STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2330

)

GERALD SCHULTZ and CHOICE ) RENTALS & REALTY CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 11, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Board of Real Estate against the Respondents. The Administrative Complaint alleged that Respondents violated Section 475.25(1)(b), Florida Statutes, by refusing to make a refund of a fee paid for rental information.

APPEARANCES

For Petitioner: Theodore J. Silver, Esquire

9445 Bird Road

Miami, Florida 33165 For Respondents: Did not appear

FINDINGS OF FACT

1. At all times pertinent to the allegations of the Administrative Complaint, Gerald Schultz was a real estate broker holding License #0215135 and active firm broker for Choice Rentals and Realty Corporation (formerly Choice Rentals, Inc., and hereinafter "Choice Rentals"), which was a corporate broker holding License #0195222.

   
   

2. Rosemary Hufcut entered into a contract with Choice Rentals on July 30, 1980, for Choice Rentals to provide her with rental information based upon criteria she gave Choice Rentals. Hufcut paid a fee of $50 to Choice Rentals for its services.

   
   

3. Hufcut was looking for an apartment for herself and her two daughters. She specified she wanted a good neighborhood with good schools.

   
   

4. Hufcut was given rental data by Choice Rentals and, with her father, visited a number of the apartments listed. The apartments were not suitable.

5. On the following day, Hufcut requested a refund and submitted a written request for a refund on August 6, 1980.

   
   

6. On August 26, 1980, Hufcut's refund request was denied by a letter from Choice Rentals (Petitioner's Exhibit #6). This letter provided in part:

   
   

   1. Refusal to accept available rental properties meeting the requirements as set forth in your contract with us, does not constitute cancellation of contractual agreement. (This is pursuant to the Florida Law regarding "obtaining a rental".) note - produced available rental property meeting the requirements stated on contract.

      
      

7. Hufcut has never received a refund from Choice Rentals.

   
   

8. The Board introduced Petitioner's Exhibits #1 through #6, which were received in evidence.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Real Estate has authority to discipline the Respondents, who are its licensees, pursuant to Chapter 475, Florida Statutes.

   
   

10. The Respondents are charged with violation of Section 475.25(1)(b), Florida Statutes, which provides:

    
    

    (1) The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

    
    

    (b) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by 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 licensee that the victim or intended victim of the misconduct has

    sustained no damage or loss; that the damage

    or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public;

    
    

11. In the absence of some evidence showing an intent to defraud or make a misrepresentation to a client, the refusal to provide a refund as provided in Section 475.453, Florida Statutes, is not per se a violation of Section 475.25(1)(b), Florida Statutes. However, in the instant case, the letter of August 26, 1980 (Petitioner's Exhibit #6), denying Hufcut's refund is a deliberate misstatement of the provisions of Section 475.453, Florida Statutes.

    
    

12. In Paragraph #1 of said letter, the impression is given that the providing of rental information on available rental property constitutes providing a rental as the term is used in Section 475.453, Florida Statutes. Clearly, the term "rental" as used in Section 475.453, supra, wherein it states "if the prospective tenant does not obtain a rental," does not refer to providing rental information. The term as used in the statute clearly refers to the actual lease of a property. The misstatement of this law as a basis for denial of a refund indicates the Respondents' intent to misrepresent the law and, under these facts, is a violation of Section 475.25(1)(b), Florida Statutes.

RECOMMENDATION

Having found the Respondents guilty of violating Section 475.25(1)(b), Florida Statutes, the Hearing Officer recommends that the Board of Real Estate suspend the licenses of Respondents for ten years.

DONE and ORDERED this 25th day of March, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 25th day of March, 1982.

COPIES FURNISHED:

Theodore J. Silver, Esquire 9445 Bird Road

Miami, Florida 33165

Mr. Gerald Schultz c/o John Hume, Esquire

5100 North Federal Highway, Suite 405

Fort Lauderdale, Florida 33308

Choice Rentals & Realty 3367 North Federal Highway

Fort Lauderdale, Florida 33308

C. B. Stafford, Executive Director Board of Real Estate

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

Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002330

Orders for Case No: 81-002330