STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1755

)

MAX LEVY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 31, 1982, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Xavier J. Fernandez, Esquire

Fort Myers, Florida

For Respondent: Appeared on his own behalf

On June 12, 1981, Petitioner issued an Administrative Complaint seeking to suspend or revoke the Respondent's license as a real estate salesman or to take other disciplinary action against him as a real estate salesman. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Petitioner presented the testimony of Frances Egan and Garrett F. X. Beyrent. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Respondent, Max Levy, testified on his own behalf, and Respondent's Exhibit numbered 1 was admitted in evidence.

Petitioner has submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material herein, Respondent was licensed as an active real estate salesman in the employ of corporate real estate broker Island International Realty, Inc.

2. In April, 1979, Respondent sold his advertising business to a Walter White, since Respondent was about to move out of the State of Florida. In conjunction with that sale, Respondent took White to the various clients of that advertising business in order to introduce White as the new owner. One of those clients was The Glades, Inc., the owner of The Glades Country Club Apartments.

   
   

3. Respondent introduced White to Garrett F. X. Beyrent, the Executive Vice President and selling broker for The Glades, Inc. Respondent also indicated to Beyrent that White might be interested in purchasing a condominium. Beyrent showed White one of the models. Respondent asked Beyrent if Beyrent co- brokered with outside brokers, and Beyrent advised Respondent that he did. Respondent showed Beyrent his Massachusetts real estate broker's license and advised Beyrent that he had a Florida real estate salesman's license also.

   
   

4. White returned to The Glades a few days later, found a unit he liked, and Beyrent wrote up a "contract." Beyrent wrote on the top, right-hand corner of the "contract" the words: Max Levy broker.

   
   

5. It is Beyrent's standard policy when dealing with an outside salesman or broker to write that person's name and the word "broker" on the upper, right- hand portion of the purchase agreements used by The Glades, Inc. He writes the word "broker" whether it is a salesman he is dealing with or a broker. Beyrent assumed Levy was a broker, but Respondent never indicated to Beyrent, expressly or impliedly, that he was a broker in the State of Florida.

   
   

6. At about this time, the Respondent moved out of the State of Florida. He had no knowledge that Walter White was in the process of purchasing a unit from Beyrent.

   
   

7. Walter White and Sandra White signed two different purchase agreements for a unit at The Glades Country Club Apartments. There is no evidence in this record regarding the dates of either "contract" or the date of the closing. Petitioner's Exhibit numbered 2 bears no date; contains blanks, including those concerning the terms of the purchase; is not signed by anyone on behalf of the seller; and bears no corporate seal, although the seller is a corporation. Assumably, this is the first draft of the contract entered into between the Whites and The Glades, Inc., for the sale of real estate.

   
   

8. A few days before the unknown date of closing, Beyrent received a telephone call from Island International Realty, Inc. The caller advised Beyrent that Island International claimed the commission on the upcoming White sale, since Respondent was a salesman with that company. Beyrent contacted the Respondent in Michigan, where the Respondent was already living. Beyrent advised Respondent that Bob Leber, one of the owners of Island International, had asked Beyrent to issue the commission check to Island International, and that Beyrent had refused to comply with that request, since he had never heard of Island International but had known Respondent for seven years.

   
   

9. Respondent contacted Leber and asked Leber when he could expect his share of the commission. When Leber advised that Island International would not pay Respondent his share of the commission, Respondent refused to allow the commission check to be released to Island International until after an agreement regarding the commission had been reached.

   
   

10. In April, 1980, the Respondent returned to Florida for Easter vacation with his children. While in Florida, he went to visit Island International.

    Don Ross, the new owner of Island International, agreed to pay to the Respondent

    part of the commission on the sale to Walter White, and the Respondent agreed to release the commission check. The Glades, Inc., issued a check for commission payable to both Respondent and Island International Realty, and that commission was then split between Respondent and Island International according to their arrangement.

    
    

11. During the time that Respondent was present at The Glades Country Club Apartments introducing White to Beyrent, Respondent never suggested to Beyrent that Respondent anticipated receiving a commission on the sale for himself or that he anticipated receiving the entire amount of any commission payable.

    
    

12. Respondent has been in the real estate business for the last fourteen years. He has been licensed as a real estate salesman in Connecticut, Rhode Island, New Hampshire, and New York. No complaint has ever been made against Respondent for his activities as a real estate professional other than the charges brought against him by Island International as a result of the Walter White transaction.

    
    

13. Frances Egan, the only employee of Island International who testified at the hearing in this cause, had no firsthand knowledge regarding the Walter White transaction or regarding the arrangement between Respondent and the owners of that corporate broker. She did terminate Respondent from the employment of Island International in September, 1979, the same time frame when the owner of the agency was in direct communication with the Respondent attempting to obtain the entire commission for Island International. Although Egan's first knowledge of the Walter White transaction occurred on the unknown date of closing, the owners of the agency for which she worked were in contact with both the Respondent and with Beyrent, the selling broker for The Glades, Inc., several days prior to the closing.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

15. Count One of the Administrative Complaint filed herein charges Respondent with violating Section 475.25(1)(a), Florida Statutes, by violating Section 475.42(1)(b), Florida Statutes, which provides that: "No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer." Petitioner has failed to present any evidence that Respondent is guilty of violation of Section 475.42(1)(b), Florida Statutes. Petitioner's own witness, Beyrent, explained that he identified Max Levy as a broker on the draft contract, a copy of which is attached to the Administrative Complaint, only because he uses that term to identify the fact that either an outside broker or an outside salesman is involved with the prospective purchaser. Beyrent specifically denied that Respondent had ever identified himself as a Florida real estate broker. As to the allegation that Respondent failed to advise his employing broker, Island International, of the Walter White transaction, Petitioner has failed to show either that Respondent knew that the Whites had decided to purchase a condominium from The Glades, Inc., or how Island International learned that a closing was about to take place unless Respondent advised Island International. Petitioner has failed to carry its burden of proof as to Count One.

16. Count Two of the Administrative Complaint alleges that: ". . . Respondent is guilty of dishonest dealing, false pretenses, and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes . . . " Since Count Two is based upon the same allegations contained in Count One of the Administrative Complaint, it must fail for the same reasons.

RECOMMENDATION

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

RECOMMENDED THAT:

A final order be entered finding Respondent, Max Levy, not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint against him.

RECOMMENDED this 9th day of June, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, 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 9th day of June, 1982.

COPIES FURNISHED:

Xavier J. Fernandez, Esquire Nuckolls, Johnson & Fernandez, P.A. 701 Cleveland Avenue, Suite 10

Post Office Box 729

Fort Myers, Florida 33902

Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Max Levy 9070 Tindall Road

Davisburg, Michigan 48019

Mr. Carlos Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Mr. Samuel R. Shorstein Secretary, Department of

Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001755

Orders for Case No: 81-001755