STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1149

)

GEORGE MAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 1, 1981, in Fort Lauderdale, Florida. This Division received a transcript of the final proceedings on July 14, 1981.

APPEARANCES

For Petitioner: John R. Huskins, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. George May, pro se

2300 West Oakland Park Boulevard Suite 202

Fort Lauderdale, Florida 33311 ISSUE

The issue posed for decision herein is whether or not the Respondent failed to account for, or deliver commission monies due to a sales associate.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found.

1. During times material herein, Respondent, George May, was a licensed real estate broker (License No. 00056693) whose principal business address is 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida 33311. On April 24, 1980, George Aro, a licensed real estate salesman, was employed by Respondent and entered into an employment agreement whereby salesman Aro, while acting in his capacity as a real estate salesman, would receive a sixty percent (60 percent) share of commission fees paid when salesman Aro was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit 1).

2. On August 29, 1980, salesman Aro discussed, negotiated, and obtained a contract for purchase whereby Peter Licato agreed to purchase a vacant lot in Palm Beach County, Florida. The transaction closed during September, 1980, with Respondent receiving a commission of approximately $300.00 on the Licato transaction. (See Petitioner's Exhibit 2). Pursuant to the employment agreement entered between Respondent and salesman Aro, Messr. Aro demanded his pro-rata share of the commission paid, which was received by Respondent. Respondent refuses to account for, or otherwise deliver to salesman Aro any portion of the commission received from the Licato transaction.

   
   

3. On August 9, 1980, salesman Aro, while acting in his capacity as salesman with Respondent, negotiated and obtained a contract of the sale of a vacant lot in Palm Beach County, Florida from seller, Mrs. Nicholas Deickmann to purchaser, Hooshang Abid. The transaction closed sometime during September of 1980, and Respondent received a commission of approximately $330.00. Pursuant to the party's employment agreement, salesman Aro demanded his pro-rata share of the commission received, and Respondent refuses to remit or otherwise deliver to salesman Aro his portion of the commission received. In this regard the Respondent does not dispute and stipulated that salesman Aro was the procuring cause of the above-referred-to transactions, and admits that the commissions were received.

   
   

   Respondent's Defense

   
   

4. Respondent defended his failure to account for or otherwise deliver to salesman Aro commissions received from the above transactions on the theory that salesman Aro failed to attend the closings of the above transactions, or that salesman Aro obligated his firm to pay certain expenses which were connected with the closing, which were not authorized. Respondent's defense was considered by the undersigned and rejected for lack of proof. Moreover, the undersigned advised Respondent during the hearing herein that the proper procedure to seek redress from salesman Aro for those claims asserted herein, which were not a part of the subject administrative complaint, is through the filing of a written complaint properly executed, with the Board of Real Estate.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Petitioner, Board of Real Estate, is derived from Chapter 475.25, Florida Statutes (1979).

   
   

8. During times material, Respondent, George May, was a licensed real estate corporate broker and as such, was subject to the disciplinary provisions of Chapter 475.25, Florida Statutes (1979).

   
   

9. Respondent, by his failure to account for and deliver to his associate salesman, George Aro, his share of commission monies due from the Licato/Marshall transaction, violated Chapter 475.25(1)(d), Florida Statutes (1979).

10. Respondent, by his failure to account for and deliver to his associate salesman, George Aro, his commission share due from the sale of realty in the Deickmann/Abid transaction, violated Chapter 475.25(1)(d), Florida Statutes (1979).

RECOMMENDATION

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

RECOMMENDED:

That the Respondent's real estate broker's license be suspended for a period of two (2) years.

RECOMMENDED this 25th day of August, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1981.

COPIES FURNISHED:

John R. Huskins, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Mr. George May

2300 West Oakland Park Blvd. Suite 202

Fort Lauderdale, Florida 33311

Docket for Case No: 81-001149

Orders for Case No: 81-001149