STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2778

)

KEVIN BUNIN, MATTHEW L. ) HIRSCHHORN & SUPERIOR REALTY OF ) BROWARD, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.

1. Carpenter, on January 29, 1982. The parties were represented by: APPEARANCES

   For Petitioner: Joel S. Fass, Esquire

   626 Northeast 124th Street North Miami, Florida 33161

   
   

   For Respondents Lawrence Bunin, Esquire Kevin Bunin and 4651 Sheridan Street Superior Realty Suite 270

   of Broward, Inc.: Hollywood, Florida 33021

   
   

   For Respondent Morton B. Zemel, Esquire Matthew L. 16666 Northeast 19th Avenue Hirschhorn: Interama Professional Building

   North Miami Beach, Florida 33021 ISSUE

   This matter arose on the Petitioner's administrative complaint charging Respondents with violation of Chapter 475, Florida Statutes (1979).

   Specifically, Petitioner alleges that Respondent Hirschhorn operated as a real estate broker without the proper license, and that Respondents Bunin and Superior Realty were guilty of dishonest dealing in a business transaction with Hirschhorn.

   
   

   Petitioner submitted proposed findings of fact and conclusions of law. To the extent, these proposed findings have not been adopted or otherwise incorporated herein, they have been rejected as irrelevant or not supported by the evidence.

   FINDINGS OF FACT

   
   

   1. At all times material to the complaint, Kevin Bunin was a registered real estate broker and the active firm member for Superior Realty of Broward, Inc. This company was a registered corporate broker and duly licensed at all times relevant. Matthew L. Hirschhorn was a registered real estate salesman and was so registered at all times relevant.

      
      

   2. Bunin and Hirschhorn entered an agreement in August, 1979, under which Hirschhorn was to operate a branch office of Superior Realty of Broward, Inc. (a Realty World, Inc. franchisee). Bunin was to provide supervision and assist Hirschhorn in obtaining a Realty World, Inc. franchise. Hirschhorn paid Bunin

      $3,200 for what Hirschhorn understood would entitle him to this franchise.

      
      

   3. Hirschhorn opened the branch office under Bunin's supervision in September or October, 1979, and operated it through February, 1980, when Bunin and Hirschhorn had a falling out. Hirschhorn complained to petitioner that Bunin converted $1,200 of the $3,200 to his own use instead of paying it to the franchisor as agreed. In retaliation, Bunin threatened to cancel their arrangement, which would leave Hirschhorn without required broker supervision.

      
      

   4. Hirschhorn, who is a complainant as well as a Respondent, was the only witness who gave substantive testimony in this proceeding. His testimony was entirely self-serving and lacking in credibility. Therefore, it cannot be established how the $3,200 was to be disbursed, nor is it clear at what point Bunin stopped threatening and actually withdrew as the supervising broker of Hirschhorn's branch office.

      
      

      CONCLUSIONS OF LAW

      
      

   5. Subsection 475.01(4), Florida Statutes (1979) , requires a real estate salesman to operate under the supervision of a licensed broker. Respondent Hirschhorn was licensed as a salesman only and necessarily operated the branch office under Bunin's supervision. The agreement which established this arrangement did not conflict with the statutory requirement.

      
      

   6. In the weeks prior to closing the office, Bunin's control diminished and Hirschhorn apparently operated briefly without broker supervision. However, this cannot be determined with the limited and doubtful evidence presented here. In proceedings such as this which are penal in nature, a finding of statutory violation may not be based on problematic evidence. 1/

      
      

   7. Subsection 475.25(1)(b), Florida Statutes (1979) condemns dishonesty in any business transaction. However, no dishonesty on the part of Bunin or Superior Realty of Broward, Inc. was shown 2/ . Rather, this is a contractual dispute which must be resolved by a court of proper jurisdiction. 3/

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the

administrative complaint.

DONE AND ENTERED this 23rd day of April, 1982 at Tallahassee, Florida.

R. T. CARPENTER, 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 23rd day of April, 1982.

ENDNOTES

COPIES FURNISHED:

Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

Morton B. Zemel, Esquire 16666 Northeast 19th Avenue

Interama professional Building North Miami Beach, Florida 33162

Lawrence Bunin, Esquire

4651 Sheridan Street, Suite 270

Hollywood, Florida 33021

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick Wilson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. C. B. Stafford Executive Director Board of Real Estate

P.O. Box 1900 Orlando, Florida 32801

Docket for Case No: 81-002778

Orders for Case No: 81-002778