Summary
In Ringo v. Owens, Fla. 1951, 54 So.2d 366, 368, the Supreme Court of Florida had for review the suspension of a broker.
Summary of this case from Lane v. Florida Real Estate CommOpinion
October 2, 1951.
Appeal from the Circuit Court of Dade County, Charles A. Carroll, J.
David C. McDonald, Miami, for appellant.
W.H. Poe, Orlando, for appellees.
The Florida Real Estate Commission, on January 11, 1950, filed an information against James W. Ringo, a registered real estate broker having offices and doing business as a real estate broker in the City of Miami, Florida. The information comprised four separate and distinct counts or violations of Chapter 475, F.S.A., as amended. Counts 1, 2 and 3 of the information prayed for an order suspending Ringo's registration as a real estate broker and count 4 prayed for an order revoking the registration.
James W. Ringo was served with process and through counsel filed an answer to each of the four counts of the information, and thereafter testimony was taken on the issues made by the pleadings and, on final hearing, the Real Estate Commission entered an order suspending Ringo's registration. An appeal therefrom was taken to the Circuit Court of Dade County, when the suspension order of the Real Estate Commission was reversed, with directions for further proceedings. A second hearing was had before the Florida Real Estate Commission on January 8, 1951, when an order was entered suspending the registration of Ringo for a period of three months on the first count; one year under the second count, and one year under the third count. The suspensions under counts two and three were made to run concurrently and under count one to run consecutively. The net suspension period was fifteen months. On appeal the above order was affirmed by the Circuit Court of Dade County. James W. Ringo appealed therefrom to this Court.
Count 1 charged that Ringo, on February 10, 1949, employed J.J. Sweet as a real estate salesman and as such he took Joseph Kaufman and wife out and showed them certain described property and thereafter appeared with them at an attorney's office where papers incident to the sale of the property were being prepared. Count 1 is drafted under Section 475.25(1); also under Section 475.42(c), which provides: "(c) No broker shall employ, or continue in employment, any person, as a real estate salesman who is not the holder of a valid current registration certificate as salesman; but a registration certificate as salesman may be issued to a person registered as an active broker, upon request and surrender of the certificate as broker, without a fee in addition to that paid for the issuance of the broker's active certificate."
The burden of proof of law was on the Florida Real Estate Commission to establish by competent testimony that J.J. Sweet was not a registered salesman and on or about February 10, 1949, was employed as a real estate salesman by Ringo and operated as such salesman out of Ringo's real estate office in the City of Miami. It is necessary to examine the testimony to determine the question of whether or not the Commission carried its burden of proof of showing that J.J. Sweet on the date alleged was employed by Ringo as a salesman. It appears by the record that a Mr. Kaufman and wife read an advertisement for sale of some real estate in the newspaper, carried by Ringo, and called at Ringo's office about the same. They talked with Ringo in his office about the property, learned the price, and Ringo sent them out to see the property, when Sweet appeared and showed them over the property. Sweet drove them back to Ringo's office, where they discussed the purchase of the property with Ringo and Sweet in Ringo's office. Sweet went with them to a lawyer's office where some papers were being prepared, but the Kaufmans did not buy the property. Sweet called on them thereafter and talked over the deal with them.
Sweet testified (Tr. 91-97) that he had space in Ringo's office and paid him $50 per month as rental and shared other expenses of the office. He was not a registered realtor and was not employed by Ringo. He admitted the transaction with the Kaufmans but did it as an accommodation to Ringo, who needed the lift at the particular time. Ringo testified (Tr. 98) that J.J. Sweet was not an employee of his and had never been and the two of them shared office space and expenses thereof. Sweet was engaged in a different line of business. Attorney Levine prepared some papers for Ringo Realty and delivered the same through Sweet (Tr. 107). The evidence supporting count 1 rests on the testimony of the Kaufmans and Attorney Levine of a single transaction. This evidence is sharply contradicted by Sweet and Ringo. The suspension under count 1, supra, was for a period of three months.
Section 475.25(1)(c) authorizes a suspension of registration for failure to account or deliver to any person any personal property such as money, funds, deposits, checks, drafts, abstracts of title, mortgages, conveyances or other documents or things of value, etc. Count 3 of the information was drafted under the above statute. It charged that Ringo, on or about April 12, 1948, collected rents on described real estate aggregating $1,724.70 and thereafter refused and declined to account to the owner for said money collected. Under count 3 appellant Ringo's registration was suspended by the Real Estate Commission for a period of one year.
It appears by the record that a Mr. Roberts owned real estate situated in Miami and Ringo had listings on some of these properties. He collected rents on some of the property and for a short time was a tenant of Roberts. He collected rents from other tenants of Roberts and likewise sold some of Roberts' property. Litigation and hard feelings arose between the two and thereafter a settlement was had between them in which Ringo paid to Roberts on October 6, 1949, the rents previously collected by him. It is not disputed on the record that the rents were not paid. (See Tr. 101-2). The $1,724.70 claim for rent against Ringo was paid and the transaction closed prior to January 11, 1950, the date the Florida Real Estate Commission filed the information against Ringo.
Section 475.25(1), F.S.A., provides that a registration may be suspended for a period of not to exceed two years when it has been made to appear that the registrant is guilty. Subsection (1) (a) provides: "(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, or scheme or device, culpable negligence, or breach of trust in any business transaction, or has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction; or has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design or scheme to engage in any such misconduct, and has committed an overt act in furtherance of such intent, design or scheme; * * *."
Count 2 charges a violation of the above statute by Ringo on June 22, 1949, by obtaining the sum of $2,000 in cash from Henry and Mary Pinchinson upon the false representation that he was about to obtain a relator's commission for the sale of some real estate and would refund the money from the proceeds of the commission which he then expected to receive at an early date. The Commission heard evidence and entered an order suspending Ringo's registration for a period of one year.
The alleged fraudulent conduct of Ringo as reflected by the record is that he and a Mr. Leon Freed were about to obtain an option to purchase on a piece of land owned by a lady acquaintance of Mr. Leon Freed. It appears that Ringo had a purchaser for the property and a net profit from this transaction would flow to Ringo at an approximate sum of $2,000. This was the transaction Ringo had in mind when he obtained from the Pinchinsons the $2,000. The reading of Leon Freed's testimony appearing in the record at pages 65 to 71 discloses the existence of such property transaction. It is true that the option was not obtained as the owner changed her mind and the trade fell through. Mr. Freed learned of Ringo through Mr. Sweet (Tr. 67).
The order appealed from is reversed with directions for the entry of an appropriate order of dismissal by the Florida Real Estate Commission of the information against the appellant, Ringo.
TERRELL, Acting C.J., and ADAMS and ROBERTS, JJ., concur.