STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION ) ex rel. ALBERT W. LOFTUS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-459

) Progress Docket No. 2724

JOHN T. HALKOWICH, )

)

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 March 25, 1976 at Tavernier, Florida.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida

For Respondent: John T. Halkowich was not present.

By Administrative Complaint filed August 26, 1975, the Florida Real Estate Commission ex rel. Albert W. Loftus seeks to revoke, suspend, or otherwise discipline John T. Halkowich, Respondent, for violation of Section 475.42(1)(b)

1. The Administrative Complaint alleges that while registered as a real estate salesman with Ayers F. Egan, a registered broker, trading as Jerry Egan, Respondent sold two parcels of real estate on behalf of John Vogler and Fred Snowman, received a commission of $2,000 on each parcel and failed to remit a portion of this compensation to Egan. Three exhibits were admitted into evidence and four witnesses were called by the Petitioner.

   
   

   FINDINGS OF FACT

   
   

   1. In November and December, 1974 John T. Halkowich was a registered real estate salesman with the brokerage office of Ayers F. Egan. Exhibit 2, Return Receipt for Registered Mail, was admitted into evidence to show that Halkowich acknowledged receipt of the Notice of Hearing.

      
      

   2. When Halkowich applied for registration as a real estate salesman, Egan was one of his sponsors. Upon his successful completion of the requirements for registration Egan agreed to hold Halkowich's license for him in Egan's office, but because business was slow he could not allow Halkowich any floor days. He agreed to allow him to sit on houses that neither Egan nor Egan's associate wanted to hold open.

   3. During the period of 1974, when little real estate was selling on the Florida Keys, the housing development project owned by Vogler and Snowman was running on hard tines and the developers were anxious to "get out from under" the property. John Vogler, Jr., the father of the Vogler partner in the project, went to Egan to seek help with the sales. Since Egan had no work for Halkowich he suggested that perhaps the developers could make a deal with Halkowich.

      
      

   4. The developers needed someone on the property at all times to act as watchman, show prospective buyers around, keep the grass trimmed, and supervise the completion of the project.

      
      

   5. Halkowich was provided an apartent on the site to live in, complete with utilities, in consideration for performing those services. For each unit of the project that was sold the developers agreed to pay Halkowich $2,000.

      
      

   6. One of the purchasers who appeared at the hearing had stopped by the development, was shown around by Halkowich, and thereafter made an offer directly to the developers to purchase a unit. A contract was subsequently executed between the developers and the buyer and referred to the developers' attorney who performed the closing. After the closing Halkowich was paid

      $2,000.

      
      

   7. When Egan learned that sales had been made and that Halkowich had received compensation from the developers he demanded his commission from Halkowich. When the latter advised Egan he couldn't pay him Egan told him he was in violation of the real estate license law and that he, Egan, would report him to the Florida Real Estate Commission if he didn't pay. Thereafter Egan piously reported Halkowich's transgressions to the Commission and this Administrative Complaint ultimately followed.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Section 475.42(1)(b) F.S. provides:

      
      

      "No person registered as a real estate salesman shall operate as a real estate broker, or operate as a salesman for any person not registered as his employer."

      
      

   9. Section 475.25(1) F.S. provides:

      
      

      "The registration of a registrant may be suspended for a period not exceeding two years, or until compliance with the lawful order imposed by the final order of the Commission or both upon a finding of fact showing that the registrant has:

      * * *

      (d) Violated any of the provisions of this chapter, or any lawful order, rule, or regulation made or issued under the provision of this chapter; . . ."

   10. If Halkowich was operating as a salesman for the developers while Egan was his registered broker he would be in violation of the above quoted provisions of the statute and subject to having his license suspended.

       
       

   11. Obviously Halkowich performed services for the developer not related to the sale of the property for which he was partially compensated by free rent. No testimony was presented that Halkowich prepared any contracts or performed any services for the developers other than show the visitors the property and answer their questions pertaining thereto. The contracts were negotiated by the developers. Egan performed none of the services normally expected of a broker, and, from the evidence submitted, never really anticipated performing any, service while his "salesman" resided on the developers' premises.

       
       

   12. No evidence was presented that Egan ever requested a commission from the sellers of the property only that he demanded from Halkowich a portion of the commission Halkowich received for his services.

       
       

   13. From the foregoing it is concluded that Halkowich is technically guilty of a violation of Section 475.42(1)(d) F. S. above quoted. It is further concluded that Egan participated in the agreement Halkowich made with the developers which he know, or should have known, did not provide for any broker's commission to him. It is therefore,

RECOMMENDED that Halkowich be issued a letter of reprimand.

DONE and ENTERED this 26th day of April, 1976 in Tallahassee, Florida.

K. N. Ayers Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida

Docket for Case No: 76-000459

Orders for Case No: 76-000459