Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 05, 1978
Summary: Respondents had agency agreement where salesman would sign for his principal on the principal's authority. Recommend dismissal.
78-0822.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 78-822
) P.D. NO. 3340 ROBERT E. MURRAY and ARTHUR T. )
DOYLE, )
)
Respondents. )
)
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 case on October 6 and November 15, 1978, at Clearwater, Florida.
APPEARANCES
For Petitioner: Manuel E. Oliver, Esquire
Staff Attorney
Florida Real Estate Commission
400 West Robinson Street Orlando, Florida 32801
For Respondent Edmond S. Whitson, Jr., Esquire Murray: 309 South Garden Avenue
Clearwater, Florida 33516
For Respondent C. Allen Kynes, Jr., Esquire Doyle: Post Office Box 4840
Clearwater, Florida 33518
By Administrative Complaint filed 27 March, 1978, the Florida Real Estate Commission (FREC), Petitioner, seeks to revoke, suspend or otherwise discipline the real estate broker's license held by Robert E. Murray, Respondent, and the broker-salesman license held by Arthur T. Doyle, Respondent. As grounds therefor it is alleged that in negotiating an exclusive right of sale for a condominium complex, Respondent Murray failed to exercise control or supervision over Respondent Doyle and that Doyle acted in all respects like a broker; that Murray failed to exercise control or supervision over Doyle in the running of the real estate office and that Doyle performed the function of a broker in the running of the office; that on the salesman application for McGhan, Doyle signed Murray's name as approving broker; and that the foregoing acts demonstrated both Respondents to be guilty of a course of conduct or practice which show they are so incompetent, negligent, dishonest or untruthful that money, property, or rights of investors or those with whom they may sustain confidential relationship may not safely be entrusted to them.
Four witnesses were called by Petitioner, three witnesses including both Respondents were called by Respondents and nine Exhibits were admitted into evidence. All parties stipulated that at all times herein involved Respondent Murray was registered with FREC as a real estate broker and Respondent Doyle was registered as a real estate salesman and is now registered as a broker-salesman. Proposed Findings of Fact submitted by Respondents not included in the findings below were deemed immaterial to the results reached.
FINDINGS OF FACT
In December, 1976, Respondent Murray was registered with Petitioner as a real estate broker and Respondent Doyle was registered as a real estate salesman associated with Murray.
Negotiations conducted between Murray, Doyle and representatives of Cameron-Brown led to the execution of an Exclusive Right of Sales Agreement, dated December 1, 1976 (Exhibit 1). This agreement was negotiated between the parties with the final draft prepared by Cameron-Brown legal staff and approved by R.E. Murray and Associated (REMA) by Murray and Cameron-Brown Company by a vice-president. The contract covered condominiums that had been foreclosed on by Cameron-Brown and which they were anxious to sell.
In addition to providing commissions to be paid on sales, how down payments were to be handled, how the agreement could be terminated, reports to be submitted, defining responsibility for employees, and establishing the closing agent for Seller, the agreement, and Addendum A, provided that Doyle was to have sole control of managing and marketing the project.
This latter provision was interpreted by the principal drafters of the agreement to indicate that Cameron-Brown was interested in having Doyle as sales manager of the project but in all respects working under Murray as broker.
Little discretion was left to the agent in executing contracts which were provided by the Seller, handling of the escrow deposits or in preparing closing statements, as the manner of carrying out these duties was established by the agreement which also provided that all deposits were to be placed in escrow with the title company designated as closing agent for the Seller. During the period the condominium units were being sold this was the major, if not sole, real estate function performed by REMA.
The agreement was carried out to the satisfaction of Cameron-Brown with all units sold quicker than had been expected.
From the summer of 1976 through the selling of the condominiums, Respondent Murray, who is also a licensed broker in Minnesota, was engaged in a real estate development project in Minnesota and spent the major part of his time in Minnesota. Murray was in communication with his Clearwater office by telephone and discussed all aspects of the agreement with Doyle doing the negotiations. After the agreement was executed by Murray, he was also available by telephone and was contacted by Doyle and others in the office when they deemed it necessary.
Murray signed all listing agreements and approved all salesmen employed. One sales person, Mrs. McGhan, was interviewed by a REMA salesperson and Doyle and her employment was approved by Murray. Because her registration was close to expiration when she was hired, Murray authorized Doyle to sign his, Murray's name to her application to be forwarded to FREC. No effort to emulate
Murray's signature was made by Doyle in signing Murray's name on the McGhan application.
During the period involving the sales of these condominiums Murray received weekly reports on the progress of the sales and was in frequent contact with the office.
Procedures to be followed in the REMA office had been established by Murray orally and in written memoranda and were, after the charges herein involved were brought, published in a Procedures Manual, a copy of which was admitted into evidence as Exhibit 7.
Respondent Doyle at all times here involved was employed by REMA as a salesman. Doyle holds an inactive real estate broker's license in California and has been a licensed Florida real estate salesman since March 1976. He passed the C.P.A. exam in California in 1970 and also holds a Florida Mortgage Broker's license. He has a Master's degree from UCLA in Real Estate and Urban Land Economics, and is a certified teacher at St. Petersburg Junior College, teaching Real Estate Finance since 1977.
During the negotiations leading up to the Exclusive Right of Sale Agreement with Cameron-Brown, Doyle did most of the negotiations for REMA and John Sullivan, an employee of Cameron-Brown, did the negotiations for Cameron- Brown. In conducting these negotiations, Doyle was in frequent communication with Murray and Murray was the final approving authority for REMA.
Doyle was authorized to sign checks drawn on the REMA escrow account, but no evidence was presented that he ever signed checks on this escrow account or that it would have been wrong had he done so. During the period Murray was spending most of his time in Minnesota, the principal efforts of REMA were involved in the condominium project and none of the earnest money deposits there received were placed in REMA escrow account.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Respondent Murray, by virtue of the alleged relinquishment of control over Respondent Doyle in the conduct of the real estate activities of REMA, is charged with violating Section 475.25, Florida Statutes, which provides in pertinent part:
"(1) The registration of a registrant may be suspended for a period not exceeding two years
. . .upon a finding of facts showing that the registrant has:
been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence or breach of trust in any business transaction. . .[or] has aided, assisted, or conspired with any other person engaged in any such misconduct. . .
(d) violated any of the provisions of this Chapter, or any lawful order, rule or regulation made or issued under the provisions
of this Chapter.
(3) The registration of a registrant may be revoked if the registrant shall. . .be found guilty of a course of conduct or practices which showed that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him."
No evidence of fraud, misrepresentation or concealment was produced. To the contrary, Cameron-Brown fully realized they were contracting with REMA, that Murray was the broker and that he had sole authority in taking on associates to sell the condominiums, including the authority to let Doyle go. In case Cameron-Brown became unhappy with the way the Exclusive Right of Sale was being conducted the agreement gave them the option to cancel upon ninety
(90) days notice.
With respect to Murray and Doyle conspiring to relinquish control and management of REMA to Doyle, the evidence to support such a charge was totally lacking. Both Murray and Doyle fully realized the duties and responsibilities of brokers and salesmen as well as the limitations imposed thereon. The only evidence that was admitted which in any way showed Murray may not have been performing all the duties imposed on a broker was that he was spending a lot of time in Minnesota. With the current state of communications he was available by telephone whenever necessary and, in fact, was in contact with his office regularly. No evidence was presented that Murray's absence in any way detracted from the efficient operation of the office of REMA or that Doyle performed any of those functions that can only be performed by a broker.
Doyle is charged with violating Section 475.25(1)(a) and (d), Florida Statutes, above quoted, as well as Section 475.42(1), Florida Statutes, which provides in pertinent part:
"(b) 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."
Doyle had no escrow account, accepted no listings, and performed generally the duties expected of a salesman who also performs some of the duties of an office manager.
By signing McGhan's application for Murray, Doyle is charged with violating the provisions of Section 475.25(1)(a), Florida Statutes, above quoted. Before signing the application Doyle talked to Murray, who was in Minnesota at the time, and Murray authorized Doyle to sign his, Murray's, name to the application.
Rule 21V-6.02, Florida Administrative Code, provides generally that an applicant who has passed the examination for salesman may request the issuance of a salesman's certificate by the filing of a request form promulgated by the Commission, signed by the salesman and also certified by a registered broker, who is willing to be responsible for the acts of such salesman.
Petitioner contends that this rule, as well as instructions on the form, require the broker personally to sign the application. The instructions so contained on the form, if a binding rule, are invalid because they have never been promulgated pursuant to the provision of Chapter 120, Florida Statutes.
In signing Murray's name to the McGhan application, Doyle was the agent of Murray and, since Murray authorized Doyle to sign the application, the signature was the signature of Murray. It is a well-settled principle of law that a principal may confer upon his agent authority to perform any act the principal himself could perform. 2Fla Jur 2d AGENCY 25 et seq.
From the foregoing it is concluded that the evidence was insufficient to prove that Robert E. Murray or Arthur T. Doyle violated the various provisions of Section 475.25, Florida Statutes, or Section 475.42, Florida Statutes, as alleged. It is therefore,
RECOMMENDED that the Administrative Complaint be dismissed.
DONE and ENTERED this 5th day of December, 1978, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building
MAIL: 530 Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Robert J. Corda
Florida Real Estate Commission
400 West Robinson Street Orlando, Florida 32801
Manuel E. Oliver Staff Attorney
Florida Real Estate Commission
400 West Robinson Street Orlando, Florida 32801
Edmund S. Whitson, Jr., Esquire
309 South Garden Avenue Clearwater, Florida 33516
C. Allen Kynes, Jr., Esquire Post Office Box 4840 Clearwater, Florida 33518
Docket for Case No: 78-000822
Orders for Case No: 78-000822
| Issue Date |
Document |
Summary |
|
Dec. 05, 1978 |
Recommended Order
|
Respondents had agency agreement where salesman would sign for his principal on the principal's authority. Recommend dismissal.
|
