STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-888

) P.D. NO. 3291

HARRY E. HOSMER, )

)

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 case on 29 June 1978 at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Staff Attorney

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

For Respondent: David Hosmer

3351 Spanish Trail, Apartment 113 Delray Beach, Florida 33444

By Administrative Complaint filed 8 February 1978 the Florida Real Estate Commission (FREC or Petitioner) seeks to revoke, suspend or otherwise discipline the registration of Harry E. Hosmer, Respondent, as a real estate broker. As grounds therefor it is alleged that Respondent failed to pay an earned commission to a salesman working under him in violation of Section 475.25(1)(c) and (d), Florida Statutes. Five witnesses were called by Petitioner, one witness testified on behalf of Respondent and 10 exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here involved Respondent was registered as a real estate broker with the FREC and was an active firm member of Realcor, Inc., a registered corporate broker.

   
   

2. During the latter part of 1975 Realcor was the sales agent for a condominium development at Fort Lauderdale, Florida.

   
   

3. In October 1975 Edward J. Briglia visited the condominium preparatory to buying a unit and talked to and was shown around the condominium by Nicholas Polizzi, a broker-salesman for Realcor. Upon leaving, Briglia advised Polizzi that he was returning to his home in the northern United States and if he

   decided to buy would call Polizzi. Shortly thereafter, Briglia telephoned the real estate office and talked to Constant Cholvin, a salesman, who advised Briglia that Polizzi was no longer associated with Realcor and, when Briglia said he was ready to buy, offered to send him a contract.

   
   

4. Cholvin wrote one or two letters, drafted the contract to purchase and talked to Briglia by phone two or three times. He did not appear at the closing and never had personal contact with Briglia. Before Briglia closed his purchase the sale of the condominium was turned over to another broker and most of Briglia's contacts after first signing the contract were with the other firm.

   
   

5. The contract was changed to another unit before the contract was finally closed and Briglia obtained occupancy.

   
   

6. When the commission earned by Realcor on the sale was paid, Respondent was aware of the participation by Cholvin and Polizzi in the sale to Briglia, and when Cholvin demanded payment of the entire salesman's commission, Respondent told him to get together with Polizzi and agree to a settlement of the commission (Exhibits 6 and 8).

   
   

7. Thereafter the communications between Polizzi, Cholvin and Respondent deteriorated due to the latter being out of state a great deal plus some difficulty in Respondent receiving mail that was supposedly forwarded to Respondent from Florida.

   
   

8. Respondent acknowledged that he received information from Polizzi that he had agreed to a 50-50 commission split with Cholvin but never received Cholvin's acquiescence to such division of the commission. Cholvin averred that he responded to Exhibit 8 agreeing to accept the division of the commission with Polizzi but never heard further from Respondent until the week of the hearing.

   
   

9. After the hearing had been scheduled, Respondent, presently residing in North Carolina, forwarded the commission to his son in Delray Beach to divide between Polizzi and Cholvin and obtain their releases. This was accomplished immediately prior to the commencement of this hearing.

   
   

10. During all time here involved the commission due the salesman on the sale to Briglia remained in escrow.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

12. Respondent is charged with failure to deliver an earned commission to a salesman in violation of Section 475.25(1)(c), Florida Statutes, which provides in pertinent part:

    
    

    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:

    
    

    Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money . . . or thing of value, including a share of a real

    estate commission . . . which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances, and at the time which has been agreed upon or is required by law or, . . . upon demand of the person entitled to such accounting and delivery, . . . or if conflicting demands therefor shall have been made upon him and he has not appropriated the property to his own use or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of the question in a proper court and shall abide, or offer to perform, the advice of the commission or the orders of the court or arbitrators, no information against him shall be permitted to be maintained. . . .

    
    

13. Here two salesmen performed services on behalf of the seller in obtaining the contract from the buyer; accordingly each is entitled to a portion of the commission due the salesman. In attempting to resolve the dispute regarding the division of this commission Respondent wrote to both of the salesmen involved asking them to get together and agree on the sharing of the commission.

    
    

14. While the Respondent was perhaps dilatory in not following up on his letter to Cholvin regarding the agreement between Cholvin and Polizzi as to the division of the commission earned, Cholvin was likewise dilatory in not submitting a second letter to Respondent confirming his agreement with Polizzi. It would appear to have been equally easy to communicate again with Respondent as with the FREC.

    
    

15. While the specter of the hearing which could lead to the suspension of his license undoubtedly prompted Respondent to take the necessary steps to disburse the earned commission in this case, better documented demand for payment by the salesmen would have resolved the factual issue as to how the commission should be divided and whether the Respondent unreasonably withheld the commission from those entitled to receive it.

    
    

16. The burden of establishing that a licensed real estate broker has violated the Florida Real Estate Licensing Law lies with the Florida Real Estate Commission. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d

487 (Fla. 1973). Absent a showing that the dispute over the division of the commission had been agreed to between the claimants, Respondent was justified in withholding these payments. While it may be argued that he should have turned the earned commission over to FREC for a resolution of the conflict, the statute does not require such action.

From the foregoing it is concluded that Petitioner has not shown by a preponderance of the evidence that Respondent wrongfully withheld the earned commission from the salesman. Although the payment, when finally made, was made

much later than it should have been there was competent evidence that Respondent did not receive the agreement to the settlement of the commission until the date of the hearing. It is therefore

RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 21st day of July 1978.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

Mail: Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Staff Attorney

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

David Hosmer

3351 Spanish Trail

Apartment 113

Delray Beach, Florida 33444

Harry E. Hosmer Post Office Box 926

Waynesville, North Carolina 28786

Docket for Case No: 78-000888

Orders for Case No: 78-000888