STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-1351

)

CHARLES DE MENZES AND )

DE MENZES REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on September 6, 1985, in Ocala, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: James H. Gillis, Esquire

Post Office Box 1900 Orlando, Florida 32801

For Respondent: Harvey R. Klein, Esquire

333 N.W. 3rd Avenue Ocala, Florida 32670

At the beginning of the hearing the Petitioner announced that it had voluntarily dismissed those portions of the Administrative Complaint which originally charged Ralph Thomas West with a violation of Chapter 475, Florida Statutes, and had dismissed West as a Respondent in this case. The hearing proceeded with Charles De Menzes and De Menzes Realty, Inc., as Respondents. Petitioner introduced five exhibits and called Ralph Thomas West, Gail Barbee and Charles De Menzes. Three exhibits were received on behalf of Respondent. Petitioner also offered an affidavit executed on July 27, 1985, by James M. Bell, the primary complaining witness in this case, which was marked for identification but was not received in evidence.

Respondent had previously filed a motion to quash the

Administrative Complaint and a ruling thereon was reserved so that it could be included in this Recommended Order.

Respondent's motion is hereby denied. A transcript of the hearing was filed on September 26, 1985.

The parties were allowed to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4; Florida Statutes. A ruling on each timely filed proposed finding of fact

has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto Ralph Thomas West was a licensed real estate salesman with license number 0364011, and Charles De Menzes was a licensed real estate broker with license number 0174324. De Menzes was operating as qualifying broker and officer of De Menzes Realty, Inc., 2116 East Silver Springs Boulevard, Ocala, Florida, license number 0208877. De Menzes Realty, Inc. was a corporation licensed as a broker in Florida.

   
   

2. From approximately September 3, 1981 to approximately June 14; 1984; West was licensed and operating as a real estate salesman in the employ of De Menzes Realty, Inc.

   
   

3. On March 31, 1984, West obtained an exclusive right of sale listing contract from James M. and Grace Bell for the sale of certain real property. The listing contract was for six months, ending on September 30, 1984, and specified that the listing would be placed with Multiple Listing Service. West had the Bells sign the listing contract, gave them a copy, and returned to De Menzes Realty where he signed the listing and then placed it on the secretary's desk for presentation to, and signature by, De Menzes. Standard office practice was that all listings were placed in a file folder after the salesman and De Menzes had signed them, other required authorization forms were placed in the file and it was returned to the salesman who was then responsible for having all required forms in the file·assigned. The salesman then was supposed to return the file to the secretary who would place the listing with the Multiple Listing Service (MLS). De Menzes told his salesmen that they were responsible for following up on the file and making sure the

   listing had been placed with MLS. De Menzes does not routinely follow up on listings to insure that salesmen carry out these

   responsibilities, and he took no action on the Bell listing after executing the exclusive listing.

   
   

4. After De Menzes signed the Bell listing, it was placed in a file folder along with Key Box Authorization and Notice to Sellers forms which had to be signed by the Bells. West gave these forms to the Bells on April 1, 1984, and they signed them on that date. They also gave West a key to their property and he placed a lock box on the property door.

   
   

5. On April 7, 1984, an auction of the Bell property was held by Max Heubner, who was a licensed real estate salesman working in the employ of De Menzes Realty, Inc. as an auctioneer. Huebner arranged for the auctions himself, including the advertising, and conducted them himself. He did not seek or obtain De Menzes' approval to hold auctions. Huebner would routinely give De Menzes a copy of his auction fliers so that De Menzes would be aware that an auction was

   being held in case someone called the office about it. The Bell property was not sold as a result of this auction.

   
   

6. The Bell listing was never placed in MLS. West did show the property to two people following the auction but never followed up to be sure the listing was entered in MLS.

   
   

7. After West left the employ of De Menzes Realty, Inc., on or about June 14, 1984, no efforts were undertaken by De Menzes Realty to sell the Bell property. De Menzes Realty, Inc. and Charles De Menzes were unaware of the Bell listing until early July, 1984, when Grace Bell called the office to inquire about progress in selling the property. Gail Barbee, broker- salesperson at De Menzes Realty, told Grace Bell that there was no listing on file with De Menzes Realty, Inc., and no listing of their property had ever been placed with MLS. Barbee sent Bell a new listing contract on July 19, 1984, but the Bells decided not to reexecute another listing. On October 4, 1984, Barbee returned pictures of the property, as well as a key which Bell had sent her in response to Barbee's letter in July.

   
   

8. In early May, 1985, West was going through his briefcase and found the entire Bell listing file; including the original listing contract. This was not a file which he prepared on the subject property but was the actual office file prepared on this listing by personnel of De Menzes Realty, Inc. West had placed the file in his briefcase by mistake and did not realize he had it until May, 1985. He subsequently submitted this file to Petitioner on May 30, 1985. The file had been in

   his sole possession for approximately a year, during which time he had completely forgotten about the listing, and had left the employ of De Menzes Realty.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner has charged Respondents with violating Section 475.25(1)(b), Florida Statutes, which authorizes disciplinary action against a licensee who:

    
    

    Has 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, 1n 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 committed an overt act in furtherance of such intent, design, or scheme. It is 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.

    
    

    (Emphasis supplied.)

    
    

11. The burden of proof is upon Petitioner in this case Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA (1977) Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). From the

    evidence it is clear that Respondent's salesman, Ralph Thomas West, obtained an exclusive listing contract from the Bells and presented that contract to Respondent for signature. Through his failure to follow up on that contract and insure that the listing was placed with MLS, Respondent and his realty company demonstrated culpable negligence which resulted in the violation of a duty imposed by the express terms of the listing contract. The Bell file was missing from Respondent's realty company for approximately a year and Respondent had no record of the listing during that time.

    
    

12. The Bell property was never listed with MLS. This would have increased its exposure and potential for sale. The procedures used by Respondent in handling listing contracts in his office were lax and insufficient, and demonstrate culpable negligence and a disregard of duties imposed upon him as a qualifying broker.

RECOMMENDATION

Based upon the foregoing it is recommended that Respondents, Charles De Menzes and De Menzes Realty, Inc., each be reprimanded.

DONE and ENTERED this 16th day of October, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 October, 1985.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 7.

2. Adopted in Finding of Fact 7.

3. Adopted in Finding of Fact 6.

4. Adopted in Finding of Fact 6 and 7.

5. Adopted in Finding of Fact 3 and 4.

Rulings on Respondent's Proposed Findings of Fact:

1. Rejected as irrelevant and unnecessary.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 3 and 4.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 5.

7. Adopted in Finding of Fact 6.

8. Adopted in Finding of Fact 2.

9. Adopted in Finding of Fact 7.

10. Adopted in Finding of Fact 7.

11. Adopted in Finding of Fact 6 and 7.

12. Adopted in Finding of Fact 7.

13. Rejected as irrelevant and unnecessary.

14. Adopted in Finding of Fact 8.

15. Rejected as irrelevant.

16. Adopted in Finding of Fact 8.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

400 West Robinson Street Orlando, FL 32801

Harvey R. Klein, Esquire

333 N.W. 3rd Avenue Ocala, FL 32670

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Harold Huff, Executive Director Division of Real Estate

400 West Robinson Street Orlando, FL 32801

Docket for Case No: 85-001351

Orders for Case No: 85-001351