STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE )

COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1948

)

LAWRENCE P. WEINER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on March 7, 1979, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Mark A. Grimes, Esquire

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Lawrence P. Weiner, in Proper Person

1348 Seaview

Fort Lauderdale, Florida 33068

The Florida Real Estate Commission ("the Commission issued an Administrative Complaint against Respondent on or about September 29, 1978. On or about October 16, 1978, Respondent filed a Response requesting a hearing pursuant to the provisions of Section 120.57, Florida Statutes. Thereafter, in accordance with Section 120.57(1), Florida Statutes, the Commission requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing in this cause was scheduled for March 7, 1979, by Notice of Hearing dated January 4, 1979.

In the Administrative Complaint, the Commission seeks to revoke or suspend the license or otherwise discipline Respondent, Lawrence P. Weiner, ("Respondent") for his alleged conduct in participating in obtaining "advance fee" listings for his employer, Continental Marketing Services, Inc. The Commission alleges that, in order to induce property owners to list their property with Continental Marketing Services, Inc., Respondent represented to them that their property could be sold for several times its original purchase price; that their property would be advertised nationwide and in foreign countries; that the company had foreign buyers who wished to purchase property located in the United States listed with Continental Marketing Services, Inc.; and that Continental Marketing Services, Inc. had previously sold properties for other property owners. The Commission further alleges that these representations were made by Respondent for the sole purpose of inducing

property owners to pay an advance fee listing to Continental Marketing Services, Inc., and that Respondent knew that no bona fide effort would be made to sell any of the properties so listed. The Commission asserts that the alleged conduct constitutes misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device, and conspiracy, and that Respondent is so dishonest and 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.

At the final hearing, the Commission called Lee Ernest Weaver, Elsie Weaver, William Burke, Mabel Lash, and Lawrence P. Weiner as its witnesses. In addition, the Commission called Harold Reiz and Jeffrey Kramer, but these witnesses invoked their privilege under the Fifth Amendment to the United States Constitution against self-incrimination, and refused to give testimony in this proceeding. The Commission offered Petitioner's Exhibits 1 through 21, inclusive, all of which were received into evidence. Petitioner's Exhibit No.

21 was the deposition of H. Addison Soles, which was received into evidence pursuant to the applicable provisions of the Florida Rules of Civil Procedure. Respondent testified in his own behalf.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone,

   
   

2. Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale.

   
   

3. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed

   property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964.

   
   

4. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold.

   
   

5. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property.

   
   

6. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1), 120.60, Florida Statutes.

   
   

8. In license revocation or suspension proceedings undertaken pursuant to Section 475.25, Florida Statutes, the burden of establishing that a licensed real estate broker has violated the Florida Real Estate License law lies with the Commission. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

9. The Administrative Complaint in Counts 1 and 2 charges Respondent with a violation of Section 475.25(1)(a), Florida Statutes, which provides in part, that the registration of a registrant may be suspended for a period not exceeding 2 years, upon a finding 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 com- mitted an overt act in furtherance of such intent, design or scheme. . . .

   
   

10. In Count 3 of the Administrative Complaint, the Commission charges Respondent with a violation of Section 475.25(3), Florida Statutes, which provides that:

    
    

    The registration of a registrant may be re- voked 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, negli- gent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confi- dential relation, may not safely be entrusted to him. [Emphasis added].

    
    

11. The Commission's essential allegations against Respondent are that he represented to property owners that their property could be sold for several times its original purchase price; that their property would be advertised nationwide and in foreign countries; that Continental Marketing Services, Inc. had foreign buyers wanting to purchase property in the United States; that Continental Marketing Services, Inc. had previously sold properties for other property owners; that these representations were made by Respondent for the sole purpose of inducing members of the public to pay an advance listing fee to Continental Marketing Services, Inc.; and that Respondent knew at the time he made the alleged representations that no bona fide effort would be made to sell any of the properties so listed with Continental Marketing Services, Inc. The Commission contends that these representations were false when made by Respondent, and were known to be false by Respondent at the time they were made. There is insufficient evidence of record to sustain the Commission's position in this regard. There is no evidence that the properties were not advertised as represented, that there were no foreign buyers interested in purchasing these properties, or that Continental Marketing Services, Inc. had not sold properties

for other property owners. Further, the evidence admits of no other conclusion than that Respondent simply transmitted a suggested listing price from Continental Marketing Services, Inc. to property owners who acquiesced in the listing of their property at that price. The record is devoid of any evidence that no bona fide effort was made to market any of the listed properties, or that Respondent knew at the time of his contacts with the property owners that no such effort would be made. Accordingly, the record in this proceeding fails to establish a violation by Respondent of either Section 475.25(1)(a) or 475.25(3), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the Florida Real Estate Commission dismissing the complaint against Respondent, Lawrence P. Weiner.

RECOMMENDED this 25th day of April, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAIL: Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mark A. Grimes, Esquire

400 West Robinson Street

P. O. Box 1900

Orlando, Florida 32802

Lawrence P. Weiner 1348 Seaview

Fort Lauderdale, Florida 33068

=================================================================

AGENCY MEMORANDUM

=================================================================

July 9, 1979 MEMORANDUM

TO: Renata Hedrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney

RE: PD 3404 - FREC vs. Lawrence P. Weiner 009418308 DOAH Case No. 78-1948

Pursuant to the Commission's Order of June 6, 1979, the Defendant's license has been revoked. The Defendant has not filed an appeal with the statutory period allowed, and thus, this order is effective July 6, 1979. Attached please find Mr. Weiner's license which he voluntarily surrendered on June 18, 1979.

Please make the appropriate registration changes in this matter.

MAG:rm Att.*

Mark A. Grimes Staff Attorney

* NOTE: Attachment noted is not available at the Division and therefore not a part of this ACCESS document.

Docket for Case No: 78-001948

Orders for Case No: 78-001948