STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

ex rel Robert J. Corda, Plaintiff )

)

Petitioner, )

)

vs. ) CASE NO. 75-1751

) P.D. 2726

STEPHEN VAN SCIVER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on November 19, 1975 at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

2699 Lee Road

Winter Park, Florida 32789

For Respondent: Stephen van Sciver

181 25th Avenue North

St. Petersburg, Florida 33704

By Administrative Complaint filed September 10, 1975, the Florida Real Estate Commission seeks to revoke, suspend, or otherwise discipline Stephen van Sciver for failing to pay a listing commission to a real estate salesman employed by him upon the sale of a piece of property located at 2627 8th Avenue North, St. Petersburg, Florida. The salesman, Carl B. Osborne, is a registered real estate salesman, and the respondent, Stephen Van Sciver is a registered real estate broker.

The facts are largely undisputed. Exhibit 1, a listing agreement, shows the property in question to be listed for sale by Carl B. Osborne, and accepted as such by the broker, S. Van Sciver. Also Exhibits 2, 3, & 4 were admitted into evidence showing that the property was sold; and the listing broker's commission was paid to Van Sciver.

The normal practice in the Van Sciver office was for the commission to be split 1/3 as a listing commission and 2/3 as a selling commission. Exhibit 6, a contract between broker and salesman which was admitted into evidence, shows the parties agreed that the commission split would be 60 percent for the salesman and 40 percent for the broker when the salesman performed services which entitled him to a commission.

The property in question was sold by another real estate broker's office, and the respondent herein received a check in the amount of $503 from Fidelity

Title Company who handled the closing of the transaction. It is the salesman's right of entitlement to the 60 percent of this sum which is herein at issue.

Slightly more than one month prior to the sale of the property in question Osborne was fired by Van Sciver because of personality differences. Osborne then went to work for another broker and, at the time the sale of the Osborne- listed property was closed, Osborne was working for Lipp Agency, Inc. who was not involved in the sale. Following the closing of this transaction, Osborne, in writing, demanded his listing commission from Van Sciver. When it was not forthcoming he filed a complaint with the Real Estate Commission and sued in the Smell Claims Court. His complaint to the Real Estate Commission resulted in the instant hearing, and the suit in the Small Claims Court resulted in a default judgment being entered against Van Sciver.

Van Sciver testified in his own behalf. He acknowledged the validity of the contract (Exhibit 6), but contended that Osborne did not perform the services expected of a listing salesman before earning the listing commission, and thereby abandoned his right to such commission. These services include removing the "For Sale" sign when the offer on the property is accepted and replacing it with a "Sold" sign, removing the multiple lock box, returning the key to the seller, and removing the "Sold" sign when the closing is completed. Furthermore, he contended that Osborne solicited the owners of the property on which Osborne had obtained listings while with Van Sciver to change those listings to him at Lipp Agency upon their expiration date. This solicitation was alleged to have occurred while the listings were still in effect and shortly after Osborne left the employ of Van Sciver. This allegation is the subject of a complaint filed with the Real Estate commission by Van Sciver.

With respect to the default judgment obtained by Osborne, Van Sciver explained that he had a long-standing commitment to be in North Carolina at the time the hearing was scheduled in the Small Claims court and that when he attempted to get the hearing continued he was advised by the judge's secretary that unless plaintiff agreed to a continuance the judge would not grant one.

Since the amount of the commission Osborne claimed was owed was less than $300, Van Sciver did not feel it worth his while to retain a lawyer to defend the action in his absence.

CONCLUSIONS OF LAW

Section 475.23, Florida Statutes, and Rule 21V-6.04 FAC, provides that a real estate salesman can work for only one broker at a time. Accordingly, once Osborne started working for Lipp Agency, Inc. he could have been in violation of these provisions had he performed the services Van Sciver considered the salesman must provide before he "earns" his commission. On the other hand there is some merit in Van Sciver's position that the listing salesman should perform the essential services noted above in order to earn his full commission. The contract between the parties was silent with regard to the services normally required of a listing salesman, and made no provision for paying listing commissions on property sold after the salesman's employment with the broker is terminated. Since no provision in the contract was violated by Osborne, he is entitled to his commission of 60 percent of the listing broker's commission.

From the foregoing it is concluded that the Respondent herein wrongfully withheld the salesman's listing commission from Osborne, and in so doing violated 475.25(1)(c) Florida Statutes. It is therefore,

RECOMMENDED that the broker's license of Stephen Van Sciver be suspended for a period of 6 months. It is further,

RECOMMENDED that, if the respondent, Van Sciver, pays to Osborne the listing commission to which he is entitled within 20 days of the commission order, the suspension of Van Sciver's broker's license be set aside and Van Sciver be issued a letter of reprimand.

DONE and ORDERED this 15th day of January, 1976, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire 2699 Lee Road

Winter Park, Florida 32789

Stephen Van Sciver

181 25th Avenue North

St. Petersburg, Florida 33704

Docket for Case No: 75-001751

Orders for Case No: 75-001751