STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-237

) GEORGE MAY AND MARIE L. BUNDICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above captioned case before the Division of Administrative Bearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Fort Lauderdale, Florida, on July, 15, 1981.

APPEARANCES

For Petitioner: Theodore J. Silver, Esquire

9445 Bird Road 2nd Floor Miami, Florida 33165

For Respondent: George May in pro se

2300 West Oakland Park Boulevard, Suite 202 Fort Lauderdale, Florida 33311

For Respondent: Marie L. Bundick in pro se

232 189th Terrace

North Miami Beach, Florida 33160 BACKGROUND

By Administrative Complaint dated November 12, 1980, the Petitioner, Department of Professional Regulation, has charged Respondent, George May, with having violated Sections 475.25(1) (a) and (b) and 475.25(3), Florida Statutes, (1977) 1/ for which disciplinary action against his real estate broker's license should be taken. It also charged that Respondent, Marie L. Bundick, has violated Sections 475.25(1)(a) and 475.23(3), Florida Statutes (1977) 2/ for which disciplinary action against her real estate salesman license should be taken. The summary form it is charged that (1) between May, 1976, and November, 1977, May purchased unplatted, unimproved acreage in Lee County, Florida; that he knew said acreage was swampland and without access; that nevertheless he advertised said property as being "near beaches", having "miles of beautiful water" and "wooded"; and that for making said advertisements May is guilty of fraud, misrepresentation, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in violation of Section 475.25(1)(a), supra, and of false advertising within the purview of Section 475.25(1)(b), supra; (2) that May failed to plat the lands being sold and did not register with the Division of Land Sales as required by Chapter 498, Florida

Statutes, and that such failure to conform with the law constituted a violation of Section 475.25(1)(a), supra; (3) that May instructed his sales associates to inform prospective purchasers that the land being offered for sale was high and dry, was zoned for residential housing and had road basements to the properties, all of which were false, and that said acts constituted fraud, misrepresentation, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in violation of Section 475.25 (1)(a), supra; (4) that Respondent Bundick, a salesman associated with May, negotiated a number of contracts for purchasers of said land and represented to the buyers that such land was "minutes from beautiful beaches", "high and dry" and in a "pine tree forest"; that Bundick knew said representations were false and that for making said representations she is guilty of fraud, misrepresentation, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in contravention of Section 475.25(1)(a), supra; (5) that Bundick took a prospective purchaser to view the property and advised him he was standing on the property he wished to purchase when in fact Bundick had knowingly taken him to a different section of the land; and that said representation constituted fraud, misrepresentation, false pretenses, dishonest dealing, trick, scheme or device and breach of trust within the purview of Section 475.25(1)(a), supra; and (6) that by reason of the foregoing violations May and Bundick have "aided, assisted or conspired with another person engaged in any such misconduct and in furtherance thereof; or have formed an intent, design or scheme to engage in any such misconduct, and have omitted (sic) an overt act in furtherance of such intent, design or scheme," as prohibited by Section 475.25(1)(a), supra; and that May and Bundick have engaged in...a course of conduct or practices which show they are so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors, are (sic) those with whom they may sustain a confidential relation, may not safely be entrusted to them..." within the purview of Section 475.25(3), supra.

Respondents disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On January 22, 1981, Petitioner forwarded these requests to the Division of Administrative Hearings and asked that a Hearing Officer be assigned to conduct a hearing. Because of the absence of one Respondent from the country, and a request for a delay in order to conduct discovery by another, the matter was not scheduled for final hearing until July 8, 1981, in Fort Lauderdale, Florida. At the request of Petitioner, it was rescheduled to July 15, 1981, at the same location.

At the final hearing, Petitioner called Henry Minster, Edmond Martell, William C. Park and Rahlyn Ramsaran as its witnesses and offered Petitioner's Exhibits 1-30, each of which was received into evidence except Exhibit 20 upon which a ruling was reserved. Respondent May testified on his own behalf and presented the testimony of Barry J. Miller, Sonia Gerry, Joseph Sarzen, Morris Pritzker and Jack Paul Goodman, and offered Respondent's Exhibits 1-13, each of which was received into evidence. Respondent Bundick testified on her own behalf.

The transcript of hearing was filed on August 17, 1981. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however none were filed.

A Motion for Recusal and the Appointment of Multiple Hearing Officers and three Motions to Dismiss filed by Respondent May prior to the final hearing were denied by Orders dated March 24 and April 14, 1981. A Motion to Dismiss Counts I and III of the complaint made ore tenus at the outset of the hearing by May was also denied.

The issue herein is whether Respondents' real estate broker and salesman licenses should be revoked or suspended or whether other disciplinary action should be taken for the alleged violations set forth in the Administrative Complaint.

Based upon the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, George May, was a licensed real estate broker, having been issued license number 0056693 by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 27). Respondent, Marie L. Bundick, was a licensed real estate salesman having been issued license number 0185873 by Petitioner (Petitioner's Exhibit 29). During the time the events herein occurred May was the active broker with, and Bundick a salesman for, Commercial Equity Corporation, 2450 East Commercial Boulevard, Fort Lauderdale, Florida.

   
   

2. Between December, 1976, and June, 1977, May formed the following corporations: A-1989 Corporation, Future 5 Corporation and 8-Villas Corporation (Petitioner's Exhibit 30). He served as president of these corporations until they were involuntarily dissolved by the Department of State for failure to pay fees due that Department.

   
   

3. In early 1976, May ran an advertisement in a Fort Myers newspaper expressing a desire to purchase acreage in that area. In response to that advertisement, Henry Minster, a Bonita Springs real estate broker, contacted May and advised him he had various parcels of property for sale in Lee County, including undeveloped acreage.

   
   

4. In May, 1976, Minister, May and an undisclosed third party visited an unimproved tract of land in what is known as the East Bonita Drainage District. The property in question is approximately 4 air miles northeast of Bonita Springs and is located within Sections 16 and 21, Township 475, Range 26E, Lee County, Florida. It lies around 8 air miles from the Gulf of Mexico; by automobile the distance is approximately 17 miles. Because the area was not surveyed, and there were few, if any, signs on the property in that area, a common starting point to view the property was a television tower in the northeast quarter of Section 30, where the graded road ended. In order to reach the boundary of Section 21, one had to travel approximately one mile east- northeasterly from the tower through Section 29 on trails and other undeveloped land. Section 16, which lay directly north of Section 21, was virtually inaccessible by automobile or on foot. Access from the tower to the lower corner of Section 21 could not be had in a conventional automobile without exceptional weather; however, Minster, May and the other person were in a 4- wheel drive vehicle and proceeded generally east-northeasterly approximately one mile on a trail until they reached a point very close to the southwest corner of Section 21. Then they got out of the vehicle and viewed the property in the immediate area. Although they were at or very close to the western boundary of Section 21, May was never shown any property further eastward, nor was he taken to Section 16 which was approximately one mile north of there. However, Minster

   did point out the general area where the property in Sections 16 and 21 were located, and the type of topographical characteristics to be found in both Sections. He further advised May that there was no reasonable access to the property, no roads had been built, that it was covered with cypress and that the land was under water during part of the year. Minster also advised May that if he planned to subdivide the property, certain registration requirements with the State must be met, and that zoning requirements with Lee County must be adhered to before development of the property could begin.

   
   

5. The property that May was to subsequently purchase was approximately 17 feet above sea level, and was generally covered in varying degrees with cypress, pine trees and palmetto (Petitioner's Exhibit 25). U.S. Geological Maps indicate the predominate characteristic of Sections 16 and 21 to be a swamp or marshland (Petitioner's Exhibit 5). There is no dispute that much of the property was under water during the rainy season.

   
   

6. On August 23, 1976, May negotiated the purchase of 100 acres in Section

   16 from Minster (Petitioner's Exhibit 6). On January 23, 1977, an additional purchase of 85 acres in Section 16 was made by A-1989 Corporation, of which May was president (Petitioner's Exhibit 7). On July 21, 1977, A-1989 Corporation purchased another 40 acres in Section 16 (Petitioner's Exhibit 8). Future 5 Corporation, of which May was president, made a purchase of 100 acres in Section

   21 on October 6, 1977 (Petitioner's Exhibit 9). A final purchase of an undisclosed number of acres in Section 21 was made by 8 Villas Corporation, of which May was president, on February 27, 1978 (petitioner's Exhibit 10). A sixth contract to purchase land in August, 1978, in Section 10 was entered into by the parties but the sale was never consummated (Petitioner's Exhibit 12).

   
   

7. Collectively, the above purchases of land roughly encompassed the southern one-half of Section 16 and the southern one-third of Section 21, Township 47S, Range 26E.

   
   

8. After May began making purchases of the acreage from Minster, he initiated a sales campaign through newspaper advertisements to sell the property in 2 1/2 acre tracts to the general public. These sales were conducted through his realty firm, Commercial Equity Corporation. Although it is alleged that advertisements appeared in "various news publications in and about Broward County", only the following advertisements in the Pompano Beach Shoppers' Guide were made a part of the record:

   
   

   "2 1/2 acres: Invest for tomorrow today, miles of spectacular beaches, south Florida's fastest growing area. Near golf, best fishing,..."

   
   

   "2 1/2 acres in sun and fun Florida, watch yourmoney grow, $65.91 per month $950 down near beaches..."

   
   

   "Live again, get away, beautiful home site, near beaches, good fishing, exc. schools.

   South Florida,..."

   
   

   "2 1/2 acres, no qualifying, booming South Florida near beautiful beaches, only 7 pct. interest, low payments, $65.91 month. Parks, boating, highway and tax deductible. Be

   smart, buy today." (Petitioner's Exhibit 20)

   
   

   Under each of the above advertisements were telephone numbers which enabled the caller to reach either May or his secretary. After the caller gave his name and number, an associate was instructed to return the call and arrange a meeting.

   The above advertisements, or ones similar thereto, were read by, inter alia, William C. Park and Rahlyn Ramsaran who made inquiries concerning the possible purchase of land. Park was referred to Marie L. Bundick while Ramsaran was referred to Edmond Martell, both of whom were salesman for Commercial Equity Corporation.

   
   

9. In June, 1978, Park, Bundick and another Commercial salesman (Bill Soloman) visited the area in question to view the property. They first drove to the television tower in Section 30, and then continued eastward on a "farm access road" until they reached a drainage canal. After following the drainage canal for approximately one-half mile they reached what purportedly was property similar to that which was for sale. It was represented to Park that they were "very close" to where Park's property was actually located, but in no event were they more than a 5-acre tract away. Park noticed a flooded area approximately 1/4 mile away and inquired of Bundick if the property he was buying was within the flooded area; she answered it was not. Based upon these representations, Park later agreed to purchase two tracts of acreage (5 acres) in Section 21 for

   $14,000 from 8-Villas Corporation (Petitioner's Exhibit 24). Park, a professional diving instructor, purchased the property with the expectation of eventually constructing a diving school on the land. These hopes eventually evaporated upon discovering the true character of his land.

   
   

10. In December, 1978, Park received a telephone call from Department Investigator Stevens who advised Parks that other investors had complained of misrepresentations by May and were attempting to get refunds from May on their purchases. He asked Park to show him the property he had been shown by Bundick in June. Park and Stevens visited the area on December 6, 1978, and after seeing the property a second time in conjunction with maps, Park concluded the property shown to him and that actually purchased were not the same. He also concluded that a diving school could not be built on such low-lying property. Park later received a refund on his purchase from May after a Department investigator visited May concerning the sale.

    
    

11. After responding to May's advertisement, Ramsaran visited the property in question in April or May, 1977, with Edmond Martell, a salesman for Commercial. They drove to the television tower in Section 30, and then walked approximately one mile into the rough terrain. Martell advised Ramsaran that the property he was going to purchase began within a couple of hundred feet from where they were standing. Based on that representation Ramsaran purchased three tracts of property in Section 16 for $35,000 on May 11, 1977 (petitioner's Exhibit 26). Because Section 16 was at least one mile north of where Ramsaran and Martell had originally stood when viewing the property, the representation by Martell to Ramsaran was clearly false. Ramsaran revisited the Bonita Springs area on several occasions shortly after that and began making inquiries concerning where his property was actually located. He also studied a map of the area to pinpoint its exact location. After becoming concerned that he may have bought something different from what he had been shown, he called Martell who advised him not to worry and to meet with May to discuss the matter. On May 18, 1977, Ramsaran visited May's office to complain that he had been "taken". May told him it was not a swamp, that it was high and dry and was "good property". He confirmed this representation in a letter given to Ramsaran which stated as follows: "This land is nor is it under water. This land is

    approximately 17 feet above sea level. The land is wooded and is situated approximately one and three-quarters miles northeast from the T.V. tower in Bonita Springs." (Petitioner's Exhibit 23).

    
    

12. Having received this representation from May, Ramsaran's concerns were temporarily allayed until Department Investigator Stevens visited him several months later. That visit prompted Ramsaran to contact a Bonita Springs real estate broker to see if a survey of property could be made. When advised that the property was under water, Ramsaran returned to May and requested a refund of his money. May refused to do so until he was reminded he had guaranteed the property by letter previously given Ramsaran on May 16; May then agreed to make a refund.

    
    

13. In March, 1979, after receiving "pressure" from Department investigators concerning the land sales that were being made, May quitclaimed all of the properties purchased back to Minster (Petitioner's Exhibits 13-17) . By letter he concurrently advised each of the investors to begin making their monthly payments to Minster rather than to May. Although Minster was not forewarned that May was going to convey the property back to him, Minster has retained ownership of the property since that time, and has continued receiving the monthly payments from May's former customers.

    
    

14. Martell was taken by May to the property on three separate occasions to orient him concerning its location and characteristics. Minster also accompanied them on at least one occasion. They went to the television tower in Section 30, and from there traveled east-northeastly for about 3/4 of a mile along a trail into an area covered by pines, cypress and palmetto. After stopping, May pointed out the general direction in which the property was located and described it to Martell as being "high and dry". Despite asking both May and Minster for more specific instructions on several subsequent occasions, Martell was never actually told the precise location of the property being sold.

    
    

15. When Martell began working for May, he was given pictures of the property and told to discuss the general growth of the area with customers and point out its location on a map. When visits were made to the property with prospects May told Martell to drive the prospects to the television tower, and to walk eastward from that point into the woods as far as possible. However, Martell acknowledged he was never sure where the property he was selling was actually located. Both May and Minster told Martell the property was high and dry and 17' above sea level. There were no inaccurate representations made by May to Martell concerning the local zoning ordinance or access to utilities.

    
    

16. Bundick met May through a friend who was employed by Commercial. She began working as a salesman for Commercial in March, 1978, and continued in that capacity until January, 1979. Although Bundick had no experience in selling raw acreage, and preferred to sell residential and commercial property, May encouraged her to sell land. He did not take Bundick to the property in question; instead he gave her a map on which he had traced the directions. After unsuccessfully attempting to find the property on one occasion, Bundick again asked May to show her the property. May told her his secretary would accompany her to the exact location the next time she took a client to inspect the land. Sometime later, Bundick and May's secretary, Deborah Kemph, visited

    the property at which time Kemph told her the property they were standing on was that purchased from Minster. In all future dealings with customers, Bundick used that location as a reference point for selling property, and assumed that what was being shown and what was being sold were the same. To this date, she

    still does not know the exact location of the property that she sold. She claims she simply relied upon the advice given by May, and believes that if incorrect advice was given customers, the fault lies with May.

    
    

17. During her association with Commercial, Bundick acknowledged that besides the sale to Park, she also sold 'several other' parcels of property to various customers.

    
    

18. May stated he was inexperienced in the land sales business when he purchased the property from Minster. He claimed he was "setup" by Minster, an experienced broker, who used Commercial Equity Corporation to merchandise his property; however, this claim was not substantiated. May also claimed he was deceived when he was initially shown the property, and that the exact location of the property being sold was never shown to him. He further stated he deeded the property back to Minster only after drugs had been placed in his food by his secretary, and he did not understand the nature of his actions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Section 475.25(1), Florida Statutes (1977), enumerates the grounds upon which the Department may take disciplinary action against a licensee. As is pertinent herein, such action may be taken against a licensee if he has:

    
    

    (1)(a) 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...(or) has violated a duty imposed upon him by law... (or) 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...

    (1)(b) Been guilty of false advertising in, on or by,...newspapers...of such character as to deceive or defraud investors, or prospective investors, in real property or interests therein.

    
    

21. Section 475.25(3), Florida Statutes (1977) provides in part as follows:

    
    

    (3) The registration of a registrant may be revoked if the registrant shall...be found guilty of a course of conduct or practices which show he is so incompetent, negligent, dishonest or 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.

    
    

22. The Department seeks the revocation of Respondents' licenses. As such, the proceeding takes on special significance in terms of evidence required to substantiate its charges. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, the evidence that is required to "substantially" support a license revocation such as this must be greater than that required to "substantially" support conventional forms of regulatory action. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

    
    

23. In broad terms, it is charged that Respondent May (a) engaged in an advertising program that deceived or defrauded his investors (Count I), (b) violated Chapter 498 by failing to plat and register his land with the Division of Florida Land Sales (Count II), (c) gave false and misleading instructions and information regarding the land in question to his sales associates (Count III),

    1. aided, assisted or conspired with Respondent Bundick in furtherance of the land sales scheme (Count VIII), and (e) was guilty of such a negligent, untruthful and dishonest course of conduct as to warrant revocation of his license (Count VIII). Respondent Bundick is charged with (a) having made false representations to customers concerning the location and characteristics of land being sold (Count VI), (b) having made a false representation to William Park concerning the location of the property being sold to him (Count VII), (c) aided, assisted and conspired with Respondent May in furtherance of the land sales scheme (Count VIII), and (d) engaged in a course of conduct so negligent, dishonest and untruthful as to warrant revocation of her license (Count VIII).

       
       

       1. RESPONDENT MAY

          
          

24. Initially, the charge in Count II that Respondent May had violated Subsection 475.25(1)(a), Florida Statutes (1977) may be summarily dismissed. It was charged that the sales program of May was in violation of Chapter 498..."by reason that the lands were unplatted and not registered with the Department of Business Regulation, Division of Florida Land Sales". However, there was no evidence to show that either the acreage in question or sales program of May were subject to the requirements of the Division of Land Sales, and if so, whether May had failed to register the same with that Division. That being so, Count II of the complaint should be dismissed.

    
    

25. Count I charges that May placed advertisements "...in various news publications in and about Broward County..." offering the sale of his property and that "...(t)he stated ads were known to George May to be false when placed." For this he is charged with violating both Subsections 475.25(1)(a) and (b) supra.

    
    

26. The evidence discloses that while the specific advertisements made a part of this record may be characterized as "puffing" on the part of May, it cannot be concluded that they were of such character "as to deceive or defraud investors...in real property". Both investors who testified were shown the general area of the property before their purchases, and did not rely on the advertisements as a basis for purchasing the same. Moreover, while the advertisements make reference to "beaches", "fishing", "golf" and the like, a reasonably intelligent person should also have understood that these activities and facilities were merely close by, and not in the immediate area. Accordingly, it must be concluded that Respondent May is not guilty of false advertising within the meaning of Subsection 475.25(1)(b) or fraud,

    misrepresentation and the like within the purview of Subsection 475.25(1)(a), and that Count I should be dismissed.

    
    

27. It is next charged in Count III that May "...instructed his sales associates to inform prospective purchasers that, among other things: (a) The property (was) zoned A-1 and a house could be put on 1 1/2 acre parcel... (b)[t]here were road easements to the properties..." and that the "...lands being offered for sale were high and dry and being approximately 17' above sea level". The Department contends that all such advice was false and that by instructing his sales associates to so advise prospective purchasers, he is guilty of violating Subsection 475.25(1)(a), supra.

    
    

28. To begin with, there was no evidence that May instructed his sales associates to misinform prospective purchasers regarding zoning matters or road casements. Neither Martell or Bundick acknowledged as such, and the record discloses that both purchasers Park and Ramsaran were not misinformed regarding these matters. However, May did tell Martell and Bundick that the property was 17' above sea level, which was true according to U.S. Geological Survey Maps, and that the property was "high and dry". The latter advice was incorrect. Minster had previously told May that the land was under water during parts of the year and a reasonable inspection of the area by May should have alerted him to this fact. Moreover, without having ever visited or seen Section 16, it was highly inappropriate to make this type of representation without further inspection of the land or geological survey maps. Accordingly, it is concluded that May is guilty of misrepresentation for misstating a material fact, that if given to the purchasers by the sales associates, would have affected their decision to buy the property.

    
    

29. May is also charged in Count VIII with having aided, assisted or conspired with Bundick in furtherance of the illegal land sales scheme, and to have engaged in a course of conduct or practice so negligent, untruthful and dishonest as to warrant revocation of his license.

    
    

30. As to the charge of conspiracy by May with Bundick, there is no evidence that the two planned or agreed to do an unlawful act, or to do a lawful act by unlawful means. Likewise, the terms "aided" or "assisted" imply that while Bundick was knowingly carrying out her part of the scheme, May offered his advice and assistance to effectuate their plan. This was not shown to be the case, and the charge should accordingly be dismissed.

    
    

31. The second part of Count VIII alleges that May is guilty of a course of conduct that shows he is so incompetent, negligent or dishonest that he is not trustworthy as a representative of those conveying real estate. If true, the statute mandates automatic revocation of his license. Subsection 475.25(1)(a), supra.

    
    

32. The complaint does not spell out with specificity the conduct that supports this charge, but presumably it includes the collective activities of false advertising, the failure to comply with the Land Sales Practices Act, misrepresentations to sales associates, and a large number of sales of acreage to the general public over a period of 2 1/2 years. The inclusion of false advertising and violations of Chapter 498 within this course of conduct is inappropriate for it has previously been concluded that no impropriety in those areas occurred. The exact number of sales which were made by Commercial over the 2 1/2 year period was undisclosed although May acknowledged at one point that some 50 sales were made in one year. But other than the Park and Ramsaran transactions there was no evidence that other purchasers were dissatisfied or

    believed they were misled. Indeed, Minster still enjoys the receipt of monthly payments from many of these same purchasers, who apparently are satisfied with their land. Two land transactions over a 2 1/2 year period in which the purchasers believed themselves to be misled does not constitute an illicit "pattern" or "course" of conduct by Respondent as contemplated by the law. Cf. G & B of Jacksonville, Inc. v. State of Florida, 366 So.2d 877, 878 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2nd DCA 1962). The

    misrepresentation by May to his salesmen that the land was "high and dry", standing alone, cannot underpin the allegation that a pattern of conduct so incompetent, negligent or dishonest as to warrant revocation of the license has occurred. Accordingly, this part of Count VIII should be dismissed.

    
    

    1. RESPONDENT BUNDICK

    
    

33. Respondent Bundick is first charged in Count VI with a violation of Subsection 475.25(1)(a), supra, for misrepresenting to certain purchasers of land that the property being sold was within 5-10 minutes from the Gulf of Mexico, that it was "...high and dry, being 17' above sea level...", and that "...the parcels being contemplated for purchase by the prospects were in or next to but on the other side of a pine tree 'forest'..." all of which she knew to be false.

    
    

34. As to the representation that the property was within 5-19 minutes of the beaches, such was never shown and need not be considered. Bundick did advise buyer Park that the land was high and dry and, in response to an inquiry by Park, told him it was not in a flooded area approximately 1/4 mile from where they were standing but was within a few hundred feet away. Neither representation was apparently true for later investigations by Park revealed the property to be in a different location and under water during parts of the year. 3/ In her defense, Bundick claims she relied solely upon the directions of May's secretary as to where the property was, and simply conveyed this information to Park. But a salesman should not be so cavalier or reckless as to make this type of material representation to a purchaser without knowing whether her representation is true or false. Accordingly, it is concluded that Bundick is guilty of misrepresentation within the meaning of Subsection 475.25(1)(a), supra.

    
    

35. The charge in Count VII is essentially identical to that contained in Count VI, and alleges a misrepresentation by Bundick upon buyer Park as to the location of Park's property when they viewed the property in June, 1978. That being so, Count VII is superfluous and need not be considered since a finding of guilt has been made as to the pertinent portion of Count VI.

    
    

36. Finally, Count VIII charges Bundick with having aided, assisted or conspired with May to carry out the land sales scheme, and to have engaged in a course of conduct which shows her to be so incompetent, negligent, dishonest or untruthful as to warrant revocation of her license. For the same reasons given in paragraph 9 of the Conclusions of Law concerning the same charges against May, the allegation is without merit and should be dismissed.

    
    

37. Having considered Petitioner's Exhibit 20, the same is hereby received into evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of misrepresentation

for instructing his sales associates to inform prospective purchasers that the land being sold was high and dry as set out in paragraph 2 of Count III. It is further

RECOMMENDED that Respondent Marie L. Bundick be found guilty of misrepresentation in her dealings with purchaser William Park as set forth in Subparagraphs 3(b) and (c) of Count VI. It is further

RECOMMENDED that all other charges against Respondents be DISMISSED. It is further

RECOMMENDED that Respondent May's real estate broker's license be suspended for 6 months, and that Respondent Bundick's real estate salesman license be suspended for 30 days.

DONE and ENTERED this 1st day of September 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1981.

ENDNOTES

1/ Sections 475.25(1)(a) and (b) and 475.25(3) have been renumbered by the 1979 Florida Legislature as Sections 475.25(1)(b), (c) and (n), Florida Statutes (1979), without significant change.

2/ See footnote 1, supra.

3/ Because the 2 1/2 acre tracts were cover surveyed, the exact location of Park's property within Section 21 was never disclosed. Moreover, the record is less than perfect regarding the area where Bundick originally took Park and where Park and Investigator Stevens returned. However, the distances estimated to be traveled by the witnesses, coupled with maps which show Section 21 to be essentially a swampy area, support a conclusion that Bundick and Park never ventured into Section 21 but instead had stopped in Section 29, which lies to the west of Section 21. so incompetent, negligent, dishonest or untruthful as to warrant revocation of her license. For the same reasons given in paragraph 9 of the Conclusions of Law concerning the same charges against May, the allegation is without merit and should he dismissed.

COPIES FURNISHED:

Theodore J. Silver, Esquire 9445 Bird Road, 2nd Floor Miami, Florida 33165

George May

2300 West Oakland Park Boulevard Suite 202

Fort Lauderdale, Florida 33311

Marie L. Bundick

232 - 189th Terrace

North Miami Beach, Florida 33160

John Huskins, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-000237

Orders for Case No: 81-000237