The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of January, 1983.
Findings Of Fact From March 22, 1976, through April 21, 1976, Glober was a registered real estate salesman in the employ of FAR. From September 22, 1975, through December 24, 1975, Fisch was a registered real estate salesman in the employ of FAR. From December 29, 1975, through January 15, 1976, and from January 23, 1976, through March 31, 1976, Davidson was a registered real estate salesman in the employ of FAR. FAR was a registered corporate broker, located in Dade County, Florida. During those periods of time, FAR was engaged in an enterprise whereby advanced foe 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 constituting 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 end 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. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Respondents. FREC introduced no evidence to show that Respondents represented that the property could be sold for several times +he purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Respondents either made the representations or knew them to be false. There was no evidence introduced to show that Respondents knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Respondents were dishonest or untruthful. No evidence was introduced to establish the amended allegation that Glober and Davidson were guilty of a violation of a duty imposed by law.
Findings Of Fact In October, 1975, Priscilla Alwin, now known and hereafter referred to as Priscilla Tolman or "buyer", entered into an oral agreement with the Respondent to purchase property located at 13 Westchester Drive, Kissimmee, Florida, for $39,000. At the time of the agreement, title to the property was vested in Aime and Lilian Giguere, parents of the Respondent. On October 8, 1975, in furtherance of this agreement, the buyer gave the Respondent a $1,000 cashiers' check as a deposit. The buyer gave the Respondent an additional $600 towards the deposit for a total of $1,600. Another check for $400 was given to the Respondent and in turn, endorsed over to the Respondent's husband who testified that the check was in payment for a lawnmower purchased by the buyer's employer. Due to difficulties the buyer had previously encountered in obtaining mortgage financing, the Respondent agreed to an oral contract for sale which called for monthly rental payments of $375 and a total down payment of $4,000. 1/ The buyer assumed possession in October, 1975, and in November and December of 1975, paid $375 to the Respondent, who in turn assigned the checks to the title owner, Aime Giguere. Following the buyer's marriage in December, 1975, the buyer and Respondent met and discussed the buyer's desire to vacate the property and possibly recoup the monies paid to Mr. Giguere. The Respondent agreed to refund the monies if another buyer could be secured and a contract executed which would leave Mr. Giguere with a net profit. On December 24, 1975, a contract for sale was executed and on December 26, 1975, an agreement for deed was signed by Mr. Giguere and Howard and Jewel Daniels on the subject property. The selling price was $40,000 with $1,600 paid as a brokerage fee to Makinson Realty, the listing agency. The Daniels' inspected the property prior to executing the sales contract and before Mrs. Tolman vacated in January, 1976. In selling the property for her father, the Respondent was not acting as a real estate salesman and received no fee or commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Grace Makuch, be dismissed. DONE and ORDERED this 15th day of July, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact While in Puerto Rico, in 1971, the Respondent was charged with violation of Article 29, Drug and Narcotics Law, which charges were brought in the Superior Court of Puerto Rico, Court of Aguadilla. These case numbers were information numbers, G-71-54 and G-71-55. These charges were made on March 9, 1971 for alleged offenses which were committed on February 16, 1971. The information which shows these case numbers can be found in Petitioner's Exhibit "D", admitted into evidence. On March 10, 1971, the Respondent was found guilty of the offenses charged in cases G-71-54 and G-71-55. The record shows that in case no. G-71-54, the Respondent was convicted by a judgement entered on March 10, 1971. On April 14, 1971, in case number G-71-54 and case number G-71-55 the Superior Court, of Puerto Rico, Court of Aguadilla, sentenced the Respondent to a term of five to eight years in prison by confinement at hard labor, which sentences were suspended. By such suspension, the Respondent was committed to the legal custody of the court until the expiration of the maximum term of the sentence under certain general conditions for the Respondent's conduct, and was given a special condition that he contact the Florida Parole and Probation Commission, District Office, at Room 180, Courthouse, Ft. Lauderdale, Florida. The judgement in case number G-71-54 and the conditions of sentence may be found in Petitioner's Exhibit "F", admitted into evidence. The judgement in case number G-71-55 may be found in Petitioner's Exhibit "E" admitted into evidence. On September 16, 1973, the Respondent completed an application for registration as a real estate salesman with the Florida Real Estate Commission, which application was completed under oath. Within that application for registration is found a question number "9". This question reads as follows: "9. Have you ever been arrested for or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted?" to which the Respondent replied, "yes". Question nine further stated, "if yes state details in full", to which the Respondent replied, "(see attached statement)". The attachment spoken of is found in the Petitioner's Exhibit "C", and this attachment sets forth the Respondent's explanation of his answer to the initial part of question nine. Subsequent to the completion of the form the Respondent was registered with the Florida Real Estate Commission as a real estate salesman, from February 21, 1974 through March 31, 1975. From May 8, 1975, up to, and including March 31, 1975, the Respondent has been accepted as a registrant, non-active real estate salesman.
Recommendation It is recommended that the Respondent be released from accountability under the charge found in the subject administrative complaint. DONE and ENTERED this 20th day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Charles Lawrence Ross 3789 Southwest 41st Street Hollywood, Florida 33023
Findings Of Fact The Respondent, Dudley Cohn, is a registered real estate salesman having been issued license number 0314085. The last known address of Respondent is 3351 NE 19th Avenue, Oakland Park, Florida 33306. Dudley Cohn also goes by the name of Doug Cohn, under which name he is not licensed. Cohn did not give the name of Douglas or Doug as an alias on his application for licensure. During March and/or April of 1980, several advertisements for real property appeared in the Pompano Shopper in the classified section. In response to the subject advertisements, John Michaelis and Albert Crowley called the telephone numbers listed in said advertisements to obtain information on real property advertised therein. One of the telephone numbers which appeared in the advertisements is a number which was maintained by former real estate licensees, Real Estate Merchandisers, Inc., and George May. Respondent Cohn visited Mr. and Mrs. Michaelis and Mr. Crowley, individually, at their residences in 1980, and at that time he identified himself to them as a salesman associate of Real Estate Merchandisers, Inc. For the purpose of identification, Respondent presented to the Michaelises and to Crowley, individually, business cards from Real Estate Merchandisers, Inc., and/or George May, Broker, on which Respondent had written his name as "Cohn" or "Doug Cohn." (Transcript, pages 16, 41, 44; Petitioner's Exhibits 1, 4.) After identifying himself as a representative of Real Estate Merchandisers, Inc., Respondent proceeded to make a sales presentation to the Michaelises and Crowley, individually, for the purpose of persuading them to purchase investment property in the Miami area. Respondent represented to the Michaelises that he had seen the property and it was beautiful, that it was high and dry, and that access by road existed to the property. Based on these representations, on April 10, 1980, the Michaelises agreed to purchase the real property located in Dade County, Florida, being sold by Respondent and executed an agreement for deed. Respondent also represented to the Michaelises that the property was located approximately 2.5 miles west of the Krome Avenue cutoff of U.S. Highway 27, behind a cement plant. Respondent gave to the Michaelises and Crowley copies of maps indicating the location of the subject property and stating it was behind the cement plant. (Transcript, pages 21, 22, 27, 45, 46, 48, 49, 50, 55, 57, 61, 93, 94, 95, 96, 98; Petitioner's Exhibits 2, 5, 6.) Based upon the representations of its location made by Respondent, Crowley agreed to purchase a piece of real property located in Dade County, Florida, and gave Respondent a check in the amount of $1,000 to serve as a binder on said property. Crowley instructed Respondent to hold the check until Crowley had inspected the real property. Respondent tried to cash the check, but the bank refused to honor the check. Crowley learned from the Miami Planning Commission that the property in question was not as Respondent had represented it to be and did not go through with the purchase. (Transcript, pages 29, 32, 33.) Said properties in actuality were located approximately seven to 15 miles west of the Krome Avenue cutoff of U.S. Highway 27. The subject property is accessible only by air boat or other off-road vehicles. No plans existed to develop roads in this area. (Transcript, pages 31, 58, 62, 63, 64, 99, 100, 101, 178, 179, 184, 185, 186, 192, 193, 200.) When the Michaelises went to view the subject property, it was submerged below standing water. Said property is normally submerged below ground water at least nine months out of each year and lies in a vital water flow area for the South Florida Everglades area. (Transcript, pages 170, 171, 172, 174, 175, 176, 177, 184, 185, 189, 190, 191, 198.) At the time that Respondent contacted the Michaelises and Crowley, Respondent was registered as a non-active real estate salesman with the Florida Real Estate Commission. Respondent had never personally seen the property he was selling. (Transcript, pages 203, 206, 248; Petitioner's Exhibits 1, 3.) Respondent gave money to his broker to have his registration changed from inactive to active. When advised that his license was not active, Respondent immediately applied to activate his license.
Recommendation Having found the Respondent, Dudley Cohn, also known as Douglas Cohn, guilty of two counts of violating Section 475.25(1)(b), Florida Statutes, as alleged by the Florida Real Estate Commission, it is recommended that the license of Respondent be suspended for two years. DONE and RECOMMENDED this 23rd day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Eli Breger, Esquire, and Richard Breger, Esquire 17200 NE 19th Avenue North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent, who was 54 years old at the time of the hearing, grew up in Blountstown, where he knew Ralph W. and Kate Foster, and their three children: Ralph, Jr., Alice and Mary. Kate Foster was his first grade teacher. Only Mary survives. Alice died in 1971, leaving two children. Ralph, Sr., died in 1973, less than two weeks before Kate died. Ralph, Jr., died in 1974, leaving Folly Hayes Foster a widow. In 1949, respondent moved to Mexico Beach, Florida, and in 1950, he went to work for Mexico Beach Corporation, selling and renting property. In that year he registered with petitioner as a real estate salesman. He is presently a registered real estate broker. Over the years, the Fosters acquired various parcels of Mexico Beach real estate and built cottages; Mary and Alice each ended up with a beach cottage, but for many years Ralph, Jr., had no cottage. Kate Foster wanted her son to have her cottage after her death. She consulted a lawyer in Blountstown who drew a deed in favor of Ralph, Jr., reserving in Kate a life estate. This deed mistakenly contained the legal description not of Lot 8, the improved lot Kate intended to convey, but of an adjoining, unimproved lot. Kate did not notice this when she executed the deed and everybody in the family was under the impression that Lot 8 had been conveyed. After her mother's death, Mary saw to it that the rental income from Let 8 was deposited first to her brother's account, then, after his death, to the account of Folly Hayes Foster. In 1975, Polly Hayes Foster told Mary that she wanted to sell Lot 8. As a result, Mary asked respondent to try to sell Lot 8. According to tax records respondent had copies of at the time, "Foster, R.W." had title to the property. Respondent had kept up with the Fosters and, like the family itself, was under the impression that Polly Hayes Foster had acquired Lot 8 upon her husband's death. Respondent showed Lot 8 to James C. and Mary B. Williams, who decided they wanted to buy it. Respondent prepared a warranty deed by filling in a form. Petitioner's exhibit No. 1. Among the items filled in was the legal description of Lot 8. In connection with their purchase of this property, the Williamses borrowed money from the Citizens Federal Savings & Loan Association of Port St. Joe, which, on the advice of counsel, accepted a mortgage on Lot 8 as security for repayment of the loan. In the course of trying to sell two lots the family thought belonged to Kate's estate, Mayo C. Johnston, the lawyer handling the estate, discovered that one of the Lots had been conveyed to Ralph Jr. Petitioner's exhibit No. 4. It soon came to light that this lot had been mistakenly conveyed instead of Lot 8. With the active cooperation of respondent, deeds of rectification were drawn and record title was made to conform to the intentions and understanding of everybody involved. Neither the Williamses nor any member of the Foster Family has suffered any financial harm as the result of these transactions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 1st day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Post Office Box 1900 Orlando, Florida 32802 Robert W. Moore, Esquire 203 Third Street Port St. Joe, Florida 32456
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 In Spring, 1976 Menkes was employed by FAR to secure property listings for resale. At that 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. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Menkes. FREC introduced no evidence to show that Menkes represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Menkes either made the representations or knew them to be false. There was no evidence introduced to show that Menkes knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Menkes was dishonest or untruthful.
The Issue The Administrative Complaint alleges Respondents violated Section 475.25(1)(b), Florida Statutes, by committing certain acts which were fraudulent or were misrepresentations or concealed material facts. The issues are whether the Respondents committed the acts alleged and, if so, did their conduct constitute a violation of Section 475.25(1)(b), Florida Statutes. Both parties submitted proposed findings which were read and considered. To the extent that the findings herein differ from the findings proposed, it is because the proposed findings were not relevant or material to the issues, were not based upon the most credible evidence, or were not findings of fact.
Findings Of Fact The Respondents, Norman D. Rathbun and Dianna A. Stolpman, are real estate brokers having been issued license numbers 0072024 and 0085366 respectively. The last known address of Respondents is c/o Mark Realty, Inc., 130 Fifth Avenue, Indialantic, Florida. Respondents are now and were at all times alleged herein licensed real estate brokers in the State of Florida. In February of 1980, Rathbun discussed with Gene Myers at Myers' behest a financial arrangement by which Myers, who had been trying to sell a house which he and his wife owned and were leasing, could obtain immediate cash to go to California. On February 4, 1980, they entered into a written agreement which provided in general terms that the Respondents would give the Myers $5,000 in cash, would assume financial responsibility for the three mortgage payments on the house, would manage the rental of the property, and would attempt to sell the house for which Respondents would receive a $3,000 commission and split the proceeds of the sale of the house with the Myers less the moneys the Respondents had expended. Upon discovering an outstanding judgment against the property of over $1,000, the Respondents prepared an amended agreement which provided that they would give the Myers $4,000 in cash and pay the outstanding judgment. This amendment was executed on February 8, 1980, at which time the Myers executed a warranty deed conveying the property to the Respondents. All of the parties were aware of their mutual obligations and the benefits they were to obtain from the agreement, and the Myers executed the warranty deed with a full understanding that they were conveying their right in the property to the Respondents subject to the terms of this agreement. Although conflicting testimony was received about whether the deed would be recorded by the Respondents, the documents and actions of the parties show the Myers were aware that the deed was in exchange for the cash and promises they received and that it would be recorded if necessary to secure the Respondents' interests (i.e., if the Myers were killed in an automobile accident) although the Respondents did not anticipate filing the deed. In early May of 1980, the Myers, who were living in California, determined they wanted to return to Florida. Gene Myers called Rathbun and asked if they could get the house back. Rathbun consulted Stolpman and, as a result, a letter was sent to the Myers on or about May 2, 1980, setting forth the terms under which the Myers could have the house back. The Myers did not comply with the terms of this letter until September 5, 1980, when they tendered the money to the Respondents. Upon tendering the money in return for rescinding their previous agreement, the Respondents reconveyed the property. Before the agreement was rescinded, Respondents continued to deal with the property as its owners limited only by the written agreement. The Myers had no legal right prior to September 5, 1980, to direct the Respondents to return the house to the Myers' possession or to cease their efforts to sell the property. The Respondents did all the things which they were required to do under the agreement and at all times met their obligations under the agreement. On or about May 10, 1980, when the Myers had returned to Florida, Gene Myers told Rathbun that he did not want the house sold, and that he could cut off the Respondents' rights by conveying the property to a relative. On May 12, 1980, in response to Myers' comment about cutting off their rights in the property, the Respondents filed the deed executed by the Myers conveying the property to the Respondents. On June 30, 1980, the Myers filed a claim of financial interest in the property with the local circuit court clerk. No evidence exists that the Respondents were served with this claim. Respondents continued their efforts to sell the property and on July 1, 1980, obtained a contract for sale on the property for a price that was within the limits established under their agreement with the Myers. Closing on the contract was to be on Friday August 1, 1980. On July 21, 1980, through their attorney, the Myers filed suit against the Respondents, who were served with the suit and a lis pendens on July 24, 1980. On July 25, 1980, Respondents met with their attorney, who called the Myers' attorney. Arrangements were made to meet on August 4, 1980, to discuss resolution of the suit. Between July 25 and August 1, 1980, Respondents did not notify the buyers or the buyers' agent that a suit was pending regarding the property. On or about July 31, 1980, the Myers reoccupied the house and on August 1, 1980, advised the buyers that they were the owners, not the Respondents. The buyers, their attorney and their real estate agent attended the scheduled closing. Rathbun arrived late, at which time the pending litigation and the Myers' claims were being discussed. Rathbun advised the group that he and his attorney were already scheduled to meet with the Myers and their attorney the following Monday, and that he felt the matter could be resolved. On August 2, 1980, the buyers elected to withdraw their offer. On August 4, the Respondents and the Myers reached a tentative agreement for the Myers' continued possession of the property. This resulted in a written agreement dated September 5, 1980. The terms of this agreement were substantially the same as the terms stated in the letter to Myers of May 2, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission dismiss the allegations of the Administrative Complaint against the Respondents. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Michael Krasny, Esquire 416 South Babcock Street Post Office Box 1376 Melbourne, Florida 32901 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. ,Shorstein, Secretary Department of Professional Regulation 130 North Monroe Streets Tallahassee, Florida 32301
