STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1646

) Dade County Progress

KENNETH KASHA, ) NO. 3180

)

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.

APPEARANCES

For Petitioner: Richard J.R. Parkinson, Esquire

Louis Guttmann, Esquire Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

For Respondent: Kenneth Kasha

Post Office Box 611238 North Miami, Florida 33161

ISSUES

Whether or not the Respondent, Kenneth Kasha, is now and was at all times alleged, a registered real estate broker, and from January 31, 1974, to January 7, 1975, an active firm member of International Land Services Chartered, Inc., a registered corporate broker, and was acting in that capacity.

Whether or not from January 31, 1974, to January 7, 1975, the Respondent, in the capacity of active firm member of International Land Services Chartered, Inc., solicited by telephone and mail, property owners nationwide, on the subject of their real property interest in the State of Florida, to obtain a fee in return for a listing to sell property; by representing and holding out to the property owners that a bona fide effort would be made to sell the property so listed with International Land Services Chartered, Inc.

Whether or not the representation holding out that a bona fide effort would be made to sell the property listed with international Land Services Chartered, Inc., was false and was known to be false when made.

Whether or not property owners acted in reliance of the comments by Respondent, Kenneth Kasha, and listed their property for sale with International Land Services Chartered, Inc. and paid a listing fee.

Whether or not the solicitation of property owners nationwide was wholly a scheme to fraudulently secure money from the public, i.e., the advance listing fees, for reason that no bona fide effort was made to sell the properties so listed with International Land Services Chartered, Inc.

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 devise, or breach of trust in a business transaction in this state; and 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 5475.25(1)(a), F.S.

Whether or not for the reason of the foregoing factual allegations set forth above, the Respondent is guilty of a conduct of 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 5475.25(3), F.S.

FINDINGS OF FACT

1. From January 31, 1974, to January 7, 1975, the Respondent, Kenneth Kasha, was an active firm member of International Land Services Chartered, Inc. and was acting in the capacity of registered corporate broker. He was a holder of certificate number 0133731 during that time sequence. That license was held with the Florida Real Estate Commission, the Petitioner. Beginning with January 31, 1974, and continuing to the present, Kenneth Kasha was also the holder of what is now certificate number 0046189, held with the Florida Real Estate Commission by Kenneth Kasha as real estate broker to trade as Florida Landowners Service Bureau.

   
   

2. During the tenure of his affiliation with International Land Services Chartered, Inc., from January 31, 1974, to January 7, 1975, Kenneth Kasha was the Secretary of that corporation. (The facts of his Iicensure by the Petitioner and his affiliation with the International Land Services Chartered, Inc., are more completely described in the Petitioner's Exhibits 4 and 10, admitted into evidence.)

   
   

3. In the pendancy of his service for the above-mentioned corporation, Kenneth Kasha was involved in the advertising of properties which had been solicited from out-of-state owners who owned land in the State of Florida. His involvement in this advertising is established by the Respondent's Exhibit No.

   10 admitted into evidence. Through this exhibit it is demonstrated that the International Land Services Chartered, Inc., was advertising with the National Multiple Listing, Inc. More specifically, the invoices in the exhibit have assigned reference numbers which correspond to the advertising sheet which was placed with the National Multiple Listing, Inc. These sheets would show a number of listings of property which had been solicited from out-of-state owners who had paid a fee for the right to have their properties listed through International Land Services Chartered, Inc., who in turn advertised in National Multiple Listing, Inc.

4. The circulation of those listings may he traced by taking the reference number in the left margin on the individual listing sheet of National Multiple Listing, Inc., found in the Respondent's Exhibit No. 10, and comparing this with the certificates of circulation which are Respondent's Composite Exhibit No. 12, and which have a comparable reference number affixed. By doing this, it can be seen that the circulation of the individual listing sheets by National Multiple Listing, Inc., numbered as many as 2,500 contacts.

   
   

5. An examination of the advertising done through National Multiple Listing, Inc., demonstrates that a potential purchaser could not determine the exact location of the land. At best that purchaser could locate the subdivision and development, municipality and/or county and state and the general size of the tracts of land. Some of the property does not have a purchase price. Therefore, the quality of the advertising that was done is somewhat suspect.

   
   

6. At the time the International Land Services Chartered, Inc., was billed, it was in the name of Kenneth Kasha, who tendered payment in behalf of International Land Services Chartered, Inc. Moreover, when the International Land Services Chartered, Inc., had signed an agreement with National Multiple Listing, Inc., to have the latter corporation do the advertising for International, it had signed in the person of Kenneth Kasha and took effect on March 1, 1974. The period of the contract was for one year and this is shown by Respondent's Exhibit No. 8 admitted into evidence.

   
   

7. A further understanding of Kenneth Kasha's involvement with the listings of out-of-state owners of Florida property through International Land Services Chartered, Inc., may be found in the testimony of Marvin Rothstein. Roths to in worked for the corporation approximately 3 or 4 weeks full time and then part time and in total obtained 10 or 15 listings for the benefit of the corporation. Mr. Rothstein described the technique for listing the out-of-state owners of Florida property with International Land Services Chartered, Inc. (These listings have been referred to as "advance fee" listings, and will be so referenced in the balance of this Recommended Order.)

   
   

8. Mr. Rothstein had seen an advertisement in the paper placed by International Land Services Chartered, Inc., advertising for the employment of real estate salesmen. He answered that advertisement and was interviewed by Kenneth Kasha for a job with the subject corporation. Kasha explained to Rothstein that his duties would be to contact people by phone and find out if they would like to have their property listed. There were 4 or 5 other salesmen involved in International Land Services Chartered, Inc's, employ whose function it was to make the contacts and solicit listings. The salesmen worked in the evening hours 3 or 4 hours a night and would call the out-of-state owners and ask if they wanted to list their property with the corporation, International Land Services Chartered, Inc. The corporation had given the salesmen so-called lead cards to contact the people. (The office in which the salesmen were

   ,working was a very small office with 5 or 6 phones.) Mr. Rothstein described the contact with the out-of-state owners to be one to obtain a listing, in opposition to an effort to try and sell the property of the out-of-state owner. Mr. Kasha was the supervisor of the activities of the salesmen who were working at night.

   
   

9. Through the Rothstein testimony, it is established that there was a script which the salesmen were called upon to follow. The salesmen would introduce themselves to the prospective landowner/client and ask if the landowner would be willing to list their property for resale. If the owner was interested, certain materials were mailed to the owner for their perusal, prior

   to any agreement for resale. The mailouts were made after positive responses that Mr. Rothstein would be given when he made his inquiry about listing the property.

   
   

10. Mr. Rothstein is unfamiliar with the materials that were mailed out. He was never responsible for making a second contact with the parties initially solicited. He does know that a fee was charged for listing the property with International Land Services Chartered, Inc., and the purpose of the fee was explained to the parties to be for expenses for listing the property and for whatever other expenses that might be incurred by the corporation. Rothstein is unfamiliar with what the exact expenses would have been for the corporation to fulfill the functions of taking care of listings. To Rothstein's recollection, the amount of fee for listing was $25 or $50, that is the amount he would receive for obtaining a listing agreement with the out-of-state owner. He is not certain what the International Land Services Chartered, Inc., received as their portion of the listing fee. There was no agreement that Rothstein himself would be compensated by commission should the property be sold. Rothstein was also unfamiliar with the method which the corporation used to arrive at an asking price for the listed property. Rothstein was unaware of any appraisals that may have been done by the corporation during the tenure of his employment with the corporation.

    
    

11. His knowledge of the advertising method was that there were multiple listings. These multiple listings would equate to the form of listings placed with the National Multiple Listing, Inc.

    
    

12. One other matter that was discussed in the initial solicitation, was the fact that the possible purchasers of the land were constituted of foreign as well as domestic buyers. This comment was in connection with the overall statement that the owners were being solicited for a listing to bring about the resale of the property.

    
    

13. Rothstein said that he did not know of any sales of the property during the time he worked for International Land Services Chartered, Inc.

    
    

14. An examination of the Petitioner's Exhibit No. 6, which is a profit and loss statement for the period in question, indicates that income derived from the International Land Services Chartered, Inc.'s business activities far exceeded advertising and other expenses labeled as selling expenses. That document, Petitioner's Exhibit No. 6, does not indicate whether there was income derived from sources other than the "advance fee" listings. Moreover, there was no testimony given in the course of the hearing which would clearly identify the amount of money that was received from owners who desired the services of the "advance fee" listing.

    
    

15. Finally, the Petitioner has failed to demonstrate through competent evidence the true nature of the specific details of the follow-up written information which was submitted to the potential client once that client had been solicited in the initial contact phase.

    
    

16. On balance there is insufficient testimony to prove that the solicitation of the property owners was a scheme to fraudulently secure money from the public through "advance fee" listings, or that no bona fide effort was made to sell the properties that were listed with International Land Services Chartered, Inc. Consequently, the Petitioner has failed to show that 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; or that Kenneth Kasha has violated the duty imposed on him by law or the terms of listing contract in a real estate transaction, or that he has formed an intent, design or scheme to engage in said misconduct or has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(I)(a), P.S. Furthermore, the Petitioner has failed to establish that Kenneth Kasha 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 relation may not safely be entrusted to him, in violation of 475.25(3), P.S.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. In the course of the hearing, Petitioner attempted to have the Respondent placed on the witness stand for purpose of producing certain documents which are identified as Petitioner's Composite Exhibit Number 10. A certain portion of those documents were admitted for reasons which are stated in the record. The balance of the documents are denied, because the Petitioner cannot compel the Respondent as a corporate official to produce documents which have previously been produced for the Petitioner in the person of a corporate official other than the Respondent. The only possibility to have the Respondent identify those documents in the course of the hearing, would be if the Respondent had produced the documents to the Petitioner in the first instance.

    
    

19. For the reasons stated in the Findings of Fact, the Petitioner has failed to prove that Kenneth Kasha has violated 475.25(1)(a), F.S., as alleged in Count I.

    
    

20. For the reasons stated in the Findings of Fact, the Petitioner has failed to prove that Kenneth Kasha has violated 475.25(3), F.S., as alleged in Count II.

RECOMMENDATION

It is Recommended that the Administrative Complaint brought against the Respondent, Kenneth Kasha, who is now licensed by the Petitioner, Florida Real Estate Commission, under certificate number 0046189, as a real estate broker, he dismissed and set aside.

DONE and ORDERED this 17th day of February, 1973, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

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

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

Louis Guttmann, Esquire Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

Mr. Kenneth Kasha

Post Office Box 611238 North Miami, Florida 33161

Docket for Case No: 77-001646

Orders for Case No: 77-001646