STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1825

)

ROBERT L. BRIGGS and GREAT ) AMERICAN REALTY OF TAMPA BAY, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on August 20, 1985 in Tampa, Florida by Stephen F. Dean assigned hearing officer of the Division of Administrative Hearings. This case arose on an administrative complaint filed by the Florida Real Estate Commission alleging Respondents had filed a status report with Multiple Listing Service (MLS) extending the expiration date of a listing agreement and forged the signatures of the sellers on an Exclusive Right to Sell. Each act was alleged to be a fraud, misrepresentation, etc., contrary to Section 475.25(1)(b), Florida Statutes, and false advertising contrary to Section 475.21(1)(c), Florida Statutes.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Gerald Nelson, Esquire

4830 West Kennedy Boulevard Tampa, Florida 33609

ISSUES

The Respondents admit filing the status report extending the expiration date from September to December 1983 and to signing the Averys' names to an Exclusive Sales Agreement which they filed with Multiple Listing Service. These facts are not disputed; however, the evidence was presented that shows that the original expiration date was extended, and that the purpose of signing the Averys' names to the contract was to keep the property in Multiple Listing Service. This raises the factual issue of whether the Averys and Respondents intended to extend the contract, because, if so, then the status report was accurate. It raises the legal issue of whether the forgery of a contract only for the purpose of maintaining a Multiple Listing Service listing is fraud, misrepresentation, etc., in any business transaction.

The Petitioner and Respondents have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Robert L. Briggs, prior to February 23, 1983, was licensed as a real estate broker with the State of Florida, and holds license number 0178630.

   
   

2. The Respondent, Great American Realty, prior to February 23, 1983, was licensed as a real estate corporate broker with the State of Florida, and holds license number 0218583.

   
   

3. On February 23, 1983, Respondents obtained an Exclusive Right to Sell Listing Agreement with an expiration date of September 1, 1983, from Richard E. Avery and Barbara C. Avery to sell their residential property as 5121 Ehrlich Road Tampa, Florida 33624. (Transcript pages 13, 17 and 31. Petitioner's Exhibit #2, and Respondent's Exhibit #1.) This property's legal description is: North 600 ft of South 633 ft of S.E. 3/4 of S.E. 1/4 less 825 ft Sec 31 TWP 27 So. Range 18 East Hillsborough County, Florida. (See Respondent's Exhibit #3.)

   
   

4. Respondents submitted the Exclusive Right to Sell Listing Agreement to the Tampa Multiple Listing Service on February 28, 1983. The data obtained from the Agreement submitted by the Respondents was entered into the Tampa Multiple Listing Service's computer where it was "advertised" to other

   brokers who were also members of the Tampa Multiple Listing Service. (Transcript page 55.)

   
   

5. On or about July 6, 1983, the Respondent Briggs and John E. Wolf entered into a contract with the Averys to purchase the Averys' property for $17S,000.00. This contract had no closing or termination date but was contingent upon the sale of the buyer's property at 4917 Ehrlich Road. This contract was in full force and effect at all times pertinent to the charges. (Petitioner's Exhibit #3, Respondents' Exhibit #3, Transcript pages 15 and 22.)

   
   

6. The Respondents filed at least two status reports with the Tampa Board of Realtors. The first was a zoning change received July 6, 1983, and the other, which indicates an extension of the Listing Agreement from September 1, 1983 to December 1, 1983, was filed in August of 1983. (Transcript pages 56, 57 and 58.) The Sellers' signatures are not required to be placed on the status reports filed with Multiple Listing Service. (Transcript page 64.)

   
   

7. Respondents had placed a "For Sale" sign on the Avery's property in February 1983 which identified the Respondents as the broker and corporate broker selling the property. (Transcript page 23.)

   
   

8. After September 1, 1983, the Averys were aware that the Respondents were continuing their efforts to sell their house by the Respondents' "For Sale" sign which remained on the house through December of 1983. (Transcript page 23.) Other realtors were shown the property. This was done with the knowledge and consent of the Averys. (Transcript page 34.) The Averys acted at all times as though the Respondents had an exclusive listing until contact by Joseph Perez in December 1983. (Testimony of Averys.) The Respondents acted at all times as though they had an exclusive listing after September 1983. (Testimony of Briggs.)

   
   

9. On or about December 20, 1983, Perez called the Averys and asked if they still wanted to sell their property and if they had relisted the property with Respondents. (Perez had checked the expired listings file of MLS.) The Averys said they had not renewed the listing. Perez and the Averys entered into an "open" listing on the telephone and Perez took them a contract to be signed. Having obtained a signed open listing, Perez then tendered the Averys an offer to purchase from Camelot Investments, Inc., which was owned by Perez' brokers. The

   Averys signed this purchase contract. (Transcript page 37, et seq.)

   
   

10. Perez, on the instruction of his broker, had the Averys execute an Exclusive Listing Agreement (Respondent's Exhibit #5) which Perez filed with MLS after the contract for purchase was executed. (Transcript pages 48 and 49.)

    
    

11. The Respondents did not extend the MLS listing before December 1, 1983. (Transcript pages 21 and 33.) Under the rules of MLS the Respondents were required to submit a second Exclusive Right to Sell Listing Agreement (Respondent's Exhibit #4) to the Tampa Multiple Listing Service.

    
    

12. On or about December 12, 1983, the Respondent filed the contract (Respondents' Exhibit #4) with MLS (Transcript page

    $9.) This contract was returned because it lacked an expiration date. (Transcript pages 60 and 61.) On or about December 20, 1983 the contract was returned bearing the expiration date of March 8, 1984. (Petitioner's Exhibit #4, Transcript page 60.) Briggs signed the Averys names to the contract. (Petitioner's Exhibit #4 and Respondents;' Exhibit #4, Transcript page 82.) The Averys had not specifically authorized the Respondent to sign for them. (Transcript pages 21 and 33.)

    
    

13. The Respondents learned of the contract for purchase with Perez and contacted the Averys reminding the Averys of their prior contract. The Respondents also told Perez's broker about Respondents' contract for sale. On December 30, 1983, the Averys signed with Respondent Briggs and his partner a contract for sale which deleted the contingencies in the July contract. (Transcript pages 37. 82 and 83.)

    
    

14. Thereafter, Camelot Investments sued the Averys to enforce their contract with the Averys. The Averys joined the Respondents. (Transcript page 28.)

    
    

15. The Respondents never sued anyone, never sought to collect a commission, or recover costs. The Respondents never claimed or received any compensation of any kind for their efforts to sell the Avery property. The Respondents never raised the existence of or asserted any right under the contract they signed and sent to MLS. (Transcript page 84.)

    
    

16. Even though Cloudman, Perez' broker and owner in Camelot Investments, Inc., was first introduced to the Avery property when listed with Respondent and even though an open contract was

    entered into with Camelot Investments prior to their Exclusive Listing Agreement being signed and before it was placed in MLS, the Respondents received no fee from this transaction. (Transcript pages 30, 40, 41 and 84.)

    
    

17. The Tampa Board of Realtors is a private trade organization and has no official relationship with the Florida Real Estate Commission. The Tampa Board of Realtors has rules for MLS. (Transcript pages 62 and 63.)

    
    

18. The Respondents' submittal to the Tampa Multiple Listing Service of the Exclusive Right to Sell Listing Agreement which Respondents signed resulted in the Averys' property being "advertised" to the 850 brokers who were members of the Multiple Listing Service. (Transcript pages 61, 62, 63 and 64.) This was the Respondents' purpose in signing the Averys names and submitting the contract to MLS.

    
    

19. Respondents advertised the Averys' property in the Tampa Multiple Listing Service from February through December 1983. (Transcript page 83.)

    
    

    CONCLUSIONS OF LAW

    
    

20. The Florida Real Estate Commission is authorized to regulate and discipline real estate brokers and salesmen, pursuant to Chapter 475, Florida Statutes. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

21. The Administrative Complaint alleges commission of two acts, each of which is alleged to violate two laws. The acts are (1) filing a status report which extended the expiration date stated in the original contract from September to December 1983, and (2) forging the sellers' names on a second exclusive right to sell agreement which Respondents filed with Multiple Listing Service (MLS). Both acts are alleged to violate Section 475.25(1)(b), Florida Statutes which proscribes fraud, misrepresentation, etc., and Section 475.25(1)(c), which proscribes false advertising.

    
    

22. Under the facts presented, whether the Respondents' act of extending the expiration date was a violation of Section 475.25(1)(b), Florida Statutes is dependent upon whether the parties intended to extend the date. Given the terms of their

    July contract (Respondents' Exhibit #3) and the conduct of the Averys and the Respondents, it is clear they intended to extend the contract indefinitely.

    
    

23. Because the change submitted to Multiple Listing Service was consistent with the intent of Respondents and the Averys, filing the extension was not a violation of Section 475.25(1)(b) or (c), Florida Statutes.

    
    

24. Concerning the allegations that the Respondents forged the Averys' names to the exclusive listing contract, it is clear from the facts that the Respondents signed the Averys' names to the contract solely to list the property in Multiple Listing Service and circumvent the rules of MLS. At no time did the Respondents assert any rights under the "forged" contract. The issue is whether this constitutes forgery and whether the forgery constitutes a violation of Section 475.25(1)(b) or (c), Florida Statutes.

    
    

25. Forgery requires an evil intent to prejudice another person's right. Although the Respondent did not enforce the contract as it related to the Averys, submission of the contract to MLS resulted in MLS contributing to advertise the property when under its rules MLS would have refused. The Respondents had no intent to violate the rights of the Averys; however, the Respondents intended to induce MLS to publish the advertisement. This constitutes a forgery and a violation of Section 475.25(1)(b), Florida Statutes.

    
    

26. Clearly, signing the Averys names to the exclusive listing contract was forgery and a violation of Section 475.25(1)(b), Florida Statutes. It is straining the intent of the prohibitions of Section 475.25(1)(c), Florida Statutes to say that the forgery resulted in "false advertising." In addition, even if Section 475.25(1)(c), Florida Statutes were deemed to be violated, it was the same act which Respondents violated Section 475.25(1)(b) supra and can only be punished one time.

    
    

27. Mitigation: Any forgery of a document by a broker or salesman is a very serious matter. Forgery is by its very nature fraud and misrepresentation. The introduction of false documents in a real estate transaction expands the opportunity for misunderstandings and costly litigation. However, the facts show that the Respondents had only one narrow purpose, i.e., to keep the listing in MLS. Their actions were consistent with their understanding with the Averys that the Respondents

continue to broker the property. The Respondents never sought to enforce this forged contract although it may have been to the benefit of the Averys and the Respondents to do so. The Respondents' acts must be looked at in this context. It seems clear the Respondents signed the Averys' names as an act of expediency, not in a wilful intent to harm anyone, including MLS.

RECOMMENDATION

Having found the Respondents guilty of one act of violating Section 475.21(1)(b), Florida Statutes by forging a contract but in consideration of the Respondents' narrow intent, it is recommended the Respondents be suspended for six (6) months but that upon payment of a civil penalty of One Thousand Dollars ($1,000.00) the suspension be suspended.

DONE AND ORDERED this 15th day of November, 1985 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 15th day of November, 1985.

APPENDIX

The proposed findings of fact of the Petitioner and Respondents were read and considered with the following results:

Mr. Harold Huff Executive Director

Department of Professional Regulation Division of Real Estate

P.O. Box 1900 Orlando, FL 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Mr. Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Arthur R. Shell, Jr., Esq. Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Gerald Nelson, Esq. 4830 West Kennedy Blvd. Tampa, FL 33609

Docket for Case No: 85-001825

Orders for Case No: 85-001825