Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this proceeding, Respondent, Kenneth W. Schwing, was licensed as a real estate broker-salesman in the State of Florida with license number 0150494, effective April 1, 1981. On August 3, 1981, Elmer Schiller listed for sale with Palatka Realty, Inc., a piece of property owned by him and his wife located on Turner Road in East Palatka, Florida, for a sales price of $23,500 with the express understanding that upon sale, he was to net $20,000. This exclusive listing was to expire on February 2, 1982. During the period of the listing, Mr. Schiller received several oral offers to buy the property, none of which were acceptable. Also, during the period of the listing, the property was shown to a Mr. Alfred Wilkerson by Shelly Sunne, an agent with Palatka Realty. On November 16, 1981, Mr. James T. Beckham, an agent with Century 21, Beckham Realty, in Palatka, brought to Mr. Walter C. Messer, a broker-salesman with Palatka Realty, a contract/offer by Mr. Alfred Wilkerson to buy the Schiller property for $20,000. This offer was rejected by Mr. Schiller, who made a counteroffer which was also rejected. Subsequent to this time, but while the property was still listed with Palatka Realty, Mr. Alfred Wilkerson's father, C. A. Wilkerson, came to Mr. Schiller and offered to buy the property without going through the agency with which it was listed and without paying a commission to the broker. It was his stated intent to buy the property for his son. Mr. Schiller consistently refused to be a party to this subterfuge. When the listing with Palatka Realty expired without the property being sold, Mr. Schiller, on February 9, 1982, entered into an agency listing with Mr. Albert Glance of Red Thompson ERA Realty (Red Thompson), also in Palatka. The terms of this agreement, insofar as the price and the property are concerned, were the same as in the previous listing, but under the terms of this agreement, Mr. Schiller retained the right to sell the property himself to anyone not brought to him by the agency, without paying a commission. Thereafter, on February 27, 1982, Mr. Glance; Margie Nichols, an employee of Red Thompson ERA Realty; and the Respondent, also an associate of this agency, were in the agency office when a young man, subsequently identified as Alfred C. Wilkerson, came in looking for a house to buy. During the course of the conversation that ensued, the subject of the Schiller property came up, and Mr. Wilkerson said he was familiar with it because his father had tried to buy it and had not succeeded. Respondent replied that if he wanted the house, he should sign a contract to buy it, and he, Respondent, would get it for him. Mr. Wilkerson then executed an offer/contract to buy this property for $20,000 gross. After the contract was signed, Mr. Glance and Respondent went to Mr. Schiller's home to present the offer. When Mr. Schiller found out it was Mr. Wilkerson who was making the offer, he at first rejected it. However, after some persuasion, he made a counteroffer which Respondent telephoned to Mr. Wilkerson. Respondent testified he talked to Mr. Alfred Wilkerson, but admits he made the call to the phone number listed to C. A. Wilkerson, Alfred's father. In any event, the counteroffer was rejected. Sometime thereafter, on or about April 5, 1982, Mr. Schiller received a phone call from Mr. Dwight Lawhorn, who indicated he had seen the "For Sale" sign on the property. Mr. Schiller and Mr. Lawhorn agreed on a price. Mr. Lawhorn presented Mr. Schiller with a contract on the property for $20,000 with the purchaser listed as Dwight Lawhorn. Before signing the contract, Mr. Schiller called his real estate agent, Red Thompson, to find out if they had referred Mr. Lawhorn. When they said they had not, he accepted the contract, took it to a friend of his who checked it over for him, and then signed it. When he next saw a copy of the contract, after the closing, Mr. Lawhorn's name had been scratched through as buyer and the names C. A. and Nora Wilkerson substituted. Almost three weeks later, on April 23, 1982, a closing was held at which Mr. and Mrs. Schiller signed a deed to the property in blank and a buyer's closing statement, got their money, and went home. Several days later, Mr. Schiller got a call from the A & P Furniture store in Palatka. The caller indicated that Mr. Wilkerson was there and had related that he had purchased Mr. Schiller's home and wanted credit for furniture. This surprised Mr. Schiller, who understood his agreement to be with Mr. Lawhorn. He went to the courthouse the next day and discovered that the deed he had signed in blank was now made to C. A. and Nora Wilkerson. Mr. Schiller paid no commission on this transfer to either Red Thompson Realty, Palatka Realty, or to Respondent. The property was bought and paid for by C. A. Wilkerson, but is occupied by Alfred C. Wilkerson. Gullett Title and Abstract Company in Palatka was requested by Respondent to issue the title insurance and prepare the appropriate legal documents for the closing on Mr. Schiller's property. When Respondent and Lawhorn brought the contract for sale to Mr. Jason H. Gullett, Respondent asked Mr. Gullett if the contract could be assigned. Mr. Gullett indicated that if the contract did not preclude assignment, it could be. Mr. Gullett was told by Respondent that he asked about the assignment issue because there was a problem with the seller and he had another buyer for the property. Mr. Lawhorn then signed the contract in Gullett's office, and it was subsequently taken to Mr. Schiller for signature. After Schiller signed the contract, it was brought back to Gullett. Respondent brought up Wilkerson's name with the title company sometime between April 5 and 8, 1982, and requested Gullett to place it on the contract between Lawhorn and Schiller. Gullett did what Respondent requested, scratching out Lawhorn's name and replacing it with the Wilkersons'. When Gullett mentioned to Respondent his uneasiness that no commission was shown in the contract, Respondent told him he would be getting his commission "under the table." Also, when Gullett got his instructions on preparing the deed, he was told by Respondent not to let Mr. Schiller know who the buyer was. The deed, reflecting preparation by Mr. Schiller, was in fact prepared by Mr. Gullett, who inserted Wilkerson's name in after Mr. Schiller signed it. Mr. Wilkerson was not present at the closing. When Mr. Schiller found out from the furniture company that his property had been purchased by Mr. Wilkerson, he complained to Mr. Gullett quite angrily. Thereafter, on May , 1982, Gullett wrote a letter to the Respondent indicating he no longer desired any business from him because of the deceptive way in which this transaction was handled. In an interview with investigator Robert Maxwell of the Department of Professional Regulation on June 22, 1982, Respondent denied any impropriety in this transaction. He admitted to knowing and helping Lawhorn buy the property, but denied showing it to either him or Mr. Wilkerson. All he did, he said, was assist in the transfer from Lawhorn to Wilkerson, although he did help Lawhorn draw up the contract for the purchase of the Schiller property. When he prepared it, however, it had no changes on it. He merely advised Gullett that Schiller and Wilkerson did not get along. C. A. Wilkerson is the one, he says, who dealt with Gullett, and he, Respondent, dealt only with Alfred, not his father. Respondent indicates he got no notice of the closing nor did he participate in it, denies receiving any compensation or consideration from the sale, and denies telling Mr. Gullett he would. He attributes this entire situation to Mr. Gullett's desire to cause him harm. According to Respondent, Mr. Gullett was previously accused by an attorney of notarizing a forged document and he assumed that the Respondent is the one who got him into trouble. Respondent relates that at that time, Gullett threatened to get him if it were the last thing he would ever do. I find, however, that Respondent did tell Mr. Gullett he would receive his commission "under the table." Whether he did get it or not is another issue, and there is no evidence he did. Respondent was discharged from employment with Red Thompson Realty in March, 1982. Though Mr. Thompson did not detail his reasons for discharging Respondent, Respondent infers it was because he took time off to go on a vacation with his parents. William S. Hart owned a house which he had agreed to sell to Lawhorn in March, 1982, after Lawhorn had been referred to him by Respondent without fee. However, the transaction fell through because Lawhorn, so he told Hart, had found another house costing about $20,000. E. Melinda Prevatt, who has known Respondent for about ten years, was also helped in a real estate transaction by the Respondent, who performed the service without fee. Respondent has in the past, therefore, rendered real estate services to individuals from whom he has not received a fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license to practice real estate in the State of Florida be suspended for a period of two years. RECOMMENDED this 8th day of April, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 8th day of April, 1983.
The Issue Whether J.C. Hoffman violated the provisions of Section 475.25(1)(a) and Section 475.25(2), Florida Statutes.
Findings Of Fact J. C. Hoffman also known as Jean Hoffman was a registered real estate salesman whose certificate expired September 30, 1974. On March 31, 1975, Hoffman reapplied and was recertified by the Florida Real Estate Commission. During the intervening period, Hoffman continued to be registered by the Commission. In late 1974, Jean Hoffman showed David W. Jarrett two lots which Jarrett subsequently offered to purchase. Jarrett gave Hoffman $1,500 as a deposit receipt on this transaction in two checks, one for $300 and the other for $1,200. These checks were received into evidence as Exhibit 2. The contract entered into by Jarrett was received into evidence as Exhibit 1. Because Hoffman was not present at the hearing, Jarrett identified a picture of Hoffman taken from the files of the Florida Real Estate Commission as the individual who he had known as Hoffman. This picture was received into evidence as Exhibit 4. After entering into this transaction, Jarrett waited some time and when a closing did not take place, attempted to contact Hoffman. He was unable to contact Hoffman and unable to obtain the return of his $1,500. Jarrett also identified a letter from Barbara E. Green, the owner of the property, which he had received in reply to a letter to her concerning this transaction. This letter was received as Exhibit 3, and indicates that Green had rejected the offer. All Jarrett's efforts to obtain return of his money from Hoffman failed and the money and Hoffman have disappeared.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of J. C. Hoffman also known as Jean Hoffman. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 J. C. Hoffman % Patrick N. O'Keef Dist. Road 5-7837 and N. Hwy 452 Lake Yale Village Leesburg, Florida 32748
The Issue The Information filed by the Florida Real Estate Commission against the Respondent charged him with two separate counts of violations of Chapter 475, The first count charged that he had sold real estate within the state of Florida and held himself out as being entitled to operate as a real estate broker or salesman. The count further charges that the Respondent did not reveal this to the Florida Real Estate Commission when he filed his application to be licensed within the state. Therefore, the Commission states Respondent obtained his registration as a salesman by means of fraud, misrepresentation or concealment in violation of Section.475.25(2), F.S. Count Two alleges that the Respondent answered in the negative to Question 14 of said application "Have you filed any application for registration as a broker or salesman in this state which was not granted?" In fact, Count Two alleges that the Respondent had filed an application previously to the one which was eventually granted and had therefore not truthfully answered the above question.
Findings Of Fact The evidence in this case failed to sustain either of these charges. As to the first count, the main witness called by the Florida Real Estate Commission, Annette Frances Brewer, could not identify the Respondent as being an individual who showed her real property and attempted to sell her a condominium unit. As for Count Two, there was no showing that the Respondent's misstatement on said applications was intentional or done for purposes of deception.
Recommendation It is, therefore, RECOMMENDED that the Florida Real Estate Commission take no action against the Respondent, Frank David Camp. DONE and ENTERED this 26th day of October, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530 Carlton Building Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred Wilson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Bruce A. Koebe, Esquire 2170 N.E. Dixie Highway Rick Carroll Building Jensen Beach, Florida 33457 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 2566 MARTIN COUNTY FRANK DAVID CAMP, DOAH CASE NO. 76-1035 Defendant. /
Findings Of Fact Charles E. Richmond applied for registration as a real estate salesman in 1971, filing his application dated December 23, 1971, and received by the agency on December 30, 1971, said application being received as Exhibit 1. In 1974, Richmond applied for registration as a broker-salesman filing an application with the agency, said application being introduced as Exhibit 2. The charges in the Administrative Complaint relate to alleged fraud and concealment in these applications. The basis for the charges contained in paragraphs 7 and 8 of the Complaint was that Richmond's 1974 application apparently indicates a traffic violation received in 1971, which had not been reported in the 1971 application. The Hearing Officer finds that regarding the allegations, there were seven days remaining in 1971 after the preparation of Richmond's application within which time Richmond could have received the ticket referred to in the 1974 application. However, more importantly, the 1974 application indicates on its face some doubt, in the applicant's mind regarding the year in which the ticket was received. Richmond qualified his response in the 1974 registration relative to the date the first ticket was received. The Florida Real Estate Commission has not presented any evidence to factually resolve the question. The Hearing Officer finds there is no conflict between the 1971 and 1974 application, no proof of any evasion regarding the tickets, and certainly no proof of the actual failure to reveal a traffic offense on the 1971 application. Paragraphs 8(a) and 9 charge that in 1974 Richmond concealed the fact of his arrest and plea to contributing to the delinquency of a minor in 1972. The Florida Real Estate Commission alleges that said concealment shows that Richmond lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character required by Section 475.17(1), Florida Statutes, and that Richmond obtained both his registrations as a salesman and as a broker-salesman by means of fraud, misrepresentation, and concealment in violation of Subsection 475.25(2), Florida Statutes. Regarding the contention that Richmond received his 1971 registration a salesman by fraud and misrepresentation, there is no evidence that Richmond falsified any portion of his 1971 application. The arrest and plea to contributing to the delinquency of a minor did not occur until 1972, and the question of the traffic violation was dealt with above. Concerning concealment on the 1974 application, the Florida Real Estate Commission introduced Exhibits 1, 2, 3, and 4 which show Richmond's registration as a salesman and broker-salesman and his arrest and plea to an offense against the laws of Florida. Richmond testified that his arrest had been upon the complaint of a co-worker of his when he attempted to assist the co-worker's daughter, who had graduated from high school and who was working full time, move our of her parents' home into an apartment. Richmond stated that he had felt he was not guilty of any wrong doing but had entered a plea on the advise of Counsel and upon his representation that this would not become a matter of record. Richmond stated he knew that he had been arrested and had pled guilty to the charge of contributing to the delinquency of a minor, but felt that to report this on his application would record an incident which he felt was not of record. Richmond further indicated that he felt this was damaging to his reputation in the community, which apparently from the testimony of his employer, Earlene Cooper Usry, was good. Richmond stated his concern specifically with regard to the effect knowledge of this incident would have on his activity as president of the local Little League, with which he had been associated approximately seven years.
Recommendation Wherefore, the Hearing Officer recommends that Richmond's registration as a broker-salesman be revoked with the observation that Richmond, although he did conceal information, did so for understandable reasons, and that some consideration should be given to allowing Richmond to be reinstated after a period of six months. Further, the Hearing Officer recommends that no action be taken regarding Richmond's salesman's license, the Florida Real Estate Commission having failed to allege any statutory basis for revocation or suspension thereof. DONE and ORDERED this 9th day of December, 1975. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard A. Langford, Esquire Post Office Box 868 Bartow, Florida 33830
Recommendation This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman. This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing. At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs. George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes. The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore, RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th 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 Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Joyce H. Clemenz Post Office Box 431539 South Miami, Florida 33143
Recommendation Based upon the resolution of all disputed issues of fact and law by the stipulation of the parties to this proceeding, which includes the agreed penalty as set forth above, it is RECOMMENDED that the Board of Real Estate (now Florida Real Estate Commission) adopt the stipulation of the parties, together with the agreed penalty, in its final order to be entered herein. THIS RECOMMENDED ORDER entered this 26th day of May, 1982, in Tallahassee, Florida. COPIES FURNISHED: James Gillis, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Eric A. Lanigan, Esquire 1214 East Robinson Street Orlando, Florida 32801 Fred Wilsen, Esquire 130 North Monroe Street Tallahassee, Florida 32301 WILLIAM B. THOMAS, 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 27th day of May, 1982. Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue The Florida Real Estate Commission, herein sometimes called the Plaintiff or the Commission, seeks to revoke or suspend the license of the Defendant, Alan Leavitt, a registered broker, based on allegations that he violated Subsections 475.25(1)(a) and (b), Florida Statutes, as alleged in its administrative complaint filed on December 9, 1976. As is set forth more particularly in its two count administrative complaint, the Commission alleges that the Defendant, while employed as an active broker for Special Realty Corp., acted in his own behalf by advertising and selling several unimproved lots located in Walton County, Florida. It is further alleged that the Defendant made statements in an effort to sell said lots indicating that the lot sizes were 50 feet wide and 150 feet deep, whereas in actuality the lots were only 25 feet wide and 105 feet deep. The complaint alleges that the purchaser consummated the sale for the above referred lots based on the representations made respecting the lot sizes and upon subsequent examination found that the lot sizes were substantially less whereupon the purchaser demanded a refund from Defendant, to no avail. Based thereon, it is alleged that the Defendant is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, etc., in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. In count two it is alleged that the Defendant, while registered as an active real estate broker, permitted Isaac Shelomith and Barry Shelomith, registered real estate salesmen, to unlawfully operate as real estate salesmen out of his offices and encouraged them to engage in the sale of lots in Walton County, Florida by means of unscrupulous and unlawful methods involving fraud, and other breaches of trust in violation of Subsection 475.25(1)(a), and (b), Florida Statutes. For all of the foregoing reasons, the complaint alleges that the Defendant is guilty of a course of conduct or practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(3), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor, the pleadings and the admissions contained therein including the arguments of counsel, I make the following: The Defendant, who holds license number 0051095, was a registered real estate broker during times material to the allegations contained in the administrative complaint filed herein. During early October, 1975, Defendant placed in the classified section of the Miami Southside Newspaper, an ad relative to real property located in Walton County, near DeFuniak Springs. On October 14, 1975, Mr. Lionel G. Rush, an unemployed marketing executive, responded to the aforesaid ad to inquire about the advertised lots. He later purchased four lots from the Defendant for the sum of $1,500. The four lots were described in a warranty deed dated October 17, 1975, from Defendant to Lionel G. Rush and Susie M. Rush, his wife. (See Commission's Exhibit #4). Mr. Rush stated that the Defendant advised him that each individual lot was 50 feet in width and 150 feet in depth and it was based on these representations that he purchased the four lots described in the above referenced warranty deed. Mr. Rush, after purchasing the lots, investigated the lot sizes, approximately three weeks later by calling the county clerk for Walton County who advised that the lot sizes were approximately 25 by 105 feet each. He thereafter contacted the Defendant who checked to determine the accuracy of the lot sizes and was able to determine that the lot sizes were 25 by 105 feet as Mr. Rush had informed. Mr. Rush indicated that but for the inaccurate lot sizes, he was pleased with the property purchased from the Defendant. Mr. Rush testified that he advised the Defendant that there were in his opinion, several options available to satisfy or otherwise cure his purchase problems. He first suggested that the Defendant refund a portion of his purchase money to reflect the actual lot sizes conveyed or alternatively Defendant deed over to him another four lots to compensate for the alleged inadequacy of the lot sizes. Alan Leavitt, the Defendant herein, acknowledged that he sold four lots to Mr. Lionel Rush and his wife in Country Club Heights in Ft. Walton Beach. He denied that the lot sizes were recorded by him or upon his direction as the description is now reflected on the warranty deed entered herein. (See Exhibit 4). Defendant testified that after selling the lots to the Rushes, he received a phone call approximately three weeks later from Mr. Rush complaining about the lot sizes. Mr. Rush expressed his desire to get a refund of the purchase money paid or to seek some other restitution. Defendant checked into the matter and was able to determine that the lot sizes were in fact 105 feet by 100 feet. When Defendant was unable to resolve the matter with the Rushes, he offered to return their money back and in fact purchased a money order for the full amount of the purchase price and agreed to absorb all incidental costs connected with the purchase of the property. He stated that the refund offer was made after Mr. Rush tried to bargain over price and in his opinion was trying to get the lots for what was in his opinion, a "ridiculously low price." He testified that when he discerned this, he had no further dealings with Mr. Rush and was only interested in refunding the purchase money price once the Rushes executed a proper deed returning the property to him. He (Defendant) denied ever misrepresenting the lot sizes. Isaac Shelomith, a registered real estate salesman during times material, was called and denied having any employment relationship with the Defendant in any manner during times material to the allegations contained in the administrative complaint filed herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 1st day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David B. Javits, Esquire 3628 Northeast Second Avenue Miami, Florida 33137 Alan Leavitt 7100 Fairway Drive Miami Lakes, Florida 33014 Bruce I Kamelhair, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
