STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2478

) BERNARD A. SANTANIELLO and SUNAIR ) REALITY CORPORATION )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Port Charlotte, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.T. Carpenter, on March 11, 1982. The parties were represented by:

For Petitioner: Salvatore A. Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert J. Norton, Esquire

First National Bank Building, Suite 408 Punta Gorda, Florida 33950

This matter arose on Petitioner's administrative complaint charging that Respondents engaged in dishonest dealing and false advertising in violation of Section 475.25, Florida Statutes (1979). Specifically, Petitioner alleges that Respondents offered to sell property as agents for the seller while secretly representing the buyer.

FINDINGS OF FACT

1. Respondent Santaniello holds real estate broker license number 0186475, and was so licensed at all times relevant to this proceeding. Santaniello is the active broker for Respondent, Sunair Realty Corporation, which holds license number 0213030.

   
   

2. Mr. Don M. and Mrs. Agnes C. Long own two lots in Port Charlotte which they purchased as investments. By letter dated June 8, 1981, Respondents forwarded a "Deposit Receipt and Contract for Sale and Purchase" on each of these lots to the Longs.

   
   

3. The documents established that Anni Czapliski was the buyer at a purchase price of $1200 per lot. Respondent Sunair Realty Corporation was to receive the greater of $120 or ten percent of the felling price for "professional services." The letter and documents were signed by Respondent Santaniello.

4. Anni Czapliski was Bernard Santaniello's mother-in-law at the time of the proposed sale. This relationship was not disclosed by Respondents and was not known to the Longs at the time they were invited to contract with Respondents for sale of the lots. The Longs rejected the proposed arrangement for reasons not-relevant here.

   
   

   CONCLUSIONS OF LAW

   
   

5. Subsection 475.25(1), Florida Statutes (1979) provides in part:

   
   

   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 adminis- trative 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:

      1. Been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or

         breach of trust in any business transaction. . . .

      2. Advertised property or services in a manner which is fraudulent, false,

      deceptive, or misleading in form or content;

      
      

6. A broker has imposed upon him during the period of relationship with his principal the obligation to inform him with fairness, promptness, and completeness of all facts within his knowledge which are or may be material to the situation in connection with which he is employed. Chisman v. Moylan, 105 So. 2nd 186, 189 (Fla. 2nd DCA, 1958)

   
   

7. By offering to sell this property for a fee or commission, Respondents were acting or proposing to act as brokers for the Longs. Respondents were therefore duty-bound to disclose all material facts to the Longs.

   
   

8. The relationship between Respondent Santaniello and the proposed buyer was a material fact which the sellers were entitled to know. By failing to disclose this information, Respondents are guilty of dishonest dealing in a business transaction as charge in administrative complaint and as condemned in Subsection 475(1)(b), Florida Statutes (1979)

   
   

9. The charge of false advertising in violation of Subsection 475.25(1)(c), Florida Statutes (1979), should be dismissed. Advertising involves notice to the public. The evidence here established only that the Respondents sought to deal with specific individuals and not the public at large or any segment thereof.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a Final Order finding Respondents guilty

of violating Subsection 475.25(1)(b), Florida Statutes (1979), and fining each

$500.

DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert J. Norton, Esquire Suite 408

First National Bank Building Punta Gorda, Florida 33950

Mr. C.B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801

Frederick Wilsen, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

R.T. CARPENTER 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 16th day of April.

Docket for Case No: 81-002478

Orders for Case No: 81-002478