The Issue The issue in this case is whether Respondent, Jerry Green, acted as a yacht and ship broker as defined in Section 326.022(1), Florida Statutes, without being licensed by Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, as alleged in a Notice to Show Cause entered September 3, 1996.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter referred to as the “Division”), is an agency of the State of Florida. The Division is charged with the responsibility for carrying out the provisions of Chapter 326, Florida Statutes, the Florida Yacht and Ship Brokers’ Act (hereinafter referred to as the “Act”). Respondent is Jerry Green. Mr. Green is not licensed by the Division pursuant to the Act as a yacht and ship broker. At all times relevant to this proceeding, Mr. Green was employed at Rick’s on the River (hereinafter referred to as “Rick’s”), in Tampa, Florida. Mr. Green was compensated for his employment at Rick’s by being provided room and board. During 1996 the Division received an anonymous complaint including a copy of an advertisement from a October 13, 1995 edition of a publication known as the “West Florida Boat Trader”. The advertisement indicated it was from Rick’s and included several photographs of boats purportedly for sale at Rick’s. Among other boats listed on the advertisement was the following: 1975 42’POST Full Tuna Tower, Twin Turbo Charge Detroit 671 Out of Town Owner DESPARATE to Sell, $84,500 A similar advertisement was placed in the November 3, 1995 edition of the “West Florida Boat Trader”. Although Mr. Green denied at hearing that he had placed the advertisement, he admitted in his Response to Notice to Show Cause that “between October of 1995 and May of 1996 he advertised a 1975 42’ Post named the ‘Dunn Deal’ . . . .” He also admitted in the Response “that he advertised the 42’ Post at the request of the owner, Richard Dame, who is a personal friend, for the purpose of testing whether there was a market for such a boat and to determine the approximate value of the boat.” It is, therefore, concluded that Mr. Green was responsible for the advertisement. On May 31, 1996, James Courchaine, an investigator for the Division, went to Rick’s. After arriving at Rick’s, Mr. Courchaine met Mr. Green. Mr. Green identified himself as the “dockmaster”. Mr. Courchaine asked about the 42-foot Post and Mr. Green told him that he knew all about the Post and could talk to Mr. Courchaine about it. Mr. Green told Mr. Courchaine the Post belonged to a friend and that he, Mr. Green, could sell it. Mr. Green also indicated the Post was in Key West and that he wasn’t sure if the owner would be bringing it back. Mr. Green also told Mr. Courchaine that the owner was originally asking $84,500.00 for the Post but, that since it had been on the market so long without any interest, he might take between $79,000.00 and $81,000.00 for it. Mr. Courchaine asked Mr. Green whether the amount Mr. Green quoted included Mr. Green’s commission. Mr. Green told Mr. Courchaine that “he would be taken care of.” Mr. Green wasn’t employed as the dock master at Rick’s. Mr. Green lived on the premises and looked after the property, including boats located there. In return, he received room and meals. At the time of the formal hearing Mr. Green testified that he was not employed and that his only source of funds is Social Security. He also testified, however, that he still lives at Rick’s. The evidence failed to prove that Mr. Green has any source of funds other than Social Security. The evidence failed to prove that Mr. Green offered to sell any vessel regulated under the Act except as described in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes ordering Jerry Green to cease and desists from acting as an unlicensed broker in violation of the Act and that he pay a civil penalty in the amount of $500.00 within thirty days of the date this matter becomes final.DONE and ORDERED this 28th day of April, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Suzanne V. Estrella Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Paul T. Marks, Esquire Post Office Box 4048 Tampa, Florida 33677 Lynda L. Goodgame General Counsel Department of Business & Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert H. Elizey, Jr., Director Department of Business & Professional Regulation Florida Land Sales, Condominium & Mobil Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent has been a registered real estate salesman with the Florida Real Estate Commission from February 17, 1967, until the present. The Respondent was indicted by a federal grand jury in the Middle District of Florida and charged with devising and intending to devise a scheme and artifice to defraud certain named persons and entities by use of the mails and further charged with the commission of an overt act in furtherance of said scheme. U.S. v. Hawk, Case No. 68-47-ORL CR, U.S. District Court for the Middle District of Florida, Orlando Division. On October 11, 1968, the Respondent pled guilty to the offense of devising a scheme to defraud others and executing said scheme by use of the United States Mail and by telephone in violation of Title 18, Section 1341, U.S.C. The Respondent was sentenced to four years' imprisonment upon his plea of guilty. He served 17 months of his sentence before being paroled, which parole ended in October, 1972. The charge to which the Respondent pled guilty and was found guilty did not, in any manner, involve the sale of real property. Since his conviction and release from prison, the Respondent has worked as a real estate salesman. The Florida Real Estate Commission has shown no complaint lodged against Mr. Hawk regarding his registration as a real estate salesman from February 17, 1967, until the present, other than the complaint and allegations presently being considered. There has been no showing that Nelson F. Hawk engaged in any conduct warranting suspension of his registration as a real estate salesman other than that conviction heretofore referred to in 1968. Nelson F. Hawk is guilty of a crime against the laws of the United States involving fraudulent dealing as evidenced by the certificate of Wesley R. Thies, Clerk, United States District Court for the Middle District of Florida.
Findings Of Fact At all times relevant hereto, Respondent was secretary to Kingsland, Inc., Ferndale Estates, Inc., and Fairwood villas, Inc., all corporations controlled by C. Thomas Petersen. Kingsland, Inc., is engaged in land development. Ferndale Estates and Fairwood Villas are corporations holding title to real estate for investment purposes. Respondent was not a director in any of these corporations. By mortgage dated June 30, 1981 (Exhibit 1), Kingsland, Inc. mortgaged certain registered properties to secure a loan from Metropolitan Bank and Trust Company without approval from Petitioner. Respondent's signature appears on that conveyance as corporate secretary attesting to the signature of Petersen as president of Kingsland, Inc. Similarly, Respondent attested to Petersen's signature on mortgage dated July 9, 1981 (Exhibit 2), on modification of mortgage dated February 8, 1982 (Exhibit 4), on mortgage dated May 12, 1982 (Exhibit 7), on mortgage dated May 20, 1982 (Exhibit 8), on deed to Winokur dated May 27, 1981 (Exhibit 9), and on deeds to nine separate third party purchases (Exhibit 10). On mortgage from Kingsland, Inc. to City National Bank of Miami (Exhibit 3), encumbering lots previously sold to third party purchasers and on mortgage dated March 5, 1982 (Exhibit 6), Respondent's signature does not appear. By mortgage dated March 9, 1982 (Exhibit 5), Respondent signed as a witness. All of those mortgages and deeds in Exhibits 1-10 involve the encumbering registered land without prior approval from Petitioner, or conveying to the mortgagee or buyer lands- previously sold to third party purchasers on contract for deed or unrecorded deed. Proceeds from those mortgages and sales went into bank accounts controlled by Petersen. At the time of these transactions, Respondent was handling the accounts of the so called Pan American Investors, a group of individuals who had purchased the land installment sales contracts from Kingsland, Inc., and was entitled to the monthly payments with interest being paid by the purchasers of lots in these subdivisions. During this period, Respondent exchanged letters with several of these investors and knew many of these lots were paid for or nearly so and that interim deeds were being issued to the original purchasers. No credible evidence was presented regarding who picked the lots to be included in those transactions involved in Exhibits 1-10, or that Respondent had any responsibility for or control in those selections. In 1977, when Suncoast Highlands Corporation owned by Petersen and Leonard Lenhardt acquired the stock of Kingsland, Inc. and Illinois Corporation from the Oehlerking family, Kingsland owned registered subdivisions in Marion County, Florida, known as Ocala Waterway Estates, Section 27 and 34, Kingsland Country Estates, Units 1 and 22, Kingsland Country Estates, Whispering Pines and Forest Glen. On the date of acquisition of Kingsland, Section 34 had 19 unsold lots, Section 27 had 51 unsold lots, and Unit 22 had 43 unsold lots. The most accurate office record of the transactions involving lands sold by Kingsland were the Alpha listings (Exhibits 11 and 12), a computer printout showing the names of purchasers alphabetically by subdivision. This listing contained numerous errors. No evidence was presented that Respondent was made aware, before attesting to Petersen's signature, that the mortgages and deeds in Exhibits 1 through 10 were being prepared or that she was given any opportunity to have input into the specific lots to be included in those instruments. She received no recognizable benefit from the proceeds received by Kingsland from those mortgages and deeds.
The Issue Whether Marion Malt is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Marion Malt is a registered real estate saleswoman. Marion Malt worked for International Land Services Chartered, Inc., as a listing representative or "closer". She was paid commissions through International Land Sales Chartered, Inc. In the course of her employment as a listing representative with International Land Services Chartered, Inc., Marion Malt contacted Joan Culpepper. Malt made representations to Mrs. Culpepper that she (Malt) had sold property and that the real estate market in Florida was good. She further represented that the Culpeppers could sell their property which they had purchased for $2,000.00 for approximately $20,000.00. Malt further represented that she could sell the Culpepper's property quickly, probably within sixty days. Similar representations were made to Genevieve Voli and David Bohrer. Mrs. Malt identified her signature on a letter which Mrs. Culpepper had identified as a letter received after her initial contact by a person identifying herself as Marion Malt. Marion Malt testified that she sent such letters to the persons whom she contacted. Marion Malt knew that International Land Services Chartered, Inc., had no sales staff, and further, Malt knew that she had not sold any property. Malt knew that the sales operation of International Land Services, Chartered, Inc. was totally dependent upon other brokers marketing the property listed by International Land Services Chartered, Inc., through advertisement in the catalogue prepared by International Land Services Chartered, Inc. Malt had no actual knowledge of any sales based upon the catalogue by International Land Services Chartered, Inc., yet she represented such sales had been consummated in her conversations with Culpepper, Voli, and Bohrer.
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 Marion Malt as a real estate saleswoman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ronald E. Fried 2699 South Bayshore Drive Suite 400C Miami, Florida 33133
The Issue Whether Sam Lerner is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Sam Lerner is a registered real estate salesman. Sam Lerner was employed by International Land Services Chartered, Inc. He was paid by International Land Sales Chartered Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Sam Lerner as a registered real estate salesman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Sam Lerner 2821 North East 163rd St., Apt. 5F North Miami Beach, Florida 33160
Findings Of Fact From September 22, 1975, to December 24, 1975, Kopf was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing Fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. In November of 1975, Kopf telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975. November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected. Notwithstanding the fact that FAR had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions. As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts. FREC introduced no evidence to establish that the prices for which the properties were listed were reasonable listing prices and further introduced no evidence to show that Kopf represented that the property would be advertised nationwide and in foreign countries, or that the company had foreign buyers wanting to purchase the property listed with FAR, with the exception of Kopf's property, or that such representations, if made, were false. However, the evidence establishes that Kopf represented that the property would be sold within 30 days of the listing, which representation was false, and that Kopf knew that the representation was false.
The Issue Whether Petitioner should be granted an exemption under Section 478.221(3), Florida Statutes, from the provisions of the Florida Uniform Land Sales Practices Law, Chapter 478, Florida Statutes. By stipulation dated February 14, 1978, the parties agreed that the Division of Administrative Hearings take jurisdiction in the matter under Section 120.57(1), in the absence of disputed issues of material fact. The parties also agreed to waive the notice requirements under Chapter 120. The parties stipulated to the facts of the case (Exhibit 4), and to the admission in evidence of Petitioner's application and supporting documents (Composite Exhibit 1), a letter of Respondent acknowledging receipt of the Claim of Exemption dated July 15, 1977, (Exhibit 2), and Respondent's notice to Petitioner, dated September 19, 1977, that the Claim of Exemption was rejected (Exhibit 3). Petitioner submitted an answer filed by the Respondent as Defendant in civil judicial proceedings based on its denial of the exemption claim in the Circuit Court of Leon County, Case No. 77-220, which was rejected by the Hearing Officer as irrelevant to the proceedings in view of the accepted Stipulation of Facts. (Appellate Exhibit 1)
Findings Of Fact The Stipulation of Facts is as follows: On July 14, 1977, Petitioner submitted to the Respondent and the Director thereto, a claim of exemption as required by Florida Statute 478.221(3); and claiming compliance with the provisions thereunder. Pursuant to the discretionary authority as provided for in Section 478.221(3), Florida Statutes, the Director of the Division of Florida Land Sales and Condominiums, by letter dated September 19, 1977, informed Petitioner that its claim for exemption was denied. Said letter is attached hereto and incorporated herein by reference as exhibit 1. The substance of said letter indicated that the Director, pursuant to his discretionary authority, provided for in Section 478.221(3), Florida Statutes, was not satisfied "that all necessary conditions of the exemption are present, i.e., in particular that the property is usable for the purpose for which it is offered." Said denial was based upon a letter received from the Chairman of the Board of County Commissioners of the County of Martin, State of Florida, dated August 8, 1977, and objecting to any exemption on the grounds that: "Gold Coast Ranches has not applied to Martin County for plat approval as required in our subdivision regulations," and; "Gold Coast Ranches, Inc., has not applied for road opening permits as required by Martin County ordinances." Said letter from the County of Martin, also indicated that since the parcels created by Gold Coast Ranches, Inc., were smaller than 20 acres, they were subject to the subdivision regulations of the County. A copy of said August 8, 1977, letter from the Chairman of the Board of County Commissioners, for the County of Martin, State of Florida, is attached hereto and incorporated herein by reference as Exhibit 2. The roads proposed by Gold Coast Ranches, Inc., are to be of a private nature. The subdivision in question is not to be platted, but lots are to be sold pursuant to a metes and bounds description in excess of 5 acres.
Recommendation That Respondent deny Petitioner's request for exemption pursuant to Section 478.221(3), Florida Statutes. Done and Entered this 16th day of March, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire 725 South Bronough 210 Johns Building Tallahassee, Florida 32304 L. M. Taylor, Esquire Post Office Box 14577 North Palm Beach, Florida 33408
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1) (a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in an administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent James Henkel appeared at the hearing after it had commenced unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent Henkel is a registered non-active real estate sales percentian, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Exhibit 4).
Findings Of Fact General American Realty Corporation was first registered by Petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the President of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to, sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to' assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowner "service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquired in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that Petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent James Henkel be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James Henkel c/o Dory Auerbach 456 Northeast 29th Street Miami, Florida 33137
The Issue Whether Respondent's license issued by Petitioner should be revoked or suspended, or the licensee be otherwise disciplined, for alleged violations of Sections 475.25(1)(a) and 475.25(3) Florida Statutes as set forth in the Administrative Complaint. This case was consolidated for hearing with that of other respondents by Order of the undersigned Hearing Officer dated August 8, 1977. The consolidated cases heard on November 7, 1977 are as follows: Case No. 77-1269, Florida Real Estate Commission vs. John Glorian and General American Realty Corporation Case No. 77-1275, Florida Real Estate Commission vs. James Henkel Case No. 77-1277, Florida Real Estate Commission vs. Alfred Landin Case No. 77-1278, Florida Real Estate Commission vs. Joseph Macko The evidence in this case consisted solely of the testimony of the Respondents in the above listed four cases, and Petitioner's Composite Exhibit 2 (Petitioner's Exhibit 1 withdrawn) which consisted of certain written material furnished to prospective clients by the Florida Landowners Service Bureau, including a listing and brokerage agreement sample form. Petitioner sought to elicit the testimony of Kenneth Kasha and Theodore Dorwin, but both of these prospective witnesses invoked their Fifth Amendment privilege against self-incrimination and declined to testify in this case. After inquiring into the basis of their claims, the Hearing Officer permitted the same and they were excused from the hearing. Both individuals based their claims on the fact that they are currently under criminal investigation by state law enforcement authorities with respect to their prior activities as real estate brokers in advance fee transactions. Although Petitioner contended that Dorwin had waived his privilege by testifying in prior administrative proceedings brought by the Florida Real Estate Commission which led to the revocation of his broker's license, and that Kasha also had waived his privilege by testifying in am administrative proceeding brought by the Florida Division of Land Sales and Condominiums concerning advance fee sales, it was determined by the Hearing Officer that any such waivers did not extend to the instant proceeding. Petitioner then sought to introduce into evidence the prior testimony of Dorwin and Kasha in the aforementioned administrative proceedings, but such admission was not permitted by the Hearing Officer because the Respondents herein had not been afforded an opportunity to cross examine the witnesses at the time they gave such testimony. Respondent Joseph Macko appeared at the hearing unaccompanied by legal counsel. The Hearing Officer advised him of his rights in the administrative hearing. Respondent is now a registered non-active real estate salesman, and was at all times alleged in the Administrative Complaint, a registered salesman in the employ of General American Realty Corporation, a registered corporate broker (Petitioner's Composite Exhibit 3).
Findings Of Fact General American Realty Corporation was first registered by petitioner as a corporate broker in 1970. In 1972 John Glorian became the president of the firm and active broker. He was hired by Richard T. Halfpenny who was the owner and principal stockholder at the time. Alfred Landin, a registered real estate salesman, joined the firm in February, 1975. At that time, General American was in the business of selling acreage property in Florida. In the summer of 1975, Glorian recommended to Halfpenny that the firm become involved in the "advance fee" business. Such transactions in the trade involved the telephone solicitation of out-of-state landowners to list their land in Florida for sale with a Florida broker for a prescribed fee which would become part of any sales commission if and when the particular property was sold. Halfpenny expressed no objections to the idea and Glorian thereafter contacted Theodore Dorwin who was then associated with Florida Landowners Service Bureau in Miami. Kenneth Kasha was the president of that firm which was involved in the advance fee business. Glorian introduced Dorwin to the firm's salesmen, who included Joseph Macko, James H. Henkel, and Landin. Dorwin instructed these personnel in the method of soliciting prospective clients and provided an outline of the information that was to be given to those individuals called by the salesmen. He told the General American personnel that once the property was listed with Florida Landowners Service Bureau, it would be advertised in newspapers and catalogs, and that bona fide efforts would be made by his organization to sell the property. (Testimony of Glorian, Landin, Petitioner's Composite Exhibits 5-6). General American commenced its advance fee operation approximately August, 1975. The procedure followed was for a salesman to call an out-of-state landowner picked from a computer print-out list and inquire if he would be interested in selling his property at a higher price than he had paid for it. This was termed a "front" call and the salesman was termed as "fronter". If the prospect expressed interest in listing his property, his name was provided to Florida Landowners Service Bureau who then mailed literature to the property owner describing the efforts that would be made by that organization to sell his property. Also enclosed with this material was a listing and brokerage agreement. This agreement provided that the owner of the property would pay a prescribed listing fee to Florida Landowners Service Bureau which would be credited against a ten percent commission due that firm upon sale of the property. In return, Florida Landowners Service Bureau agreed to include the property in its "listing directory" for a one-year period, direct its efforts to bring about a sale of the property, advertise the property as deemed advisable in magazines or other mediums of merit, and to make an "earnest effort" to sell the property. The accompanying literature explained that the listing fee was necessary in order to defray administrative costs of estimating the value of the property, merchandising, advertising, brochuring, and cataloging the information. The material also stated that advertising would be placed in various foreign countries and cities of the United States. In addition, it stated that Florida Landowners Service Bureau would "analyze" the property, comparing it to adjacent property to arrive at a price based on recent sales of neighboring property, and also review the status of development and zoning in the immediate area of the property to assist in recommending a correct selling price for approval by the owner. During the course of their calls to prospects, Macko, Henkel, and Landin advised them that the property would be advertised internationally and in the United States, and that bona fide efforts would be made by Florida Landowners Service Bureau to sell the property. All salesmen represented themselves to be salesmen for that organization. Henkel told prospects that foreign investors were buying Florida property; however, in fact, he was unaware as to whether any property had ever been sold by Florida Landowners Service Bureau and never inquiried in this respect. Henkel and Landin had observed copies of the literature sent to prospects in the General American office, but Macko had only seen the listing agreement. After the promotional literature was sent to a prospect, the General American salesmen made what were called "drive" calls to answer any questions and to urge that the property be listed. After making these calls, the salesmen had no further contact with the property owner. The listing fee initially was $250 and was later raised to $350. The salesman received approximately one third of the fee. Glorian was paid several hundred dollars a month by General American, but received no portion of the listing fees. He was in the office once or twice a week to supervise the activities of the salesmen who made their telephone calls during the evening hours. Halfpenny was seldom there and did not take an active part in the advance fee operation. None of the salesmen or Glorian were aware that any of the property listed with Florida Landowners Service Bureau was ever sold and none of them ever saw any advertising, although Land in saw a catalog of listings at one time. Although Macko customarily recommended a listing price of the property to prospects based on the general rise in value of land since the date of purchase, Henkel merely accepted the price desired by the property owners. General American terminated its advance fee business in early 1976 after being advised that petitioner was conducting investigations into the advance fee business (Testimony of Macko, Landin, Henkel, Glorian). All of the Respondents in these cases testified at the hearing that they had made no false representations to prospects during the course of their telephone conversations and otherwise denied any wrongdoing.
Recommendation That the charges against Respondent Joseph M. Macko be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J.R. Parkinson and Louis Guttman, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Joseph M. Macko 13990 Northeast 6th Ave. Miami, Florida 33161
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
