vs. ) CASE NO. 77-1575
Respondent. )
Pursuant to notice, a hearing was held in the above-styled cause at 717 Ponce de Leon Boulevard, Commonwealth Building, suite 307, Coral Gables, Florida, on March 9, 1978, at 1:30 p.m., before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings.
For Petitioner: Kenneth M. Meer, Esquire
Respondent is a registered real estate salesperson who holds License No. 0099812. She was employed as a "listing solicitor" by World Wide Property Services, Inc. (World Wide), a registered real estate broker (now dissolved), from March 10, 1976 through July 1, 1976, soliciting listings for real estate in Florida. The solicitation was by telephone nationwide, except Florida.
Seymour L. Rottman was President of World Wide, and Lee Small was Vice President of the corporation during the time Respondent was employed. The purpose of World Wide was to secure listings of and purchasers for various Florida properties. Mr. Rottman was a subpoenaed witness for Petitioner at the subject hearing. During Respondent's period of employment, he and Mr. Small were in charge of hiring salesmen for the corporation and hired Respondent.
Respondent was employed to obtain listings by telephone from property owners who lived out of state but owned Florida property.
The procedure followed was for a salesman to call an out-of-state land owner picked from a list of prospects and inquire if he or she would be interested in selling their property at a higher price than it had been purchased for. This was termed a "front" call, and the salesman was termed as a "fronter". If the prospect expressed interest in listing the property, his or her name was provided to World Wide, who then mailed literature to the property owner describing the efforts that would be made by that organization to sell the property. Enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to World Wide, which would be credited against a 10% commission due that firm upon sale of the property. In return, the corporation agreed to include the property in its "listing directory" for a one-year period, directs its efforts to bring about a sale of the property, advertise the property, as deemed advisable, in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that the property would be "analyzed", comparing it to adjacent property to arrive at a price based on recent sales of neighboring property and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval of the owner. During the course of the calls to prospects, Respondent advised them that the property would be advertised internationally and in the United States and that bona fide efforts would be made to sell the property.
She represented herself as a salesman for that organization.
After the promotional literature was sent to the prospect, the salesmen, including Respondent, made what was called a "drive" call to answer any questions and to urge that the property be listed. After making these calls, Respondent had no further contact with the property owner. The listing fee was $325.00. The salesmen received approximately one-third of the fee, about $100.00 per listing.
The salesmen, including Respondent, telephoned the prospects and then read from the script entitled "front" and "drive". The instructions from the broker was to stay within the script, but Respondent was not monitored at all times.
During the course of operation of less than a year, World Wide secured about 200 listings and grossed approximately $80,000.00 to $90,000.00 in the "advance fee" listing, but no sales were made.
Respondent failed to appear at the hearing, as noticed for March 8, 1976, at 1:00 p.m. Her hearing was continued until March 9, 1976, at 1:30 p.m., to give her an additional period of time in which to appear, but Respondent failed to appear. She did not dispute the charged filed by Petitioner in its administrative complaint.
Petitioner contends that while a salesperson for World Wide, Respondent solicited and obtained listings by telephone from property owners and that as an inducement to list the property, she falsely represented that the property could be sold for a price far in excess of its purchase price, that a bona fide effort
would be made to sell the property, and that it would be listed nationally and internationally and that the company had foreign investors wanting to purchase United States property.
CONCLUSIONS OF LAW
Section 475.25, Florida Statutes, Grounds for revocation or suspension, provides, in part:
475.25 Grounds for revocation or suspension. -
The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful
order imposed in the final order of suspension, or both, upon a finding of fact showing that the registrant has:
Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in
any business transaction, in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate
transaction; has aided, assisted or conspired with any other person engaged in any such misconduct and in furtherance thereof; or
has formed an intent, design, or scheme to engage in any such misconduct, and has committed an overt act in furtherance of such intent, design or scheme. It shall be immaterial to the guilty of the registrant that the victim or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled and paid, after discovery of the misconduct,
or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation which the registrant, or was an identified member of the general public; or,
* * *
(3) The registration of a registrant may be revoked if the registrant shall, for a second time, be found guilty of any misconduct that warrants his suspension under subsection (1) of this section, or if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, negligent, 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.
There is no competent, substantial evidence to show that Respondent knew that her employer would not follow through on the sales promoted or that such efforts were not, in fact, made or that its representations were false.
There is a showing that the operation and tactics used by the salesperson for her employer should have caused her to look carefully at the script she was employed to read. Respondent was, in fact, obtaining a commission for the listing fees before any service was rendered to the client, and she should have known the representations of the script she read were somewhat less than candid. Respondent is a registered salesperson and has passed the requirements to secure a license and is presumed to know the code of ethics of the profession.
There is insufficient evidence to find that Respondent knowingly violated the foregoing statute although her actions were not commensurate with the candor the public should be able to expect of a licensed real estate salesperson.
Reprimand the Respondent in writing.
DONE and ENTERED this 20th day of June, 1978, in Tallahassee, Florida.
DELPHENE C. STRICKLAND
Kenneth M. Meer, Esquire Florida Real Estate Commission Post Office Box 1900
449 N.W. 8th Street Apt. 1
