STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2561

) NELYE BUNCH and AA REAL ESTATE, ) INC., OF KISSIMMEE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on September 9, 1982, in Orlando, Florida. The transcript was received on September 22, 1982.

APPEARANCES

For Petitioner: John Huskins, Esquire

Post Office Box 1900 Orlando, Florida 32802

For Respondent: None.

By Notice of Hearing issued on April 28, 1982, the Respondents were advised that a final hearing would be conducted on their request for a hearing that was made in the Election of Rights form signed by each of them on September 14, 1981. Subsequently, an Amended Hearing Notice was issued on July 21, 1982, rescheduling the final hearing for September 9, 1982. These Notices were directed to the Respondents through their attorney of record, Richard H. Hyatt, Esquire, 918 North Main Street in Kissimmee, Florida 32741. None of these notices was returned by the Post Office as undeliverable.

At the time and place designated in the Amended Notice of Hearing, after waiting 15 minutes for an appearance, neither of the Respondents was present, nor was counsel, or anyone else on their behalf. Thus, the hearing took place as noticed.

By Administrative Complaint issued on September 2, 1981, the Petitioner seeks to suspend or revoke the real estate licenses held by the Respondents, or otherwise discipline them, for alleged violation of Section 475.25(1)(d), Florida Statutes. Specifically, the Complaint charges the Respondents with failure to account and deliver real estate commissions upon the demand of the person entitled thereto.

In support of the Complaint, the Petitioner presented the testimony of a licensed real estate salesperson who was formerly associated with the Respondents in Kissimmee. Four exhibits were offered and received in evidence.

FINDINGS OF FACT

1. The Respondent, Nelye Bunch, is a licensed real estate broker, having been issued license number 0315615. The Respondent, AA Real Estate, Inc., of Kissimmee, is a licensed corporate real estate broker, having been issued license number 0214153.

   
   

2. In December of 1980, Grace Makuch, a licensed real estate salesperson, entered into an employment agreement with the Respondents, whereby Grace Makuch became employed as a real estate salesperson in the brokerage office of the Respondents.

   
   

3. Pursuant to this employment, Grace Makuch and the Respondents entered into an oral agreement in which Grace Makuch would be compensated by receiving

   60 percent of the selling broker's commission on every real estate sale she brought into the office.

   
   

4. On or about March 6, 1981, Grace Makuch negotiated a contract for the sale of real property on Nova Road in Osceola County, Florida, between Earl Croft and his wife, as sellers, and Larry Henninger, as buyer, for $96,200.

   This transaction closed in April of 1981. The Respondents received the real estate commission due, in the amount of $4,810, and paid Grace Makuch $1,154.40. Under the employment agreement, Grace Makuch should have been paid $2,886.

   Demand for the balance due of $1,731.60 has been made by Grace Makuch and her attorney, but nothing further has been paid by the Respondents.

   
   

5. In February of 1981, Grace Makuch negotiated a contract for the sale of real property on Donegan Avenue in Kissimmee, Florida, between Michael F. Sweeney, Trustee, as seller, and Dominick Tattoli and his wife, as buyers, for

   $115,000. This transaction closed in May of 1981. The Respondents received the real estate commission due, in the amount of $5,000 and tendered to Grace Makuch a check for $250. Under the employment agreement, Grace Makuch should have been paid $3,000; thus, she refused to accept the check for $250. Demand for the full amount of her share of the commission on this transaction in the amount of

   $3,000 has been made by Grace Makuch and her attorney, but nothing has been paid by the Respondents.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 475.25(1)(d), Florida Statutes, authorizes the Florida Real Estate Commission to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, if it finds that a licensee has "failed to account or deliver to any person, including a licensee under this chapter,. . .upon demand. . .any. . .money. . .including a share of a real estate commission. . .which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances."

8. The only evidence presented in this case establishes that Grace Makuch negotiated two contracts for the sale of real estate while she was associated with the brokerage office of the Respondents. Grace Makuch was employed under the terms of an oral agreement whereby she was to receive 60 percent of the real estate commissions paid on transactions originated by her. The brokerage office of the Respondents received the commissions on the two transactions which were negotiated by Grace Makuch, but did not pay to Grace Makuch the amounts due her under her employment agreement.

   
   

9. Consequently, the Respondents are guilty of two separate violations of Section 475.25(1)(d), Florida Statutes.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 0315615 held by Nelye Bunch, be revoked.

It is further

RECOMMENDED that license number 0214153 held by AA Real Estate, Inc., of Kissimmee, be revoked.

THIS RECOMMENDED ORDER entered this 8 day of October, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 8 day of October, 1982.

COPIES FURNISHED:

John Huskins, Esquire Post Office Box 1900 Orlando, Florida

Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741

Docket for Case No: 81-002561

Orders for Case No: 81-002561