STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1786

) SUN RENTALS AND MANAGEMENT, INC., ) and DANIEL OLDFATHER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 24, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an amended Administrative Complaint filed by the Board of Real Estate (now known as the Florida Real Estate Commission) against Daniel Oldfather and Sun Rentals and Management, Inc. Entry of this Recommended Order was delayed by the stipulation of the parties to allow filing of the proposed recommended orders. These proposed recommended orders have been read and considered by the Hearing Officer. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

APPEARANCES

For Petitioner: Robert F. Jordan, Esquire

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: James Curran, Esquire

200 Southeast Sixth Street, Suite 301 Fort Lauderdale, Florida 33301

The Administrative Complaint alleged that Respondents violated Sections 475.25(1)(d) and 475.453(1), Florida Statutes, by refusing to account for or refund money received from a client of their rental service. The Administrative Complaint also alleged that the Respondents violated Rule 21V-10.15, Florida Administrative Code, by not printing the receipt form in bold type as required.

ISSUES

The issues in this case are as follows:

1. Was Respondent Daniel Oldfather legally responsible for accounting and refund?

2. Were the refund provisions of the receipt form printed in type as required by Rule 21V-10.15, Florida Administrative Code?

   
   

3. Was Richard Vanicek due a 75 percent refund?

   
   

4. Was Vanicek due a complete refund because of inaccurate information given him?

   
   

5. Did Vanicek make written demand for a refund, and was a written demand for the refund necessary?

FINDINGS OF FACT

1. In September of 1979, Sun Rentals and Management, Inc., was a corporate real estate broker holding license number 0208997 and doing business at 2703 East Oakland Park Boulevard in Fort Lauderdale, Florida.

   
   

2. At that time, Victor Stevens was a licensed real estate salesperson employed by Sun Rentals.

   
   

3. Stevens, as an employee of Sun Rentals, interviewed Richard D. Vanicek concerning Vanicek's rental needs. Vanicek entered into a contract with Sun Rentals (Petitioner's Exhibit number 1) under which he paid Sun Rentals $45 and Sun Rentals was to provide him with rental information on available rentals.

   
   

4. Vanicek received a receipt (Petitioner's Exhibit number 3) which provided in pertinent part as follows:

   
   

   ... Notice, pursuant to Florida Law:

   If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a

   return of 75 percent of the fee paid, if you make demand within 30 days of this

   contract date. ...

   
   

5. It was agreed that the receipt was printed totally in ten-point type.

   
   

6. Vanicek attempted to visit one of the listings provided to him by Sun Rentals. He encountered difficulty in locating the listing; however, his lack of familiarity with Fort Lauderdale may have contributed to his difficulties.

   
   

7. Vanicek found a rental through his own efforts and requested a refund of 75 percent of his $45 fee by telephone. He made his request first to Stevens, who referred him to Daniel Oldfather pursuant to office policy. As a result of this referral Vanicek spoke with a man at Sun Rentals, who may have been Oldfather, and restated his request for a refund. His request was denied.

   
   

8. Daniel Oldfather was the licensed broker/salesman for Sun Rentals during September, 1979. He was the office manager of Sun Rentals at that time.

9. Martin Katz was broker for Sun Rentals in September of 1979 (Transcript; Page 261, L 21). Oldfather was the next man in authority at the office under Katz (Transcript; Page 235, L 6). Katz delegated to Oldfather the authority to make refunds.

   
   

10. The rental forms, including the rental receipt form (Petitioner's Exhibit number 3), were submitted to the Board of Real Estate.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Real Estate (now Florida Real Estate Commission) is authorized to regulate and discipline its licensees pursuant to Chapter 475, Florida Statutes.

    
    

12. At the commencement of the hearing, Respondents moved to dismiss the Administrative Complaint because the amended Administrative Complaint was served before the order dismissing the original Administrative Complaint without prejudice was filed and the Respondents tendered a check for $45 to their patron. The date stamp of the Division of Administrative Hearings reflects that the amended Administrative Complaint was received on the same date that the order dismissing the original Administrative Complaint was filed. The movants did not show that the amended Administrative Complaint was served prior to the time the order dismissing the action was issued. Therefore, the amended Administrative Complaint is valid, and the subsequent refund of the $45 to Richard Vanicek did not moot the issues presented. Respondents' Motion to Dismiss is denied.

    
    

13. At the conclusion of the Board's case, Respondents moved for a finding instanter that Daniel Oldfather was not guilty of violation of Section 475.25(1)(d), Florida Statutes. The facts reveal that in September of 1979, Daniel Oldfather was a broker/salesman with Sun Rentals. Under the Board's rules a broker/salesman cannot perform any activities as a broker even though the individual may have qualified to be a broker. Section 475.01(5), Florida Statutes, limits a broker/salesman to performing those duties and responsibilities of a salesman. A real estate salesman has the duty to function as an agent for the broker, who is his principal. The salesman forms a conduit between the customer and the broker. Any money delivered to the salesman must be delivered to the broker, who is charged with the duty to safeguard the funds and to account for and disburse funds.

    
    

14. No evidence exists that Oldfather was ever in receipt of Vanicek's money, although Oldfather was the office manager and the man next in charge after the broker, Martin Katz. Vanicek delivered the money to Stevens, who in turn delivered it to the broker. Under the Board's rules, Katz, not Oldfather, was responsible for the disbursement and accounting of the money.

    
    

15. Therefore, Respondent Oldfather's motion was granted, and the allegations of Count II of the amended Administrative Complaint that Daniel Oldfather violated Section 475.25(1)(d), Florida Statutes, should be dismissed. Oldfather had no legal responsibility under the Board's rules for money in the hands of the corporate broker, and no evidence exists that he failed to perform any duty with regard to Vanicek which arose from his legal responsibilities as a salesman.

16. Count III of the amended Administrative Complaint alleged the Respondents violated Rule 21V-10.15, Florida Administrative Code, because the receipt form used by Sun Rentals did not conform to the type print to be used. It was agreed that the form was printed in toto in ten-point type. This meets the requirement of the rule concerning the size of type to be used. The form contains the required language. The only question is whether the notice was in bold print.

    
    

17. The Board argues that the term "bold" is used in its everyday sense; however, it is concluded that "bold" as used in Rule 21V-10.15, Florida Administrative Code, is a reference to "boldface," which is a technical description of certain type fonts.

    
    

18. The only testimony on whether the notice was printed in boldface type was the hearsay testimony of Gregory Jones, the former Counsel for Sun Rentals. Hearsay cannot form the basis of a finding. The burden lies with the Board to prove that the receipt was not printed in boldface type. It has failed to prove the receipt was not in boldface print. Neither Respondent is guilty of the allegations of Count III of the amended Administrative Complaint.

    
    

19. Concerning the allegations of Count I of the amended Administrative Complaint, no evidence was received that Vanicek received stale or erroneous information. He was not shown to be entitled to 100 percent of the fee paid. Vanicek did make demand for a refund within 30 days after finding a rental through his own efforts, thereby entitling him to a refund of 75 percent of his fee. Section 475.25(1)(d) and Section 475.453, Florida Statutes, do not require that a demand for repayment be made in writing, nor do the statutes require that the demand be directly communicated to the broker.

    
    

20. It is logical that a prospective tenant would make a demand for a refund to the person with whom he had been dealing, which, as in this case, was the salesman. Stevens, the salesman in the Vanicek transaction, followed the procedures established by the broker, Katz, in referring Vanicek to Oldfather. Whether Vanicek spoke with Oldfather or another employee named Dan is unclear; however, there is no legal requirement for a patron to make a demand to the broker or any specified person. Katz and Sun Rentals cannot raise as a defense Vanicek's failure to follow their internal procedures. It is the broker's responsibility to ensure that the internal procedures of the firm comply with the statutory requirements. If Katz established a procedure under which he personally was not advised by his salesmen of requests for refunds, Sun Rentals cannot claim ignorance of the demand as a defense for nonpayment. Katz elected to delegate the authority to make refunds to Oldfather; however, he cannot delegate his responsibility as the firm's broker for an improper denial. As the active broker for the corporate broker, Sun Rentals, Katz is responsible for all activities of the firm.

    
    

21. Because Katz was the active firm member, Sun Rentals is guilty of violating Sections 475.25(1)(d) and 475.453, Florida Statutes, as alleged in Counts I and II of the amended Administrative Complaint.

RECOMMENDATION

Having found that Daniel Oldfather was not guilty of any of the allegations in the amended Administrative Complaint, it is recommended that Counts I, II and III against him be dismissed.

Having found that Sun Rentals and Management, Inc., is not guilty of the allegations contained in Count III of the amended Administrative Complaint, it is recommended that Count III against Sun Rentals be dismissed.

Having found that Sun Rentals is guilty of violating Sections 475.25(1)(d) and 475.453(1), Florida Statutes, it is recommended that the license of Sun Rentals be suspended for 60 days, during which time the officers and directors of said corporation may not engage in the practice of real estate sales or brokerage under their names or in any other corporate name.

DONE and ORDERED this 4th day of May, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 4th day of May, 1982.

COPIES FURNISHED:

Robert F. Jordan, Esquire Post Office Box 14723

Fort Lauderdale, Florida 33302

James Curran, Esquire

200 SE Sixth Street, Suite 301 Fort Lauderdale, Florida 33301

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-001786

Orders for Case No: 81-001786