STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARDO SANDA )

)

Petitioner, )

)

vs. ) CASE NO. 76-1017*

) 76-1743

BARRY SHELOMITH AND )

ISAAC SHELOMITH, ) *NOTE: ERRATUM ATTACHED

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these cases on February 4, 1977, in Coral Gables, Florida.

APPEARANCES

For Petitioner: Bruce I. Kamelhair, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Richard Morgentaler, Esquire

1600 Northeast Miami Gardens Drive Greater Miami Beach, Florida 33179

PROCEDURAL BACKGROUND

The Florida Real Estate Commission, through its representative, Richardo Sanda (Petitioner hereafter) filed two administrative complaints against Barry Shelomith and Isaac Shelomith, Defendants, on March 3, 1976, (Progress Docket No. 2798) and on July 8, 1976, (Progress Docket No. 2860).

The administrative complaints, which were received as pleadings, set forth detailed violations of the Real Estate Licensing Law by the Defendants which will not be restated here. For purposes of this order however, it is sufficient to note that the complaints allege, in pertinent part, that the Defendants failed to register with the Commission or alternatively to apprise their registered real estate broker that they were selling certain properties for an owner who was not their registered broker which conduct is violative of Section 475.01, Florida Statutes and Rule 21v-6.02 and 6.03, Florida Administrative Code; that they engaged in repeated acts of misrepresentation including, among other things, telling prospective purchasers of properties in which they were selling for an owner who was not their registered broker that such property (located in DeFuniak Springs, Walton County) was readily accessible; misrepresented the size of the lots; misrepresented the fact that electricity and water was available; and that the lots were accessible to Spring Lake which offered, among other things, fine boating, swimming, fishing, etc. The

complaints allege further that Defendants were guilty of false advertising in an effort to deceive or defraud investors, or prospective investors to invest in real property interests in violation of Section 475.25(1)(b), Florida Statutes; that the Defendants failed to divulge the fact that they were acting for a corporation in violation of Rule 21V-6, F.A.C.; which acts amount to a concealment by working for one other than his registered broker, in violation of Section 475.42, F.S. Based on the above alleged acts of concealment, the complaint further alleges that the Defendants violated Section 475.25(1)(b), F.S., by failing to divulge the fact that they were operating as salesmen for a person not registered as their employer and that based on the various allegations the Defendants have shown through their course of conduct that they cannot sustain a confidential relation in accordance with Florida Statutes, Section 475.25(3). Based thereon, the Commission seeks to revoke or suspend the licensees' license and their right to practice thereunder.

The Defendants filed an answer to the administrative complaint denying the commission of the operative acts alleged as violative of the Real Estate Licensing Law.

Based upon my observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

1. The Defendants, Barry Shelomith and Isaac Shelomith, son and father, respectively, were, during times material to the allegations filed herein, registered with the Commission as real estate salesmen with Alan Leavitt, a registered real estate broker, who maintains offices at 1110 N.E. 163rd Street, Suite 345, Miami Beach, Florida 33162.

   
   

2. Defendant Barry Shelomith sometimes identifies himself as a "Mr. Barry", also being publicly known by such pseudonym, and Defendant Isaac Shelomith sometimes identifies himself as "I.B. Shelly" and is also publicly known by that pseudonym.

   
   

3. During the period between March 15, 1975 and November 15, 1975, the Defendants, Barry Shelomith and Isaac Shelomith, jointly and/or severally and for their own accounts or for the accounts of others, negotiated the sale of a number of platted, unimproved lots located in a subdivision near DeFuniak Springs in Walton County, Florida and identified as Country Club Heights, Northeast, in Plat book 3, Page 21, Walton County, Florida. In negotiating for the sale of the lots, the Defendants placed various ads in Florida newspapers as an inducement for sale. Typical of such ads is the following:

   
   

   OWNER SACRIFICE

   
   

   Seven Mobile and Camping lots on Spring Lake. Boating, fishing, swimming. Electricity, water available. Only $375 each lot. Cash only. Call Owner, 931-1809 after 6 PM for appointment. (See Commission's Exhibit #6).

   
   

4. Donald Vesey and his wife Jeanette Vesey purchased two lots from the Defendants based on an inducement prompted by a newspaper ad cause to be published by the Defendants. Mr. Vesey testified that Isaac Shelomith advised him that the lots were easily accessible; that owners could drive to their lots and that the lots were platted and that electricity and water was available.

   The Veseys were given warranty deeds for the lots during early April, 1975, and thereafter they attempted to see the lots during a visit to Defuniak Springs.

   The Veseys stated that they were unable to see the lots because they are "completely surrounded by privately owned property and there is absolutely no access to this property". However, the adjoining land owner, a Mr. Strickland, showed them approximately where their property was situated and was further able to show them that their property was "land-locked". Mr. Vesey testified that there were no access roads to the property and that the surrounding area is heavily wooded. (See Commission's Exhibits 3 & 4).

   
   

5. Cynthia and Charles Derditsch, husband and wife, also purchased a lot from Defendant, Barry Shelomith, who advised that the property was accessible to the lake and Mr. Derditsch, based upon this representation, considered the property to be a good investment.

   
   

6. Carl and Francis Milam also purchased property from the Defendants which was located in Walton County. Mrs. Milam testified that Isaac Shelomith told her the lot sizes were approximately 25 by 150 feet, however, she testified that she later learned that the property was smaller. Mrs. Milam's testimony in this regard is unspecific inasmuch as she could not either confirm or deny the lot sizes because she did not view the property and her husband had no recollection of the transaction involving the purchase of the property.

   
   

7. George A. Torrence, also purchased a lot from the Defendants which he was unable to see because there was no easy access. He went to Spring Lake, the adjoining property, and the land owner, Mr. Strickland denied his access. To the best of his recollection, he testified that a Mr. Astor, who accompanied Defendant Barry Shelomith, made all the representations regarding the amenities of the property. Defendant Barry Shelomith told him that he represented Miami Sunshine, Inc., an active Florida Corporation to which he (Torrence) tendered the purchase price for the property. His testimony is that Barry Shelomith advised that his uncle, Ben Mione, was President of Miami Sunshine, Inc. (See Commission's Exhibit #12). Mr. Torrence also recalled that the property was represented to be 50 by 100 feet whereas in actuality it only measured 25 by 100 feet.

   
   

8. Barry Shelomith testified that there were two means of access to the property in question. One mean was through the adjoining landowner's property and the other is through the use of a heavily wooded area off State Road #183. He testified that the plat map which was provided to all prospective purchasers was given them (the Defendants) by Budget Systems, Inc., the former owner and that the plat map was certified by a licensed surveyor.

   
   

9. He denied any intent to defraud prospective purchasers by using the pseudonym "Mr. Shelly" instead of his last name which means "peace" in the Jewish community. He testified that by utilization of the word "Shalom" would possibly hinder his sales efforts outside the Jewish community. He denied any attempt to conceal his last name and admitted that he was not registered with the Commission as being employed by anyone other than his then registered broker, Alan Leavitt. He further admitted that the pseudonym "Shelly" was not registered with the Commission. While he admitted to directly selling the property of an owner while having his license registered with the Commission through broker Alan Leavitt, he saw no violation in this instance inasmuch as the property was owned by his uncle. He opined that this was permissible inasmuch as an owner was free to sell less than 49 parcels and secondly that the property owner in question here was a blood relative i.e., his uncle.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

11. The authority of the Commission is derived from Chapter 475, Florida Statutes.

    
    

12. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Commission or its representative. State Ex Rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

    
    

13. The action of the Defendants in representing to the Veseys; the Derditschs; the Milams and the Torrences that the lots which they were selling in Walton County were readily accessible and had certain amenities including roads and available water and electrical hookups amounts to a violation of Chapter 475.25(1)(a), Florida Statutes.

    
    

14. The action of the Defendants, by advertising that certain lots in which they were selling in Walton County had certain amenities which they knew were untruthful, in an effort to induce prospective investors and purchasers to buy, amounts to conduct violative of Chapter 475.01, F.S., and Rules 21V-6.02 and 6.03, Florida Administrative Code.

    
    

15. The actions of the Defendants by failing to reveal that they were employed by someone other than their registered broker amounts to a violation of Chapter 475.42, Florida Statutes, and their failure to divulge to the Commission that they were acting for a corporation without the authority or consent of their broker amounts to a further violation of Chapter 475.42 and Rule 21V-6.04, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings and fact and conclusions of law, it is hereby, RECOMMENDED as follows:

1. That the Defendant, Barry Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years.

   
   

2. That the Defendant, Isaac Shelomith, registration with the Florida Real Estate Commission as a real estate salesman be suspended for a period of two (2) years.

   
   

3. That the complaint in all other respects be dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1977.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1977.

COPIES FURNISHED:

Richard Morgentaler, Esquire 1600 NE Miami Gardens Drive

Greater Miami Beach, Florida 33179

Bruce I. Kamelhaire, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RICARDO SANDA, )

)

Petitioner, )

)

vs. ) CASE NOS. 76-1017

) 76-1743

BARRY SHELOMITH AND ) DOCKET NOS. 2860 and 2798 ISAAC SHELOMITH, ) DADE COUNTY

)

Respondent. )

)

E R R A T U M

APPEARANCES: Bruce I. Kamelhair, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For the Real Estate Commission Richard Morgentaler, Esquire

1600 Northeast Miami Gardens Drive Greater Miami Beach, Florida 33179 Attorney for Defendants

Pursuant to notice, the undersigned convened a Section 120.57, Florida Statutes, hearing regarding the allegations contained in the administrative complaint filed in the above cases. Thereafter, on March 30, 1977, the undersigned issued a recommended order respecting case nos. 76-1017 and 76-1743. However, at the outset of the hearing, over the objections of Defendants' counsel, the undersigned granted the Petitioner a continuance of case no. 76- 1017 (FREC Progress Docket No. 2798). Accordingly, all references to case no.

76-1017 (FREC Progress Docket No. 2798) of the above referenced recommended order is hereby stricken and the recommended order deals only with case no. 76- 1743 (FREC Progress Docket No. 2860). In all other respects, the recommended order remains unchanged.

DONE AND ENTERED this 6th day of April, 1977 in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, FL 32789

Richard Morgentaler, Esquire

1600 Northeast Miami Gardens Drive Greater Miami Beach, Florida 33179

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

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

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

PROGRESS DOCKET NO. 2860

vs. DADE COUNTY

DOAH CASE NOS. 76-1017

BARRY SHELOMITH and 76-1743

ISAAC SHELOMITH

Respondents.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on May 18, 1977.

Present: John R. Wood, Chairman

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

Appearances: Bruce I. Kamelhair, Esq.

Attorney for Petitioner

No appearance for Defendants

This matter came on for Final Order upon the Examiner's Recommended Order, Exceptions filed by the Petitioner, and the Commission hearing oral argument of Counsel for the Petitioner; and the Commission, upon reviewing the case and being fully informed finds:

1.

That according to the records of the Commission, Barry Shelomith is a registered real estate salesman whose residence address is 7011 N.W. 169th Terrace, Miami, Florida 33115.

2.

That Isaac Shelomith is registered with the Commission as a real estate salesman whose residence address is 2433 N. E. 184th Terrace, North Miami Beach, Florida 33160.

3.

That the allegations contained in Counts One through Three of the Administrative Complaint as relating to Defendants Barry Shelomith and Isaac Shelomith are true, and by reason thereof, Defendants Barry Shelomith and Isaac Shelomith are guilty of violating the provisions of Subsection 475.25(1)(d), Florida Statutes; Subsection 475.25(1)(b), Florida Statutes; Subsection 475.25(1)(d), Florida Statutes; Subsection 475.47, Florida Statutes, and Subsection 475.25(3), Florida Statutes, and their registrations should be revoked.

IT IS THEREFORE ORDERED:

1. That Defendants Barry Shelomith and Isaac Shelomith be and are hereby adjudged guilty of violating Subsection 475.25(1)(a), Florida Statutes; Subsection 475.25(1)(b), Florida Statutes; Subsection 475.24(1)(d), Florida Statutes; Subsection 475.47, Florida Statutes, and Subsection 475.25(3), Florida Statutes as charged in the Administrative Complaint.

2. That for said violations the registrations of Defendants Barry Shelomith and Isaac Shelomith be, and the same are hereby, revoked; said revocations to become effective on the effective date of this Order as provided by law.

DONE AND ORDERED in Winter Park, Florida, this * day of May, 1977.

*NOTE: Agency Final Order filed with the DOAH is not dated.

JOHN R. HOOD

Chairman

MAGGIE S. LASSETTER

Vice Chairman

L. D. SMITH, JR. Member

I HEREBY CERTIFY that I mailed a copy of the foregoing Order to Richard Morgenthaler, Esq., Attorney for Defendants, 1600 Northeast Miami Gardens Drive, Greater Miami Beach, Florida 33179, by United States registered mail on this 27th day of May, 1977.

Katherine A. Evans Clerk, Legal Section

Florida Real Estate Commission

NOTE TO DEFENDANTS:

This Order shall become effective upon the 22nd day of June, 1977. You have a right of review by an Appellate Court, if you desire.

Docket for Case No: 76-001017

Orders for Case No: 76-001017