STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-523

)

GEORGE ALIFERIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Arnold H. Pollock, Hearing Officer for the Division of Administrative Hearings, in Orlando, Florida, on July 27, 1983. The issue for determination was whether the Respondent's Florida real estate salesman's license should be disciplined because of alleged violations of Florida Statutes, as contained in the Administrative Complaint.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Gary Printy, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

For Respondent: Erik C. Larsen, Esquire

243 West Park Avenue Winter Park, Florida 32789

INTRODUCTION

Petitioner's Administrative Complaint in this case, filed on December 29, 1982, alleges that during the months of April and May, 1982, Respondent was guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing, culpable negligence, or breach of trust in the practice of the real estate profession, in violation of Section 475.25(1)(b), Florida Statutes (1981)

. On February 2, 1983, Respondent executed an Election of Rights form in which he disputed the allegations against him and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Constance Fillman, George D. Willmer, Charles E. Kimming, Carl J. Reno and Daniel Kerben, and Petitioner's Exhibits 1 through 11. Respondent testified in his own behalf and presented the testimony of Philip Fillman, Kenneth R. Ramsdell and Daniel Boone Hudgens, and Respondent's Exhibits A and B.

FINDINGS OF FACT

1. At all times pertinent to this hearing, Respondent, George Aliferis, was licensed as a real estate salesman in Florida under License No. 0325121.

   
   

2. During all of April and May, 1980, Respondent was an associate in the real estate office of George D. Willmer.

   
   

3. Mr. Willmer, a registered real estate broker, had managed property located at 713 East Court Street in Longwood, Florida, a 7-year-old home owned by William and Gloria Thomas, for several years while the Thomases were away, living in South Carolina. On April 3, 1980, Mr. and Mrs. Thomas entered an exclusive listing of their property for sale with Mr. Willmer. The asking price was $42,500, with $10,000 down, assumption of a first mortgage of $16,750, and the Thomases would hold a second mortgage of $15,750. Before executing the sales listing, the Thomases were advised by Mr. Willmer, their agent, that a sales price of $40,000 was fair, as other comparably sized houses in the area were selling for between $37,000 and $41,000. The price of $42,500 was to give the Thomases some bargaining room.

   
   

4. On April 15, 1980, Respondent, who was then a salesman in Mr. Willmer's agency, submitted an offer to purchase the Thomases' property for $40,000, the exact price suggested by Mr. Willmer, his broker, to the Thomases, with $500 cash paid at time of offer, assumption of the first mortgage described above, a second mortgage of $13,250.10, and $9,500 cash at closing. The contract executed that date by Respondent listed him, his assigns or nominees as buyer, and called for a closing by June 30, 1980. This date was unilaterally changed to May 30, 1980, by the Respondent on April 16, 1980, the day after the offer was made.

   
   

5. On April 16, 1980, the Thomases telegraphed their acceptance of Respondent's offer and terms with the exception that they stipulated closing would be held on or before May 15, 1980. The contract document signed by Respondent, bearing the May 30, 1980, closing date, was signed by the Thomases on April 20, 1980.

   
   

6. On Sunday evening, April 27, 1980, Respondent telephoned Mr. and Mrs. Philip Fillman, then recent arrivals in the Orlando area, whom he had heard were looking for a house to buy. The Fillmans met the next day with Respondent, who took them to see the Thomas house. After checking it over, they decided to make an offer. Respondent had advised them during this period that comparable homes in the area were selling for $55,000 to $61,000 and that this house listed at

   $45,500 was a good investment. When the Fillmans asked if the owners would possibly take less, Respondent replied they would not, having already turned down a lesser offer. At no time did Respondent indicate he already had the house under contract for $40,000 or that he was representing himself. At no time was any offer for the property, other than that submitted by Respondent for

   $40,000 which was accepted by the Thomases, ever submitted to them by Respondent, Mr. Willmer, or anyone else.

   
   

7. The Fillmans agreed to the $45,500 price and, on April 28, 1980, executed a contract to buy the property in question for that price, making a cash down payment at the time of execution of $6,000 payable to George Aliferis, the Respondent. Respondent deposited that check to his personal account at Park Federal Savings and Loan Association. It was not put into the real estate agency's escrow account. The name of the seller on the contract signed by the Fillmans was not the Thomases, but was instead George Aliferis, who indicated he

   had "control" of the property. He did not explain what that term meant. The contract executed by the Fillmans and by Respondent in his own name the same day, April 28, 1980, called for assumption of both mortgages and closing by June 1, 1980.

   
   

8. Because the Fillmans were renting, they asked for, and received from Respondent, permission to move into the house prior to closing. They did so on May 11, 1980.

   
   

9. Closings on both transactions were held at the law office of David Kerben in Orlando on May 14, 1980, in succession. At the first closing not personally attended by the Thomases, they conveyed the property to Respondent, who paid a net of $6,499.90 in cash which represented the net to close for the

   $40,000 purchase price, less $550 required to fix the air conditioner which had been complained of by the Fillmans. At that closing, Respondent also executed a second mortgage to the Thomases in the amount of $13,250 as a part of the purchase price.

   
   

10. Within minutes of the Thomas-Aliferis closing referenced above, Respondent then conveyed the property to the Fillmans, who were present at the closing and who paid a net to close of $10,126.40 after a $6,000 down payment, and the two mortgages totaling $29,842.10. At the closing, the Fillmans signed a form relating to property insurance which also bore the notation that a payment of $159.05 was due to the Thomases (their address was also listed) on June 14. When the Thomases received that payment from the Fillmans, they called to find out why the Fillmans had sent the payment and in the course of this conversation, which took place on July 14, 1980, both parties first learned of the course of events which led up to the Fillmans' purchase. Up until that point, neither Mr. Willmer nor Respondent had made clear the nature of the transaction, except that on May 14, 1980, when the Fillmans arrived at lawyer Kerben's office for the closing, Respondent met them outside and said something about having just taken title to the property.

    
    

11. Respondent contends that at the time he contracted with the Thomases to buy the property, he intended to live in it if his wife approved of it, or to lease it out on a long-term basis as an investment. However, Respondent had just recently moved into a newly built house and, in fact, put the property in question up for sale within two weeks of his contract. Respondent also indicated that he had been a real estate, agent only a few months, yet his application for licensure shows he was a licensed real estate agent in Maryland for approximately five years. In light of this evidence, I find the Respondent's credibility to be questionable and that he failed to fully disclose all required information regarding the transaction to his parties, the Thomases.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

13. In the Administrative Complaint, Respondent is alleged to have violated Subsection 475.25(1)(b), Florida Statutes (1979 and 1981), by concealing pertinent information regarding the transaction in which he was involved as salesman to his principal, the Thomases, and by ,misrepresenting material facts to the prospective purchasers.

    
    

14. The pertinent statutory provision 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 sepa- rate offense, or may issue a reprimand, if it finds that the licensee or appli- cant has:

       
       

       (b) Been guilty of fraud, mis- representation, 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 further- ance 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 confiden- tial relation with the licensee, or was an identified member of the general public . . .

       
       

15. The evidence presented at the hearing and the reasonable inference to be drawn therefrom clearly show the Respondent failed to fully disclose his participation in this real estate transaction and misrepresented material facts to his principal and the parties with whom he was dealing. This is a violation of the statute, as alleged.

    
    

16. The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

In light of the above, it is, therefore,

RECOMMENDED:

That Respondent's license to practice real estate in Florida be suspended for one year and that an administrative fine of $1,000 be imposed upon him.

RECOMMENDED this 8th day of September, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1983.

COPIES FURNISHED:

Tina Hipple, Esquire Gary Printy, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Erik C. Larsen, Esquire

243 West Park Avenue Winter Park, Florida 32789

Mr. Harold Huff Executive Director

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

William M. Furlow, Esquire Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 83-000523

Orders for Case No: 83-000523