STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD L. MYERS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1741

) SOUTHERN REALTY RESALE, INC., ) RANDOLPH E. KOUT, RONALD P. ) MORGAN AND ROBERT SALTZMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the subject cause came on for hearing before the Division of Administrative Hearings duly designated Hearing Officer, James E. Bradwell, on December 6, 1976 in Coral Gables, Florida.

APPEARANCES

For Petitioner: John Buskins, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Hylan B. Kout, Esquire

420 Lincoln Road

Miami Beach, Florida 33139

For Respondent: Gus Efthimiou, Jr., Esquire

Alfred I. Dupont Building, Suite 207 Miami, Florida 33131

Based on an administrative complaint filed November 25, 1975, the Florida Real Estate Commission, herein the Commission, by its nominal Plaintiff and representative Ronald Myers, seeks to revoke the registration of the named Defendant salesmen and brokers based on allegations set forth in five counts which it contends amount to violations of 475.29(1)(a) and (3), Florida Statutes. Specifically, the allegations brought by the Commission are that Southern Realty Resale, Inc. its active broker, Robert Saltzman, and its two salesman employees, Randolph E. Kout and Ronald Morgan*, were involved in soliciting property listings for an advance fee, using statements involving misrepresentation and scheme, trick and device, and that over a period of time, this amounted to additional counts of a course of conduct within the meaning of 475.25(3), Florida Statutes.

Based upon my observation of the witnesses and their demeanor in testifying and the entire record**, I make the following:

FINDINGS OF FACT

1. The alleged acts here complained of occurred during the months of May through June, 1974. Certifications received during the course of this hearing revealed that Defendant, Robert Saltzman, broker, and Randolph E. Kout, salesman, are registrants with the Commission. (See Florida Real Estate Commission's Exhibits 3 and 4.) Evidence reveals further that Southern Realty Resale, Inc., is a corporate real estate broker (presently delinquent) and was such, during times material to the allegations filed herein. (See Florida Real Estate Commission Exhibit number 5.)

   
   

2. Ronald Myers, the Commission's Investigator, conducted an investigation of the Defendant's operation, based on a complaint received during March, 1975, from David W. Peterson of Wisconsin. During the investigation, Myers spoke to Saltzman who advised that his employee complement consisted of salesmen Randolph

   E. Kout and Ronald P. Morgan. Saltzman, according to Myers, operated the business during March through June of 1974 for the purpose of selling local properties to out of state owners. Myers testified that Saltzman admitted to having received advance fees for which he intended to list the properties with National Multiple Listing Services of Fort Lauderdale, Florida. Saltzman advised Myers that the monies received were spent on office expenses, sales, commissions, etc. During approximately June of 1974, Southern Realty Resale, Inc. went bankrupt. To carry on this business, the Defendant corporation sent out cover letters to prospective property owners in an effort to obtain an advance fee (See, for example, Florida Real Estate Commission Exhibit number 1). In that letter, the representation was made that the corporation had been in business for approximately fifteen years when, in actuality, the business had only been operational for approximately three months.

   
   

3. Harris Small, Jr., Vice President of National Multiple Listings of Fort Lauderdale, testified that the listing service is one that prints and distributes listings for real estate brokers on a nationwide basis. Mr. Small checked National Multiple Listings' file and found no evidence that Southern Realty Resale, Inc., had utilized the listing service to disseminate listings. According to Small, the fee averages $15.00 for a local listing in one county, to thousands of dollars to list a property nationwide.

   
   

4. Myers was recalled and testified that Saltzman advised during his investigation that he advised prospective listers that he would research the property to determine if any defects exist and that if none existed, the property would be put up for sale on the National Multiple Listing Services.

   
   

5. The Commission introduced copies of the corporation's banking account which revealed that the firm's account was open by an initial deposit of

   $1,000.00 and that thereafter several deposits and checks were received during the course of this operation, however, it suffices to say that they are not at all instructional or enlightening to resolve any of the issues posed herein.

   
   

6. Subsequent to June of 1974, there was no evidence introduced of any brokerage activity having been conducted by the Defendants.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and conclusions, I make the following:

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

   
   

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

   
   

9. The burden of proving that a licensed real estate broker, salesman, or entity has violated the real estate licensing law lies with the Florida Real Estate Commission, or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973)

   
   

10. Insufficient evidence was offered to establish that the Defendant, Randolph E. Kout, Robert Saltzman and Southern Realty Resale, Inc., had violated the real estate licensing law in any manner as alleged in Counts 1 through 5 of its administrative complaint or of Florida Statutes 475.25(1)(a) and (3). It appears from the evidence that Southern Realty Resale, Inc., commenced operations during March or April of 1974 thru June, 1974, during which period, they solicited listings from property owners and in return, they charged a fee. The salesmen apparently agreed to initially check the property for title defects and, if the title appeared good and marketable, the property would be listed on a national listing service. At best, it appears that the corporation was able to secure two or three listings of approximately $100.00 each; however, evidence reveals that the cost for listing properties on a nationwide basis ran into thousands of dollars. Even considering the testimony of Plaintiff Myers, in the most favorable light, insufficient evidence was offered to establish that the Defendant salesmen were guilty of fraud, as alleged, but rather that when the listing operations did not go as planned, the entity was forced into bankruptcy and all listing activities ceased. I shall therefore recommend that the administrative complaint filed herein be dismissed as it relates to Defendants Kout, Morgan and Southern Realty Resale, Inc.

Based on the above findings of fact and conclusions of law, I hereby issue the following:

RECOMMENDATION

1. That the administrative complaint filed herein be dismissed as it relates to Defendants Randolph E. Kout, Robert C Saltzman and Southern Realty Resale, Inc.

DONE and ENTERED this 4th day of March, 1977 in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John Buskins, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Hylan H. Kout, Esquire

420 Lincoln Road

Miami Beach, Florida 33139

Gus Efthimiou, Jr., Esquire Alfred I. Dupont Building Suite 207

Miami, Florida 33131

Docket for Case No: 76-001741

Orders for Case No: 76-001741