on March 28, 1977, at the Office of the Florida Real Estate Commission, 717 Ponce De Leon Boulevard, Suite 307, Coral Gables, Florida.
APPEARANCES
For Petitioner: Bruce I. Kamelhair, Staff Counsel
Florida Real Estate Commission 2699 Lee Road
Winter Park, Florida 32789
For Respondent: Ainslee R. Ferdie
717 Ponce De Leon Boulevard, Suite 215 Coral Gables, Florida 33134
INTRODUCTION
By an Administrative Complaint filed on March 30, 1976, petitioner charged respondents with violations of Florida Statutes s475.25(1)(d) in that they allegedly violated certain rules of the petitioner, and because of such violations, petitioner seeks to suspend the respective licenses of the respondents. Specifically, respondent George Rothseiden is charged with violating Florida Administrative Code Rule 21V-4.06 in that he allegedly used the trade or fictitious name of "George Roth" without the same being registered with the Clerk of the Circuit Court or disclosed to the Commission by request for a certificate under that name. Additionally, Rothseiden is charged with violating Chapter 21V-5 and/or 21V-6 in that he was allegedly acting as a broker and/or a salesman of respondent Porter Realty, Inc. without being registered as such and at a time when he was an active firm member of W and T Realty, Inc. The events with which Rothseiden is charged allegedly occurred sometime prior to March 5, 1975.
Respondents Porter Realty, Inc. and Irvin William Porter are charged with violations of Florida Administrative Code Rules 21V-4.06, 21V-5.05 and/or 21V- 6.02, and 21V-10.09. Specifically they are charged with permitting Rothseiden's name to be affixed to an entrance sign; affixing the name "William Porter" to
said sign in lieu of his registered name of "Irvin William Porter"; permitting Rothseiden to act for the corporation as a broker or a salesman without being so registered; and permitting Rothseiden to use and affix to their letterhead an unregistered and unauthorized trade or fictitious name. The violations concerning the entrance sign occurred prior to November 10, 1975, and the other violations occurred on or before March 5, 1975.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, together with respondents' admissions of the material factual allegations contained in the Administrative Complaint, the following relevant facts are found:
At all times pertinent to the charges herein, respondent George Rothseiden was a licensed real estate broker and an active firm member of W and T Realty, Inc. Said office was in the same space as that of respondent Porter Realty, Inc. under an office sharing agreement listed with the Florida Real Estate Commission.
Porter Realty was engaged in the selling of properties contained in a development in Texas. Sometime prior to March 5, 1975, respondent Rothseiden had a telephone conversation with a man in Wisconsin regarding the Texas property. This conversation was followed by a letter dated March 5, 1975, on the letterhead of Porter Realty and signed "Cordially, George Roth, Account Executive." A secretary in the office of Porter Realty, Inc. typed and signed the name "George Roth" to the aforesaid letter. Rothseiden testified that he has never used the surname of "Roth" nor did he ever give the secretary authority to use the name "Roth." At the time in question -- March 5, 1975 -- George Rothseiden was not an officer or director of Porter Realty, nor was he employed by it as a salesman. The name "George Roth" was not registered with the Clerk of the Circuit Court nor with the petitioner.
Sometime prior to November 7, 1975, respondent Porter had affixed to his entrance door a sign reading as follows:
PORTER REALTY, INC.
Reg. Real Estate Brokers William Porter
Geo. Rothseiden Val Palmer
At this time, respondent Porter was registered with petitioner as "Irvin William Porter" and respondent Rothseiden was registered as "George Rothseiden" as a broker with W and T Realty, Inc. and was not affiliated with Porter Realty, Inc. in any manner except as an office sharer.
Upon the advice of one of petitioner's investigators that the entrance sign was improper, respondent Porter immediately removed the same.
CONCLUSIONS OF LAW
The facts as found above, and as admitted by the respondents, clearly constitute violations of the rules and regulations of the Florida Real Estate Commission specifically Rules 21V-4.06, 21V-5.05, 21V-6.02 and 21V-10.09. Such violations constitute grounds for suspension of registration under Florida Statutes 475.25(1)(d).
However, equally clear from the record established at the hearing are substantial mitigating factors which bear directly upon the penalty to be imposed. As noted in Pauline v. Borer, 274 So.2d 1-(Fla. 1973), the penalty of suspension of a real estate license should always be sparingly and cautiously used and directed toward those dishonest and unscrupulous brokers who cheat, swindle or defraud the general public. Applying this principle to the facts of this case, the undersigned Hearing Officer concludes that suspension of respondents' licenses or registrations would be too harsh.
Although respondents are clearly responsible for the day-to-day operation of their profession and for compliance with all the rules and regulations thereof, there was no showing of actual knowledge on the part of Rothseiden or Porter that the name of "Roth" had been affixed to the March 5, 1975, letter. As soon as the impropriety of the entrance sign was brought to the attention of Mr. Porter, it was immediately removed. There was no evidence that any member of the general public had been cheated, swindled or defrauded, or that any of the respondents engaged in conduct with the intention of defrauding the public. Absent such evidence, it is concluded that a written reprimand directed to the respondents by the petitioner would adequately punish respondents commensurate with their conduct and serve to safeguard the public interest.
