STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case on September 30, 1976 at Fort Myers, Florida.

APPEARANCES

For Petitioner: John Gough, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Defendants: Joseph C. Adderly, Esquire

1714 Cape Coral Parkway Post Office Box 535

Cape Coral, Florida 33904

By Administrative Complaint filed July 2, 1976, FREC ex rel. Calvin V. Lane seeks to revoke, suspend, or otherwise discipline the real estate broker's license of Helen Marie McHenry and the real estate salesman's license of Robert

H. Parker on allegations of misrepresentation, concealment, breach of trust, culpable negligence, and fraud in violation of subsection 475.25(1)(a) F.S. The operative facts allege that on or about August 13, 1975 Mr. and Mrs. Barber were shown property by Defendant Parker in which he allegedly showed them lots 11 and

12 of Block 839 in Cape Coral when in fact he showed them lots 21 and 22 and prepared and executed to them a deed for lots 11 and 12. One witness was called by Petitioner, three witnesses, including the two Defendants, testified in behalf of themselves, and 12 exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here involved Defendant, Helen Marie McHenry, was a registered real estate broker with Keim & Hipshire, Inc. and Robert H. Parker was a registered real estate salesman with Keim & Hipshire, Inc. In August, 1975 James and Martha Barber were shown property by Defendant Parker when they

   visited the office of Keim & Hipshire for the purpose of purchasing a building site in Cape Coral.

   
   

2. At this time Keim & Hipshire had listed for sale lots 11 and 12, amongst others, in block 839 in Cape Coral Florida. After showing the Barbers the lots Defendant Parker drove them back to the office of Keim & Hipshire and marked a map of Cape Coral with the site of the lots they had recently visited and gave this map to the Barbers.

   
   

3. Thereafter the Barbers executed a contract to purchase lots 11 and 12 and did so purchase these two lots. The offer to purchase dated August 14, 1975 was admitted into evidence as Exhibit 1.

   
   

4. The Parkers visited the site marked on the map, which was entered into evidence as Exhibit 2, several times prior to the time that the construction on their house commenced. When construction did commence they did not see any sign of construction on the lots that had been marked on Exhibit 2 but did see, some

   4 lots away, construction being commenced, or grading being commenced, on Lots

   21 and 22 and their name on the building permit at the property. Believing that lots they had purchased were different they called the office of Keim & Hipshire to complain. Mrs. McHenry asked them to come in to talk about it. At the meeting the Barbers said that the lots they were shown were different than the ones on which the construction was being commenced. The Barbers acknowledged that they had been given a map by Mr. Parker but could not find the map.

   
   

5. Lots 11 and 12 and 21 and 22 are both located in Block 839, Unit 26 of Cape Coral. Lots 11 and 12 face in the identical position opposite 37th Terrace that Lots 21 and 22 face opposite 37th Lane. Both lots face west on the same street. These are 4 building sites intervening between these two building sites. At the time they visited the site and at present the topography of both Lots 11 and 12 and Lots 21 and 22 are very similar and there is similar construction in the vicinity of each.

   
   

6. When the Barbers were unable to present the map that they acknowledged had been given to them by Mr. Parker, the real estate office was disinclined to give credence to their allegation that they had been sold lots different than the ones they had been shown.

   
   

7. The Barbers felt that they were being unfairly treated and made a complaint to the local office of the Florida Real Estate Commission. Shortly thereafter Mr. Lane visited the office of Keim & Hipshire to investigate the complaint that had been made. In the meantime Mrs. Barber was diligently searching for the map that she had been given and located this map after she had called the Real Estate Commission. While Mr. Lane was in the office of Keim and Hipshire to investigate Barber's complaint Mrs. Barber called the real estate office to advise that she had found the map. Mrs. McHenry asked her to please bring the map down, and that Mr. Lane was in the office at that time.

   
   

8. When Mrs. Barber brought in the map it became evident that a mistake had been made either in marking the map or in showing the property to the Barbers and Defendants McHenry and Parker forthwith repurchased the lots from the Barbers. In repurchasing the lot they paid the Barbers for all expenses they had incurred. The Barbers ascertained that Lots 21 and 22 were owned by a third party who had these lots for sale. They thereafter purchased the lots from the third party for the identical price that they had originally contracted to purchase Lots 11 and 12.

9. Mr. Parker has been selling lots in Cape Coral for some ten or eleven years. He was thoroughly familiar with the area and recognized that there were many streets with the same numbers and that it was very difficult for people to find sites in Cape Coral absent a map. When he took people out to a site in which they showed interest, he, upon returning to the office and after checking the plot plans, would mark on a map the lot that they had visited. None of the lots involved in this area are marked with signs, there are no lot markings that can readily be found and the only way that one can ascertain with certainty the lot number of a particular tract of land is by either having this lot surveyed or pacing off the distance from a known geographical location such as a street corner.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 475.25 (1) provides that the registration of a registrant may be suspended for a period not exceeding two years upon a finding of fact showing that the registrant has:

    
    

    "(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick scheme or device, culpable negligence or breach of trust in a business transaction in this state or any other state, nation, or territory

    
    

11. Fraud and misrepresentation as used in s475.25(1)(a) F.S. above quoted contemplates more than ordinary negligence. From the facts presented it is concluded that when the Barbers were taken to see the property by Mr. Parker they were shown Lots 11 and 12 which the office had for sale and not Lots 21 and 22, which the office did not have for sale, and which the Barbers stated that they had been shown. When Mr. Parker returned to the real estate office and marked a map it is apparent that he erred in marking this map, and inadvertently put the mark on Lots 21 and 22 and not Lots 11 and 12. From the similarity of the location of the two building sites with respect to streets with identical numbers, the proximity of the lots to each other and their respective positions with respect to a canal just west of the two lots, leads to the conclusion that the purchasers of the lots, i.e., the Barbers, were the ones who were confused and when they were given a map with the wrong area marked for their lots they had been shown they became convinced that that was the area they had actually been taken to by Mr. Parker in the first instance.

    
    

12. Neither the broker nor the salesman had any possible reason for attempting to show lots to customers that they did not have listings for. Both building sites were comparable, both building sites were the same price, and the building site comprising Lots 11 and 12 was the one that was listed with the real estate office. Mr. Parker, with his knowledge of the area and of the layout of Cape Coral, obviously did not go to the wrong lots when he took the Barbers out to see the site.

    
    

13. The fact that the real estate broker and the salesman here involved made full restitution as soon as the buyers produced the map that had been marked erroneously by Mr. Parker, further leads to the conclusion that there was no intent to deceive or defraud anyone in this situation.

    
    

14. It is further concluded that the greatest delict here occurring, if any, was in the simple negligence of Mr. Parker in placing a pencil mark on a map of Cape Coral.

15. There was no basic dispute of any of the operative facts involved in this situation. All of these facts were, or should have been, available to the investigator for the Real Estate Commission at the time the investigation was conducted. These facts should have led to the conclusion that no willful or wrongful conduct on the part of the Defendant had occurred, and preferring charges in this instance appears to have been unwarranted.

From the foregoing it is concluded that Defendants Helen Marie McHenry and Robert H. Parker are not guilty of violating Section 475.25(1)(a) F.S. as alleged. It is, therefore,

RECOMMENDED that the Administrative Complaint be dismissed.

DONE and ENTERED this 12th day of November, 1976, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

John Gough, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Joseph C. Adderly, Esquire 1714 Cape Coral Parkway Post Office Box 535

Cape Coral, Florida 33904

Docket for Case No: 76-001339

Orders for Case No: 76-001339