STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1669

)

DOROTHY KINCEL ASHLEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Titusville, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 21, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner, John Huskins, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent. Charles Holcomb, Esquire

Post Office Box 1657 Cocoa, Florida 32922

By administrative complaint filed April 26, 1977, petitioner alleged that respondent, while a real estate broker trading as Cannon Realty, employed John

1. Lovett, III, as a salesman; that Mr. Lovett "obtained an exclusive MLS listing from [Mr. and Mrs. Oliver] for the sale of their property"; that on or about July 12, 1975, Mr. Lovett "negotiated a contract for the purchase" by Mr. and Mrs. Kelly of the Olivers' property; that the contract between the Olivers and Kellys "was renegotiated" by another salesman on or about August 30, 1977; that the amended contract closed on September 6, 1975, at which time respondent received $1,126.00 in partial payment of the commission; that Mr. Lovett left respondent's employ after the amended contract had been entered into but before it closed; that, at all pertinent times, respondent's office policy "provided that a listing salesman receive a 20 percent commission split on the sale of property listed under exclusive right of sale listing;" and that respondent failed to pay Mr. Lovett a share of a real estate commission that she was "not in law or equity entitled to retain . . . in violation of" Sections 475.25(1)(c) and (d) and 475.42(1)(f), Florida Statutes (1977).

   
   

   FINDINGS OF FACT

   
   

   1. On June 6, 1975, respondent entered into a written agreement with John

      R. Lovett, III, a real estate salesman. Among other things, this agreement provided:

      When Salesman performs any service whereby a commission is earned, the commission when collected, shall be divided between the Broker and Salesman in the manner as set out in Schedule attached hereto, or the office policy manual of the broker.

      
      

      The agreement also specified that a

      
      

      [s]alesman's right to commissions or divisions thereof, which accrued prior to the termination of this contract shall not be divested by the termina- tion hereof.

      
      

      The parties stipulated that no written schedule or office policy manual ever existed but that, under an oral agreement between respondent and Mr. Lovett, respondent would have paid Mr. Lovett $441.00 if he had been employed when the Oliver-Kelly transaction closed and had otherwise performed the duties of a listing salesman. Mr. Lovett and respondent never discussed what would happen as to listing commissions when he left her employ.

      
      

   2. While employed by respondent, Mr. Lovett obtained for the firm the exclusive right to sell a home belonging to Mr. and Mrs. Oliver. Thereafter, Mr. Lovett facilitated execution of a contract between the Olivers and the Kellys in which the Kellys agreed to buy the house for $34,000.0 "contingent upon purchaser qualifying for a VA insured loan in the amount specified." On August 11, 1975, the property was appraised at less than $34,000.00; and a "VA insured loan in the amount specified" proved unavailable to the Kellys.

      
      

   3. About the time this contract fell through, Mr. Lovett said he was going to Mt. Dora to look for work. The last week of August, 1975, Mr. Lovett spent in Orlando looking for a job. At the end of the week, Mr. Lovett returned to respondent's office, cleaned out his desk and announced that he was leaving. Respondent heard him say this before she left town for a long weekend. The following Tuesday, when the office reopened after Labor Day, respondent wrote petitioner, advising that Mr. Lovett was no longer associated with her as of the date of the letter.

      
      

   4. Mr. Oliver, who had moved to Georgia, returned to Brevard County for the Labor Day weekend and contacted respondent's office. Respondent's son, who was working as a real estate salesman for his mother, reopened discussions with the Kellys. As a result, the Kellys agreed a second time to buy the Olivers' house, this time at a price of $31,500.00. This second agreement, styled an "Amendment" (sic) to the first contract, was reduced to writing and signed by the principals on August 30, 1975. This second agreement provided that respondent's office be paid a commission of $2,205.00. The transaction closed the following month.

      
      

   5. Respondent originally refused Mr. Lovett's demands for commissions on account of the Oliver-Kelly sale. After Mr. Lovett left respondent's office, however, respondent paid him both listing and sales commissions on account of another transaction which closed before he left respondent's employ. After Mr. Lovett enlisted the aid of petitioner, respondent paid Mr. Lovett $220.00 in settlement of his claim for the listing commission on account of the Oliver- Kelly sale.

      CONCLUSIONS OF LAW

      
      

   6. Petitioner did not establish that Mr. Lovett was in respondent's employ at the time the Kellys entered into the second agreement to buy the Olivers' house, nor did petitioner's counsel argue otherwise. Petitioner took the position that Mr. Lovett, simply by "obtain[ing] the listing . . . earned his commission . . . [although it was] not payable until the transaction close[d]." (T.59) Respondent's failure to pay this listing commission, argues petitioner, constitutes grounds for disciplinary action, pursuant to Section 475.25(1)(c), Florida Statutes (1977).

      
      

   7. Respondent contends that, under her arrangement with salespersons in her office, one of the duties required of a salesperson in order to earn a listing commission was to present offers to the owner whose property was listed. Under this view, a salesperson's right to a listing commission does not accrue until the salesperson presents an acceptable offer to the owner; and even then is subject to divestment if the transaction fails to close. Although testimony on this point was controverted, petitioner did not meet its burden to establish an agreement between respondent and Mr. Lovett that would give rise to a legal obligation on respondent's part to pay Mr. Lovett a listing commission on account of the Oliver-Kelly transaction. No such legal obligation arises in the absence of any contractual provision on the question.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 7th day of May, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

John Huskins, Esquire Post Office Box 1900 Orlando, Florida 32802

Charles Holcomb, Esquire Post Office Box 1657 Cocoa, Florida 32922

Docket for Case No: 78-001669

Orders for Case No: 78-001669