STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-696

) FLORIDA VANTAGE PROPERTIES, INC., ) AND RICHARD STEWART GRIMES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 7, 1970, in Suite 400, Pan American Building, 307 North Dixie Highway, West Palm Beach, Florida, 33401, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Huskins, Esquire

Staff Counsel

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

For Respondent: Arthur C. Koske, Esquire

Koski, Mateer & Gillespie, P.A. Post Office Box 478

299 West Camino Gardens Boulevard Boca Raton, Florida 33432

ISSUE

This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents.

The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the

subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records.

Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?

FINDINGS OF FACT

1. Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission.

   
   

2. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4.

   
   

   Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County.

   
   

3. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6).

   
   

4. The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows:

   
   

   C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a

   $1,000.00 fee to FLORIDA VANTAGE PROPERTIES,

   INC. on each lot or house and lot package at time of closing.

   
   

   Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes

   authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Florida Real Estate Commission has charged Grimes and Vantage with violation of Section 475.42(1)(j), Florida Statutes, which provides as follows:

   
   

   No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to effect the title of, or encumber, any real property, if same in known to him to be false, void, or not authorized to be placed on record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been duly authorized by the owner of the property maliciously or for the purpose of collecting a commission or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.

   
   

6. Based on the evidence presented, the issue is whether the affidavit and letter of agreement (Exhibit 2) purport to effect he title of or encumber the subject real property. This is dependent upon the legal effect of the documents filed end the interpretation of the statute, particularly the language "purports to effect the title of, or encumber. . ."

   
   

7. Neither the affidavit nor letter of agreement assert an interest in real property. The affidavit asserts that the letter of agreement was executed by C.W. Collins in behalf of C.W. Collins Corporation on August 15, 1973 and that Crimes in the holder in due course of that letter in behalf of Vantage. On the date the letter of agreement and affidavit were filed, the exclusive sales agreement portion of the letter of agreement had been terminated. Therefore, the only portion of the letter of agreement still operative was the deferred payment provision. The deferred payment provision created a contractual obligation between Collins Corp. and Vantage. When Collins Corp. sold one of the subject lots, a debt was created in the amount of $1,000 payable to Vantage by Collins Corp. This was not an obligation that attached to the real property in the nature of a lien, and neither the affidavit or letter of agreement assert it constituted a lien. Furthermore, unlike a notice of lis pendens, neither the affidavit or letter of agreement asserted any right, title, or interest in the real property arising from the debt or its non-payment.

   
   

8. Section 475.42(1)(j), Florida Statutes, is a penal statute and as such is subject to strict, narrow construction. The statutory language applicable to the facts in this case have been stated several times above; however, clarity demands that it be clearly understood that to bring the Respondents within the operative scope of the prohibition of the statute the documents filed must purport to effect the title of or encumber the subject real property. The

affidavit and letter of agreement fall short of such an assertion. Although it would have been better draftsmanship to have indicated the exclusive sales agreement had been terminated, the exclusive sales agreement does not purport to effect the title or encumber the property. On its face, Collins Corp. was authorized to sell the property, therefore the right of the owner to transfer title was unaffected.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes.

DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

APPENDIX

The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows:

1. Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD).

2. Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD.

3. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD.

4. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the

   RD.

5. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the

   issue presented.

6. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD.

COPIES FURNISHED:

John Huskins, Esquire Staff Counsel

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Arthur C. Koske, Esquire Post Office Box 478

299 West Camino Gardens Blvd. Boca Raton, Florida 33432

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

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

FLORIDA REAL ESTATE COMMISSION CD 14999

Petitioner, PROGRESS DOCKET vs. NO. 3283

FLORIDA VANTAGE PROPERTIES, INC.

and

RICHARD STEWART GRIMES DOAH NO. 78-696

Respondents. PALM BEACH COUNTY

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission, held at the Executive Headquarters in Orlando, Florida on October 25, 1978,

PRESENT: Levie D. Smith, Jr., Chairman Arthur N. Hamel, Vice Chairman Virginia H. Bishop, Member

APPEARANCES: John Huskins

Attorney for the Petitioner Respondent Richard Stewart Grimes

on his behalf without counsel

This matter came on for Final Order upon Petitioner's Administrative Complaint, the Recommended Order of the Hearing Officer and Petitioner's Exceptions thereto, together with the record and oral argument of counsel for the Petitioner and argument of Richard Stewart Grimes, a Respondent in this matter; 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.

According to the records of the Commission, Respondent Florida Vantage Properties, Inc. is presently registered with the Commission as a corporate broker at 4295 NW 1st Avenue, Boca Raton, Florida 33431; and Respondent Richard Stewart Grimes is presently registered with the Commission as an active real estate broker and active broker of and for Florida Vantage Properties, Inc.

2.

Petitioner's Exceptions to the Hearing Officer's Recommended Order, which Order recommends that the Commission take no action against the Respondents herein, is well taken.

3.

The Hearing Officer's Findings of Fact are insufficient for the reason that the Findings of Fact fail to include material facts which appear of record:

1. That the recordings of the affidavit and the letter of agreement (Exhibit 2) were not authorized by the

   owner of the property, Collins Corporation.

   
   

2. That the purpose of the recording of said documents was too aid or coerce payment of the monies claimed by Florida Vantage Properties, Inc. as being due to it from Collins Corporation.

   
   

3. That the effect of the affidavit and the letter of agreement on the records resulted in $1,500 being withheld by the closing agent in the closing of the transaction, subsequent to recording of said documents, from disbursement of the purchase monies to Collins Corporation.

   
   

   4.

   
   

   The Hearing Officer's Conclusions of Law, that the issue is whether the affidavit and the letter of agreement (Exhibit 2) purport to affect the title of or encumber the subject real property, is not a correct interpretation of Subsection 475.42(1)(j), Florida Statutes.

   
   

   5.

   
   

   The Hearing Officer's conclusion that to bring the Respondents within the operative scope of the prohibition of the statute the documents filed must purport to affect the title of or encumber the subject property is misinterpretation of the statute.

   
   

   6.

   
   

   The Commission finds that the Hearing Officer's Conclusions of Law are not based on all the material evidence in the record, and are contrary to the law, and do not comply with the essential requirements of the law and the evidence.

   
   

   7.

   The Commission finds that the Hearing Officer's Recommendation that no action be taken against the Respondents is contrary to the facts and the applicable law, and does not meet the essential requirements of the law.

   
   

   IT IS THEREUPON ORDERED:

   
   

   1. That the Petitioner's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, adopted.

   2. That the Findings of Fact of the Hearing Officer be, and the same are hereby adopted, but added thereto are the Commission's additional Findings of Fact as set out in Paragraph 3 above.

      
      

   3. That the Conclusions of Law of the Hearing Officer are not adopted.

THE COMMISSION CONCLUDES:

1. That the issue is whether the recording of the affidavit and letter of agreement affected the title of or encumbered the real property; or was for the purpose of collecting a commission, or to coerce the payment of money to broker or to some other person.

   
   

2. That the recording of said documents was for the purpose of collecting or to coerce the payment of monies by Collins Corporation to the parties who sold the subject real property to it, and that such doings were in violation of Subsection 475.42(1)(j), Florida Statutes.

Accordingly, Florida Vantage Properties, Inc., corporate broker, and Richard Stewart Grimes, its broker, are guilty thereof.

IT IS THEREUPON ORDERED that, for such violation, Florida Vantage Properties, Inc. and Richard S. Grime's are given public reprimand.

DONE AND ORDERED at Orlando, Florida this 26th day of October, 1978.

Levie D. Smith, Jr. Chairman

Arthur N. Hamel Vice Chairman

Virginia H. Bishop Member

I CERTIFY that a copy of the foregoing Final Order was mailed to:

Florida Vantage Properties, Inc. Arthur C. Koski, Esquire and 299 W. Camino Gardens Blvd.

Richard Stewart Grimes P. O. Box 478

4295 N 1st Avenue Boca Raton, Florida 33432 Boca Raton, Florida 33431 Attorney for Respondents

by United States registered mail this 1st day of December, 1978.

(Signed) C. B. STAFFORD

Executive Director

NOTICE TO RESPONDENTS

This Final Order shall become effective on the 29th day of December 1978. However, you have a right of review by an Appellate Court, if you desire.

Docket for Case No: 78-000696

Orders for Case No: 78-000696