STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION ) BY GERALD H. SHEA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1730

)

CLARK W. BELL, JR. AND )

JAMES E. ANNEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on December 7, 1976, at the Florida Real Estate Commission Office, Courtney Building, Suite 201, 2069 First Street, Ft. Myers, Florida. A hearing was conducted solely in the case of James E. Annen. The case of Clark W. Bell, Jr. was not heard because Clark W. Bell, Jr., had not been noticed of the proceedings. The question of further consideration of the case of Clark W. Bell, Jr. was left with the Petitioner.

Included with this record is a copy of a letter from Clark W. Bell addressed to Mr. Joseph Adderly, Attorney for James Annen, and this correspondence shows Mr. Bell's residence address at 229 Edison Avenue, Apt. #72, Sacramento, California, 95821.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: J. C. Adderly, Esquire

Adderly, Aloia & Dudley Post Office Box 535

Cape Coral, Florida 33904 FINDINGS OF FACT

1. James E. Annen is the holder of license no. 0001875, with the Florida Real Estate Commission , as a real estate broker. This registration is shown in Petitioner's composite exhibit #2, admitted into evidence.

   
   

2. Prior to the year 1969, Respondent Annen and Respondent, Clark W. Bell, Jr., a real estate broker, licensed with the Florida Real Estate Commission, formed a corporation known as Bell Investments, Inc. Both of these individuals had a 50 percent interest in that corporation and were officers in the corporation, together with the wife of James E. Annen. This ownership interest was as stockholders in the corporation. The purpose of Bell Investments, Inc.

   was to buy land for resale. Bell Investments, Inc., only purchased one parcel of land which description is found in Petitioner's Composite Exhibit #3, admitted into evidence. The idea to buy that subject property was promoted by Clark W. Bell, Jr. with the knowledge of James E. Annen, as to the general location of the property. Clark W. Bell was to try to sell the property through his real estate firm in Ft. Myers, Florida. At that time and at present, James E. Annen was in business as Jim Annen Realty in Cape Coral, Florida. James E. Annen never attempted to sell the subject property as a real estate salesman or broker.

   
   

3. On or before December 2, 1973, Clark W. Bell, Jr. entered into a negotiation with Charles L. Matson and John J. Ryan upon the subject of the sale of the aforementioned real estate. At that time John J. Ryan was a real estate salesman working with Clark W. Bell, Jr. on the east coast of Florida. The property in question had been purchased by Bell Investments, Inc., with a title policy being written and the ownership of the property by the corporation was held under that safeguard.

   
   

4. Sometime before or after signing a contract for purchase; and to the recollection of Mr. Matson, it was after, a flight was made over the site of the property. This property was located on Pine Island, in the Lee County, Florida area. People present on the flight were Mr. and Mrs. Matson, the pilot and Clark W. Bell, Jr. During the course of the flight the pilot tried to point out the general location of the property and Mr. Bell tried to generally describe the boundaries of that property. From Mr. Matson's description the flight did not give very much in the way of details about the topography of the property. The property was not inspected on the ground because no roads lead to the property. The property was not surveyed prior to the purchase by Charles L. Matson and John J. Ryan from Bell Investments, Inc. Mr. Annen did not participate in any of these negotiations, beyond being contacted by Clark W. Bell, Jr. about the prospect of a sale of the property. After this discussion between Bell and Annen, Annen agreed to the price being offered.

   
   

5. The contract for sale was prepared in the office of Bell Reality In Ft. Myers, Florida, at which time Matson, Ryan and Bell were present. The conditions and terms of the contract are found in a copy of the contract which is part of Petitioner's Composite Exhibit #3. It was the understanding of Mr. Matson that the property in question contained some mangroves, but the extent of the mangroves was not known and the eventuality of problem with mangroves was handled by inserting a phrase in the contract which indicated that the estimate of usable land should not be more than 1/2 acre off. In other words, the acreage should be 19-1/2 acres other than mangroves. It was the intention of Mr. Matson to use this property as an investment opportunity and possibly to build a home on the site.

   
   

6. One of the conditions of the contract, which was unknown to Matson, was that his son-in-law John J. Ryan was to receive a commission of this sale of property between Bell Investments, Inc. and Matson and Ryan. This was not discovered until after the sale was consummated and the closing held. A closing was held at a local title company at which Matson, Bell and Annen attended.

   John J. Ryan was out-of-state and did not attend. The conditions of the closing can be found through the warranty deed which was filed April 4, 1974 in the Lee County Clerk of Court Office. A copy of this warranty deed is part of Petitioner's Composite Exhibit #3, admitted into evidence. A title policy was written to cover the transaction and the exceptions found in the title policy may be seen in Respondent's Exhibit #1, admitted into evidence. Among other things, exceptions covered the extent of raparian rights, title that the State of Florida might have to any portion of the subject lands which may be

   identified as submerged lands, and a mortgage which was entered into for the balance of the cost between Charles L. Matson and John J. Ryan to Bell Investments, Inc. The property was paid for by cash down payment and mortgage and note taken for the balance due and owing.

   
   

7. Under the agreement set forth in the mortgage and note Bell investments, inc. was to receive monthly payments from Matson and Ryan, with 50 percent of those payments being paid out to each of the principal owners of Bell Investments, Inc., to wit: Bell and Annen. This payment scheme continued for sometime, with one part of the plan being that the commissions which John J. Ryan was to receive were acting as an offset for his obligation to pay under the mortgage and note.

   
   

8. On December 9, 1975, a request for building permit was

   made of Lee County, Florida on the part of Mr. Matson and was denied because of the property being primarily mangroves. A copy of this letter of denial is Petitioner's Exhibit #4, admitted into evidence. At around this time, Matson, himself a pilot, flew over the property and determined that it was very much in mangroves. Matson then stopped paying on the mortgage and note and a civil suit ensued. The suit involved an action brought by James E. Annen and his wife to foreclose the mortgage against Matson and Ryan. This suit was settled on a stipulation for dismissal in which the mortgage and note were satisfied and the property was deeded back by quit claim deed to James E. Annen and Mary L. Annen. The knowledge which the Respondent, Annen, had of the property and of any discussion between Bell and parties Matson and

   
   

9. Ryan was only as to the documents utilized at closing the contract in the beginning of 1974. From the testimony and Exhibits, it appears that Annen only became aware of the particulars of the property itself, subsequent to Matson's discovery that the property was mostly mangroves.

   
   

10. The impression that the property was principally mangroves was verified by an inspection performed by flying over in a helicopter, by Thomas M. Provenzano and official with the Department of Environmental Regulation. Mr. Provenzano also indicated that it would not be likely that the Department of Environmental Regulations would issue permits for the development of the subject parcel of land and also that he felt that there was possibly a title question in view of the fact that the land was partially submerged with much of the land appearing to be below the mean high water line.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

12. The Respondent, James E. Annen, has been charged with fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device in a real estate transaction with Charles L. Matson and John J. Ryan that closed September 11, 1975, in violation of 475.25(1)(a) F.S. Based upon the facts as shown, it is concluded as a matter of law that the Petitioner has failed to show that the Respondent, James E. Annen, has violated 475.25(1)(a), F.S.

RECOMMENDATION

It is recommended that the Administrative Complaint as filed against James

E. Annen, for purposes of revocation or suspension of his real estate brokers license no. 0001875 be dismissed.

DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

J. C. Adderly, Esquire Adderly, Aloia & Dudley Post Office Box 535

Cape Coral, Florida 33904

Docket for Case No: 76-001730

Orders for Case No: 76-001730