STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2143

) RALPH J. MARCIANO & RICHARD )

1. ANGLICKIS, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, Donald R. Alexander, on January 27, 1952, in Fort Myers, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Eugene H. Smith, Esquire

   Post Office Box 729

   Fort Myers, Florida 33902

   
   

   For Respondents: Allan M. Parvey, Esquire

   Post Office Box 2366

   Fort Myers, Florida 33902 BACKGROUND

   In an undated Administrative Complaint, Petitioner, Department of Professional Regulation, Board of Real Estate, has charged that Respondents, Ralph J. Marciano and Richard A. Anglickis, have violated Subsection 475.25(1)(a), Florida Statutes (1977) 1/ for which disciplinary action against their real estate brokers' licenses should be taken. In summary form, it is alleged that: (1) Respondent Marciano entered into an agreement with Thomas H. and Mary-Jo Troxell in February, 1979, to sell their condominium, exchange one vacant lot for another, and to construct a new home on the second lot, all being in Lehigh Acres, Florida; that Respondent assured the Troxells that no cash outlay would be required; that the Troxells thereafter executed a blank contract of purchase and sale of property with improvements to be constructed, which was later filled in by Marciano; that after the contract was filled in, Marciano demanded the Troxells pay a $2,500 deposit; and that by reason of the foregoing Marciano had violated Subsection 475.25(1)(a), supra; (2) that Respondent Marciano was advised by telephone and letter on February 22, 1979, that the Troxells were cancelling the listing, declaring the contract void, stopping payment on the deposit check, and wished a return of the warranty deed to their lot; that Marciano did not honor the cancellation of the listing agreement but instead procured a prospective purchaser for the condominium at the full asking price in March, 1979; and that by reason of these acts he has violated

   Subsection 475.25(1)(a), supra; (3) that Respondent Anglickis wrote the Troxells on March 20, 1979, advising that the warranty deed had been recorded on February 27, 1979 despite the contract providing that the entire transaction was contingent upon sale of the condominium, and that Anglickis was accordingly guilty of violating Subsection 475.25(1)(a), supra; and (4) Respondents Marciano and Anglickis have jointly aided, assisted or conspired with one another in furtherance of an illegal act within the purview of Subsection 475.25(1)(a), supra.

   
   

   Respondents disputed the allegations in the Administrative Complaint and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. Petitioner forwarded the matter to the Division of Administrative Hearings on November 10, 1980, with a request that a Hearing Officer be assigned to conduct a hearing. By agreement of the parties the final hearing was set for February 27, 1981, in Fort Myers, Florida. At the request of Petitioner, the hearing was cancelled and a recommendation for dismissal of the complaint presented to the Board of Real Estate. This recommendation was rejected and the matter remained in abeyance at Petitioner's request until it was again scheduled for final hearing on November 24, 1981, in Fort Myers. At Petitioner's request, and without objection by Respondents, the matter was rescheduled to January 27, 1982, at the same location.

   
   

   At the final hearing, Petitioner offered Petitioner's Exhibits 1-4, each of which was received into evidence. Exhibits 3 and 4 are the depositions of Thomas H. Troxell and Mary-Jo Troxell, and were received by agreement of the parties. Both Respondents testified on their own behalf and offered Respondents' Composite Exhibit 1, which was received into evidence.

   
   

   The transcript of hearing was filed on February 12, 1982. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

   
   

   At the outset of the hearing, Petitioner voluntarily withdrew Count IV of the Administrative Complaint. Remaining at issue is whether Respondents should be disciplined for the alleged violations set forth in Counts I-III of the Complaint.

   
   

   Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

   1. At all times relevant hereto, Respondents, Ralph J. Marciano and Richard A. Anglickis, held real estate broker license numbers 0055506 and 0001869 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. Anglickis was the active broker member of American Heritage Realty, Inc., with offices at 102 East Leeland Heights Boulevard, Lehigh Acres, Florida. Marciano was sales manager for the firm.

      
      

   2. On or about February 19, 1979, Thomas H. and Mary-Jo Troxell, husband and wife, visited the offices of Marciano to seek advice concerning a condominium they owned in Lehigh Acres, Florida. Marciano had been recommended by Gerald and Edith Briggs, who had previously used Marciano in several transactions, and who were long-time friends of the Troxells. Both the Briggs and the Troxells were present throughout the entire meeting with Marciano.

      
      

   3. The Troxells had purchased the condominium during the summer of 1978. Because they lived out of state, they had hoped to rent the unit through another

      realtor in Lehigh Acres. However, their efforts were unsuccessful. Marciano advised the Troxells that he could not personally rent the condominium for them since it was listed with another realtor. He also told them that due to its size and location, it could rent for no more than $300 to $325 per month, which was less than the $500-$600 per month desired by the Troxells. He asked if the Troxells were interested in other rental property which could command a higher rent, and they responded that they were. Marciano then suggested a package-type of arrangement wherein the condominium would be sold, a lot owned by the Troxells swapped for another to be purchased by American Heritage Realty, and a new home constructed on the second lot. The entire package was contingent upon the selling of the condominium. This was agreed to by the Troxells.

      
      

   4. Marciano advised the Troxells that a five percent (5 percent) deposit, or $2,500, would be required on the new house contract in accordance with company policy, but would be refunded out of the proceeds of the condominium sale. The request for the deposit was made in the presence of both the Briggs and the Troxells, and was agreed upon by the parties. The Troxells were also advised that no further cash outlay would be required.

      
      

   5. The Troxells then signed an exclusive right-of-sale listing agreement for the condominium with American Heritage Realty, executed a warranty deed conveying their lot to Lehigh Corporation, and signed a contract for the purchase and sale of of property with improvements to be constructed. All blanks in the contract were filled in in the presence of the Troxells and Briggs except the back side which contained the size of the rooms in the condominium.

      
      

   6. Because the Troxells were scheduled to depart on an airplane to Maryland early the next day, they did not have time to inspect their condominium and measure the size of its rooms. The information was later filled in by Marciano from an information sheet supplied by Lehigh Corporation, who originally sold the Troxells the unit.

      
      

   7. The Troxells also gave Marciano a check in the amount of $2,500 but instructed him to wait two days before depositing the check so that sufficient funds could be placed in the Troxells' checking account in Maryland.

      
      

   8. Marciano deposited the $2,500 check on February 21, 1979, in accordance with the Troxells' original instructions. The check ultimately did not clear because of a stop-payment order given to the bank by Mr. Troxell.

      
      

   9. Upon reaching Maryland, the Troxells had second thoughts on their agreement and decided they could not afford to purchase another house. They first stopped payment on the $2,500 check given to Marciano. Mr. Troxell then telephoned Marciano on the morning of February 22 and advised him payment on the check had been stopped and that he wished to cancel the entire transaction including the listing on the condominium. Marciano told Troxell he would be happy to process the cancellation on the new house but he had out-of-state buyers who wished to inspect the condominium. Troxell told Marciano he could show the property to the prospective buyers, but if they did not wish to purchase it, the unit was to be taken off the market.

      
      

   10. On February 22, 1979, Troxell wrote Marciano to reconfirm his desire to "withdraw" from his agreement to purchase another home. There was no mention in the letter of the listing on the condominium or their earlier telephone conversation concerning the showing of the property to a prospective buyer.

   11. On March 6, 1979, Marciano showed the Troxells' condominium to Leonard

2. and Bernice T. Hoaglin, who decided to purchase it for the full asking price of $44,900. They executed a contract for purchase and sale of real property that same date. The contract provided that the broker would retain $3,367.50 from the proceeds for services rendered in procuring the sale. Although the contract was forwarded to the Troxells for their signatures, it was never returned to Marciano.

1. On March 19, 1979, Anglickis wrote a letter to the Troxells concerning their refusal to sign the contract. He advised them of their obligation under the listing agreement, and that, unless they signed the contract, he intended to sue for his commission of $3,067.50 plus $240 for a one-year buyers protection plan. 2/

   
   

2. On March 20, 1979, Anglickis wrote a second letter to the Troxells expressing concern over their $2,500 check that had not cleared. He also advised them that the deed previously signed by them on February 19, 1979, had been recorded by his attorneys on February 27, 1979. He asked that the entire matter be given their immediate attention so that it could be resolved to both parties' satisfaction.

   
   

3. After receiving the communications from Anglickis, the Troxells consulted a local attorney in Maryland at a later undisclosed date. At his suggestion, they filed a complaint with the Board of Real Estate in an attempt to extricate themselves from the situation. That prompted the instant proceeding.

   
   

4. On February 27, 1979, Anglickis sent the warranty deed signed by the Troxells to Walter Sheppard, attorney for Lehigh Corporation, with instructions that it be recorded. He heard nothing further from Sheppard and assumed his request had been complied with. After the complaint with the Board was filed by the Troxells, Anglickis discovered that Lehigh Corporation had never recorded the deed but had returned it to him at a later undisclosed date. Anglickis then forwarded the deed to the Troxells on September 5, 1980, with a letter of apology, after being advised to do so by the Board. However, Mr. Troxell was aware that the deed had never been recorded and had continued to pay taxes on his lot throughout this controversy.

   
   

5. The Troxells suffered no monetary losses in the transaction except the cost of hiring an attorney in Maryland. No suits were initiated by Respondents to recover their damages or loss of commission.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Subsection 475.25(1)(a), Florida Statutes (1977), reads as follows:

   
   

   1. The registration of a registrant may be suspended for a period not exceeding 2 years or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

      1. 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 committed an overt act in furtherance of such intent, design or scheme. It shall be immaterial to the guilt of the registrant that the victim, or intended victim, of the misconduct has sustained no damage or loss or the damage or loss has been settled

         and paid, after discovery of the misconduct, or whether such victim or intended victim, thereof, was a customer or a person in confidential relation with the registrant, or

         was an identified member of the general public;

         
         

8. In resolving the validity of the charges herein, certain matters should be noted in order to place the proceeding in its proper perspective. First, the events which gave rise to the instant action occurred some three years prior to the final hearing. Further, through no fault of Respondents, the final hearing was delayed at Petitioner's request for almost one year from the date first scheduled. This obviously contributed in part to the inability of the witnesses to recall with clarity certain aspects of the events surrounding the transaction. The evidence presented was conflicting, with essentially one version given by the persons who filed the complaint, and another given by Respondents and their supporting witness. Petitioner's case consisted of no "live" testimony but rather the depositions of two witnesses who resided out of state. Had Respondents not agreed to their use, the undersigned would have been compelled to require that either the complainants give their testimony in this forum or that the depositions be excluded. Cf., Chittick v. Eastern Air Lines, Inc., 403 So.2d 595 (Fla. 1st DCA 1981). See also, Kaufman v. Kaufman, 63 So.2d

   196 (Fla. 1952). In evaluating the testimony in this proceeding, more weight has been afforded to that presented by Respondents, who were present at the hearing and subjected to vigorous cross-examination by Petitioner, as well as the scrutiny of the undersigned to ascertain their candor and demeanor. Moreover, their version was corroborated by an independent witness who had no stake in the outcome of this proceeding. In contrast, the complaining witnesses were not physically present for either the final hearing or the depositions, but were deposed via telephone by counsel for the parties one week before the final hearing.

   
   

9. Two counts of the complaint are directed at Respondent Marciano while a third alleges a violation on the part of Respondent Anglickis. They will be dealt with separately.

   1. Count I

      
      

10. It is charged that Marciano is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence or breach of trust in a business transaction, all being within the purview of Subsection 475.25(1)(e), for his dealings with the Troxells. Underpinning these charges are the allegations that Marciano represented to the Troxells that ". . .no additional money layout would be involved in completing the transaction; that he then ". . .obtained Troxells' signature on a blank contract form. . ." and having done so ". . .demand(ed) a deposit ($2,500). . .in order to complete the transaction.

    
    

11. The evidence discloses that the Troxells did not sign a blank contract of purchase and sale of property with improvements to be constructed as alleged in the complaint. Indeed, the entire contract was filled out in the presence of the Troxells and the Briggs except that part which required the measurements taken from an information sheet supplied by the original seller of the property. By the same token, the Troxells were clearly advised by Marciano prior to signing the documents that a $2,500 refundable deposit would be required in order to consummate the transaction. They did not object to this, and wrote Marciano a check when the papers were signed. 3/ Although the Troxells may have had second thoughts when they returned to Maryland, there were no misrepresentations or other statutory violations by Respondent to induce them to enter into the agreement or pay a deposit. Accordingly, it is concluded there is insubstantial evidence to support the allegations in Count I, and that the charge should be dismissed. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

    
    

    1. COUNT II

       
       

12. Petitioner has charged that Marciano is guilty of misrepresentation, concealment, dishonest dealing, culpable negligence and breach of trust in a business transaction within the meaning of Subsection 475.25(1)(a) by ". . .his refusal to honor Troxells' cancellation of listing, and his representing to Hoaglins that the Troxells' condominium was still on the market, and accepting the Hoaglins' offer to purchase, and in persisting in submitting Hoaglins' 'offer' to Troxells. . ."

    
    

13. The Troxells signed an exclusive right of sale listing agreement with American Heritage Realty on February 19, 1979. The agreement was to remain in effect for six months and "thereafter until. . .revoked by 30 days written notice. . ." The instrument indicates that except with the acquiescence of Respondents, the agreement could not be cancelled by the Troxells until on or about August 19, 1979. Whether the request by Mr. Troxell on February 22, 1979, to unilaterally rescind the contract was valid was not addressed.

    
    

14. But even if Troxell could legally revoke the listing the evidence does not support a finding that Marciano refused to honor the cancellation and instead procured an offer which was later submitted to the Troxells. In a telephone conversation on February 22, 1979, Marciano was authorized by Troxell to keep the listing in effect until the property was shown to the Hoaglins. Although Troxell denied this, he did admit he was aware the Hoaglins intended to inspect the property. The testimony of Marciano is found to be more credible and persuasive, and the undersigned concludes that Respondent was acting in accordance with the sellers' instructions. This being so, it is concluded that there is insufficient evidence to support a finding of guilt as to Count II, and that it should be dismissed. Bowling, supra.

    1. COUNT III

    
    

15. The Department charges that Respondent Anglickis is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device, or breach of trust within the purview of Subsection 475.25(1)(a), for ". . .recording or causing to be recorded (the) Warranty Deed; or in the alternative, (that) the statement of recording (was) false. . ." Because the deed was never recorded, Petitioner must necessarily rely upon its allegation that Anglickis made a false statement to Troxell to support its charge.

    
    

16. The evidence discloses that Anglickis forwarded the warranty deed to counsel for Lehigh Corporation on February 27, 1979, with instructions that Lehigh record the deed. This was consistent with his normal practice on past transactions of a similar nature. Anglickis assumed the deed had been recorded, for he was never advised to the contrary by Lehigh Corporation. He later wrote Troxell on March 19, 1979, and represented that the deed had been recorded pursuant to his instructions to Lehigh some three weeks earlier. In order for the charge in Count II to have merit, it must be shown by Petitioner that Anglickis knew the deed had not been recorded but nonetheless intentionally and willfully failed to disclose to Troxell this fact. Cf. Wood v. Barksdale, 309 So.2d 187, 189 (Fla. 1st DCA 1975); Chisholm v. Moylan, 105 So.2d 186, 189 (Fla. 2nd DCA 1958). Here the evidence clearly establishes that Anglickis was acting in good faith and represented only those facts that he believed to be true at the time. Indeed, Mr. Troxell even admitted that he knew the deed had never been recorded, and continued to pay property taxes on the unit.

    
    

17. There being no showing of fraud, misrepresentation, or other violations of Subsection 475.25(1)(a), the charge in Count III should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges in the Administrative Complaint be DISMISSED. DONE and ENTERED this 1st day of March, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1982.

ENDNOTES

1/ Subsection 475.25(1)(a) has been renumbered as Subsection 475.25(1)(b), Florida Statutes (1981) without substantive change. Although the Administrative Complaint refers to Subsection 475.25(1)(e), it is assumed that is a typographical error and that the Department intended to rely upon Subsection 475.25(1)(a).

2/ The difference between the $3,367.50 commission provided for in the contract and the amount referred to in Anglickis' letter of March 19 was not explained.

3/ To illustrate the conflicting and hazy nature of the testimony given to support this allegation, Mr. Troxell denied that Edith Briggs was present when the requirement for the $2,500 deposit was explained by Marciano, while Mrs.

Troxell freely acknowledged that she was. Mr. Troxell also testified that he could not remember how he reacted after learning that $2,500 cash would be required, or even what he said to Marciano to express his concern.

COPIES FURNISHED:

Eugene H. Smith, Esquire Post Office Box 729

Fort Myers, Florida 33902

Allan M. Parvey, Esquire Post Office Box 2366

Fort Myers, Florida 33902

Docket for Case No: 80-002143

Orders for Case No: 80-002143