STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2068

)

MARGARET W. ROGERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Winter Park, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer Robert T. Benton, II, on February 7, 1979. The parties were represented by counsel:

For Petitioner: Kenneth M. Meer, Esquire

400 West Robinson Street Orlando, Florida 32801

For Respondent: H. Jay Stevens, Esquire

47 East Robinson Street, Suite 224 Orlando, Florida 32801

By administrative complaint filed December 2, 1977, petitioner alleged that respondent was registered as a real estate salesperson in the employ of Dean Downs until her certificate of registration expired on March 31, 1977; that, on January 14, 1977, a sale of property to the Oylers closed, at which time respondent received a commission check in the amount of $2,208.00 "which represented the selling broker's entire share of the commission;" that somebody other than Dean Downs endorsed the check, after which respondent endorsed it and deposited it in her personal account; that "Dean Downs denied any knowledge of the sale;" that, on January 13, 1977, respondent accepted checks aggregating

$500.00 as a deposit by the Kelleys toward the purchase of property from Betty

1. McEwan; that respondent told the broker with whom Ms. McEwan had listed her property "that she had a 'special arrangement' with Broker Dean Downs which allowed her to deal in his name;" that "the selling broker's commission check for $1,099.25 was sent to [respondent's] home;" and that Mr. "Downs knew nothing of this transaction until informed by his wife, who had spoken with the Purchasers Kelley;" that respondent "purchased real estate through Broker Bob Davis of the Double 'D' Realty Company . . . and the closing was July 14, 1977;" that respondent "acted as a selling broker and received a $788 check for the selling broker's entire share of the commission . . . [which] was endorsed by someone signing Dean Downs Realty and further endorsed by Sunlight Design;" that "Dean Downs disclaimed any knowledge of this sale and stated that he did not endorse the check;" that respondent was "the sole signatory to the Sunlight Design account;" that respondent acted as a broker without holding a broker's certificate and collected money without the express consent of her employer; that respondent acted as a real estate salesperson after March 31, 1977, without

   holding a current salesperson's certificate; and, finally, that respondent "by reason of the foregoing . . . is guilty of a course of conduct . . . which shows that she is so incompetent, negligent, dishonest or untruthful that . . . money [etc.] . . . may not safely be entrusted to her," all in violation of Sections 475.25(1)(a), (b) and (d); 475.25(3) and 475.42(1)(a), (b) and (d), Florida Statutes (1977).

   
   

   FINDINGS OF FACT

   
   

   1. While working as a real estate salesperson in Deanna Duncan's office in the fall of 1976, respondent quarreled with Ms. Duncan about, among other things, their relative shares of real estate commissions. Respondent, who has been a real estate salesperson off and on since 1967, decided to leave Ms. Duncan's employ; and telephoned various brokers, including, eventually, Dean Downs, for whom she had worked from 1969 to 1971. Mr. Downs, who testified that he did not take respondent's abilities as a real estate salesperson seriously, was preoccupied with a development project on the east coast called Shoreham by the Sea and with his efforts to secure refinancing of a tract of land in Maitland, when respondent contacted him. He agreed to sign the appropriate papers to effect a transfer of respondent's certificate to his office, but he told respondent that he would be out of town most of the time and unable to supervise her. Respondent and Mr. Downs agreed orally that respondent could keep all commissions earned by the office as a result of respondent's efforts; and that respondent would pass on to Mr. Downs any leads she came across for sales of nonresidential properties, without expecting a share of any resulting commissions. During their association, respondent did pass on three such leads, none of which panned out.

      
      

   2. Respondent's affiliation with Mr. Downs began officially on December 1, 1976. Even before then, respondent had shown Mr. and Mrs. Thomas L. Oyler a house on Lake Catherine Drive in Maitland. On December 9, 1976, the Oylers made an offer, accompanied by a deposit check in the amount of $500.00 drawn in favor of Dean Downs' escrow account. In talking to Mr. Downs about this, respondent learned that there was no escrow account. Mr. Downs told her to look up a Mr. Green at the Southeast National Bank, who would help her open up an escrow account on which she would be authorized to sign. Respondent did open such an account and in it she deposited the Oylers' earnest money. On July 14, 1977, the transaction closed and respondent ended up with a check for the selling broker's commission drawn to Dean Downs' order in the amount of $2,208.00. Petitioner's exhibit No. 4. Respondent endorsed Dean Downs' name, then her own, deposited part of the proceeds of the check in her personal account, and took the difference in cash.

      
      

   3. Soon after starting with Mr. Downs, respondent caused business cards to be printed which read "DEAN DOWNS, BROKER/ MARGARET W. ROGERS, ASSOCIATE" and bore an address and telephone number. The Oylers understood that respondent was employed by Mr. Downs, at the time they made their offer.

      
      

   4. George D. Willmer's real estate firm obtained an exclusive listing for a house at 3232 South Fern Creek Avenue in Orlando. Respondent came into his office on January 12, 1977, saying she knew people who were interested in buying this house. Respondent told Mr. Willmer that she worked for Mr. Downs but that she "pretty well had a free hand . . . (T. 19) After Mr. Willmer typed in blanks on a form contract, respondent took it to Mr. and Mrs. James M. Kelley who signed it the same day. Mr. Kelley understood that respondent worked for Dean Downs. The transaction closed on February 25, 1977, and respondent received a check drawn in favor of Dean Downs Realty in the amount of $1,099.25.

      Petitioner's exhibit No. 9. Shortly afterwards, Mr. Downs dropped by respondent's house on an unrelated matter and, at respondent's request, endorsed the commission check. Subsequently, respondent also endorsed it, and deposited it in her personal account.

      
      

   5. In June of 1977, respondent herself expressed an interest in buying a piece of property on Pennsylvania Avenue in Winter Park. P. H. Davis, the real estate broker with whom the property was listed, first thought that respondent "was just a buyer" (T. 57), but later agreed to split his commission with Dean Downs Realty. The transaction closed on July 14, 1977, at which time respondent received a commission check drawn in favor of Dean Down Realty in the amount of

      $788.00. Petitioner's exhibit No. 11. Respondent endorsed this check "Dean Downs Realty," made another endorsement, then deposited the check in an account she controlled.

      
      

   6. In December of 1976 or January of 1977, respondent discussed renewal fees for her salesperson's certificate with Sylvia Garcia, at the time an employee of petitioner. As a result of this conversation, respondent got the mistaken impression that she need not renew her certificate for some two years after the conversation. Although petitioner sent respondent a certificate, in care of Dean Downs, indicating the need to renew, Mr. Downs never gave the notice to respondent. Respondent did not renew her certificate, which expired by its own terms on March 31, 1977.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The evidence did not show that respondent was guilty of any "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings, or the like, within the meaning of Section 475.25(1)(a), Florida Statutes (1977).

      
      

   8. Respondent was shown to be guilty of no "false advertising . . . of such character as to deceive or defraud investors Section 475.25(1)(b), Florida Statutes (1977). The evidence fell far short of establishing "a course of conduct . . . [showing that respondent] is so incompetent, negligent, dishonest or untruthful that . . . money . . . may not safely be entrusted to h[er]." Section 475.25(3), Florida Statutes (1977).

      
      

   9. The evidence did reveal that respondent "operate[d] as a real estate broker or salesman without being the holder of a valid current registration certificate," Section 475.42 (1)(a), Florida Statutes (1977) on and after April 1, 1977. Although the evidence established that respondent did not hold herself out as a broker, it was clear that, while registered as a real estate salesman .

. . [she] operate[d] as a real estate broker." Section 475.42(1)(b) Florida Statutes (1977). It follows that respondent established grounds for disciplinary action under Section 475.25(1)(d), Florida Statutes (1977) Petitioner did not establish that respondent violated Section 475.42(1)(d), Florida Statutes (1977), however.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's certificate for ten (10) days.

DONE and ENTERED this 19th day of March, 1979, in Tallahassee, Florida.

ROBERT T. BENTON,II

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire

400 West Robinson Street Orlando, Florida 32801

H. Jay Stevens, Esquire

47 East Robinson Street, Suite 224 Orlando, Florida 32801

Docket for Case No: 78-002068

Orders for Case No: 78-002068