STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6265

)

JOYCE A. WOLFORD, t/a )

BLUE RIBBON REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on March 20, 1990, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Steven W. Johnson, Senior Attorney

Division of Real Estate

P.O. Box 1900 Orlando, FL 32802

For Respondent: Attorney Raymond O. Bodiford

P.O. Box 1748 Orlando, FL 32802

ISSUES

The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 20, 1989, Petitioner alleged that Respondent agreed to pay a real estate commission to Virginia M. Poole and failed to do so, even after a final judgment was rendered against her and in favor of Ms. Poole, all in violation of Section 475.25(1)(d), Florida Statutes.

By Election of Rights dated November 7, 1989, Respondent requested a formal hearing.

At the hearing, Petitioner presented two witnesses and offered into evidence eight exhibits. Respondent presented one witness and offered into evidence one exhibit. All exhibits were admitted into evidence. In addition, Respondent was given leave to take the deposition of Mary Asian within 30 days

following the hearing and file two additional exhibits within ten days following the hearing, but did not do so.

Neither party ordered a transcript. Petitioner filed a proposed recommended order. All of Petitioner's proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643.

   
   

2. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business.

   
   

3. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier.

   
   

4. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit.

   
   

5. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty.

   
   

6. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988.

   
   

7. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price.

   
   

8. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof.

   
   

9. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can."

   
   

10. Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December

    14 closing.

    
    

11. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman.

12. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989.

    
    

13. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner.

    
    

14. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioner is responsible for the disciplining of licenses of real estate brokers. Section 475.25, Florida Statutes.

17. Discipline against a license may be imposed if the licensee fails to account or deliver to any person,

    including a licensee . . ., at the time which

    has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money . . ., including a share of a real estate commission, . which has come into his hands and which is

    not his property or which he is not in law or equity entitled to retain under the circumstances.

    
    

    Section 475.25(1)(d)1., Florida Statutes.

    
    

18. However, the above-cited statute identifies several procedures that the licensee can follow in order to avoid subjecting himself to discipline:

    
    

    However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, of if conflicting demands have been made upon him for the escrowed property, which property he still maintains in his escrow or trust account, the licensee shall promptly notify the commission of such doubts or conflicting demands and shall promptly:

    
    

    Id.

    1. Request that the commission issue an escrow disbursement order determining who is entitled to the escrowed property;

    2. With the consent of all parties, submit the matter to arbitration; or

    3. By interpleader or otherwise, seek adjudication of the matter by a court.

       If the licensee promptly employees one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the

       escrowed property.

       
       

19. In this case, Respondent has not availed herself of any of the above-

    described procedures to protect herself from disciplinary action. To the contrary, she has suffered the entry of a judgment against her for the contested commission and has resisted attempts to collect on the judgment. Her failure to take advantage of one of the available "escape" procedures coupled with the entry of final judgment against her means that Respondent has failed to account or deliver to Ms. Poole her share of the subject commission and is subject to disciplinary action.

    
    

20. Rule 21V-24.001(3)(j), Florida Administrative Code, provides that, for a violation of Section 475.25(1)(d), the minimum penalty is a reprimand and

    $1000 administrative fine for each count and the maximum penalty is up to five years' suspension.

    
    

21. No aggravating circumstances exist in this case. To the contrary, the central issue in this case appears largely a civil dispute between Respondent and one of her salesmen. As such, the case suggests no basis for concern that Respondent may pose a threat to the public. In sum, Respondent has displayed merely poor judgment in how to handle a commission dispute between herself and one of her employees. Under these facts, the appropriate penalty is a reprimand and $1000 administrative fine.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000.

ENTERED this 23 day of May, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990.

COPIES FURNISHED:

Steven W. Johnson, Senior Attorney Division of Real Estate

P.O. Box 1900 Orlando, FL 32802

Attorney Raymond O. Bodiford

P.O. Box 1748 Orlando, FL 32802

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Kenneth Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Docket for Case No: 89-006265

Orders for Case No: 89-006265