STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-278

) P.D. NO. 3301

JAMES D. REVELLE t/a )

REVELLE REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Pierce, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 24, 1978. Respondent appeared in propria persona. Petitioner appeared through counsel:

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Post Office Box 1900

400 West Robinson Street Orlando, Florida 32801

By administrative complaint mailed February 1, 1978, petitioner accuses respondent of withholding from a real estate salesman in his employ a share of a commission earned on account of the sale of certain property in St. Lucie County, Florida; the administrative complaint alleges that John A. Salyers, the salesman in question, negotiated the sale and that respondent has received monies on account of the sale from which Mr. Salyers' share of the commission could have been paid.

FINDINGS OF FACT

1. Respondent is the record title holder of property on which a house is situated, at 1118 Beach Court, in Fort Pierce, Florida. In late 1974, respondent entered into a contract with Mr. and Mrs. Mantz under the terms of which respondent agreed to execute a deed to the property in favor of the Mantzes, once the Mantzes completed an agreed upon schedule of installment payments. Before these payments were concluded, the Mantzes decided to move to Texas and listed the property for sale with respondent's office.

   
   

2. In February of 1977, Charles and Linda Sue Zanda entered respondent's office and met John A. Salyers, then employed by respondent as a real estate salesman. Mr. Salyers took the Zandas to see the house at 1118 Beach Court. Even though they had no money for a down payment, the Zandas wanted to purchase the house and agreed to do so.

3. In exchange for the quitclaim deed from the Mantzes, respondent executed a promissory note in their favor in the amount of three thousand five hundred seven and eighty-three hundredths dollars ($3,507.83), which represented the Mantzes "equity" in the property as a result of their payments to respondent under the contract for deed. Respondent then entered into a contract with the Zandas to sell the property to them for thirty-two thousand two hundred fifty dollars ($32,250.00). The Zandas made a down payment of seven hundred dollars ($700.00) in the form of an initial four hundred dollar ($400.00) payment, subsequently augmented. On March 1, 1977, Mr. and Mrs. Zanda agreed to pay the principal balance and interest at the rate of 9.5 percent in monthly installments of three hundred fifty dollars ($350.00), in exchange for a deed to be executed once the payments were made. Because the Mantzes had difficulty making their monthly payments, respondent agreed orally with the Mantzes to rescind the contract for deed as of May 1, 1977, and thereafter to rent the property to the Mantzes instead.

   
   

4. Respondent had agreed to pay Mr. Salyers three-fifths of any commission to which the office became entitled because of Mr. Salyers' efforts, provided that, in the case of an installment sale, the commission share would be reduced proportionately whenever part of the sales price went unpaid. Seeking to implement this agreement with respect to the 1118 Beach Court transaction, Mr. Salyers filled out an installment promissory note form for respondent's signature. Petitioner's exhibit No. 3. This document, dated March 1, 1977, called for 23 monthly payments to retire principal indebtedness of nine hundred thirty-eight dollars and forty cents ($938.40) plus interest. Respondent refused to sign this document, which obligated him to pay only "subject to liquidation of" the agreement between respondent and the Zandas, and refused to make any other provision for payment to Mr. Salyers of any portion of any commission on the 1118 Beach Court transaction, even though Mr. Salyers made written demand therefor.

   
   

5. In explaining why he had not paid Mr. Salyers anything on account of this transaction, respondent testified that "Mr. Salyers started to become quite an infrequent visitor to the office. . .I went ahead with all the documents except the note to Mr. Salyers and I would have probably gone ahead with that if Mr. Salyers had been present. . ." (T58) Respondent also testified that his agreement with Mr. Salyers, who "terminated I think somewhere around May" (T59), was to the effect that Mr. Salyers would not be paid any share of a commission that remained unpaid at the time he left respondent's employ.

CONCLUSIONS OF LAW

Respondent owed John A. Salyers the monthly payments contemplated by petitioner's exhibit No. 3 for on or before March 1, 1977, for on or before April 1, 1977, and possibly for on or before May 1, 1977. Mr. Salyers made demand for this money, but respondent failed to "account or deliver" it, within the meaning of Section 475.25(1)(c), Florida Statutes (1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for thirty (30) days.

DONE and ENTERED this 5th day of July, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Post Office Box 1900

400 West Robinson Street Orlando, Florida 32801

Mr. James D. Revelle t/a Revelle Realty

3361 South Federal Highway Ft. Pierce, Florida 33450

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION

An agency of the State of Florida,

Petitioner,

PROGRESS DOCKET

vs. NO. 3301

DOAH NO. 78-0278

JAMES T. REVELLE t/a REVELLE REALTY,

Respondents.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held on July 26, 1978, at the Executive Headquarters in Orlando, Florida,

PRESENT: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

APPEARANCES: Frederick H. Wilsen, Esquire, Attorney

for Petitioner

James D. Revelle, Respondent, in person

This matter came on for Final Order upon the Hearing Officer's Recommended Order, the Petitioner's and Respondent's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of Petitioner's attorney and statements made by the Respondent in person, and the Commission being fully advised in the premises finds:

1.

That the Respondent, James D. Revelle, is a registered real Estate broker with the Commission t/a Revelle Realty, 3361 South Federal Highway, Fort Pierce, Florida 33450.

2.

The Petitioner's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be denied.

3.

The Hearing Officer's Recommended Order is supported by competent, substantial evidence in the record, and should be adopted as the Order of the Commission except as to penalty.

4. IT IS THEREUPON ORDERED that:

1. the Petitioner's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby denied;

   
   

2. the Respondent's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby denied;

   
   

3. The Hearing Officer's Findings of Fact and Conclusions of Law be, and the same are hereby, adopted by the Commission.

5.

Th Hearing Officer's Recommended Order to suspend Respondent's registration for a period of thirty (30) days be, and the same is hereby, rejected.

6.

IT IS THEREUPON ORDERED that the Respondent, James D. Revelle t/a Revelle Realty, be, and he is hereby, found guilty of violating Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint, and for said violation, the registration of Respondent James D. Revelle t/a Revelle Realty is hereby suspended for a period of thirty (30) days, but said, period of suspension is hereby suspended.

DONE AND ORDERED in Orlando, Florida, this 28th day of July, 1978.

Maggie S. Lassetter Chairman

Levie D. Smith, Jr. Vice Chairman

Arthur N. Hamel Member

I CERTIFY that a copy of the foregoing Final Order was mailed to James D. Revelle, Respondent, t/a Revelle Realty, 361 South Federal Highway, Fort Pierce, Florida 33450, by United States mail this 16th day of August, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Final Order shall become effective on the 16th day of September, 1978.

However, you have a right of review by an Appellate Court, if you desire.

Docket for Case No: 78-000278

Orders for Case No: 78-000278