STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-3221

) PHILIP MARZO and ALL CITIES ) REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 2, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Did not appear and were not represented

On December 9, 1981, Petitioner issued an Administrative Complaint against Respondents, Philip Marzo and All Cities Realty, Inc., seeking to suspend, revoke, or take other disciplinary action against the Respondents as licensees and against their licenses under the laws of the State of Florida. Respondents timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondents committed the violations set forth in the Administrative Complaint, and whether Respondents' real estate licenses should be revoked, suspended, or otherwise disciplined.

Petitioner presented the testimony of Gladstone Keith Russell.

Additionally, Petitioners Exhibit numbered 1 and Petitioner's Composite Exhibit numbered 2 (a late-filed exhibit) were admitted in evidence.

Petitioner submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

Commencing on July 6, 1982, and continuing through July 15, 1982, Respondent Philip Marzo telephoned the undersigned and/or the undersigned's secretary on several occasions to discuss the non-appearance of Respondents at the formal hearing in this cause. On each occasion, Marzo was advised to either initiate a conference telephone call hearing with the undersigned and Petitioner's attorney or to file something in writing with the Division of Administrative Hearings so that a determination could be made as to the existence of any legally sufficient excuse for the nonappearance of Respondents at the formal hearing. To date, Respondents have failed to do so.

FINDINGS OF FACT

1. At all times material hereto, Respondent Philip Marzo was a real estate broker licensed under the laws of the State of Florida, holding license No. 0217167; and Respondent All Cities Realty, Inc., was a real estate brokerage corporation licensed under the laws of the State of Florida, holding license No. 0217166. At all times material hereto, Respondent Marzo was the qualifying broker for Respondent All Cities Realty, Inc. On May 9, 1981, Gladstone Keith Russell entered into a Service Agreement with All Cities Realty, Inc. Pursuant to the terms of that Agreement, Russell paid $75 in cash to Respondent All Cities Realty, Inc., as an advance rental information fee in exchange for which All Cities Realty, Inc., agreed to provide Russell with listings of available rentals.

   
   

2. On or about May 13, 1981, Respondents provided to Russell one listing, which listing was not suitable to Russell. No other listing information was ever provided by Respondents to Russell.

   
   

3. Russell obtained his own rental within thirty days from the date of the Service Agreement. This rental was not obtained pursuant to any information supplied to him by Respondents.

   
   

4. Within thirty days of the date that All Cities Realty, Inc., contracted to perform real estate services for Russell, Russell telephoned Respondent All Cities Realty, Inc., to demand a return of his $75 deposit. The salesman who took Russell's advance fee was no longer employed at All Cities Realty, Inc., and Russell spoke with Respondent Marzo.

   
   

5. Although Russell demanded a refund of his money, Respondent Marzo did not make a refund to Russell. When Russell spoke with Marzo on the telephone, Marzo, instead of returning Russell's money, used delaying tactics and attempts to keep from making the refund.

   
   

6. Since his telephone calls proved unsuccessful, Russell returned to the All Cities Realty, Inc., office to obtain a refund from Marzo. Upon arriving at the office, Russell found that All Cities Realty, Inc., had gone out of business, and he was unable to locate Respondent Marzo.

   
   

7. Russell has never received a refund of his $75 advance fee paid to the Respondents.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes (1981).

9. Section 475.453(1), Florida Statutes (1981), provides, in pertinent part, as follows:

   
   

   Each broker . . . who furnishes rental information to a prospective tenant,

   for a fee paid by the prospective tenant, shall provide such prospective tenant with a contract or receipt, which contract or receipt contains a provision for the repayment of any amount over 25 percent of the fee to the prospective tenant if the prospective tenant does not obtain a

   rental. . . . A demand from the pro- spective tenant for the return of the fee, or any part thereof, shall be made within 30 days following the day on which the real-estate broker or sales- man has contracted to perform services to the prospective tenant. . . .

   
   

10. In addition to the criminal penalties prescribed in Section 475.453(3)(a), Section 475.453(3)(b), Florida Statutes (1981), provides that "the license of any broker or salesman who participates in any rental information transaction which is in violation of the provisions of subsection

    (1) shall be subject to suspension or revocation by the board in the manner prescribed by law." Additionally, Section 475.25(1)(e), Florida Statutes (1981), authorizes the Board of Real Estate (now known as the Florida Real Estate Commission) to take disciplinary action against a licensee who violates any of the provisions of Chapter 475.

    
    

11. The evidence is uncontroverted that Russell paid the Respondents $75 for a listing that he could not use, that Russell obtained a rental without using any listing obtained from the Respondents, that Russell demanded a refund of his money within thirty days of the contract date, and that Respondent's have failed and refused to refund Russell's fee to him. Petitioner has met its burden of proving that Respondents have violated Section 475.453(1), Florida Statutes, and therefore Section 475.25(1)(e), Florida Statutes.

    
    

12. As set forth above, Section 475.453(3)(b) Florida Statutes, authorizes suspension or revocation of the license of any broker who violates that statute regulating rental information. In its Proposed Recommended Order, Petitioner has recommended that the licenses of the Respondents be revoked. Respondents have failed to present any evidence in mitigation of that recommended penalty. Rather, Respondents' clear and flagrant violation of the statute in question, together with the delay tactics engaged in by Respondent Marzo until Respondent All Cities Realty, Inc., went out of business, and Respondent Marzo could no longer be located, warrant revocation of their real estate licenses.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

Default be entered against Respondents, Philip Marzo and All Cities Realty, Inc., and that a final order be entered finding Respondents, Philip Marzo and All Cities Realty, Inc., guilty of the violations charged in the Administrative Complaints and revoking their real estate licenses.

RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, 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 24th day of August, 1982.

COPIES FURNISHED:

James H. Gillis, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Philip Marzo

2920 Missionwood Avenue, West Miramar, Florida 33025

Mr. Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Carlos B. Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick H. Wilsen, Esquire Staff Attorney

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 81-003221

Orders for Case No: 81-003221