STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1299
)
KENNETH KASHA )
t/a FLORIDA LANDOWNERS SERVICES ) BUREAU, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was held before Charles C. Adams, Hearing Officer, with the Division of Administrative Hearings at Suite 307, Commonwealth Building, 717 Ponce De Leon Boulevard, Coral Gables, Florida, at 9:00 a.m., December 8, 1977.
North Miami, Florida 33161 ISSUE
Whether or not the Respondent, Kenneth Kasha t/a Florida Landowners Service Bureau, as a registered real estate broker, has since November 17, 1972, solicited by telephone and mail of property owners nationwide, regarding their real property interest in the State of Florida, the payment of a fee in return for a listing to sell property by representing and holding out to property owners that a bona fide effort would be made to sell property so listed with Respondent, Kenneth Kasha t/a Florida Landowners Service Bureau.
Whether or not by doing so the Respondent knew that his representation to make a bona fide effort to sell the property was false and was known to be false when made.
Whether or not property owners nationwide listed their property for sale with Florida Landowners Service Bureau and paid a listing fee in reliance upon the aforementioned representations.
Whether or not the solicitations of property owners nationwide was a scheme to fraudulently secure money from the public, because no bona fide effort was made to sell the properties listed with the Respondent.
Whether or not by reason of the foregoing the Respondent Kenneth Kasha is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, or breach of trust in a business transaction in this state; has violated the duty imposed upon him by law or the terms of a listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(1)(a), F.S.
Whether or not by reason of the above stated factual allegations the Respondent is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, all in violation of Subsection 475.25(3), F.S.,
FINDINGS OF FACT
At all times pertinent to the Administrative Complaint, the Respondent Kenneth Kasha was licensed by the Petitioner as a registered real estate broker. During that time period he was licensed to trade as Florida Landowners Service Bureau. At present he is the holder of certificate number 0046189, in the position of registered real estate broker. The particulars of his license may be found in Petitioner's Exhibit 4, admitted into evidence.
In the years 1975 and 1976, one of the enterprises that Kenneth Kasha was involved in was the solicitation of real estate listings from out-of-state land owners who owned land in the State of Florida. This solicitation led to an agreement with some of those owners to list their property through various publications which Kasha contracted for, with the expectation that his company would make a bona fide effort to sell the property. The general description of the arrangement between Kasha, operating as Florida Landowners Services Bureau, and his owner/clients, was to have the owner pay a fee of $250 to $300 to have their property listed by Kenneth Kasha, trading as Florida Landowners Services Bureau.
Kenneth Kasha solicited the owners by phone personally and through real estate salesmen who were involved in the solicitation. Kenneth Kasha's statement of his participation may be found in the deposition which is part of Petitioner's Composite Exhibit 8, the deposition being admitted into evidence. This deposition is a part of the record of the proceedings of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums v. Kenneth Kasha d/b/a Florida Landowners Service Bureau. The deposition was taken on March 26, 1976. In that deposition Kasha was asked if he solicited for the type of listing which is the subject of this case and if he made this solicitation via the telephone. At page 39 of that deposition he states that he did and indicates that the principal place of business of Florida Landowners Service Bureau at the time of the deposition was at 561 NE 79th Street and was the place solicitations were made from.
A more complete description of the techniques involved in a solicitation is given by the witness, Alfred Landin. Alfred Landin testified in the proceedings by the Petitioner against Kenneth Kasha t/a Florida Landowners Service Bureau. Mr. Landin correctly stated that he worked for the General
American Realty Corporation as a real estate salesman from January, 1975 through February, 1976. His testimony established that he began to make the form of solicitation in behalf of the Florida Landowners Service Bureau in August, 1975. His participation was by agreement between the General American Realty Corporation and the Florida Landowners Service Bureau to have certain salesmen employed by General American Realty Corporation make phone solicitations for Florida Landowners Service Bureau. Those employees of General American Realty Corporation were then paid by their corporation, who had been paid by Florida Landowners Service Bureau under an agreement between that business and the General American Realty Corporation.
Alfred Landin took approximately 75 to 100 listings for the Florida Landowners Service Bureau for which he charged the owner $250 to $300 for each listing. He in turn received 30 percent to 40 percent of the listing amount as his payment. He did not receive real estate commissions following any sale of the property which was listed with Florida Landowners Service Bureau. In fact, no commissions have been received, because no property has been sold under the listing agreements, at least as of the date of the Kasha deposition of March 26, 1976. In that deposition he states that none of the property listed by Florida Landowners Service Bureau had been sold. Moreover, Alfred Landin's testimony established that the salesmen who were the contact people for the solicitation for the listings were paid on the basis of obtaining the listings, in opposition to being paid commissions for selling' the property.
When Landin would call a prospective owner to solicit the listing, which will now be referred to as "advance fee" listings, he did it based upon a list of prospective clients made available in the office of General American Realty Corporation. He would tell the potential "advance fee" client that the property that they listed with the Florida Landowners Service Bureau would be advertised within and without the United States. He did not indicate which form of media advertising would be utilized. Landin was unaware of the steps which Florida Landowners Service Bureau would specifically take to bring about the sale of the listed properties, because the arrangement with General American Realty Corporation was not to consummate the sale of the property through General American Realty Corporation's salesman. Landin did tell the owners that Florida Landowners Service Bureau would be responsible for advertising the properties for the purpose of sale. Furthermore, the indication was that a bona fide effort would be made to sell the property. The contact which Landin had with the out-of-state owners, in terms of the dialogue, was not by any particular script. It would be designed according to the nature of the property of the person being solicited. In the course of the conversation the property owner would submit his price and that information and other information would be forwarded to Florida Landowners Service Bureau. At all times when a prospective customer was called Landin introduced himself by name and his connection with Florida Landowners Service Bureau.
The usual technique was to make an original contact call and then a follow-up call. Although a second individual working for Florida Landowners Service Bureau normally made the follow-up, call, Landin at times would make those calls. On those occasions, between the time of the initial call and the follow-up call, certain materials would be mailed to the prospective purchaser of a listing agreement. Landin identified three forms which are numbered 1, 2, and 3 and are part of the Respondent's Exhibit No. 11 admitted into evidence. They are the mailouts. (The Respondent's Exhibit No. 11 admitted into evidence is constituted of certain information pertaining to the listing of the Florida Landowners Service Bureau's "advance fee" property through the media National Multiple Listing, Inc.) In a follow-up call there would be discussion about the
meaning of the listing and brokerage agreement which is number 3 in the group of documents. Landin established that in these follow-up conversations the purpose of the listing fee was brought out and the owner was told that the listing fee would be used to compensate for the costs involved of the listing; for example advertising.
The three documents in Respondent's Exhibit No. 11 are the crux of the contractual agreement between Florida Landowners Service Bureau, the company of Kenneth Kasha, and his "advance fee" listing clients. The three documents in Respondent's Exhibit No. 11 are the same in their form as those documents appended to the Kenneth Kasha deposition of March 26, 1976, which has been mentioned before. In that deposition Kasha admits that those three documents were mailed out to the "advance fee" listing clients. The three documents are available for review either in Respondent's Exhibit No. 11 or the attachments to the admitted portion of Petitioner's Exhibit No. 8, which is the Kasha deposition.
The significant portions of those exhibits, in terms of the factual allegations against the Respondent, begin with Paragraph 3 of the document number 1 which states, "your property legals are checked thoroughly." In his deposition of March 26, 1976 Kasha indicated that what actually occurred was that Florida Landowners Service Bureau would receive a copy of the client's deed or agreement for deed and verify this with the developer to see if it indicates on the developer's books or records that the individual actually owned a specific piece of property in question. Kasha stated that his company did not check with the title company, but did check the tax records of various counties to see whether or not the individuals owned the particular piece of property set forth in their deeds.
Continuing the examination of document 1, the next sentence in Paragraph 3 states, "an ad is constructed for your property(s) and published in our brochures and catalog which is distributed to several thousand brokers and investors NATIONALLY AND INTERNATIONALLY."
The advertising that was done by Kenneth Kasha t/a Florida Landowners Service Bureau, which was established in the course of the hearing is constituted of several media approaches. One of those approaches was found in Respondent's Exhibit No. 2 admitted into evidence which is a copy of a magazine February, 1976, the magazine being a publication of the International Federation of Real Estate Brokers which has membership in 39 countries. It can be seen, the advertisement is an ad which allows the purchase of a catalog for the price of
$4.00 or free to the members of the International Real Estate Federation. A copy of this form of catalog is the Petitioner's Exhibit No. 12 admitted into evidence. This catalog lists multiple properties by the owner's name, the owner's asking price, and a rough description of the location in terms of the municipality if any, county, and state, subdivision or development if applicable and a rough description of the size of the parcel. The catalog would not allow the prospective purchaser to specifically locate the property. At best it would allow the location of the development or sub-division. A second form of advertising which the Respondent utilized in the time period in question was listing with the National Multiple Listing, Inc. Those listings were also multiple listings on a single page of the type previously discussed in describing the catalog. Access to those listings was based upon Kasha's purchase of circulation and it reached as many as 2,500 plus distributees in various areas of the United States. (The number assigned to the individual properties advertised by National Multiple Listing, Inc. corresponds to some of the invoices found in the Petitioner's Composite Exhibit No. 11, which invoices were
paid by Kenneth Kasha to have the listings published. There is a further correlation between those numbers and the numbers affixed to the certificates issued by National Multiple Listing, Inc. to the Respondent verifying the circulation of the listings. Those certificates are found as Respondent's Exhibit No. 12 admitted into evidence.)
A compilation of those payments from Kenneth Kasha, as the owner of Florida Landowners Service Bureau, to the National Multiple Listing, Inc. for the period of June, 1975 through June, 1976 may be found as Respondent's Exhibit No. 7 admitted into evidence. The total cost for advertising in that time period was $3,583.82.
Kasha also advertised his catalog in the Miami Herald, the Chicago Tribune and one German paper, entitled, Blick. This advertising was in the period of late 1975 and early 1976. The advertising is established through the Respondent's Exhibit No. 12A and a portion of Petitioner's Exhibit No. 8 which is the deposition and attachments of Kenneth Kasha taken March 26, 1976.
14 The fourth paragraph of document 1 states in its initial sentence. "In order for us to successfully merchandize
and receive the highest offer for your property(s) considerable expense is involved because a great deal of time is put forth on your behalf and many of the property(s) are being offered for sale sight unseen.
Therefore, we must constantly furnish prospective purchasers with factual updated information re: your listing(s). Your
fee helps to defray expenses of estimating value, merchandizing, advertising, brochuring and cataloging this information here and abroad."
The extent of advertising and brochuring has previously been discussed. The estimate of value is based upon the individual's price and the Florida Landowners Service Bureau does not concern itself with zoning and development in trying to get the price established. This conclusion is premised on Mr. Kasha's testimony of March 26, 1976 before the Division of Florida Land Sales and Condominiums. Therefore, by Mr. Kasha's opinion there was no expense to be defrayed in estimating value.
The only other merchandizing that was done other than that discussed in the advertising techniques may be found in the description by Robert Wandler who worked for Kenneth Kasha and was involved with Florida Landowners Service Bureau as a real estate salesman. The period of his employment is not established through Mr. Wandler's testimony, but it appears to be within the time frame of the Administrative Complaint and the other testimony given. Mr. Wandler stated that he tried to sell the property listed through the "advance fee" process by contacting hotels and hotel clerks who had connection with Columbian businessmen. This area of contact was in South Florida. His reasons for contacting the Columbians was due to the fact that he speaks Spanish fluently. He occasionally showed the brochures to the persons contacted, but none of those persons were interested in purchasing the property. He specifically made reference to Petitioner's Exhibit No. 12 as being the type of brochure or catalog that he showed. He also testified that on several occasions Arabian and Lebanese people in the South Florida area were contacted and
seminars were held to discuss the catalog. The Arabian and Lebanese business persons did not purchase any property and did not negotiate with any of the owners for the right to purchase the property.
Document No. 2, which is a document entitled, Important Facts, is found in Respondent's Exhibit No. 11. In that document is a question which asks "(Q) Will you help me establish a correct selling price for my property? (A) Yes. While we do not appraise property, Florida Landowners Service Bureau will analyze your property comparing your property to adjacent property, to arrive at a price based on recent sales of neighboring property. The price must meet with your approval.
From the testimony in Kenneth Kasha's appearance before the Division of Florida Land Sales and Condominiums it is clear that Florida Landowners Service Bureau did not analyze the property by comparing the property to adjacent property to arrive at a price. They merely relied on the owner's price.
One of the other questions in Document No. 2 asks the following: "(Q) How will Florida Landowners Service Bureau sell my property? (A) Review status of development and zoning in the immediate area of your property to recommend the correct selling price for you. List your property in our directory, which is distributed by mail to real estate brokers throughout the world." Kenneth Kasha in the aforementioned deposition stated that 95 percent of the time they did not document the development and zoning to set a price as the ad indicated they would do.
In Document No. 3, which is a copy of the listing and brokerage agreement, one of the statements of consideration between the parties is that Florida Landowners Service Bureau as the part of their consideration will:
"(b) Contemporaneously with appearance of said listing in the directory, you agree to direct the efforts of your organization to bring about the sale of my property".
This should be read in pari materia with the following provision in that Document No. 3 which states:
"(c) To advertise said property as you deem advisable in newspapers, magazines, or other mediums of merit".
A view of the facts that were established on the question of promoting the sale of the property through advertising or other methods, demonstrates that the Florida Landowners Service Bureau in the person of Kenneth Kasha was not living up to this agreement to bring about a sale in a bone fide fashion.
This leads to a consideration of the question of whether the efforts which were taken by Kenneth Kasha t/a Florida Landowners Service Bureau were so fraudulent or deficient that they constitute violations of the provisions of Chapter 475, F.S. that are alleged in the Administrative Complaint.
The general contention of the Administrative Complaint in Count I is that the solicitation of the property owners was a scheme to fraudulently secure money through the "advance fee" for reason that no bone fide effort was made to sell the property listed with Kenneth Kasha, t/a Florida Landowners Service Bureau. As indicated before there was no bone fide effort made to sell the
property. More particularly, in terms of stating grounds for action against the Respondent's license, the course of conduct by the Respondent personally and through his company, Florida Landowners Service Bureau, demonstrates that he is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in this state and has violated the duty imposed upon him by law or the terms of listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed overt acts in furtherance of such intent, design or scheme, all in violation of 475.25(1)(a) F.S.
The course of conduct by Kenneth Kasha personally and trading as Florida Landowners Service Bureau shows him to be guilty of conduct or practices which show that he is dishonest and untruthful to the extent that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him, as set forth in 475.25(3) F.S.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
During the course of the hearing in this cause, the Petitioner proffered for the record and requested the admission of the testimony of Mr. J. Griffin, Mrs. George Troutwein, and Mrs. Marcelete Pursell, which was given in the case of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums against Kenneth Kasha d/b/a Florida Landowners Service Bureau. This case is reported as Case Number 76-105, before the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums. The testimony was given March 26, 1976 at 2942 W. Columbus Drive, Tampa, Florida. The testimony may be found as a part of Petitioner's Composite Exhibit No. 8. That exhibit is constituted of the record on appeal of the action of Kenneth Kasha d/b/a Florida Landowners Service Bureau vs. The State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums.
The proffer for admission in the case before the undersigned also involved the deposition of Kenneth F. Palmer, a resident of 210 Shoreham Road, Allison park, Pennsylvania. This deposition was taken on March 15, 1976, pursuant to proper notice and was used as evidence in the case of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums vs. Kenneth Kasha d/b/a Florida Landowners Service Bureau, Case No. 76-105.
The underlying basis of the initial action of the Division of Florida Land Sales and Condominiums against Kenneth Kasha d/b/a Florida Landowners Service Bureau pertains to an effort by the agency to enter an order permanently enjoining and prohibiting Kenneth Kasha, his agents, representatives, and employees from the solicitation of "advance fees" for the resale of subdivided land in Florida, and all other advertising, promotional or sales methods utilized for the resale of subdivided land during the period September 1, 1975 through February 1, 1976 due to the alleged direct dealings by Kenneth Kasha or through his agent or employee of knowingly engaging in false, deceptive or misleading advertising, promotional or sales methods to offer or dispose of interest in the subdivided lands, in violation of 478.17(1)(b) , F.S.
The thrust of the Petitioner's position arguing for the admission of the statements of the three witnesses taken in the proceedings before the Division of Florida Land Sales and Condominiums, and the deposition used in that proceeding, i.e., the Palmer deposition, is that there is a commonality of the issues found in that prosecution before the Division of Florida Land Sales and Condominiums and the prosecution of the Respondent subjudice. Under this theory of admissibility, the Petitioner herein is convinced that the similarity of that declaratory action before the Division of Florida Land Sales and Condominiums and the Administrative Complaint herein is so pronounced that it has allowed the Respondent to protect himself against the current prosecution by his rights to cross examine in that former proceeding.
The Respondent argues to the contrary, that the action before the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums is an action brought by a separate party from the Florida Real Estate Commission and that the issues are not substantially comparable. Moreover, the former attorney for the Respondent, Harry Tempkins, Esquire, has contended that the documents in issue which are constituted through Petitioner's Composite Exhibit No. 8 were not produced prior to the hearing as mandated by the order of production of the undersigned. This position is stated in the December 20, 1977, letter, a copy of which was given to the attorney for the Petitioner. The Petitioner's attorney, by letter of December 28, 1977 counters the position of Respondent's former attorney by stating that Mr. Tempkins is without standing to raise any objection to the quality of production, and further that the production was made on November 7, 1977, and the Respondent failed to avail himself of the opportunity to examine those documents.
The objection stated by Mr. Tempkins was not made by the Respondent in the course of the hearing and for that reason, and in view of the contrary factual position stated by the Petitioner's attorney in his December 28, 1977 letter, the argument against admission due to non-compliance with the order of production by the undersigned, is rejected.
Further opportunity was afforded to the parties to submit written arguments on the admissibility of the testimony of the three witnesses who appeared at the Division of Florida Land Sales and Condominiums hearing and the deposition taken prior to that hearing given by Mr. Palmer. The opportunity for submitting such memoranda may be found in the comments of the undersigned on Page 219 of the transcript in this cause. The Respondent Kenneth Kasha has availed himself of the opportunity to submit that argument. Petitioners have foregone that opportunity and have requested that the undersigned consider the memorandum of Kenneth Kasha as constituting an ex parte communication within the meaning of 120.6C, F.S. Petitioner has further suggested that sanctions be placed against Respondent in accordance with 120.G6(3) F.S. In view of the fact that memoranda were authorized by specific mention in the record, the undersigned does not find the memorandum by Mr. Kasha to be an ex parte communication, and for that reason no sanctions should be forthcoming. It is the understanding of the undersigned that Kenneth Kasha failed to provide copy of the legal memorandum initially; however, no copy of that memorandum has been provided by this office thereby rectifying the problem.
In consideration of the arguments on the admissibility of the testimony that were made in the course of the hearing and in consideration of the memorandum offered by the Respondent, the testimony by the three witnesses who appeared at the hearing of the Division of Florida Land Sales and Condominiums and the deposition of Mr. Palmer are rejected.
This rejection is based upon consideration of the language of 92.22,
which states:
"92.22 Use of former bills of exceptions as evidence; use of evidence given on former trial.--In the event it be made
to appear to the satisfaction of the court that any evidence used at a trial of a civil case, whether oral or written, and incorporated in a bill of exceptions,
or incorporated in the record proper can not be had, then the bill of exceptions taken at the trial, or the evidence incorporated in the record of the trial, may be used as evidence upon any subsequent trial or hearing of the case, or in any other civil cause or civil proceeding,
as to any matter in issue at a previous trial or hearing; and, further, in the
event that such evidence is not so preserved as before stated, then the same may be used at a subsequent trial or hearing, or in
any other civil cause or civil proceeding involving substantially the same issue; if:
Such evidence has at such former trial been reported stenographically or reduced to writing in the presence of the court;
That the party against whom the evidence is offered, or his privy, was a party on the former trial;
That the issue is substantially the same in both cases;
That a substantial reason is shown why the original witness or document is not produced; and
That the court is satisfied that the report of such evidence taken at such former trial is a correct report.
The language of this section is dealt with in Black-well v. State, 79 Fla. 709, 86 So.224, (Fla. 1920), 15 A.L.R. 465. A reading of that case leads to the conclusion that the authority for utilization of prior testimony, in the form of court/hearing testimony or depositions, at a subsequent trial or hearing requires the parties to be the same and the issues to be the same. It can be seen that the nature of the prosecution before the Division of Florida Land Sales and Condominiums was a prayer for declaratory relief, whereas the current prosecution of Kenneth Kasha, d/b/a Florida Landowners Service Bureau, is a prayer for the revocation or suspension of the real estate license of the Respondent, because of Respondent's alleged guilty by fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, or breach of trust in a business transaction in the State of Florida; and, the alleged violation of the duty upon Respondent by law or the terms of listing contract in that real estate transaction; and the factual allegation that the Respondent has formed an attempt, design or scheme to engage in the aforementioned misconduct and has committed an overt act in the furtherance of the intent, design or scheme, all in violation of 475.25(I)(a), F.S. The
Administrative Complaint before the Petitioner has also asserted that because of the factual allegations in the Administrative Complaint, the Respondent is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relationship cannot safely be entrusted to him, in violation of 475.25(3), F.S.
The comparison of the language of the action for declaratory relief before the Division of Land Sales and Condominiums, that has been mentioned in this discussion, with that of the Administrative Complaint herein, shows that the nature of these complaints are significantly different.
In summary, because of the difference of parties and issues found in the case before the Division of Florida Land Sales and Condominiums and that before the Petitioner, the testimony before the Division of Florida Land Sales and Condominiums and the deposition utilized therein, may not be admitted in the current case.
However, assuming arguendo that there is no necessity for establishing comparable parties and issues in the two cases, the testimony before the Division of Florida Land Sales and Condominiums and the deposition used in that proceeding, must be rejected. This opinion is based upon a consideration of the language of the Blackwell case, supra. That case stated the proposition that the party who is offering the testimony of a prior proceeding in a current trial or hearing must prove that the evidence of the prior proceeding cannot be had in the current proceeding. The Blackwell case sets out grounds for being able to establish unavailability in the current hearing; specifically the death of a witness, the insanity of a witness, the fact that the witness left the jurisdiction, or that the witness is sick and unable to attend. In examining the facts of the case herein the only possible application would pertain to the fact that the witness had left the jurisdiction.
In weighing the quality of the proof on this point, it is significant that three of those witnesses gave their testimony in Tampa, Florida on March 26, 1976. Therefore, it is obvious that they were able to attend a proceeding in Florida at some former date, and Florida is the controlling jurisdiction and attendance at a proceeding in Florida is the question at issue. Furthermore, a consideration of the testimony given by the three witnesses at the hearing in Tampa does not establish their unavailability on the assigned date for hearing in the case of the Florida Real Estate Commission against the Respondent, which is being considered at present. Therefore, because the fact of leaving the jurisdiction is a fact at issue which must be proven, the Petitioner must establish the fact that the witnesses left the jurisdiction, by some testimony in the course of the hearing. To this end, one of the attorneys for the Petitioner stated that a phone call had been made to those three witnesses and that the Petitioner had successfully spoken with Mr. Griffin on the date of the hearing. Mr. Griffin replied that he could not be at the hearing because he was in his home in Illinois. The witnesses Troutwein and Pursell were not reached. In other words, the latter two parties did not answer their phone, assuming the number was dialed correctly.
The Petitioner has most assuredly failed to prove that the witnesses Troutwein and Pursell were beyond the jurisdiction. In view of the lateness of the communication with Griffin and the abbreviated nature of the communication it is insufficient to establish that he has left the jurisdiction of the State of Florida and would be unavailable on the date for hearing.
Turning to consideration of the deposition of Mr. Palmer which was used in the prior proceeding before the Division of Florida Land Sales and Condominiums, the introduction of that deposition must fail, because the attempt at making the phone contact on the date of the hearing, which was unsuccessful, does not prove the lack of jurisdiction over that witness. The fact that his deposition was taken prior to the hearing before the Division of Florida Land Sales and Condominiums, and in lieu of an appearance before that body, does not per se establish that the Petitioner herein would be unsuccessful in getting jurisdiction over the person for the purposes of attending a hearing in the State of Florida in the case of the Florida Real Estate Commission vs. Kenneth Kasha, t/a Florida Landowners Service Bureau.
There is an even more compelling reason for excluding all the testimony. That reason is premised upon:
The Division of Florida Land Sales and Condominiums case was brought in March, 1976, and the Administrative Complaint herein was brought in September, 1976; therefore, the Respondent could not reasonably have been presumed to have anticipated a prosecution by the Florida Real Estate Commission and in law is not expected to make such a presumption;
Therefore if the Petitioner intended to attempt to use the testimony and the deposition before the Division of Florida Land Sales and Condominiums, it should have apprised the undersigned and the Respondent of such intention, so that some stipulation could be reached by the parties, if possible, and as an adjunct that the Respondent would be afforded the opportunity for expanded cross examination to protect himself against different and more comprehensive factual allegations that were found in the Administrative Complaint by the Petitioner, in contrast to the declaratory relief requested by the Division of Florida Land Sales and Condominiums.
If the above failed, Petitioner could have taken the depositions of the four witnesses in question at the place of their residence, assuming their inability to have the witnesses come back to Florida and give testimony or come to Florida for the initial time to give testimony;
The Petitioner might conceivably try to rely on Rule 1.330, RCRP, pertaining to the use of depositions in court.
This argument is rejected because the deposition in the prior case before the Division of Florida Land Sales and Condominiums was used in that hearing within the meaning of 92.22, F.S., and is therefore controlled by the legal theory set forth in that statutory provision.
Moreover, assuming the applicability of the rule, it contemplates the same parties and the same issues, which is not the case at bar.
One final argument that was used by the Petitioner pertains to the allegation that the Respondent in a hearing before the Florida Real Estate Commission, by alluding to the proceeding before the Division of Florida Land Sales and Condominiums, adopted his comments before that body to be an explanation of his position before the Florida Real Estate Commission. Under that rationale, the Respondent has acquiesed in the introduction of the testimony found in the hearing before the Division of Florida Land Sales and Condominiums. A reading of the deposition which the Respondent gave to the Florida Real Estate Commission found in the Petitioner's Exhibit No. 9, admitted into evidence, does not support this theory of acquiesence or waiver, and the
Respondent is therefore entitled to raise the objections which he rendered in the current hearing.
Having concluded that the testimony of the three witnesses taken before the Division of Florida Land Sales and Condominiums and the deposition of the fourth witness which was admitted into the record of those proceedings, could not be used as direct evidence; the question of its utilization as hearsay evidence must be addressed. The controlling statement of law on this point is found in 120.58(1)(a), F.S., which states:
"120.58 Agency action; evidence, record and subpoenas.--
In agency proceedings for a rule or order:
Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the
courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses
shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence,
but it shall not be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57."
The nature of the testimony of the three witnesses that was given in the course of the hearing and the deposition that was admitted of the fourth witness, said hearing being that matter before the Division of Florida Land Sales and Condominiums, is hearsay evidence. Because it is hearsay evidence, it may be used for the purposes of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding, unless it would be admissible over objections in civil actions. It can be seen, based upon the ruling in the prior paragraph, that it would not be admissible as direct evidence over objection due to the noncompliance with 92.22, F,S. It may still be used for purposes of supplementing or explaining other evidence. The cruical word in that statement is the word may. By using the term may the statute allows the Hearing Officer to either accept or reject the hearsay evidence as supplementary or explanatory information to describe other competent evidence. For the reasons that the evidence was disallowed as direct proof, it is disallowed as supplementary or explanatory information. The infirmities noted in the consideration of the evidence for direct proof would cause its rejection as supplementary or explanatory information to describe competent evidence. Therefore, the hearsay evidence in question is not used in the Findings of Fact in this cause.
The facts in this cause establish that Kenneth Kasha t/a Florida Landowners Service Bureau has been guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device, or breach of trust in a business transaction in this state; and additionally he has
violated the duty imposed upon him by law or the terms of the listing contract in a real estate transaction; and further has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design or scheme in violation of 475.25(1)(a) F.S. and thereby subjects him to the penalties found in 475.25, F.S.
The facts established in this cause show that the Respondent Kenneth Kasha t/a Florida Landowners Service Bureau has been guilty of a course of conduct or practices which show that he is so dishonest or untruthful that the money, property transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, as set forth in 475.25(3) F.S. and thereby subjects him to the penalties found in 475.25, F.S.
Upon consideration of the facts in this cause, it is recommended that the Petitioner, Florida Real Estate Commission, revoke the real estate broker's license, certificate number 0046189, held by the Respondent.
DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Kenneth Kasha
P.O. Box 611238
North Miami, Florida 33161
Richard J.R. Parkinson, Esquire and Louis Guttmann, Esquire
Florida Real Estate Commission
400 West Robinson Street Orlando, Florida 32801
=================================================================
AGENCY MEMORANDUM
=================================================================
Orlando, Florida June 15, 1979
MEMORANDUM
TO: Renata Hendrick, Registration Supervisor FROM: Fred Langford, Staff Attorney
RE: Revocation of Kenneth Kasha - PD No. 3014 004618904 DOAH Case No. 77-1299
Attached please find a copy of the Final Order, Mandate and Order from the Third DCA concerning Kenneth Kasha. The effective date of revocation is December 21, 1978.
/FL:bam Attachments*
Fred Langford Staff Attorney
* NOTE: Attachments noted are unavailable at the division and therefore not a part of this ACCESS document.
| Issue Date | Proceedings |
|---|---|
| Feb. 17, 1978 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 17, 1978 | Recommended Order | Respondent`s real estate broker`s license should be revoked for dishonest dealings, fraud, and breach of trust in business transactions. |
