STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2410

)

RALPH B. SNYDER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 8, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

400 West Robinson Street Orlando, Florida 32801

For Respondent: John Snow, Esquire

Pinebrook Park, Suite 132 9600 South Tamiami Trail Fort Myers, Florida 33907

Petitioner has filed three separate Administrative Complaints which have been forwarded to the Division of Administrative Hearings, and were assigned DOAH Case Nos. 82-2038, 82-2410, and 83-202. Each of these causes was consolidated for final hearing, but for purposes of clarity a separate Recommended Order will be issued in each case. Exhibits received into the consolidated record were considered, where applicable, in the context of the issues framed by the Administrative Complaint in each separate case.

Final hearing in these causes was scheduled for February 8, 1983, by Amended Notice of Hearing dated January 5, 1983.

At the final hearing Petitioner called William J. Konwinski, Sheryl Kimball, Grant John Bartels, John P. Galioto, Joe Gracey, Ilana Frank, and Betty Peace as its witnesses. Petitioner offered Petitioner's Exhibits 2 through 8,

10 through 12, 14, and 25 through 28, which were received into evidence. Respondent testified in his own behalf and called Linda Cure as a witness. Respondent offered no exhibits for inclusion in the record.

In the Administrative Complaint in this cause, Respondent is charged with having employed a person as a salesman who was not the holder of a valid and current license as a salesman in violation of Sections 475.25(1)(c) and

475.25(1)(a) Florida Statutes. In addition, Respondent is alleged to be guilty of sharing a commission with a person not properly licensed as a broker, broker- salesman, or salesman in violation of Section 475.25(1)(h), Florida Statutes.

Both counsel for Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as either being irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Respondent, Ralph B. Snyder, Jr. ("Respondent"), is a licensed broker having been issued license No. 0082998. At all times material hereto, Respondent was the qualifying broker for Home Hunters V, Inc., at 2829 Okeechobee Boulevard, West Palm Beach, Florida.

   
   

2. At all times material hereto, Respondent had employed Greg Howle as "office manager" at the above-mentioned location. Mr. Howle was at no time licensed as a broker or salesman by the Florida Real Estate Commission.

   
   

3. On January 29, 1982, William Konwinski visited Respondent's office looking for an apartment to rent for the month of February, 1982. During his visit, Konwinski spoke with Ilana Frank, an office employee of Respondent who was licensed as a salesperson by the Florida Real Estate Commission. During his conference with Ms. Frank, Konwinski signed a rental agreement and gave Ms. Frank $60 as payment for rental services. That contract contained the following clause:

   
   

   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.

   
   

   The contract also contained the clause which provided that ". . . [n]o refunds are made during 30 day period when vacancies can be provided in the area and price range of tenants as indicated in above agreement."

   
   

4. In the rental agreement, Mr. Konwinski indicated that he sought a one- bedroom furnished efficiency apartment that would accept pets. After executing the contract and paying the rental fee, Mr. Konwinski was given the names and addresses of two prospective rentals. Mr. Konwinski took the rental listings and within the next two or three days checked the listings and found that one did not accept pets. Konwinski failed to keep an appointment to meet with the landlord at the second property.

   
   

5. Thereafter, Mr. Konwinski returned to Respondent's office and spoke again with Ilama Frank concerning available rentals. Ms. Frank apparently checked for additional listings but could locate none that met with Mr. Konwinski's specifications. However, Ms. Frank penciled in on the agreement between Home Hunters V, Inc., and Mr. Konwinski that he would be returned $30 of

   his $60 fee should Home Hunters V, Inc., be unable to find an apartment for him by January 31, 1982. Gregory Howle, the office manager, signed this addendum to the contract on behalf of Home Hunters V, Inc. On at least two separate occasions thereafter Mr. Konwinski returned to Respondent's office seeking a refund of his deposit, each time speaking to Mr. Howle, the office manager.

   Howle first told Konwinski that his refund check was in the mail, but later explained that Respondent had instructed him to make no refund. Konwinski never obtained a rental unit through Respondent, but did ultimately receive a partial refund.

   
   

6. There is no credible evidence of record in this proceeding to establish that Respondent at any time shared real estate commissions with Gregory Howle. Although there are checks which were introduced into evidence made payable from Home Hunters V, Inc., to Mr. Howle, the record in this cause is devoid of any showing as to what the salary structure between Respondent and Mr. Howle was, or for specifically what services Mr. Howle was compensated. Further, other than speaking with Mr. Konwinski on his initial visit to Respondent's office and obtaining his signature on the rental agreement, referring him then to a licensed salesperson, and again speaking with Mr. Konwinski concerning a refund of his fee, there is no credible evidence of record to establish any other activities engaged in by Mr. Howle while employed by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 475.25(1)(a), Florida Statutes, authorizes the Commission to discipline a licensee for a violation of any provision of Section 475.42, Florida Statutes. Section 475.42(1)(c) provides that ". . . [n]o broker shall employ, or continue in employment, any person as a salesman who is not the holder of a valid and current license as [a] salesman.

   
   

9. Section 475.25(1)(h), Florida Statutes, authorizes discipline of a broker or salesman who has:

   
   

   Shared a commission with, or paid a fee or other compensation to, a person not properly licensed as a broker, broker-salesman, or salesman under the laws of this state, for the referral of real estate business, clients,

   prospects, or customers, or for any one or more of the services set forth in

   s. 475.01(3) . . .

   
   

10. Section 475.01, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. 'Broker' means a person who, for another, and for a compensation

       or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or

       valuable consideration therefor, appraises,

       auctions, sells, exchanges, buys, rents,

       or offers, attempts, or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of any real property

       or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the

       public by any oral or printed solicitation or representation that he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of the real property of another, or leases, or interests therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result

       in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly there for; and

       all persons who advertise rental property information or lists. The term 'broker' also includes any person who is a partner, officer, or director of a partnership corporation which acts as a broker,

       
       

    2. 'Salesman' means a person who performs any acts classified in the definition of 'broker,' but who performs such act under the direction, control, or management of another person. . .

       
       

11. In Bowling v. Department of Insurance, 394 So.2d 165, 171-172 (Fla. 1st DCA 1981), the court held that:

    
    

    In a proceeding under a penal statute

    for suspension or revocation of a valuable business or professional license, the term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120. Although all questions of fact as distinguished from policy are determinable under the Administrative Procedure Act by substantial competent evidence . . . we differentiate between evidence which 'substantially' supports conventional forms of regulatory action and evidence which is required to support 'substantially' a retrospective characterization of conduct requiring

    suspension or revocation of the actor's license. Evidence which 'is substantial' for one purpose may be less so on another, graver occasion. . .

    
    

    . . . Now we recognize also that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical finding in license

    revocation . . . [W]e glean a requirement for more substantial evidence from the very nature of license discipline proceedings; when the standards of conduct to be enforced are not explicitly fixed by statute or by rule . . . ; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown

    by evidence which is indubitably as 'substantial' as the consequences. . .

    
    

    In anyone's judgment, a judge's no less than any other, certain factors present 'in the record' of penal proceedings fairly detract from the substantiality of evidence which is weighty enough for less consequential purposes. One such

    factor is a grave penalty. In determining 'the substantiality of evidence,' which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose a 'strict' construction on the penal statute. . .

    
    

    . . . [T]he violation of a penal statute

    is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as 'substantially' on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious.

    
    

12. In the Administrative Complaint, Respondent is charged with having ".

    . . shared real estate commissions with Howle [sic], who is unlicensed and other unlicensed persons. ."; and with having hired ". . . unlicensed persons . . . to engage in the services of a salesman or broker." There is no credible evidence of record in this proceeding to establish that Mr. Howle ever performed any of the services of a salesman or broker. At most, Mr. Howle met with potential tenants, had them sign a rental agreement, received from them the fee due under

    the rental agreement, and thereafter referred them to licensed salespersons in Respondent's office. It is also apparent that Mr. Howle met with Mr. Konwinski to discuss the availability of a refund of his rental fee. It is concluded that, as a matter of law, these activities do not fall within the licensing provisions of Section 475.01(3) and (4), Florida Statutes, and, therefore, did not require Mr. Howle to be licensed. Further, as indicated above, this record is totally lacking any evidence that Respondent ever shared a real estate commission with either Mr. Howle or any other unlicensed persons in his office. Although cancelled checks were introduced into evidence to indicate certain payments made by Respondent to Mr. Howle and others, this record is devoid of any proof that any such payments were made as compensation for services performed as a salesman or broker by unlicensed persons.

    
    

13. Accordingly, based upon the foregoing Findings of Fact and Conclusions of law, and with particular regard to the standard of proof set forth in the Bowling decision quoted above, it is

RECOMMENDED:

That a Final Order be entered by the Division of Real Estate dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 24th day of February, 1984 at Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 24th day of February, 1984.

COPIES FURNISHED:

Tina Hipple, Esquire

400 West Robinson Street Orlando, Florida 32801

John Snow, Esquire Pinebrook Park, Suite 132 9600 South Tamiami Trail Fort Myers, Florida 33907

Mr. Ralph Snyder

9113 Mockingbird Drive

Sanibel, Florida 33957

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. Fred M. Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002410

Orders for Case No: 82-002410