vs. ) CASE NO. 80-767
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
vs. ) CASE NO. 80-789
Respondent. )
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
vs. ) CASE NO. 80-1225
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in these cases on October 22 and 23, 1980, beginning at 10:00 a.m., in Room 605, Sixth Floor, Park Trammell Building, 1313 Tampa Street, Tampa, Florida. The following appearances were entered:
For Petitioner: Salvatore A. Carpino, Esquire
For Respondent: Malcolm V. McKay, Esquire
TRENAM SIMMONS KEMKER SCHARF BARKIN FRYE & O'NEILL, P.A.
At the final hearing Kay Davis, Brenda Kelly, James P. Adams, and Michele
B. Adams testified on behalf of the Petitioner in Case No. 80-767 and Petitioner's Exhibits 1-3 were admitted into evidence. The Respondent testified on his own behalf and Respondent's Exhibits 1-6 were admitted. Hearing Officer Exhibit 1 was also admitted. In Case No. 80-789 Ronald Faber testified on behalf of the Petitioner and the Respondent testified on his own behalf. Petitioner's Exhibits 1-10 and Respondent's Exhibits 1-5 and 7 were admitted into evidence. In Case No. 80-1225 Richard Gaplano, Steven Taylor, Donald B. Anderson and William Phelps testified for the Petitioner. Robert Knisley and Vincent Bekiempis testified for the Respondents. Petitioner's Exhibits 1 and 2 were admitted into evidence.
A proposed recommended order has been submitted by the Respondent. Those findings of fact and conclusions of law which are not included in this recommended order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Case No. 80-767 Count I
In 1976, Ms. Kay E. Davis bought a house from Home America Realty, Inc., and Home America, Inc. at 11700 North 58 Street, Tampa, Florida, the Respondent's principal place of business.
On or about May 26, 1976, the Respondent offered to Ms. Davis a color television set in exchange for sending Respondent a referral who would purchase
a home. Ms. Davis was and is not registered as a real estate broker or salesman in Florida or any other state.
Subsequent to the closing of the purchase by Ms. Davis, one of her friends, Brenda Kelly, purchased a home from the Respondent. Ms. Davis believed that she was responsible for the referral and contacted the Respondent's office concerning the color television.
After the closing and over a period of several months, Ms. Davis called Home America to complain about problems with her house. In response to her complaints, the exterior of the house was cleaned and a check for $110.00 was sent to her in settlement of a claim concerning carpeting.
During this period of time, a check for $200.00 was sent to Ms. Davis following a telephone conversation between Ms. Davis and the Respondent's secretary. Ms. Davis never received a color television from the Respondent or spoke to him directly about the $200.00 in lieu of a color television set.
The $200.00 was not knowingly paid by the Respondent as a referral fee; rather, it was an attempt on the Respondent's part to settle the ongoing problems involving Ms. Davis' home.
Count II
Prior to the hearing, counsel for the Respondent moved that Count II be dismissed, based upon a letter he received on May 19, 1980, from counsel for the Board of Real Estate informing him that on May 19, 1980, following an investigation the Board dismissed this part of its complaint (CD 18645) against the Respondent. Ruling was reserved on this Motion and the Respondent presented testimony and evidence on this Count. Counsel for Respondent was never informed by the Board that Count II of the complaint was not in fact dismissed as represented in the May 19, 1980, letter until October 23, 1980, the day of the formal hearing.
Case No. 80-1225
On November 21, 1977 Mr. and Mrs. Richard Caplano purchased a home at 4611 East Seneca Drive, Tampa, Florida, from Respondents Home America Realty, Inc. and Bekiempis through their salesman, Robert Knisley.
At the time Mr. Knisley first showed the Caplanos the property, the site was under construction, unsodded and survey markers were not in place.
Although a chain link fence was visible on the east side of the property, it would have been difficult to determine the legal boundary lines because of the condition of the site.
The visible fence was 10 feet beyond and parallel to the actual property line.
The lot purchased by the Gaplanos was 60 feet in width. The lot directly behind the Gaplanos was 70 feet wide. The Caplanos were furnished with an accurate survey of the property either five days after the contract was signed or at the closing. At the closing, the Caplanos understood that they were purchasing a sixty foot lot and never believed or were told that their lot was 70 feet wide.
Prior to closing, the lot was sodded beyond the boundary lines to include easements on both sides of the street and the 10 feet up to the fence line. It was the customary practice of Home America, Inc. , to sod beyond property lines after the completion of construction of a lot to improve the appearance of a neighborhood. Such action was not intended to mislead purchasers as to the location of their property lines.
The misunderstanding between the Caplanos and Mr. Knisley arose not out of any attempt by Mr. Knisley to misrepresent or mislead, but rather out of Mr. Knisley's erroneous and unintentional attempt to locate the property lines and survey markers.
Case No. 80-789
On or about November 10, 1976, the Respondent contracted with Ronald Faber for the sale of a house and lot located at Lot 1, Allbright Shores Subdivision. At the time Ronald Faber worked for the Respondent as comptroller of Home America, Inc. This house was purchased using conventional financing since the specifications of the house and lot did not meet the requirements of VA financing and, thus, such financing could not be arranged.
The contract for purchase of the house called for a down payment of
$4,600.00 or 10 percent of the purchase price. A portion of this amount was paid in cash by Mr. Faber and the remainder was paid by way of an employee discount to Mr. Faber as evidenced by the exchange between Mr. Faber and Home America, Inc. of checks for $3,000.00.
Mr. Faber received from his employment with Respondent salary income and additional income from managing apartments. Thus, his income was capable of varying during the year and was not calculated as straight salary. The evidence is inconclusive as to what Mr. Faber's actual income was for the year in question. The statement of salary made by the Respondent to the financing bank was substantially correct based upon his interpretation of Mr. Faber's salary and was not intended to mislead the bank.
The testimony is contradictory concerning whether the Respondent agreed to pave the road in front of the Faber home beyond that which was already in place. However, no competent testimony or evidence was presented that the Respondent supplied any information to the bank's appraiser concerning the paving of the road.
Mr. Faber executed a note and mortgage in favor of Home America, Inc., encumbering the property on November 24, 1976. There is conflicting testimony as to whether the affidavit furnished the bank which stated that no outstanding unrecorded contract for sale, deed, conveyance, or mortgage affecting title existed on the property, was executed by the Respondent on November 24 or November 29. The note and mortgage were delivered to Respondent after the affidavit was executed. The Respondent believed at the time the affidavit was executed that he held a promissory note which was not a valid lien on the property until the mortgage and note were signed and delivered to him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes.
In Count I of Case No. 80-767, the Respondent is charged with violating Section 475.25(1)(f), Florida Statutes (1977) and Section 475.25(1)(h), Florida Statutes (1979), which prohibit a registrant from sharing a commission or paying a fee or other compensation to an unregistered person for the referral-of real estate business, clients, prospects or customers.
Although the testimony established that the Respondent offered a color television set to Ms. Davis as an inducement to refer customers, the statute requires that a commission, fee or compensation actually be paid. See Dreyer v. Florida Real Estate Commission, 370 So.2d 598 (Fla. 4th DCA 1979). It is undisputed that Ms. Davis never received a color television from the Respondent. Although she did receive $200.00 following a conversation with an unidentified secretary in Respondent's office, no testimony was presented to prove that the Respondent knew that the two hundred dollar check was a referral fee as opposed to a payment to correct numerous problems with Mr. Davis' home. Accordingly, substantial and competent evidence was not produced at the final hearing to support this charge and it should be dismissed.
As to Count II, the Respondent was charged with violating Section 475.25(1)(a), Florida Statutes (1977) and Section 475.25(1)(b), Florida Statutes (1979), in his dealings with James and Michele Adams.
Prior to the final hearing on Count II, the Respondent moved to Dismiss Count II due to a letter he received from counsel for the Board of Real Estate informing him that Count II had been dismissed following an investigation. Apparently, the Board did not in fact dismiss Count II notwithstanding the letter to the Respondent. No further communication was received by the Respondent from the Board informing him that Count II was not dismissed. At the final hearing, testimony was presented by the Respondent on Count II, presumably because the Motion to Dismiss was taken under advisement by the Hearing Officer.
After considering the Respondent's Motion to Dismiss Count II of Case No. 80-767, the relevant documents and argument of counsel at the hearing, it is the Hearing Officer's conclusion that the Respondent's Motion to Dismiss should have been granted. See 1 Fla. Jur.2d, Administrative Law, Section 76.
Case No. 80-1225
In this case, the Respondents, Bekiempis and Home America Realty, Inc. are charged with violating Section 475.25 (1)(a), Florida Statutes (1977), as amended or readopted, Section 475.25(1)(b), Florida Statutes (1979), which permit disciplinary action to be imposed against a registrant who has been found guilty of
...fraud, misrepresentation, concealment, trick, scheme or device, culpable negli gence or breach of trust in any business transaction, in this state or any other state...
The testimony demonstrates that the Respondent's salesman, Robert Knisley, did not intentionally misrepresent the location of a lot boundary line to prospective purchasers of real property. The purchasers in this case contracted for and received a 60 foot wide lot. Under such circumstances no violation of Section 475.25(1)(a), Florida Statutes (1977) and Section 475.25(1)(b), Florida Statutes (1979) has been proven by a preponderance of
competent and substantial evidence. See Chisman v. Moylan, 105 So.2d 186 (Fla. 2nd DCA 1958).
Case No. 30-789
The Respondent is charged with violating Section 475.25(1)(a), Florida Statutes (1975) and Section 475.25(1)(b) Florida Statutes, in that he is alleged to have made false promises, misrepresentations, engaged in a fraudulent scheme to obtain financing and breached the trust relationship between the parties to the transaction. These allegations are made in regard to the sale and financing of a home by the Respondent to Ronald Faber, a former employee. Specifically, the Respondent is charged with misrepresenting Mr. Faber's income, the purchase price of the home, the condition of the road in front of the home and any encumbrances of title to the home.
Although the appraisal report incorrectly states that street access to the home was "asphalt to be paved", no testimony was presented to establish that the appraiser received this information from the Respondent. Similarly, the evidence is insufficient to establish that the Respondent intentionally misrepresented to Mr. Faber that the road would be paved with asphalt or that such an intentional misrepresentation was relied on by Mr. Faber to his detriment.
Respondent's verification to the bank of Mr. Faber's income and status with the company was overstated. However, the weight of the evidence failed to establish that the overstatement was a significant factor in the financing of the Faber home or that the information was provided to intentionally mislead the bank. No evidence was presented to demonstrate that the bank would not have made the loan had the amount of Faber's income been accurately stated.
The evidence is also conflicting concerning the $4,600.00 down payment for the home. The Respondent's explanation, that the $4,000.00 was an employee discount on the selling price of $46,000.00 is a reasonable inference based upon the appraised value of the house being $46,500.00. In effect, the discount could be analogized to a rebate which was used as part of the down payment. So long as the actual value of the home was not overstated by such procedure, no material and intentional misrepresentation as contemplated by Section 475.25(1)(a), Florida Statutes (1975), on the Respondent's part would occur.
Regarding the Respondent's execution of the affidavit concerning liens, the Respondent executed the affidavit based upon his belief that no valid liens were then in existence, since at that time the note and mortgage had not been delivered to him.
Therefore, based upon the foregoing findings of fact and conclusions of law, it is
That the Administrative Complaints in Case Nos. 80-767, 80-789 and 80-1225 be DISMISSED.
DONE and ORDERED this 1st day of October, 1981, in Tallahassee, Florida.
SHARYN L. SMITH
Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1981.
Salvatore A. Carpino, Esquire Department of Professional
Malcolm V. McKay, Esquire TRENAM SIMMONS KEMKER SCHARF
BARKIN FRYE & O'NEILL, P.A.
G. B. Stafford, Executive Director Florida Board of Real Estate
