STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, ) CASE NO. 77-1805

) 77-1806

vs. ) 77-1807

) P.D. NOS. 3084

SAM C. GLOBER, HOWARD H. FISCH, ) 3085

and MARTIN DAVIDSON, ) 3086

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:30 a.m., on June 23, 1978, at 717 Ponce de Leon Boulevard, Third Floor, Coral Gables, Florida.

With the agreement of the parties, these three causes were consolidated for hearing.

Petitioner was represented by Salvatore A. Carpino, Esquire, Florida Real Estate Commission, 400 West Robinson Street, Orlando, Florida. Respondents appeared in their own behalf.

Petitioner, Florida Real Estate Commission (hereafter FREC), seeks to revoke, suspend or otherwise discipline Respondents, Sam C. Glober (hereafter Glober), Howard H. Fisch (hereafter Fisch), and Martin Davidson (hereafter Davidson), for alleged violations of Chapter 475, Florida Statutes, the Florida Real Estate License Law. It is alleged that Respondents were, while registered as real estate salesmen, involved in an "advance fee" real estate operation in which Respondents misrepresented to prospective clients that:

1. the property could be sold for several times the purchase price,

2. the property would be advertised nationwide and in foreign countries,

3. the Company had foreign buyers wanting to purchase United States property listed with the Company.

It is further alleged that Respondents knew that no bona fide effort would be made to sell any of the properties listed with their company, First Allstate Realty Corporation (hereafter FAR) and that, therefore Respondents conspired with FAR to engage in dishonest dealings.

Finally, it is alleged that, because of the alleged misrepresentation and the alleged conspiracy, Respondents are guilty of dishonest and untruthful conduct and that, therefore, money, property, transactions and rights of

investors or those with whom they may sustain a confidential relation may not safely be entrusted to them.

At the final hearing, Petitioner's Motion to Amend the Administrative Complaint was granted as to Glober and Davidson, adding the additional allegation that Glober and Davidson were guilty of a violation of a duty imposed by law by virtue of Glober's and Davidson's being found guilty of violating Section 501.204, Florida Statutes, by engaging in unfair and deceptive trade practices and unfair methods of competition.

FINDINGS OF FACT

1. From March 22, 1976, through April 21, 1976, Glober was a registered real estate salesman in the employ of FAR. From September 22, 1975, through December 24, 1975, Fisch was a registered real estate salesman in the employ of FAR. From December 29, 1975, through January 15, 1976, and from January 23, 1976, through March 31, 1976, Davidson was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida.

   
   

2. During those periods of time, FAR was engaged in an enterprise whereby advanced foe listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them.

   
   

3. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituting the refundable listing fee.

   
   

4. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate end apart from the "fronters" and "drivers" to do the actual selling of the property.

   
   

5. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred.

   
   

6. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents represented that the property could be sold for several times +he purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Respondents were dishonest or untruthful.

7. No evidence was introduced to establish the amended allegation that Glober and Davidson were guilty of a violation of a duty imposed by law.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, it is concluded that FREC has failed to establish that Respondents violated Chapter 475, Florida Statutes. It is, accordingly,

RECOMMENDED that no action be taken to revoke, suspend or otherwise discipline Respondents' licenses or Respondents' right to practice thereunder.

DONE and ENTERED this 4th day of October, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Sam C. Glober

1900 South Treasure Drive

North Bay Village, Florida 33141

Howard H. Fisch

2345 North East 135th Street Apartment 304

North Miami, Florida 33181

Martin Davidson

2810 North East 201st Terrace Apartment 321

North Miami Beach, Florida 33160

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

PROGRESS DOCKET

vs. NO. 3086

DADE COUNTY

MARTIN DAVIDSON, DOAH CASE NO. 77-1807

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Orlando, Florida, on November 29, 1978,

PRESENT: Levie D. Smith, Jr., Chairman

Arthur N. Hamel, Vice Chairman Virginia H. Bishop, Member Garth C. Reeves, Jr., Member

APPEARANCES: Salvatore A. Carpino

Attorney for Plaintiff

No Appearance for Defendant

This matter came on for Final Order upon the Plaintiff's Administrative Complaint, Defendant's Answer and Election of Rights form and the Hearing Officer's Recommended Order, and Plaintiff's Exceptions thereto, together with the record and oral argument of counsel for Plaintiff, and the Commission having fully reviewed the entire record, the Findings of Fact and Conclusions of Law in the Recommended Order, and the Commission being fully advised in the premises, finds:

1.

That the Findings of Fact of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted and affirmed by the Commission except for that portion of the Order which finds that there was no evidence of any nature introduced by the Florida Real Estate Commission to establish the allegation that Davidson was guilty of a violation of a duty imposed by law.

"You are to comply with Paragraph "f" of the Order and we are including an envelop for your convenience."

2.

That the Conclusions of Law made by the Hearing Officer as to Counts 1, 2 and 3 are supported by the record; the Hearing Officer's conclusion that the defendant was not guilty of having violated a duty imposed by law is not supported by the record.

3.

That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order should be accepted by the Commission.

IT IS THEREFORE ORDERED:

1. That the Findings of Fact and Conclusions of Law as to Counts 1, 2 and

   1. made by the Hearing Officer in his Recommended Order be, and the same are hereby adopted and affirmed as the Order of this Commission.

      
      

2. That the Commission finds unrebutted evidence establishing the defendant's having violated a duty imposed upon him by law in the form of a certified copy of an Order of the Department of Legal Affairs which was Exhibit

   1. at the original hearing.

   
   

3. That the defendant Martin Davidson be, and he is hereby adjudged guilty of having violated a duty imposed upon him by law in violation of Subsection 475.25(1)(a), Florida Statutes.

   
   

4. That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order are hereby accepted.

   
   

5. That for said violation the registration of the defendant Martin Davidson as a real estate salesman be and the same is hereby suspended for a period of 180 days, said suspension to become effective on the effective date of this order as provided by law.

   
   

6. That the defendant Martin Davidson shall immediately surrender and send his certificate of registration as a real estate salesman to the Florida Real Estate Commission Executive Headquarters in Orlando, Florida by return mail.

DONE and ORDERED at Orlando, Florida this 30th day of November, 1978.

L. D. SMITH, JR. Chairman

ARTHUR N. HAMEL

Vice Chairman

VIRGINIA H. BISHOP

Member

G. C. SEEN, JR. Member

I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Jerold Hart, Esquire, Attorney for Defendant, 633 N.E. 167th Street, North Miami Beach, Florida by United States certified mail this 4th day of December, 1978.

C. B. STAFFORD Executive Director

NOTICE TO DEFENDANT:

This Order shall become effective upon the 4th day of January, 1979. You have the right of appeal, if you desire.

================================================================= AGENCY ORDER RULING ON MOTION TO QUASH PETITIONER'S EXCEPTIONS

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

PROGRESS DOCKET

vs. NO. 3086

DADE COUNTY

MARTIN DAVIDSON,

Respondent.

/

ORDER

At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Orlando, Florida, on November 29, 1978,

Present: Levie D. Smith, Jr., Chairman

Arthur N. Hamel, Vice Chairman Virginia H. Bishop, Member Garth C. Reeves, Jr., Member

Appearances: Salvatore A. Carpino

Attorney for Plaintiff No Appearance for Defendant

This matter coming on to be heard upon the Motion to Quash the Exceptions of Plaintiff filed on behalf of the Defendant, and the Commission having heard oral argument on behalf of counsel for the Plaintiff, and upon due consideration thereof,

IT IS THEREUPON ORDERED that the Motion to Quash be, and the same is hereby, denied.

DONE and ORDERED at Orlando, Florida this 30 day of November, 1978.

BY ORDER OF THE COMMISSION

L. D. SMITH, JR. Chairman

I CERTIFY that I mailed a copy of the foregoing Order to Jerold Hart, Esquire, Attorney for Defendant, 633 N.E. 167th Street, North Miami Beach, FL by United States certified mail this 4th day of December, 1978.

C. B. STAFFORD Executive Director

Docket for Case No: 77-001805

Orders for Case No: 77-001805