STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

an agency of the State of Florida, )

)

Petitioner, )

) CASE NO. 76-2277

vs. ) P.D. NO. 3121

)

KEITH ALLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on August 2, 1977, in Suite 201, Courtney Building, 2069 First Street, Fort Myers, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon a four count Administrative Complaint filed by the Florida Real Estate Commission against Keith Allen. Count One of the Administrative Complaint alleges that Keith Allen had acted as a real estate broker in violation of Section 475.42(1)(b), Florida Statutes, and further that he had collected $20 in a real estate transaction which was a deposit not received in the name of his employer and with the express consent of his employer in violation of Section 475.42(1)(d), Florida Statutes. Count Two of the Administrative Complaint alleges that Keith Allen demanded the Commission for the sale of real estate under such circumstances which constituted a violation of Section 475.25(1)(a), Florida Statutes. Count Three alleges that Keith Allen made false statements and thereby breached a trust in a business transaction in violation of Section 475.25(1)(a), Florida Statutes. Count Four alleges that if found guilty of any of the foregoing acts it would constitute the second time that Keith Allen had been found guilty of any misconduct warranting suspension under subsection 1 of Section 475.25, Florida Statutes, which constitutes a violation of Section 475.25(3), Florida Statutes.

The Florida Real Estate Commission called its primary witnesses Arvle Kiser and Malvey Sue Kiser, his wife, who testified concerning the allegations of Counts One and Two against Keith Allen. There was no evidence presented on Count Three by the Florida Real Estate Commission. Keith Allen testified denying the fact that he had ever received any money as a commission on the Kiser-Hobbs transaction. Keith Allen stated that Kiser's charges against him were motivated by Kiser's desire to get back at Allen for a civil suit Allen's wife had filed against Arvle Kiser and Malvey Sue Kiser. Keith Allen admitted transmitting Hobbs' contract and $20 from Hobbs to Kiser.

The factual issue presented is whether Keith Allen actually received a commission on the Hobbs-Kiser transaction; and whether Keith Allen by conveying the Hobbs contract and $20 to Kiser, Allen functioned as a broker contrary to the provisions of Section 475.42(1)(b), Florida Statutes.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Allan M. Parvey, Esquire

Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366

Fort Myers, Florida 33902 FINDING OF FACT

1. Keith Allen is a licensed real estate salesman who holds License No. 0116360 issued by the Florida Real Estate Commission. On the dates in question in the complaint he was employed by Roy, Inc. as a salesman. In this capacity, Allen was primarily an agent for the sale of new homes constructed by a subsidiary of Roy, Inc. Keith Allen attempted to sell a house to M. C. Hobbs and Martha A. Hobbs, his wife. Allen had encountered difficulty in finding a lot for Hobbs to build a house on at a price that would permit Hobbs to qualify for the financing. After having shown Hobbs several lots, Keith Allen suggested to Hobbs that he purchase a lot owned by Arvle Kiser. Keith Allen knew that Kiser had a lot for sale but that Kiser had specifically refused to place the property with a broker. Allen suggested to Hobbs that he make an offer to Kiser which Hobbs did. Allen conveyed Hobbs' offer (see Exhibit 2) for $5700 for Kiser's lot together with $20 earnest money which Allen delivered to Kiser. Kiser subsequently signed the contract.

   
   

2. Kiser testified that subsequently Keith Allen contacted him and demanded as a commission all monies over $5000 received under the contract. Kiser stated that he went along with Allen's demand, and Kiser's wife testified that she paid Keith Allen $700 in cash.

   
   

3. A suit was filed by Keith Allen's wife against Arvle Kiser and Malvey Sue Kiser for $2000. This action was pending at or about the time that Kiser made his complaint to the Florida Real Estate Commission. Keith Allen alleges that it was this action by his wife against the Kisers that caused Arvle Kiser to lodge this complaint which is false concerning Allen's receiving $700 as a commission on the Hobbs-Kiser transaction. Keith Allen's wife testified in support of her husband's testimony Several character witnesses testified that Keith Allen had a reputation for truth and veracity in the community and that Arvle Kiser did not enjoy a good reputation in the community for truth and veracity.

   
   

4. Arvle Kiser's testimony and that of his wife that Keith Allen received

   $700 commission on the sale of Kiser's property to Hobbs is rejected. Considering the fact that Kiser's complaint to the Florida Real Estate Commission was contemporaneous with the filing of Allen's wife's suit against the Kisers, there is a question of the motivation of Kiser in filing this complaint. When one considers that he could have refused to pay the commission in the first instance and reported the matter to Hobbs or Roy, Inc., Kiser's testimony is suspect. Further, Kiser's business reputation and his reputation for truth and veracity in the community also make his testimony questionable.

   
   

5. No evidence was received on Count Three.

   CONCLUSIONS OF LAW

   
   

6. Keith Allen is charged in Count One as functioning as a real estate broker and taking money as a salesman without his broker's consent. For Keith Allen to have functioned as a broker he would have had to have received compensation as provided in Section 475.01(2), Florida Statutes. Having found above that Allen received no compensation, Keith Allen did not function as a broker. Rule 21V-14.01 defines "deposit" as money delivered to a real estate broker or salesman as earnest money or as payment or as part payment in connection with any real estate transaction named or described in Section 475.01(2), Florida Statutes. As stated above, Section 475.01(2), Florida Statutes, limits its applicability to activities for compensation. The contract in this instance clearly indicates that no broker was involved. Keith Allen indicated that his sole purpose in precipitating a transaction between Hobbs and Kiser was to find Hobbs a lot upon which Hobbs could afford to build the house Allen was seeking to sell him. Allen did not intend to function as a broker. Further, considering the amount involved and the circumstances involved, even if Allen were considered to have received money as a salesman for a broker, his violation is a very technical one. The facts reveal that he handled the $20 exactly under the terms stated by him to Hobbs and delivered the money directly to Kiser. Under the terms of the contract, Allen's broker had no obligation to either party.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the real estate license of Keith Allen.

DONE and ORDERED this 2nd day of September, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Allan M. Parvey, Esquire

Goldberg, Rubinstein & Buckley, P.A. Post Office Box 2366

Fort Myers, Florida 33902

Docket for Case No: 76-002277

Orders for Case No: 76-002277