Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 22, 1977
Summary: Salesman, who didn't tell of equitable interest in property he showed to eventual buyers who later negotiated sale with non-registrant, is not guilty.
76-1451.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1451
)
STEVEN R. MYER, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held pursuant to notice in the Conference Room of the Florida Real Estate Commission Offices in the Las Olas Building, 305 South Andrews Avenue, Ft. Lauderdale, Florida before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, at 1:30 p.m. on October 21, 1976.
This matter came on to be heard upon the Administrative Complaint filed by the Florida Real Estate Commission against Steven R. Myer alleging that Myer had failed to inform a purchaser of property that he held an equitable interest in said property in violation of Subsection 475.25(1)(a), Florida Statutes.
APPEARANCES
For Petitioner: Manuel E. Oliver, Esquire
Florida Real Estate Commission 2699 Lee Road
Winter Park, Florida 32789
For Respondent: George R. Moraitis, Esquire
Post Office Box 11104
2631 East Oakland Park Boulevard, Suite 208 Fort Lauderdale, Florida 33339
FINDINGS OF FACT
Steven R. Myer is a registered real estate broker and at the time relative to the complaint was a registered real estate salesman.
Jerome Myer, the brother of Steven Myer, became interested in purchasing real property described as Lot 31, Block 7, Royal Palm South, Section 2, Broward County. Jerome Myer entered into negotiations with Mort Lynn as representative for Mark Builders, Inc., owners of the property.
As a result of negotiations between Jerome Myer and Mort Lynn, Jerome Myer negotiated the purchase of the aforesaid property for $51,600. Mort Lynn advised Jerome Myer that because he (Jerome Myer) had not been in Florida for a long time, he would more easily obtain mortgage financing if he and his brother Steven Myer joined in the contract for the purchase of the aforesaid property. Thereafter, Steven and Jerome Myer contracted to purchase the aforesaid property for $51,600.
When Jerome Myer applied for mortgage financing on the aforesaid property at Chase Federal Savings and Loan, he was advised that his credit was good enough that his brother, Steven Myer, would not have to be included in the transaction.
At this point the brothers, Steven and Jerome, agreed that Steven Myer would not participate in the transaction, and that Jerome Myer would obtain title to the property in his name alone. Jerome Myer notified Mort Lynn of Mark Builders of his intentions in this regard and contacted his attorney regarding whether it would be necessary for Steven Myer to assign his interest in the Contract for Purchase to him. The attorney advised Jerome Myer that this was unnecessary unless for some reason Jerome questioned his brother's integrity. Because Jerome was close to Steven and did not have any doubts about his brother's involvement in the transaction, an assignment was not made.
Jerome Myer was contacted by Cloys and Vena Kerbo subsequent to a home being built on the aforesaid property. The Kerbos were interested in seeing the home; and because Jerome Myer was unable to leave his work at the time, he asked his brother Steven to show the Kerbos the home. Steven showed the Kerbos the home but the Kerbos did not evidence an interest in the home. Steven advised the Kerbos that as salesman for Berg Agency he knew of other homes which he could show them; and pursuant toe their request, they were shown homes brokered by Berg Agency. Jerome's home was not brokered by the Berg Agency for whom Steven was a salesman.
Subsequently, the Kerbos contacted Jerome Myer and a price fob the home was eventually negotiated. Jerome Myers acquired blank forms for a contract to buy and a deposit receipt from an office supply house and his wife typed the agreement between the Kerbos and Jerome on these forms as dictated by Jerome. The executed Contract to Buy and deposit receipt, Exhibit 1, was executed by the Kerbos and Jerome Myer. While the Kerbos and Jerome Myer met at the office of Berg Agency to execute the contract, neither Steven Myer nor Berg Agency participated in the transaction. Cloys Kerbo made and delivered a check in the amount of $1,000 to Jerome Myer as an earnest money deposit on the aforesaid Contract to Buy. This check was deposited by Jerome Myer into his personal account.
Beyond the initial showing of the home to the Kerbos, there is no evidence that Steven Myer participated in the negotiation of, preparation of, or execution of the Contract for Purchase between the Kerbos and his brother, Jerome Myer. All negotiations and preparation of the Contract for Purchase were handled by Jerome Myer as owner of the property in question.
CONCLUSIONS OF LAW
The evidence clearly indicates that while Steven Myer held an equitable interest in the property in question, that Steven Myer and Jerome Myer had agreed that Jerome Myer would obtain title to the property in his name alone. This agreement was reached between the brothers prior to the time the Kerbos became interested in the property.
Steven Myer's involvement with the Kerbos was limited to showing the property in question to the Kerbos in his brother's behalf and showing the Kerbos other property listed with Berg Agency for whom Steven was a salesman.
All negotiations by the Kerbos for the purchase for such property was with Jerome Myer, a nonregistrant. Jerome Myer prepared the contract to buy the property and the earnest money deposit was paid directly to him by the Kerbos.
Although a duty exists for a real estate salesman or broker to disclose in a sale of his own property for which he is a broker or realtor, from the instant set of facts it would appear that Steven Myer's involvement in the transaction with the Kerbos was minimal. Because of the preexisting agreement between the brothers that Jerome would acquire title to the property in his own name, it is understandable why Steven Myer in showing his brother's house to the Kerbos did not disclose his uncertain interest in said property.
Regarding the allegation that Steven Myer was guilty of a breach of trust in dealing with the Kerbos, no evidence exists that a fiduciary relationship ever existed between the Kerbos and Steven Myer relative to the purchase of said property. While Steven Myer, as a real estate salesman for Berg agency, showed the Kerbos several pieces of property listed with Berg Agency, his only involvement in the property in question was to show the Kerbos the property in behalf of his brother. All negotiations on purchase of the property were carried out directly between the Kerbos and Jerome Myer.
While Steven Myer did not disclose to the Kerbos the fact that he and his brother had originally contracted for the purchase of the property, under the factual circumstances this failure appears to be more a matter of simple negligence rather than intentional concealment of a material fact.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Steven Myer.
DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida.
STEPHEN F. DEAN
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
George R. Moraitis, Esquire Post Office Box 11104
Suite 208
2631 East Oakland Park Boulevard Fort Lauderdale, Florida 33339
================================================================= AGENCY FINAL ORDER
=================================================================
FLORIDA REAL ESTATE COMMISSION
UPTON B. MACKALL,
Plaintiff,
vs. PROGRESS DOCKET NO. 2845
BROWARD COUNTY
STEVEN R. MYER, DOAH CASE NO. 76-1451
Defendant.
/
FINAL ORDER
At a regular meeting of Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on December 1, 1976,
Present: John R. Wood, Chairman
Maggie S. Lassetter, Vice Chairman Levie D. Smith, Jr., Member
Appearances: Manuel E. Oliver, Attorney for Plaintiff No appearance for defendant
The matter came on for Final Order upon the Hearing Officer's Recommended Order and the Plaintiff's Exceptions thereto, and upon due consideration thereof, together with a review of the complete record, a proposed settlement submitted by the defendant by letter dated November 30, 1976, and oral argument of counsel for the plaintiff, and the Commission being fully advised in the premises, finds:
1.
According to the records of the Commission the defendant is presently registered with the Commission as a broker, c/o Florida Coast Realty, Inc., 4622 North Federal Highway, Lighthouse Point, Florida 33064.
2.
The Plaintiff's Exceptions to the Hearing Officer's Recommended Order are well taken and should be sustained.
3.
The Hearing Officer's Findings of Fact are supported by competent substantial evidence in the record and should be adopted as the Findings of Fact of the Commission.
4.
The Hearing Officer's Conclusions of Law are not supported by competent substantial evidence and, therefore, should be overruled.
IT IS THEREUPON ORDERED:
That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, sustained.
That the Findings of Fact of the Hearing Officer's Recommended Order be, and the same are hereby, adopted as the Findings of Fact of the Commission.
That the Hearing Officer's Conclusions of Law and Recommendation that the Commission take no action against the registration of the defendant be rejected by the Commission.
IT IS THEREUPON ORDERED that the defendant Steven R. Myer be, and he is hereby, found guilty of violating Subsection 475.25(1)(a), Florida Statutes, as charged in the Administrative Complaint.
However, the Commission finds that there were mitigating circumstances sufficient to satisfy the Commission that suspension of the defendant's registration is not required and that a reprimand should be imposed for the violation herein.
IT IS THEREFORE ORDERED that for said violation the defendant Steven R. Myer be, and he is hereby, privately reprimanded and said disciplinary action shall not be published.
DONE and ORDERED at Winter Park, Florida, this 7th day of December, 1976.
JOHN R. HOOD
Chairman
MAGGIE S. LESSETTER
Vice Chairman
P. D. SMITH, JR. Member
I CERTIFY that I mailed a copy of the foregoing Final Order to George R. Moraitis, Esquire, Attorney for Defendant, c/o Moraitis and Cofar, Suite 208, 2631 East Oakland park Blvd., Fort Lauderdale, Florida 33339; and to the defendant Steven R. Myer, c/o Florida Coast Realty, Inc., 4622 North Federal Highway, Lighthouse point Florida 33064, by United States mail this 7th day of December, 1976.
C. HOOD
Executive Director
Docket for Case No: 76-001451
Orders for Case No: 76-001451
| Issue Date |
Document |
Summary |
|
Dec. 07, 1976 |
Agency Final Order
|
|
|
Oct. 26, 1976 |
Recommended Order
|
Salesman, who didn't tell of equitable interest in property he showed to eventual buyers who later negotiated sale with non-registrant, is not guilty.
|
