STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1366

) SUNKIST REALTY, INC., et al., )

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: James F. Garnder, Esquire

Post Office Drawer 1507 Ft. Myers, Florida 33902

This case was brought before the undersigned Hearing Officer on the Complaint issued by the Florida Real Estate Commission charging the Respondents Thomas Lee Hamilton, Joseph S. Weinfeld and Sunkist Realty, Inc., with making false representations to a purchaser of real property, specifically that the property shown and offered for sale had road access and that the Respondent, Weinfeld, would be interested in buying said property a year later for double the sale price. Furthermore, said statements were charged to have been made knowingly and intentionally to induce the purchaser into entering the real property sales contract. Therefore the Real Estate Commission charges the Respondents are guilty of false promises, culpable negligence and breach of trust in a business transaction which warrants administrative action. The facts in the case indicated that Emma I. Schult of Naples, Florida, was shown a certain piece of property in the company of her son by the Respondent, Hamilton, and went to view the property by car. Hamilton took her out to see the property in his car and followed written directions he had with him. After inspecting the property with Mr. Hamilton she signed a contract for sale for the property which consisted of ten acres in Collier County. At the date the contract was signed Mr. Weinfeld told Mrs. Schult that if she wanted to sell the property he would double the price in a year. However, she stated she took that with a grain of salt and did not consider it to be a serious offer. She paid $4,500 for the ten acres. Later when she went to relocate the property she had certain difficulty finding the exact location and after consulting a county map she realized that the property described in the deed she received was not the same property she had been shown by Mr. Hamilton. No evidence was submitted that Mrs. Schult attempted to get her money back from the seller or from the realtors. The only evidence in this regard indicates that some time after

buying the property, Mrs. Schult listed it with the Respondents to see if they could sell it for her. She listed it at the price of $15,000.

The Respondent, Hamilton, testified in his own behalf and stated that he took Mrs. Schult out to see the property from directions given to him by Mr. Weinfeld. He stated he had no knowledge that the property he showed her from the directions he had was not the actual property listed for sale. Mr. Hamilton acknowledged apparently a mistake had been made but believes it to have been an honest mistake. Mr. Weinfeld took the stand and denied that he ever gave Mr.

Hamilton the directions to the property and denied that he ever saw the property. He stated that he purchased the property on behalf of a long time associate, Mr. Weiner, and Mr. Weiner was the eventual vendor of the property when Mrs. Schult purchased it.

Although it is uncontroverted that Mrs. Schult purchased property different that she had been shown, no evidence was presented that any willful misrepresentation was made at the time. Certainly Mrs. Schult could have received her purchase money back had she requested it, but no evidence indicates that she ever sought to void the contract for the sale of this property. In fact the evidence indicates the contrary since she relisted the property with the Respondents after having purchased it.

From the evidence submitted it cannot be stated that either the individual Respondents are guilty of "culpable negligence", trick, scheme or intention to defraud. The only unequivocal fact that appears to have been established is that Mrs. Schult did not get a deed to the property she was shown. This does not per se amount to a violation of Chapter 475.25, F.S., on the part of either or both Respondents. Certainly no evidence of intention to deceive or defraud was presented. It could be said that either or both the Respondents were possibly negligent in having shown the wrong property to the buyer, but simple negligence is insufficient to establish a case for the revocation of a professional license. Reid v. Florida Real Estate Commission, 188 So.2d 846 (1966); State ex. rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973). Certainly the proof in this case was not clear and convincing that either Respondent was guilty of negligence to such a degree so as to justify sanction.

Therefore, based on the above, it is

RECOMMENDED that the Complaint filed against the Respondents be dismissed. DONE and ENTERED this 10th day of January, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1977.

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

James F. Garner, Esquire

P. 0. Drawer 1507

Ft. Myers, Florida 32789

Thomas L. Hamilton

20 Myrtle Road

Naples, Florida 33940

Docket for Case No: 76-001366

Orders for Case No: 76-001366