STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-021

)

JUDITH ANN LUKACS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on April 12, 1982, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Bruce J. Daniels, Esquire and

C. Michael Shalloway, Esquire 909 North Dixie Highway

West Palm Beach, Florida 33401 BACKGROUND

In an administrative complaint dated December 9, 1981, Petitioner, Department of Professional Regulation, Florida Real Estate Commission, has charged that Respondent, Judith Ann Lukacs, has violated Subsections 475.25(1)(a) and 475.42(1)(b) and (d) Florida Statutes, for which disciplinary action against her real estate salesman license should be taken. It is alleged therein that Respondent, while employed as a real estate salesman for Palmway Realty, Inc., operated as a broker by sending letters to clients with her own name on the letterhead and without showing the broker's name; that she operated as a broker by preparing a rental lease agreement on or about October 24, 1980, without the prior knowledge and consent of her employer; that between August 5 and October 1, 1980, she received rental payments on behalf of the lessors of rental property without the express consent of her broker and not in the broker's name; and that such acts constituted a violation of the foregoing statutes.

Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on December 31, 1981, with a request that a Hearing Officer be assigned to conduct

a hearing. By Notice of Hearing dated February 10, 1982, the final hearing was scheduled for April 12, 1982, in West Palm Beach, Florida.

At the final hearing, Petitioner presented the testimony of Jack Whaley and Eugene A. Piermattai, and offered Petitioner's Exhibits 1-8. All have been received into evidence except Exhibit 4, which will be dealt with in the Conclusions of Law portion of this Order. Respondent offered the testimony of Joyce B. Barner and Eugene A. Piermattai.

The transcript of hearing was filed on April 26, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on May 3 and 10, 1982, respectively, and have been considered in the preparation of this order. Proposed findings not included in this order were considered immaterial, irrelevant to the issues, or were not supported by competent and substantial evidence.

At the conclusion of Petitioner's case-in-chief, the undersigned granted Respondent's ore tenus motion to dismiss that portion of the complaint which charged Respondent with having " . . . collected money in connection with real estate brokerage transactions, not in the name of the employer, and without the express consent of the employer . . . ." Remaining at issue herein is whether Respondent violated Subsections 475.25(1)(a) and 475.42(1)(b), Florida Statutes, by acting as broker while licensed as a salesman.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Judith Ann Lukacs, held real estate salesman license number 0318047 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. Between October 23, 1980 and February 28, 1981, she was registered as a salesman with Palmway Realty, Inc., a real estate firm located at 1226 South Federal Highway, Lake Worth, Florida. However, she actually terminated her employment with Palmway Realty on or about January 5, 1981.

   
   

2. Before her association with Palmway, Lukacs was registered as a salesman with Gallo Realty, also located in Lake Worth, Florida.

   
   

3. While employed with Gallo Realty, Lukacs had several clients for whom she rented property. All such rental agreements were in the name of the broker, and all monies were deposited in the proper amounts. When she left that firm, she continued to represent some of these clients during her tenure with Palmway. Lukacs also bent "monthly letters" to the clients to enchance their "personal relationship". Respondent included a personal business card with the letters on some occasions; however, the letters were sent on the broker's stationery. Although she acknowledged soliciting additional rental clients while with Palmway, there was no evidence submitted to show that such was done in her own name or without the knowledge of her realtor.

   
   

4. At some undisclosed date between October, 1980, and January, 1981, Respondent typed a rental agreement for Danny and Kathy Hughes to rent property owned by a Mr. and Mrs. LeClair. The terms, conditions and obligations of the lease were explained in a letter sent with the agreement and typed on Palmway stationery.

5. The complaint herein was initiated by Respondent's broker at Palmway Realty. Respondent blamed the whole matter on a personality conflict" with her broker. She denied that she had ever held herself out to be a broker or otherwise engaged in unlawful activities.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Remaining at issue herein is whether Respondent violated Subsections 475.25(1)(a) and 475.42(1)(b), Florida Statutes, by "having operated as a real estate broker while licensed as a real estate salesman." The latter subsection provides in pertinent part:

   
   

   (1)(b) No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer.

   
   

   The charge is based upon the following allegations: (a) "Respondent . . . (sent) letters to clients with her own name on the letterhead, and without indicating the employing broker's name thereon . . . (paragraph 4, administrative complaint); (b) "Respondent. . . (prepared) a rental lease agreement. . . for the lease of real property located at 4268 Carver, Lake Worth, Florida. . .without the prior knowledge and consent of . . . (her) employing broker. . ." (paragraph 5, administrative complaint); and (c) . . . [t]hat. . . between August 5, 1980, and October 1, 1980, Respondent received rental payments on (certain property) not in the name of Respondent's employing broker . . ." (paragraph 6, administrative complaint).

   
   

8. As to the charge that Respondent sent letters to clients with her own name on the letterhead, and without identifying her employing broker, it must fail for lack of evidence. While it is true that Lukacs sent various letters to rental clients, there is no evidence that these were sent on personal stationery, or that she otherwise appeared to be acting in the capacity of a broker.

   
   

9. The charge that Respondent in August and September, 1980, accepted rental payments in her own name without the knowledge or consent of her employer must also fail, for the evidence does not support this conclusion. The only testimony on this matter was that of her broker's bookkeeper who disclosed that all rental payments and deposits were accepted in the firm's name and in accordance with all applicable requirements.

   
   

10. The final charge involves an allegation that Respondent prepared a rental lease agreement for certain property in Lake Worth, Florida, without the knowledge and consent of her broker. However, a copy of the lease agreement was never received in evidence, and failing this, there is no record foundation that such a rental agreement was indeed prepared.

    
    

11. A document purporting to be a copy of the lease agreement in question, and marked for identification as Petitioner's Exhibit 4, was never properly authenticated. Accordingly, Respondent's objection to the receipt of Exhibit 4 is hereby sustained. 1/

In the absence of any evidence that Respondent prepared a rental agreement for property located at 4268 Carver, Lake Worth, Florida, the remaining charge should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent, Judith Ann Lukacs, be

DISMISSED.

DONE and ENTERED this 24th day of May, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982

ENDNOTE

1/ In a post-hearing pleading, Petitioner urges that Exhibit 4 be admitted on three grounds. First, it contends the document is a business record kept by the realtor in the normal course of his business and therefore admissible under Subsection 90.803(6)(a), Florida Statutes. Second, Petitioner asserts the lease is admissible as a document affecting an interest in property notwithstanding the hearsay rule under Subsection 90.803(15), Florida Statutes. But authentication of the evidence is a condition precedent to the application of these exceptions, and having failed to pass this threshold test, the statutes cited by Petitioner have no relevance., See Section 90.901 Florida Statutes.

Finally, Petitioner contends that the document is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs within the meaning of Subsection 120.58(1)(a), Florida Statutes, and is therefore admissible.

However, the document has been rendered incompetent by lack of authentication, and cannot be admitted under this theory.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Bruce J. Daniels, Esquire

C. Michael Shalloway, Esquire 909 North Dixie Highway

West Palm Beach, Florida 33401

Docket for Case No: 82-000021

Orders for Case No: 82-000021