vs. ) CASE NO. 77-222
Respondent. )
This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 30, 1977, and went over into the following day. The case was consolidated for hearing with Florida Real Estate Commission v. Angelo J. Carlozzi, etc., Nos. 77-214 through 77-221, inclusive, Nos. 77-223 through 77-
240, inclusive, and Nos. 77-242 through 77-256, inclusive.
For Petitioner: Louis B. Guttmann, III, Esquire and
Richard J. R. Parkinson, Esquire 2699 Lee Road
For Respondent: Charles A. Finkel, Esquire
By administrative complaint filed September 9, 1976, petitioner accused respondent of obtaining listings for International Land Brokers, Inc., during her employment by that firm, from May 23, 1975, to October 1, 1975, and from November 17, 1975, to April 17, 1976, by telling prospects that their property ". . .would be advertised in local and world wide brokerage publications. .
.[t]hat the company had many individuals anxious to buy the property. . .[and that their property] could be sold for several times the purchase price," even though respondent knew these representations to be false, all in violation of Section 475.25(1)(a), Florida Statutes (1975). The administrative complaint alleged another violation of the same subsection in that respondent solicited fees in advance, to be applied against commissions, if any, knowing that no bona fide effort to sell listed property would be made; and thereby "conspired with another person, to wit: International Land Brokers, Inc., by and through its officers and directors. . ." Finally, the administrative complaint alleged that, by virtue of the foregoing, respondent was so dishonest and untruthful that disciplinary action should be taken under Section 475.25(3), Florida Statutes (1975).
On application of petitioner, this matter was consolidated for hearing with Cases Nos. 77-214 through 77-221, inclusive, Nos. 77-223 through 77-240,
inclusive, and Nos. 77-242 through 77-256, inclusive, over respondent's objection. At the hearing, petitioner was instructed to put on proof as to office practices with respect to selling property, before proving, with respect to each respondent, if possible, that that individual respondent misrepresented those practices. Petitioner's counsel objected to this ruling on the ground that he had planned to put on evidence in a different, but unspecified, order.
Respondent Charlene Touby was exclusively connected with International Land Brokers, Inc., as a real estate salesperson from May 23, 1975, to September 30, 1975; and again from November 17, 1975, to April 15, 1976.
During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. By the time respondent began her second period of employment with International Land Brokers, Inc., Walter J. Pankz had joined the firm as a broker.
Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business.
As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc., began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and
$90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee.
In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc., had bought from unspecified individuals, or compiled from county tax records.
CONCLUSIONS OF LAW
As to each count of the complaint, the petitioner failed to meet its burden of proof.
Most of the documentary evidence offered by petitioner was excluded for one reason or another. A different result might have obtained if some or all of the excluded evidence had been received. On that account, a synopsis of the reasons for excluding the proffered exhibits follows.
Composite exhibit No. 2 consists of what looks to be hundreds of legal sized sheets, on each of which appear xeroxed reproductions of approximately a half dozen index cards. Counsel for the real estate commission indicated that the index cards were business records of International Land Brokers, Inc., and the witness Jeffrey Kramer first testified that the exhibit was a copy of a "master file of all our clients for both Continental Marketing and International Land Brokers." (R85) Before any ruling as to the admissibility of the exhibit, however, counsel was permitted to voir dire and elicited testimony from the witness that he had not seen the originals since last September, had never compared the copies with the originals, and was unable to say whether the exhibit did contain copies of the records of International Land Brokers, Inc. A ruling as to admissibility was deferred, and the witness was instructed to examine the documents during a recess. After the recess, the witness Kramer testified he had reviewed the documents and that he could not "accurately say they are the correct records." Objection to the admission of composite exhibit No. 2 was then sustained. Commission counsel inquired of another witness, Waiter J. Pankz, with reference to composite exhibit No. 2 but came no closer to establishing that the exhibit contained true copies of the business records of International Land Brokers, Inc., and did not reoffer the exhibit at that time.
Composite exhibit No. 3 consists of the recommended order entered in Florida Real Estate Commission ex rel. Jack King v. Jeffrey S. Kramer, Walter J. Pankz and International Land Brokers, Inc., No. 76-1216 (DOAH, Nov. 2, 1976), exceptions to the recommended order, and the final order, dated December 14, 1976. Findings of fact in a separate proceeding to which respondent was not a party and of which respondent had no notice cannot serve in lieu of the evidence on which the fact findings, were based. On that ground, composite exhibit No. 3 was excluded.
Composite exhibit No. 4 consists of xerox copies of forms described by commission counsel as "a list of names of individuals paying for solicitation." (R112-113) Composite exhibit No. 5 contains xerox copies of similar forms.
When asked whether he could identify composite exhibits Nos. 4 and 5, the witness Jeffrey Kramer declined to answer on self-incrimination grounds. The witness Walter J. Pankz testified that he "did not handle the records in the company" (R165-166) and "had nothing to do with the records" (R169) and that he had never seen the originals of which composite exhibits Nos. 4 and 5 purport to contain copies. In short, composite exhibits Nos. 4 and 5 were not shown to be relevant or material, and have not been considered for that reason.
Composite exhibit No. 6 consists of xerox copies of what purport to be Internal Revenue Service forms 1099. Composite exhibit No. 7 consists of xerox copies of what purport to be Internal Revenue Service forms W-3 and W-2 for
1975. When asked whether he could identify composite exhibits Nos. 6 and 7, the witness Jeffrey Kramer declined to answer on self-incrimination grounds. The witness Walter J. Pankz testified that he never saw the originals, purported copies of which comprise composite exhibit No. 6, and that he had never compared the originals with the purported copies offered as exhibit No. 7. It was not shown that composite exhibits Nos. 6 and 7 were relevant or material to these proceedings and they were not considered for that reason.
Composite exhibit No. 8 consists of xerox copies of what purport to be Internal Revenue Service forms W-3 and W-2 for 1974. When asked whether he could identify composite exhibit No. 8, the witness Jeffrey Kramer declined to answer on self-incrimination grounds; and the witness Walter J. Pankz also failed to identify the exhibit. It was not shown that composite exhibit No. 8 was relevant or material to these proceedings, and the exhibit was not considered for that reason.
Composite exhibit No. 9 is a xerox copy of what purports to be a corporate income tax return for International Land Brokers, Inc., for 1975. When asked whether he could identify this exhibit, ,the witness Jeffrey Kramer declined to answer on self-incrimination grounds. No other witness was interrogated with respect to this exhibit. It was not shown that the exhibit was material or relevant in these proceedings and for that reason the exhibit was not considered.
Composite exhibit No. 10 is a xerox copy of what purports to be a corporate income tax return for International Land Brokers Inc., for 1974. When asked whether he could identify this exhibit, the witness Jeffrey Kramer declined to answer on self-incrimination grounds. In response to the same question, the witness Walter J. Pankz likewise refused to answer on self- incrimination grounds. It was not shown that the exhibit was material or relevant in these proceedings and for that reason the exhibit was not considered.
Composite exhibit No. 11 consists of xerox copies of what purport to be profit and loss statements for International Land Brokers, Inc. and Internal Revenue Service forms 1099. When asked whether he could identify this exhibit, the witness Jeffrey Kramer declined to answer on self-incrimination grounds. In response to a similar question, the witness Walter J. Pankz likewise refused to answer on self-incrimination grounds. The exhibit was not shown to be relevant or material to these proceedings and was not considered for that reason.
Composite exhibit No. 12 consists of a certified copy of a complaint filed against International Land Brokers, Inc., and others, No. 75-40057 (Department of Legal Affairs, April 12, 1976), pursuant to Chapter 501, Part II, Florida Statutes (1975); together with a proposed consent order in Nos. 75-40064 and 40057, dated July 2, 1976. The proposed consent order provides, in part:
Respondents having admitted all jurisdictional facts set forth in the aforesaid COMPLAINT, and. . .having expressly waived the requirement that this CONSENT ORDER contain findings of fact and conclusions of law. . .
In short, the exhibit contains bald allegations, which neither respondent nor any other person has admitted to be true. The exhibit was not competent evidence nor are unsubstantiated allegations "evidence of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs." Section 120.58(1), Florida Statutes (1975).
Exhibit No. 14 is a copy of the deposition of Walter J. Pankz taken on March 18, 1977, in Florida Real Estate Commission v. Thomas C. Hartlaub, No. 77-
241 (DOAH). Exhibit No. 15-A is a copy of the deposition of Walter J. Pankz taken on June 29, 1976, in Florida Real Estate Commission v. Jeffrey Kramer, Walter J. Pankz and International Land Brokers, No. 76-1216 (DOAH). The testimony in both depositions as to documents was left dangling, so to speak, because the numbered exhibits to which the deponents referred were not attached or otherwise incorporated into the depositions offered at the hearing as exhibits Nos. 14 and 15-A.
When these exhibits were offered, objection was made on the ground that none of the respondents involved in the consolidated hearing had notice of the taking of the depositions, and the hearing officer inquired of petitioner's counsel, "What do you say to the point that [the] depositions [exhibits Nos. 14 and 15-A] were not given in this cause?", to which petitioner's counsel responded, "His testimony in the deposition can establish two things. . .It is the best evidence we have available to authenticate these documents. . .[and it shows a waiver of Pankz's privilege against self-incrimination]." Reasoning that the failure to notice respondents for the depositions precluded petitioner's use of the depositions against the respondents, regardless of how useful they might have been to petitioner, the hearing officer sustained the objections to the introduction of exhibits Nos. 14 and 15-A. As to the self- incrimination theory, the hearing officer ruled "that the witness waived no rights in this proceeding by any testimony he may have given in any other proceeding."
Approximately three weeks after the conclusion of the hearing, petitioner's counsel submitted a memorandum in which he argued for the first time that the depositions were declarations against interest, and should have been admitted on that basis. As an exhibit in support of the memorandum, petitioner submitted a copy of an annotation entitled "Admissibility, as against interest, of declaration of commission of criminal act," Annot., 162 ALR 446 (1946). Florida does recognize the declaration against penal interest exception to the hearsay rule. Baker v. State, 336 So.2d 364 (Fla. 1976) (declarant confessed robbery). It is far from clear, however, that the depositions offered as exhibits Nos. 14 and 15-A fall within the declaration against interest exception. "The rationale for the declaration against interest exception. .
.[is that] [s]elf-interest induces men to be cautious in saying anything against themselves, but free to speak in their own favor. . ." Baker v. State, 336 So.2d at 369, quoting Gibblehouse v. Stong, 3 Rawle 437, 438 (Pa. 1832). These depositions deal with the apparently innocuous subject matter of routine office procedures. In any event, testimony in the depositions relating to the documents which were not incorporated into the depositions cannot serve to authenticate the documents that were offered at the hearing. For all the foregoing reasons, these exhibits have not been considered as evidence.
Composite exhibit No. 15 consists of a complaint issued by the Department of Legal Affairs on March 11, 1976, against four corporations (but not International Land Brokers, Inc.) and numerous individuals, including respondent, Docket No. 73-10042; together with an assurance of voluntary compliance signed by one Gene Grabarnick, Docket No. 74-40049. There was no showing that respondent had ever been served with the complaint or that she had ever seen the assurance of voluntary compliance, and there was no other showing
that the exhibit was relevant or material to this proceeding. Accordingly, the exhibit has not been considered as evidence against respondent.
Exhibits Nos. 16 through 30, inclusive, Nos. 32 through 37, inclusive, and No. 41 are depositions of the taking of which respondent had no notice. For that reason, they have not been considered as evidence in this cause.
Exhibit No. 31 is a deposition of Gene Salvi, who testified on deposition with respect to a transaction with International Land Brokers, Inc., that began with a telephone call from respondent. Although the administrative complaint alleged specifically that respondent "obtained listings by telephone regarding. . .real property interests in the State of Florida," Mr. Salvi's testimony on deposition concerned his "property in the Bahamas." Additionally, notwithstanding the notary's recitation in her certificate that "pursuant to stipulation by and between counsel for the respective parties, the reading and signing of the deposition by the witness was [sic] waived," the fact is, as the deposition elsewhere reflects, that respondent was not represented at the taking of the deposition and that the stipulation was really "by and between counsel for the plaintiff and the witness." Exhibit No. 31, p. 2. The deponent did not sign the deposition, even though respondent never waived reading and signing. For these reasons, respondent's objection to the introduction of exhibit No. 31 was sustained.
Exhibit No. 39 is a copy of a complaint issued on March 15, 1976, in Docket No. 75-40064, by the Department of Legal Affairs, against Continental Marketing Services, Inc., a Florida corporation, and certain individuals, not including respondent. There was no showing that respondent has ever seen the complaint and it was not otherwise shown to be relevant or materiel; it has not been considered against respondent for that reason.
Composite exhibit No. 39 is a group of newspaper clippings and xerox copies of newspaper articles. Inasmuch as this exhibit is hearsay, it has not been considered sufficient in itself to support any finding. Section 120.58(1), Florida Statutes (1975).
Composite exhibits Nos. 42 through 51, inclusive, and Nos. 53 through 81, inclusive, are Real Estate Commission registration records for registrants other than respondent. They were not shown to be relevant or material, and have not been considered for that reason.
As the foregoing synopsis indicates, the witness Jeffrey Kramer repeatedly invoked his personal privilege against self-incrimination in response to questions put by petitioner's counsel, including questions as to the identity of what counsel represented to be xerox copies of certain corporate records of International Land Brokers, Inc. The witness Walter J. Pankz testified that he was presently unemployed but that he had "had nothing to do with the records," before he, too, began invoking his personal privilege against self- incrimination. Although the file does not reflect it, both witnesses appeared pursuant to subpoena, the witness Kramer having been "subpoenaed as president of International Land Brokers, former president." (R110) Neither witness produced any documents pursuant to subpoena, however. Assuming that both witnesses were served with subpoenas duces tecum which covered all the documents as to which they were questioned, the witnesses were nonetheless entitled to invoke the privilege against ,self-incrimination personally, even as to questions designed to authenticate corporate records.
In Curcio v. United States, 354 U.S. 118 (1957), a union official had been subpoenaed to produce the union's books and records, of which he was custodian. When he appeared without them, he was interrogated as to their whereabouts, but declined to answer on self-incrimination grounds. The case reached the United States Supreme Court on certiorari from affirmance of Curcio's contempt conviction. The Court held that the witness was under no obligation to answer questions as to the location of the records he had failed to produce and reversed the contempt conviction.
In rejecting the government's contention that Curcio could be compelled to explain his nonproduction of the records, the Court said:
The Fifth Amendment suggests no such exception. It guarantees that "No person. . .shall be compelled in any criminal case to he a witness against himself. . ." A custodian, by
assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers.
But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony. 354 U.S. at 123-124 (emphasis supplied)
In the present case, it was never established that the witnesses Kramer and Pankz were the custodians of the corporate records of which petitioner's counsel had purported xerox copies. There was no showing that either witness was an officer of International Land Brokers, Inc., at the time of the hearing, and neither witness had custody of the records in fact, at the time of the hearing.
In passing, the Curcio Court adverted to "the principle that the books bind records of corporations cannot be insulated from reasonable demands of governmental authorities by a claim of personal privilege on the part of their custodian," 354 U.S. at 122, and in further obiter dicta, indicated that when the custodian who has produced corporate records identifies them as such, he "merely makes explicit what is implicit in the production itself," 354 U.S. at 125, inasmuch as "producing. . .records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena," id., so that the "custodian is subject to little, if any further danger of incrimination," id., by identifying what he has produced. In the present case, however, as in Curcio, the witness did not produce any documents in response to subpoenas. Although, as Curcio makes clear, testimony as to the documents' location could not have been compelled, the witnesses here, unlike Curcio, did explain the whereabouts of the nonproduced documents, when they testified that the documents had been surrendered to the attorney general.
Since the witnesses Kramer and Pankz did not produce the documents (because they did not have them), compelling thorn to identify purported xerox copies of the documents would have subjected them to a danger of incrimination that would not otherwise exist. Without any production of documents, there was nothing implicit for the witnesses' testimony to make explicit.
That the administrative complaint be dismissed.
DONE and ENTERED this 5th day of August, 1977, in Tallahassee, Florida.
ROBERT T. BENTON, II
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Mr. Louis B. Guttmann, III, Esquire, and Mr. Richard J.R. Parkinson, Esquire Florida Real Estate Commission
Mr. Charles A. Finkel, Esquire
