STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-949

)

MICHAEL LYNN JURICK, )

)

Respondent. )

)

Progress Docket No. 3345 )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on July 25, 1978, in St. Petersburg, Florida.

The following appearances were entered: Joseph A. Doherty, Orlando, Florida, for the Petitioner, Florida Real Estate Commission; and G. A. Ruiz, St. Petersburg, Florida, for the Respondent, Michael Lynn Jurick.

The Florida Real Estate Commission issued an Administrative Complaint against the Respondent, Michael Lynn Jurick, on or about April 27, 1978. The Respondent requested a hearing, and by letter dated May 16, 1978, the Real Estate Commission requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notice dated June 20, 1978.

At the final hearing the parties stipulated as to some of the facts alleged in the complaint, and the Real Estate Commission called Jacqueline McNabb as its only witness. The Respondent testified on his own behalf, and called Jean Krueger, a registered real estate salesman; and Archie C. Hightower, Jr., a registered real estate salesman, as additional witnesses. Petitioner's Exhibits 1-4, and Respondent's Exhibit 1 were offered into evidence and were received.

The parties were Invited to submit post-hearing legal memoranda. The Respondent has submitted Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. The Respondent is, and at all times material to this matter has been, registered with the Real Estate Commission as a real estate broker. The Respondent has been the broker in charge of Lynn Real Estate Company.

   
   

2. From approximately January 6, 1976 until February 14, 1977, Jacqueline McNabb was associated as an independent contractor with Lynn Real Estate and with the Respondent. McNabb was at that time registered with the Real Estate Commission as a real estate salesman. She is now registered as a broker. McNabb's relationship with the Respondent is set out in a contract which was

   received in evidence at the hearing as Petitioner's Exhibit 1. Paragraph 6 of the contract provides:

   
   

   The fees usually and customarily charged by the broker shall be charged for any service performed hereunder, unless broker shall advise the salesman of any special contract relating to any particular transaction he undertakes to handle. When the salesman shall perform any service hereunder, whereby a fee is earned, said fee shall, when collected, be divided between the broker and the salesman, in which division the salesman shall receive sixty percent and the broker shall receive the balance. In the event that two or more salesmen participate in such a service, or claim to have done so, the amount of the fee over that accruing to the broker shall be divided between the participating salesmen according to agreement between them, or by arbitration. In no case shall the broker be liable to the salesman for any fee unless the same shall have been collected from the party for whom the service was per- formed.

   
   

   Paragraph 8 of the contract provides:

   
   

   This contract, and the association created hereby, may be terminated by either party hereto, at any time upon notice given to the other; but the rights of the parties to any fee, which accrued prior to said notice, shall not be divested by the termination of this contract.

   
   

3. On February 14, 1977, the Respondent duly terminated the contract with Ms. McNabb, as the result of a conflict which is not relevant to this proceeding. The Respondent immediately wrote to the Real Estate Commission advising that McNabb was no longer associated with him. Ms. McNabb testified at the hearing that the contract was terminated on February 15, but it is clear from the evidence that she was mistaken.

   
   

4. While she was under contract with the Respondent, McNabb obtained a listing for the Respondent for the sale of property owned by a Mr. Davidson.

   The property was listed on a Multiple Listing Service. No contract for the sale of the property had been obtained prior to the time that McNabb's contract with the Respondent was terminated. On February 16, 1977, Ms. Jean Krueger, a registered real estate salesman employed by Tamarac Realty obtained a contract for purchase of the property. The contract was written at approximately 4:45

   P.M. on February 15, and she immediately called the Respondent's office so that they would wait for her to get there with the contract before the office was closed for the day. Ms. Krueger delivered the contract to the Respondent, Mr. Davidson accepted it, and the transaction ultimately closed.

   
   

5. Ms. McNabb learned that a contract had been obtained on the Davidson property approximately 3 days after the contract was signed. She made both

   written and oral demand upon the Respondent for a share of the commission. The Respondent, after consulting representatives of the Real Estate Commission, representatives of the St. Petersburg Board of Realtors, and legal counsel, declined to give McNabb any share of the commission.

   
   

6. The Respondent did not know at the time that he terminated his contract with McNabb that a contract would be obtained for sale of the Davidson property. Ms. Krueger, the salesman who obtained the contract had never met the Respondent prior to taking the contract for sale to him, the day after McNabb's contract was terminated. During the course of this proceeding the Respondent has been cooperative in providing copies of documents to Ms. McNabb. The Respondent has no history of complaints being made against him to the Florida Real Estate Commission, and it does not appear that he has in the past refused to pay any salesman a commission to which the salesman was entitled.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1977)

   
   

8. Section 475.25(1), Florida Statutes (1977) provides in pertinent part as follows:

   
   

   The registration of a registrant may be suspended for a period not exceeding two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of fact showing that the registrant has:

   * * *

   (c) Failed to account or deliver to any person, including registrants under this chapter, any personal property, such as money ... 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, in the absence

   of a fixed time, upon demand of the person entitled to such accounting and delivery...

   
   

   If salesman McNabb is entitled to a portion of the commission on the Davidson real estate transaction, then the Respondent has violated the provisions of Section 475.25(1)(c). McNabb's entitlement to a portion to the commission is governed by the provisions of her contract with the Respondent. The contract is somewhat ambiguous in that it provides that the salesman's rights to any commission will not be divested by termination of the contract if the commission accrued prior to termination of the contract. In the instant case the salesman had obtained the listing for the subject property, but the contract for purchase was not obtained until after the salesman's contract was terminated. Thus no commission of any kind had been earned by anyone before termination of the contract, and certainly no entitlement to a fee had "accrued" prior to termination of the contract. There is an ambiguity as to the meaning of "accrued". A fee could be considered accrued upon signing of a contract, or

   upon closing of a transaction. It is clear that the Respondent believed that entitlement to a fee would accrue upon the signing of a contract. Whatever meaning is given to the term "accrued", there was no entitlement to any commission prior to the signing of a contract of purchase, and it could not be held that McNabb had accrued any right to any fee for sale of property when there had been no contract to purchase it at the time of her termination.

   
   

9. The Respondent did not improperly withhold a real estate commission from Ms. McNabb. Under his contract with Ms. McNabb, she was entitled only to portions of commissions for which contracts had been obtained prior to the termination of her contract with the Respondent. The Real Estate Commission has failed to establish that the Respondent violated the provisions of Section 475.25(1). The complaint against the Respondent should be dismissed.

   
   

10. To the extent that any violation of Section 475.25(1) has been established, it is clear that the violation was not willful and indeed, occurred only after representatives of the Real Estate Commission, the local real estate association, and legal counsel were consulted.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That a final order be entered finding the Respondent, Michael Lynn Jurick, not guilty of the charges set out in the complaint filed by the Real Estate Commission, and dismissing the complaint.

RECOMMENDED this 11th day of August, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

MAIL: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph A. Doherty, Esquire Florida Real Estate Commission

P. O. Box 1900 Orlando, Florida 32802

Guillermo A. Ruiz, Esquire

P. O. Box 12787

St. Petersburg, Florida 33733

APPENDEX

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-949

)

MICHAEL LYNN JURICK, )

)

Respondent. )

)

Progress Docket No. 3345 )

)

)

APPENDIX TO RECOMMENDED ORDER,

RULINGS IN ACCORDANCE WITH SECTION 120.59(2) FLORIDA STATUTES

The Respondent has submitted Proposed Findings of Fact and Conclusions of Law. Rulings upon the proposed findings and conclusions are set out herein accordance with Section 120.59(2), Florida Statutes (1977).

The proposed findings of fact set out in paragraphs 1 through 18 of the Respondent's Proposed Findings of Fact have been substantially adopted in the Findings of Fact set out in the Recommended Order, and are hereby approved and adopted. The proposed conclusions of law set out in paragraphs 1 through 4 of the Respondent's Proposed Conclusions of Law have been substantially adopted in the Recommended Order, and are hereby approved and adopted.

ENTERED this 11th day of August, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

MAIL: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph A. Doherty, Esquire Florida Real Estate Commission

P. O. Box 1900 Orlando, Florida 32802

Guillermo A. Ruiz, Esquire

P. O. Box 12787

St. Petersburg, Florida 33733

Docket for Case No: 78-000949

Orders for Case No: 78-000949