STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5541

)

PETER K. HOFMANN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on March 1, 1989, in Live Oak, Florida, before William F. Quattlebaum, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Peter K. Hofmann, pro se

73 Quinlan Drive, #1

Greenville, South Carolina 29611 BACKGROUND

On May 24, 1988, Petitioner filed an Administrative Complaint against Respondent alleging that the Respondent, a licensed real estate broker, had failed to pay certain funds to another licensed real estate broker, and that such alleged failure was grounds for disciplinary action against the Respondent. Respondent timely filed an Election of Rights disputing the factual allegations and requesting a formal hearing. The request was forwarded to the Division of Administrative Hearings which scheduled and noticed the proceeding.

At the hearing, Petitioner called two witnesses and had seven exhibits offered and admitted into evidence. Respondent testified on his own behalf.

Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc.

   
   

2. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker.

   
   

3. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985.

   
   

4. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated.

   
   

5. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator.

   
   

6. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day.

   
   

7. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property.

   
   

8. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was

   $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency.

   
   

9. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Petitioner has responsibility for disciplinary action taken against licensed real estate brokers. Section 475.25(1), Florida Statutes.

    
    

12. The burden of proof lies with the Petitioner. The allegations of the Administrative Complaint must be proven by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has met the burden.

    
    

13. Section 475.25(1), Florida Statutes, in part provides that the licence of a Florida real estate broker may be disciplined by the Petitioner when the Respondent:

    
    

    (b) Has been guilty of false promises, ... or breach of trust in any business transaction....

    (d) Has failed to account or to deliver to any person, including a licensee under this chapter, at the time which has been agreed upon... any personal property such as money,... including a share of real estate commission.... (emphasis supplied).

    
    

14. The Respondent has clearly violated Sections 475.25(1)(b) and (d), Florida Statutes, by his refusal to pay to Goff the appropriate listing fee.

    
    

15. Violation of disciplinary statutes is punishable by denial of a license renewal application, or by a license suspension for a period not to exceed ten years, or by revocation of the license, or through an administrative fine not to exceed $1,000 for each count or separate offense, or through issuance of a reprimand, or through any combination thereof. Section 475.25(1), Florida Statutes.

    
    

16. Guidelines for the imposition of disciplinary action are as stated in Chapter 21V-24, Florida Administrative Code. Violation of Section 475.25(1)(b), Florida Statutes, merits suspension of the license for up to five years or revocation. Rule 21V-24.001(8), Florida Administrative Code. Violation of Section 475.25(1)(d), Florida Statutes, entails license suspension of up to five years. Rule 21V-24.001(10), Florida Administrative Code. The minimum penalty which may be imposed for each violation is a reprimand, or a fine up to $1,000 per count, or both.

    
    

17. The rationale presented by the Respondent for his action are not credible. Initially, the Respondent states that he should not be required to pay the listing fee because the listing had expired prior to the Respondent's execution of the second listing contract. However, there is no evidence to indicate that the Lewandowski family intended to list the property with Goff for merely one day, and the contract clearly states that it remains valid for one year. The Respondent, who was aware of the problematic expiration date, chose not to discuss the situation with Goff or Goddard, but instead had the Lewandowskis sign a second contract. In the alternative, Respondent asserts that the fee is not owed because Goff retained the listing and worked on selling it himself, therefore Goff did not give the listing to Respondent, and only such listings as were given to the Respondent triggered the agreement to share the

commission. Yet, if the listing had not expired, the original Goff listing was valid at the time of the sale, and Goff would be owed money as the listing agent. Regardless of the foregoing, Goff would have been due his share of the commission based upon the Final Judgement, entered as a result of the legal action brought by Goff, which remains unsatisfied.

RECOMMENDATION

Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED:

that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years.

DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

1-5. Accepted.

6-7. Accepted, as modified in the Findings of Fact.

1. Rejected, irrelevant.

2. Accepted.

Respondent

The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

1-3. Accepted.

4. Rejected, not supported by the weight of the evidence.

5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Peter K. Hofmann

73 Quinlan Drive, #1

Greenville, South Carolina 29611

Darlene F. Keller, Executive Director Department of Professional

Regulation

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

Kenneth E. Easley, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005541

Orders for Case No: 88-005541