Findings Of Fact The Defendants are registered with the Florida Real Estate Commission as brokers. The Defendant Mershon is the President of the Defendant Orlando Metro Realty, Inc. During May, 1971, the Defendant Mershon, acting as a real estate broker, negotiated a sale of land from Carolina Caribbean Corporation to Edye Lynn. The property is located in North Carolina, and the contract for sale was signed in an airplane between North Carolina and Florida. For reasons that are not relevant to this proceeding, Ms. Lynn became disenchanted with the transaction. The Defendant Mershon agreed to assist her in finding a purchaser. On January 23, 1972, Charles Schiller Martin, signed a contract to purchase Ms. Lynn's property. The Defendants acted as brokers in securing the purchaser. The contract was signed in North Carolina. The contract was received in evidence, and is marked as Exhibit number 1 to each of the four depositions. Mr. Martin deposited the sum of $500 with the Defendant when he signed the contract. A copy of the cancelled check from Mr. Martin to the Defendants was received in evidence and is marked as Exhibit number 2 to each of the depositions. Ms. Lynn accepted Mr. Martin's offer. Mr. Martin submitted the contract to his attorney, George W. English III. On March 7, 1972 Mr. English wrote to Henry J. Prominski, an attorney who represented Ms. Lynn, requesting that several items respecting the property be forwarded to him. This letter was received in evidence and is marked as Exhibit number 5 to each of the depositions. On March 22, 1972, Mr. English wrote to Mr. Prominski informing him that Mr. Martin wished to cancel the contract to purchase. A copy of this letter was received in evidence, and is marked as Exhibit number 3 to each of the depositions. Mr. English advised Mr. Martin that marketable title could not be delivered, primarily because there were deed restrictions applying to the property which were not mentioned in the contract for sale. Assessments for water, sewer, and road grading were cited by Mr. English as particularly onerous. The March 22 letter was followed on April 25, 1972, with another letter. This letter was received in evidence, and is identified as Exhibit number 4 to each of the depositions. Mr. English never made any direct demand upon Mr. Mershon for return of the $500 deposit to Mr. Martin. He did make a demand upon Mr. Prominski. It is Mr. English's legal opinion that the seller could not deliver marketable title to the buyer. Mr. Prominski, representing the seller, is of the opinion that marketable title was available to be delivered to the buyer. Mr. Prominski stated that his client did not default in her obligations under the contract. Mr. Mershon opted to construe the purchase contract between Mr. Martin and Ms. Lynn as breeched by Mr. Martin. He forwarded $250 of the deposit to Ms. Lynn and retained $250 for himself. He explained his action in this regard in a letter to Mr. Prominski dated September 13, 1972. This letter was received in evidence, and is marked as Defendants' Exhibit number 1. This arrangement was apparently satisfactory to Ms. Lynn, and Mr. Prominski communicated Ms. Lynn's approval through a letter dated October 11, 1972. This letter was received in evidence, and is marked as Exhibit number 8 to each of the depositions. Approximately three weeks prior to the time that Mr. Martin signed the contract to purchase the Lynn property, Mr. Mershon delivered copies of various reports to Mr. Martin, including the restrictions that would apply to the property, and the contract to purchase from Carolina Caribbean Corporation which had been executed by Ms. Lynn. At approximately the time that Mr. Martin signed the contract, Mr. Mershon advised him that title insurance was available. The Defendants acted as brokers in many transactions in the development in which the property involved in this case is located. They had obtained title insurance on many similar lots. Only in this case was there any objection to title. Prior to his distributing $250 of the $500 deposit to Ms. Lynn and his retaining the remaining $250, Mr. Mershon consulted with attorneys for Carolina Caribbean Corporation who advised him that the Martins had defaulted in their obligations. Mr. Mershon personally spent approximately $1,000.00 in transporting Mr. Martin from Florida to North Carolina. Defendants did not seek the advice of the Florida Real Estate Commision respecting the disposition of the deposit monies, did not submit the issue to arbitration, did not interplead the parties, and did not otherwise seek an adjudication in a proper court. No evidence was offered with respect to standards for determining the marketability of real property in North Carolina. No evidence was offered respecting the marketability of title to the land in this case, other than the opinions of Attorney English, Attorney Prominski, and Defendant Mershon.
Findings Of Fact Documents introduced into evidence revealed that the Respondent Jeremiah C. Clarke is a registered real estate broker and Clarke Real Estate is an entity registered as a partnership broker and authorized to act as such with the Commission. On or about September 15, 1975, Jerry Kent, a salesman with Respondent, Clark Real Estate, obtained an oral open listing from Esther Braverman on a condominium unit denominated as "Apartment B-804, 1111 Crandon Boulevard, Key Biscayne, Florida." Pursuant thereto, salesman Kent showed the condominium unit to Jacques Benoist and Jeanine Benoist, his wife, who executed a deposit receipt contract to purchase a condominium unit on September 27, 1975. Esther Braverman, the seller, executed the contract during October of 1975. The deposit receipt contract provided for a $10,000 earnest money deposit to be held in the escrow account of the law firm of Snider, Young, Barrett, and Tannenbaum, P.A., attorneys for seller Braverman. Said deposit was made on September 27, 1975, by delivering a check to attorney Bruce L. Hollander, a member of the firm, who deposited the deposit in the firm's escrow account. (See Commission's Exhibit No. 9). The deposit receipt contract also obligated the seller, Esther Braverman, to pay Respondent Jeremiah C. Clark a commission of $7,875. Specifically, the contract provides that "I, or we, agree to pay to the above assigned broker a commission for finding the above signed purchaser for the above described property, the sum of $7,875 . . . ." Closing took place on January 19, 1976, at the offices of Washington Federal Savings and Loan Association, Miami Beach, Florida, from whom the Benoists had obtained financing for the purchase. At the closing on January 19, 1976, Esther Braverman signed and delivered a warranty deed made out to Jacques Benoist and Janine Benoist, transferring the property to the Bravermans. The warranty deed was recorded with the clerk of the Dade County Circuit Court by the lending institution, Washington Federal Savings and Loan Association. (See Respondent's Exhibits 1 and 2) At the closing, Jeremiah Clark was given a check representing the commission to Clarke Real Estate in the amount of $7,875. Thereafter, Jerry Clarke was requested by the lending institution to hold the funds in escrow until the bank dispursed the mortgage proceeds. He was then told that the mortgage proceeds would be paid within the following week. Respondent Clarke agreed, pursuant to a request from the seller's attorney, Bruce Hollander, to hold the commission check until January 27, 1976, without depositing same. Mr. Clarke held the commission check until January 29, 1976, as agree. On that day, he dispursed the proceeds to salesman Jerry Kent and the balance was credited to Clarke Real Estate. The mortgage funds were never disbursed because the lending institution could not obtain a quit-claim deed from the seller, Esther Braverman's former husband and therefore in the lending institution's opinion, the defect was not discovered until after the closing. On May 6, 1976, attorney Hollander acting for his law firm and the seller sent Respondent Jeremiah C. Clarke and Respondent Clarke Real Estate a letter stating that the mortgage proceeds had not been disbursed by the lending institution and requested a demand for the commission check. The Commission takes the position that the closing which occurred on January 19, was an escrow closing and that the Respondent Jeremiah Clarke was not authorized to disburse the proceeds from the commission check until notification that the mortgage proceeds were disbursed by the lending Institution. The Respondents, on the other hand, took the position that their only obligation was to find a purchaser who was ready, willing and able to complete the transaction, which acts were consummated by their salesman, Jerry Kent. Based on my examination of the document introduced herein, and the testimony adduced during the hearing, the undersigned concludes that the Respondent's position that it was entitled to receive the commission monies here in dispute has merit. Although the Commission takes the position that an escrow closing occurred, an escrow has been defined as a written instrument which by its term imports a legal obligation and which is deposited by the grantor, promisor, or obligor, or his agent with a stranger or third party to be kept by the depository until the performance of a condition or a happening of a certain event and then to be delivered over to the grantee, promisee, or obligee. It cannot be seriously contended herein that the Respondent Clarke was acting as an escrow for himself when consideration is given to the above definition of an escrow. See Love v. Brown Development Company, 131 So. 144. It is further essential to an escrow that delivery of the instrument be to a stranger or to a third person, that is, to one who is not a party to the instrument, or a person so free from any personal or legal identity with the parties to the instrument as to leave them free to discharge his duty as a depository to both parties without involving a breach of duty to either. For example, a deed delivered to a grantee cannot be regarded as held in escrow. Here, Respondent Clarke was in no way acting for anyone other than himself or as agent for his salesman, Jerry Kent, both of whom had a direct stake in the commission proceeds. Additionally, upon examination of the deposit receipt contract, the broker became entitled to the commission proceeds when the buyer (purchaser) was found. Additionally, and as an aside, it was noted that the lending institution in fact recorded its mortgage the day following the closing This would lead any examiner of the public records to believe that the lending institution was satisfied with the title as conveyed on the closing date. It was further noted that the Respondents had no indication that there was a problem with the title until approximately five months following the closing. Finally, the undersigned received a letter from attorney Lipcon dated August 1, 1975, advising that the civil case which was pending before the Dade County Circuit Court involving similar issues as posed herein before the commission had been fully and finally settled. There was a stipulation for dismissal signed by attorneys for each of the parties including the attorney for the firm that made the complaint against the Respondents stating in essence that the monies paid to Respondent Clarke and which was retained by him as full and final settlement of his brokerage commission were to be retained by Respondent Clarke as final payment of his commission in connection of the sale of the subject condominium. For all of these reasons, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the Findings of Fact and Conclusions of Law as found above, it is hereby recommended that the complaints filed herein be dismissed in their entirety. Recommended this 23rd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
Recommendation It is recommended that the Complaint against the Respondent be dismissed. ENTERED this 9th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Staff Attorney, Florida Real Estate Commission 17 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lawrence Scherr 2222 Southwest 22nd Terrace Miami, Florida 33145 C. B. Stafford, Executive Director Florida Real Estate Commission 699 Lee Road Winter Park, Florida 32789
Findings Of Fact Defendant, Ray Sans, is currently registered as a real estate broker in the State of Florida, holding Certificate No. 0077190. On April 2, 1973, Defendant submitted a Requests for Registration Certificate as a registered real estate salesman in the employ of Southeast Land Corporation. The Defendant's application was also signed by Darien Kendall, a registered real estate broker in the State of Florida, who also served as Vice President of Southeast Land Corporation. The application form recites that the applicant was to be "exclusively connected" with Southeast Land Corporation, which indicated its willingness to carefully supervise the applicant in his activities as a registered real estate salesman. On April 3, 1973, Defendant, Ray Sans, and Darien Kendall, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, pursuant to Rule 21V-2.24, Florida Administrative Code, which was received by the Florida Real Estate Commission on April 9, 1973. On May 21, 1973, Defendant, Ray Sans, submitted a second Request for Registration Certificate as a registered real estate salesman in the employ of Store Realty Corporation. This request was also signed by Robert Pepper, President of Store Realty Corporation, and a registered Florida real estate broker. The application form indicates that Defendant, Ray Sans, was to be "exclusively connected" as a real estate salesman with Store Realty Corporation. On May 21, 1973, Defendant, Ray Sans, and Robert Pepper, as apprenticing broker, signed a Declaration of Employment for Apprenticeship Purposes, indicating that Defendant, Ray Sans, was to be employed as a real estate salesman with Store Realty Corporation, pursuant to the provisions of 21V-2.24, Florida Administrative Code. This declaration was received by the Florida Real Estate Commission on May 24, 1973. On July 27, 1973, a Notice of Termination of Salesman's Employment was signed by a representative of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, indicating that Defendant, Ray Sans, had resigned from the employ of Store Realty Corporation, effective July 27, 1973, and that his services while in the employ of that company had been satisfactory. Defendant, Ray Sans, returned to the employ of Southeast Land Corporation in September of 1973, and remained in the employ of that company as a real estate salesman until February, 1975. Defendant testified that he completed a Declaration of Employment for Apprenticeship Purposes after his return to Southeast Land Corporation in September of 1973, but that he did not know whether his employer, or his supervising broker, Sam Stier, ever mailed the declaration to the Commission for filing. Thereafter, Defendant filed an application for registration as a real estate broker with the Commission on January 16, 1975, and, after passing the required examination, received his license as a registered real estate broker on March 17, 1975. The application submitted by Defendant to the Commission contained the following question in Paragraph 16(a): "Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the state of Florida for the 12 consecutive months within 5 years next prior to the date of this application?" Defendant answered this question in the affirmative, and in addition, gave the name and address of Darien Kendall, a registered real estate broker in the State of Florida, and Vice President of Southeast Land Corporation, as the broker with whom he had served his apprenticeship. There is nothing in the record to indicate that the Commission ever contacted Ms. Kendall to verify whether Defendant had, in fact, served such apprenticeship. Shortly after receiving his real estate broker's license on March 17, 1975, Defendant left the employ of Southeast Land Corporation. Both Southeast Land Corporation and Store Realty Corporation have since gone out of business.
Findings Of Fact At all times pertinent to the Administrative Complaint, the Respondent Kenneth Kasha was licensed by the Petitioner as a registered real estate broker. During that time period he was licensed to trade as Florida Landowners Service Bureau. At present he is the holder of certificate number 0046189, in the position of registered real estate broker. The particulars of his license may be found in Petitioner's Exhibit 4, admitted into evidence. In the years 1975 and 1976, one of the enterprises that Kenneth Kasha was involved in was the solicitation of real estate listings from out-of-state land owners who owned land in the State of Florida. This solicitation led to an agreement with some of those owners to list their property through various publications which Kasha contracted for, with the expectation that his company would make a bona fide effort to sell the property. The general description of the arrangement between Kasha, operating as Florida Landowners Services Bureau, and his owner/clients, was to have the owner pay a fee of $250 to $300 to have their property listed by Kenneth Kasha, trading as Florida Landowners Services Bureau. Kenneth Kasha solicited the owners by phone personally and through real estate salesmen who were involved in the solicitation. Kenneth Kasha's statement of his participation may be found in the deposition which is part of Petitioner's Composite Exhibit 8, the deposition being admitted into evidence. This deposition is a part of the record of the proceedings of the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums v. Kenneth Kasha d/b/a Florida Landowners Service Bureau. The deposition was taken on March 26, 1976. In that deposition Kasha was asked if he solicited for the type of listing which is the subject of this case and if he made this solicitation via the telephone. At page 39 of that deposition he states that he did and indicates that the principal place of business of Florida Landowners Service Bureau at the time of the deposition was at 561 NE 79th Street and was the place solicitations were made from. A more complete description of the techniques involved in a solicitation is given by the witness, Alfred Landin. Alfred Landin testified in the proceedings by the Petitioner against Kenneth Kasha t/a Florida Landowners Service Bureau. Mr. Landin correctly stated that he worked for the General American Realty Corporation as a real estate salesman from January, 1975 through February, 1976. His testimony established that he began to make the form of solicitation in behalf of the Florida Landowners Service Bureau in August, 1975. His participation was by agreement between the General American Realty Corporation and the Florida Landowners Service Bureau to have certain salesmen employed by General American Realty Corporation make phone solicitations for Florida Landowners Service Bureau. Those employees of General American Realty Corporation were then paid by their corporation, who had been paid by Florida Landowners Service Bureau under an agreement between that business and the General American Realty Corporation. Alfred Landin took approximately 75 to 100 listings for the Florida Landowners Service Bureau for which he charged the owner $250 to $300 for each listing. He in turn received 30 percent to 40 percent of the listing amount as his payment. He did not receive real estate commissions following any sale of the property which was listed with Florida Landowners Service Bureau. In fact, no commissions have been received, because no property has been sold under the listing agreements, at least as of the date of the Kasha deposition of March 26, 1976. In that deposition he states that none of the property listed by Florida Landowners Service Bureau had been sold. Moreover, Alfred Landin's testimony established that the salesmen who were the contact people for the solicitation for the listings were paid on the basis of obtaining the listings, in opposition to being paid commissions for selling' the property. When Landin would call a prospective owner to solicit the listing, which will now be referred to as "advance fee" listings, he did it based upon a list of prospective clients made available in the office of General American Realty Corporation. He would tell the potential "advance fee" client that the property that they listed with the Florida Landowners Service Bureau would be advertised within and without the United States. He did not indicate which form of media advertising would be utilized. Landin was unaware of the steps which Florida Landowners Service Bureau would specifically take to bring about the sale of the listed properties, because the arrangement with General American Realty Corporation was not to consummate the sale of the property through General American Realty Corporation's salesman. Landin did tell the owners that Florida Landowners Service Bureau would be responsible for advertising the properties for the purpose of sale. Furthermore, the indication was that a bona fide effort would be made to sell the property. The contact which Landin had with the out-of-state owners, in terms of the dialogue, was not by any particular script. It would be designed according to the nature of the property of the person being solicited. In the course of the conversation the property owner would submit his price and that information and other information would be forwarded to Florida Landowners Service Bureau. At all times when a prospective customer was called Landin introduced himself by name and his connection with Florida Landowners Service Bureau. The usual technique was to make an original contact call and then a follow-up call. Although a second individual working for Florida Landowners Service Bureau normally made the follow-up, call, Landin at times would make those calls. On those occasions, between the time of the initial call and the follow-up call, certain materials would be mailed to the prospective purchaser of a listing agreement. Landin identified three forms which are numbered 1, 2, and 3 and are part of the Respondent's Exhibit No. 11 admitted into evidence. They are the mailouts. (The Respondent's Exhibit No. 11 admitted into evidence is constituted of certain information pertaining to the listing of the Florida Landowners Service Bureau's "advance fee" property through the media National Multiple Listing, Inc.) In a follow-up call there would be discussion about the meaning of the listing and brokerage agreement which is number 3 in the group of documents. Landin established that in these follow-up conversations the purpose of the listing fee was brought out and the owner was told that the listing fee would be used to compensate for the costs involved of the listing; for example advertising. The three documents in Respondent's Exhibit No. 11 are the crux of the contractual agreement between Florida Landowners Service Bureau, the company of Kenneth Kasha, and his "advance fee" listing clients. The three documents in Respondent's Exhibit No. 11 are the same in their form as those documents appended to the Kenneth Kasha deposition of March 26, 1976, which has been mentioned before. In that deposition Kasha admits that those three documents were mailed out to the "advance fee" listing clients. The three documents are available for review either in Respondent's Exhibit No. 11 or the attachments to the admitted portion of Petitioner's Exhibit No. 8, which is the Kasha deposition. The significant portions of those exhibits, in terms of the factual allegations against the Respondent, begin with Paragraph 3 of the document number 1 which states, "your property legals are checked thoroughly." In his deposition of March 26, 1976 Kasha indicated that what actually occurred was that Florida Landowners Service Bureau would receive a copy of the client's deed or agreement for deed and verify this with the developer to see if it indicates on the developer's books or records that the individual actually owned a specific piece of property in question. Kasha stated that his company did not check with the title company, but did check the tax records of various counties to see whether or not the individuals owned the particular piece of property set forth in their deeds. Continuing the examination of document 1, the next sentence in Paragraph 3 states, "an ad is constructed for your property(s) and published in our brochures and catalog which is distributed to several thousand brokers and investors NATIONALLY AND INTERNATIONALLY." The advertising that was done by Kenneth Kasha t/a Florida Landowners Service Bureau, which was established in the course of the hearing is constituted of several media approaches. One of those approaches was found in Respondent's Exhibit No. 2 admitted into evidence which is a copy of a magazine February, 1976, the magazine being a publication of the International Federation of Real Estate Brokers which has membership in 39 countries. It can be seen, the advertisement is an ad which allows the purchase of a catalog for the price of $4.00 or free to the members of the International Real Estate Federation. A copy of this form of catalog is the Petitioner's Exhibit No. 12 admitted into evidence. This catalog lists multiple properties by the owner's name, the owner's asking price, and a rough description of the location in terms of the municipality if any, county, and state, subdivision or development if applicable and a rough description of the size of the parcel. The catalog would not allow the prospective purchaser to specifically locate the property. At best it would allow the location of the development or sub-division. A second form of advertising which the Respondent utilized in the time period in question was listing with the National Multiple Listing, Inc. Those listings were also multiple listings on a single page of the type previously discussed in describing the catalog. Access to those listings was based upon Kasha's purchase of circulation and it reached as many as 2,500 plus distributees in various areas of the United States. (The number assigned to the individual properties advertised by National Multiple Listing, Inc. corresponds to some of the invoices found in the Petitioner's Composite Exhibit No. 11, which invoices were paid by Kenneth Kasha to have the listings published. There is a further correlation between those numbers and the numbers affixed to the certificates issued by National Multiple Listing, Inc. to the Respondent verifying the circulation of the listings. Those certificates are found as Respondent's Exhibit No. 12 admitted into evidence.) A compilation of those payments from Kenneth Kasha, as the owner of Florida Landowners Service Bureau, to the National Multiple Listing, Inc. for the period of June, 1975 through June, 1976 may be found as Respondent's Exhibit No. 7 admitted into evidence. The total cost for advertising in that time period was $3,583.82. Kasha also advertised his catalog in the Miami Herald, the Chicago Tribune and one German paper, entitled, Blick. This advertising was in the period of late 1975 and early 1976. The advertising is established through the Respondent's Exhibit No. 12A and a portion of Petitioner's Exhibit No. 8 which is the deposition and attachments of Kenneth Kasha taken March 26, 1976. 14 The fourth paragraph of document 1 states in its initial sentence. "In order for us to successfully merchandize and receive the highest offer for your property(s) considerable expense is involved because a great deal of time is put forth on your behalf and many of the property(s) are being offered for sale sight unseen. Therefore, we must constantly furnish prospective purchasers with factual updated information re: your listing(s). Your fee helps to defray expenses of estimating value, merchandizing, advertising, brochuring and cataloging this information here and abroad." The extent of advertising and brochuring has previously been discussed. The estimate of value is based upon the individual's price and the Florida Landowners Service Bureau does not concern itself with zoning and development in trying to get the price established. This conclusion is premised on Mr. Kasha's testimony of March 26, 1976 before the Division of Florida Land Sales and Condominiums. Therefore, by Mr. Kasha's opinion there was no expense to be defrayed in estimating value. The only other merchandizing that was done other than that discussed in the advertising techniques may be found in the description by Robert Wandler who worked for Kenneth Kasha and was involved with Florida Landowners Service Bureau as a real estate salesman. The period of his employment is not established through Mr. Wandler's testimony, but it appears to be within the time frame of the Administrative Complaint and the other testimony given. Mr. Wandler stated that he tried to sell the property listed through the "advance fee" process by contacting hotels and hotel clerks who had connection with Columbian businessmen. This area of contact was in South Florida. His reasons for contacting the Columbians was due to the fact that he speaks Spanish fluently. He occasionally showed the brochures to the persons contacted, but none of those persons were interested in purchasing the property. He specifically made reference to Petitioner's Exhibit No. 12 as being the type of brochure or catalog that he showed. He also testified that on several occasions Arabian and Lebanese people in the South Florida area were contacted and seminars were held to discuss the catalog. The Arabian and Lebanese business persons did not purchase any property and did not negotiate with any of the owners for the right to purchase the property. Document No. 2, which is a document entitled, Important Facts, is found in Respondent's Exhibit No. 11. In that document is a question which asks "(Q) Will you help me establish a correct selling price for my property? (A) Yes. While we do not appraise property, Florida Landowners Service Bureau will analyze your property comparing your property to adjacent property, to arrive at a price based on recent sales of neighboring property. The price must meet with your approval. From the testimony in Kenneth Kasha's appearance before the Division of Florida Land Sales and Condominiums it is clear that Florida Landowners Service Bureau did not analyze the property by comparing the property to adjacent property to arrive at a price. They merely relied on the owner's price. One of the other questions in Document No. 2 asks the following: "(Q) How will Florida Landowners Service Bureau sell my property? (A) Review status of development and zoning in the immediate area of your property to recommend the correct selling price for you. List your property in our directory, which is distributed by mail to real estate brokers throughout the world." Kenneth Kasha in the aforementioned deposition stated that 95 percent of the time they did not document the development and zoning to set a price as the ad indicated they would do. In Document No. 3, which is a copy of the listing and brokerage agreement, one of the statements of consideration between the parties is that Florida Landowners Service Bureau as the part of their consideration will: "(b) Contemporaneously with appearance of said listing in the directory, you agree to direct the efforts of your organization to bring about the sale of my property". This should be read in pari materia with the following provision in that Document No. 3 which states: "(c) To advertise said property as you deem advisable in newspapers, magazines, or other mediums of merit". A view of the facts that were established on the question of promoting the sale of the property through advertising or other methods, demonstrates that the Florida Landowners Service Bureau in the person of Kenneth Kasha was not living up to this agreement to bring about a sale in a bone fide fashion. This leads to a consideration of the question of whether the efforts which were taken by Kenneth Kasha t/a Florida Landowners Service Bureau were so fraudulent or deficient that they constitute violations of the provisions of Chapter 475, F.S. that are alleged in the Administrative Complaint. The general contention of the Administrative Complaint in Count I is that the solicitation of the property owners was a scheme to fraudulently secure money through the "advance fee" for reason that no bone fide effort was made to sell the property listed with Kenneth Kasha, t/a Florida Landowners Service Bureau. As indicated before there was no bone fide effort made to sell the property. More particularly, in terms of stating grounds for action against the Respondent's license, the course of conduct by the Respondent personally and through his company, Florida Landowners Service Bureau, demonstrates that he is guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealing, trick, scheme or device and breach of trust in a business transaction in this state and has violated the duty imposed upon him by law or the terms of listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed overt acts in furtherance of such intent, design or scheme, all in violation of 475.25(1)(a) F.S. The course of conduct by Kenneth Kasha personally and trading as Florida Landowners Service Bureau shows him to be guilty of conduct or practices which show that he is dishonest and untruthful to the extent that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him, as set forth in 475.25(3) F.S.
Recommendation Upon consideration of the facts in this cause, it is recommended that the Petitioner, Florida Real Estate Commission, revoke the real estate broker's license, certificate number 0046189, held by the Respondent. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Kenneth Kasha P.O. Box 611238 North Miami, Florida 33161 Richard J.R. Parkinson, Esquire and Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY MEMORANDUM ================================================================= Orlando, Florida June 15, 1979 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Fred Langford, Staff Attorney RE: Revocation of Kenneth Kasha - PD No. 3014 004618904 DOAH Case No. 77-1299 Attached please find a copy of the Final Order, Mandate and Order from the Third DCA concerning Kenneth Kasha. The effective date of revocation is December 21, 1978. /FL:bam Attachments* Fred Langford Staff Attorney * NOTE: Attachments noted are unavailable at the division and therefore not a part of this ACCESS document.
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts are found: According to the files and records of the Florida Real Estate Commission, respondent Greene F. Isaacs received his initial salesman license on April 12, 1979 and his initial broker license on April 29, 1980. He is currently a licensed broker holding license number 0308665. By an Order dated June 25, 1980, the Kentucky Real Estate Commission revoked the real estate broker's license of respondent Green F. Isaacs.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 475.25(1)(g), Florida Statutes, and that respondent's real estate broker's license number 0308665 be suspended for a period of one (1) year. Respectfully submitted and entered this 22nd day of July, 1982 in Tallahassee, Florida. DIANE D. TREMOR, 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 22nd day of July, 1982. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David F. Kern, Esquire 516 Lakeview Road, Villa III Clearwater, Florida 33516 Mr. C. H. Stafford Fred Wilsen, Esquire Executive Director Real Estate Commission Real Estate Commission State Office Building P. O. Box 1900 400 West Robinson Street Orlando, Florida 32801 Orlando, Florida 32801
