STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-758

)

STEVEN M. FRANK, )

)

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 June 16, 1982, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Lawrence Bunin, Esquire

Emerald Hills Executive Plaza II 4651 Sheridan Street, Suite 270

Hollywood, Florida 33021 BACKGROUND

By this complaint, Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to take disciplinary action against Respondent, Steven M. Frank, for allegedly violating Subsections 475.25(1)(b) and (k), Florida Statutes. It is charged that Respondent, while acting in the capacity of a licensed real estate salesman, prepared an offer that was executed by the buyer; that the buyer gave Respondent a $100 deposit which he failed to immediately place with his registered employer; that Respondent also failed to make any communication with the buyer, seller or employer concerning the purchase offer; and that by reason of the foregoing Respondent had violated Subsections 475.25(1)(b) and (k) by being in breach of trust in a real estate transaction, and by failing to immediately place moneys entrusted to him with his registered employer.

Respondent 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 March 16, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 9, 1982, the final hearing was scheduled for June 16, 1982, in Fort Lauderdale, Florida.

At the final hearing, Petitioner called Alistair D. Monro, Paul Uber, and Robert G. Wolf and offered Petitioner's Exhibits 1 and 2, each of which was received into evidence. Respondent testified on his own behalf and offered Respondent's Exhibit 1 which was received into evidence.

The transcript of hearing was filed on July 9, 1982. Proposed findings of fact and conclusions of law were filed by Respondent on July 13, 1982, and have been considered by the undersigned in the preparation of this order. 1/ Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or not supported by competent and substantial evidence.

The issue herein is whether Respondent's real estate license should be disciplined for the alleged violations set forth in Administrative Complaint.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant thereto, Respondent Steven M. Frank, held real estate salesman license number 0186888 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission. He has held a salesman license since February 28, 1978.

   
   

2. In September, 1980, Respondent began working as a salesman for Independent Realty Associates, Inc. located at 6281 Pembroke Road, Hollywood, Florida. Alistair D. Monro was active broker and president of the firm. Monro also operated a construction firm and mortgage brokerage business at the same address.

   
   

3. At approximately the time when Frank began his tenure with Independent, Monro entered into a non-exclusive agreement with Paul Uber to sell houses and lots in University Park, a housing project in Miramar, Florida which had been purchased by Uber from a bank in foreclosure proceedings.

   
   

4. There were no written office procedures setting forth instructions on how contracts and deposits were to be handled. However, Frank had been orally advised by Monro to turn over all contracts and checks to Monro, or in his absence, to a newly hired office manager. There was no night depository arrangement in the office. He had also been instructed that any contracts received on University Park property could only be presented by Monro. In fact, Frank did not know Uber's address or telephone number, and had never seen or met him.

   
   

5. An open house was held at University Park on the weekend of September

   13 and 14, 1980. Frank volunteered to work at one of the six model homes in the project. Around 3:00 p.m. on Sunday, September 14, Elizabeth and Victoria Woerner executed a contract for sale and purchase in which they offered to purchase the home located at Lot 4, Block 4 in University Park for $75,000. Elizabeth Woerner gave Frank a check in the amount of $100 to be held in escrow as earnest money. The contract called for approval by the seller no later than Wednesday, September 17. At 4:00 p.m. that afternoon, Frank closed the model home and returned with the check and contract to his office. Because Monro had been absent from his office the entire weekend, Frank attempted to give the

   check to the office manager, Dolly Stogner. However, she would not accept the check and contract since the contract had to be presented by Monro.

   
   

6. The following morning (Monday) Frank returned to the office and could not find Monro. He then attempted to give Monro's secretary the check and contract. She refused since the contract was not executed by the seller. He left a message for Monro with the secretary and continued to hold the contract and check. That evening he received a telephone message from Elizabeth Woerner. He was unable to reach her that evening but telephoned her the next morning. After learning she wished to withdraw her offer, he told her he would check with his broker to see how deposits were returned. Thereafter, he attempted to see Monro that day (Tuesday) but again found him absent from the office. He left a message with the office manager for Monro to call him. The call was never returned. On Wednesday, Monro received a telephone call from Elizabeth Woerner concerning her check. When Frank returned to the office that day, he was fired for failing to immediately turn over the check and contract to the broker. The

   $100 deposit was later returned to the Woerners.

   
   

7. Less than a week later, Monro wrote the Department and recommended that Frank's license be suspended or revoked. He advised the Department that Frank was guilty of "failure to turn in the deposit to the broker", "failure to present an offer on the property", and "culpable negligence". He also stated that Frank was "not of a caliber that would make him an asset to the Real Estate Profession." As a result of this letter, a disciplinary proceeding against Frank was begun.

   
   

8. The property in question eventually sold for $112,500 in November, 1980. Monro acknowledged that the Woerners' $75,000 offer was so low that it would not have been accepted. He also acknowledged that another offer had been made on the property on September 14 and was pending when the Woerners' contract was signed. Monro did not present the Woerner's contract to Uber, presumably because the Woerners wished to withdraw their offer. No monetary harm was suffered by the seller or the Woerners.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Subsection 475.25(1)(k), Florida Statutes, makes the following conduct grounds for disciplinary action against a licensee:

    
    

    (k) ...failed, if a salesman, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer.

    
    

    It is first charged that Frank failed to immediately place with his broker the

    $100 deposit received from the Woerners. The evidence discloses that Frank took all reasonable steps to give the broker or his designee the contract and the check. Indeed, he did so on each of the three days between the time he received the check and the day he was fired. Accordingly, it is concluded that no violation of the foregoing statute has occurred, and that this portion of the charges should be dismissed.

11. It is next alleged that because Frank "failed to make any communication with the buyer, seller, or his broker-employer concerning the purchase offer" he is guilty of breach of trust in a business transaction within the purview of Subsection 475.25(1)(b), Florida Statutes. The record discloses that Monro gave specific instructions to Frank that only Monro could communicate with and present an offer to the seller. Moreover, he spoke with the buyer on Tuesday and advised her, that because she wished to withdraw her offer, he would check with his broker to determine the procedure for returning her check. Finally, Frank's failure to communicate with the broker was not deliberate. The broker was repeatedly absent from his office and did not acknowledge at least two messages that were left by Frank. Accordingly, the final charge is without merit, and should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Steven M. Frank be DISMISSED. DONE and ENTERED this 29th day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 29th day of July, 1982.

ENDNOTE

1/ Proposed findings of fact and conclusions of law submitted by Petitioner were not timely filed and have not been considered.

COPIES FURNISHED:

Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Lawrence Bunin, Esquire

Emerald Hills Executive Plaza II 4651 Sheridan Street - Suite 270

Hollywood, Florida 33021

Docket for Case No: 82-000758

Orders for Case No: 82-000758