F.S.

   
   

5. The authority of the Commission is derived from Section 475, Florida Statutes.

   
   

6. Rose F. Nelson Realty, Inc., is a registered corporate broker and Hazel

   F. Sommons, is a registered salesman associated with the Rose F. Nelson Realty, Inc.

   
   

7. By reason of the foregoing facts, Respondent Sommons is not guilty of publishing false or misleading information in violation of Subsection 475.47, or in violation of Subsection 475.25(1)(d), Florida Statutes.

   
   

8. Respondents' Sommons and Rose F. Nelson Realty, Inc., are not guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme, devise, culpable negligence of breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes, by reason of the foregoing facts.

RECOMMENDATION

Based on the foregoing facts and conclusions of law, I recommend that the information filed herein be dismissed in it's entirety.

Done and Entered this 24th day of August, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Walsh and Associates

By Gerald M. Walsh, Esquire

404 Courthouse Square Building

200 Southeast Sixth Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 76-000923

Orders for Case No: 76-000923