STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1304

)

DOMINIC SCACCI, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Boca Raton, Florida on July 22, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: James H. Gillis, Esquire

DPR - Division of Real Estate Suite N - 308, Hurston Bldg.

400 W. Robinson Street Orlando, Florida 32801-1772

For the Respondent: Was not present and was not

represented. STATEMENT OF THE ISSUES

The issue for consideration in this case was whether Respondent's license as a registered real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated September 12, 1991, the Petitioner, Department of Professional Regulation, for the Florida Real Estate Commission, seeks to discipline Respondent's license as a real estate broker in Florida because of his alleged participation in a scheme, trick, device and breach of trust in a real estate transaction and his failure to deliver a share of an earned real estate commission, in violation of Section 475.25(1), Florida Statutes.

Respondent requested formal hearing and on February 24, 1992, the file was transferred to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated March 23, 1992, entered after both parties responded to the Initial Order herein, the undersigned set the matter for hearing in Boca Raton, Florida on June 11, 1992. However, on June 3, 1992,

the Respondent telephonically contacted the undersigned to request a continuance and shortly thereafter, in compliance with the Hearing Officer's instructions to coordinate this with counsel for Petitioner, submitted his request in writing. Since Respondent represented that Petitioner's counsel agreed to a continuance, the matter was postponed until July 22, 1992 at which time it was held as rescheduled.

Notwithstanding the Order rescheduling the hearing was mailed to Respondent at the address shown in his request for continuance and was not returned undelivered, Respondent failed to appear at the hearing nor was he represented by anyone. The Hearing Officer delayed the commencement of the hearing for 20 minutes beyond the scheduled starting time, but Respondent did not appear and he had not appeared an hour later when the hearing was adjourned.

Petitioner presented a prima facie case in support of the allegations in the Administrative Complaint. In doing so he presented the testimony of Walter

1. Van Oostrum, the salesman from whom Respondent allegedly withheld a share of the commission, and Richard L. Mercier, the seller of the property giving rise to the commission. Petitioner also introduced Petitioner's Exhibits 1 - 7. Respondent, not being present or represented, presented nothing in response.

   
   

   No transcript was filed. Counsel for Petitioner submitted matters subsequent to the hearing which have been considered in the preparation of the Recommended Order, and so far as they are Proposed Findings of Fact, are approved.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the allegations contained herein, the Florida Real Estate Commission was the state agency responsible for the licensing and regulation of real estate professionals in this state. Respondent was licensed by the Commission as a real estate broker under licenses Numbers 0117117 and 0257450-1. His licenses were effective at all times under consideration herein.

      
      

   2. On December 19, 1988, Richard and Charleen Mercier, owners of the Sherwood Lounge in Delray Beach, Florida, entered into a 6 month exclusive right to sell agreement with Richard Scott Realty for the sale of their property. At that time, Respondent was listed as the broker of record for Richard Scott Realty. The licensed sales person obtaining the listing was Walter P. Van Oostrum. The agreement called for the payment of a 10% commission upon sale.

      
      

   3. Thereafter, on April 4, 1989, the Merciers entered into another listing agreement with WMB Management, a different realty company with whom Respondent had become affiliated after his resignation from Richard Scott Realty on March 17, 1989.

      
      

   4. On April 18, 1989, Steven Yoo signed a contract to purchase the Sherwood Lounge for $60,000.00 Thereafter, the sale was closed and the closing statement reflects a brokerage commission of $7,500 to be paid from the proceeds of the sale. On May 2, 1989, Mrs. Mercier paid Respondent the additional sum of

      $2,500.00, by check number 219, drawn on the Carney Bank in Delray Beach, Florida. This check represented the balance due of the commission earned on the sale though there was no explanation as to how a commission of $10,000.00 could be earned on a $60,000.00 sale when the contract called for a commission of 10%. The check was cashed.

   5. Sometime thereafter, Respondent paid the sum of $500.00 to Mr. Van Oostrum in partial payment of his share of the commission on the sale of the Sherwood Lounge. According to their agreement, Mr. Van Oostrum was to receive 30% of the commission received by the brokerage on the sale. When Mr. Van Oostrum asked Respondent for the remaining $2,500.00 he was due, it was not paid.

      
      

   6. Thereafter, Mr. Van Oostrum filed suit in County Court in Broward County for the $2,500.00 due him. Respondent failed to appear or file a response and on December 29, 1989, the Court entered a Default and Final Judgement against Respondent in favor of Mr. Van Oostrum in the amount of

      $2,500.00 plus $80.00 costs. Though Mr. Van Oostrum thereafter made demand upon the Respondent for payment the judgement has not been satisfied.

      Respondent offered, in compromise and satisfaction, a payment of $100.00 plus a promise to pay an additional $100.00 "when he got it." This offer was not accepted by Mr. Van Oostrum. The balance due has not been paid.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   8. In its Administrative Complaint, Petitioner seeks to discipline Respondent's license as a real estate broker in Florida because, it alleges, he failed to pay over to a real estate salesman working for him the salesman's share of a commission earned on the sale of a piece of real estate which was listed by the salesman. This is, as alleged by Petitioner, a violation of the provisions of Section 475.25(1), Florida Statutes, which, in pertinent part, provides for the Commission to discipline the license of a real estate professional who is found guilty of dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction, (Section 475.25(1)(b)); or of having failed to account and deliver a share of a real estate commission, (Section 475.25(1)(d)).

      
      

   9. The burden of proof rests with the Petitioner to establish the elements of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

      
      

   10. In this case, the unrebutted evidence of record establishes that Mr. Van Oostrum obtained the listing for the sale of the Sherwood Lounge from the Merciers in his capacity as a salesman under Respondent's supervision. When Respondent subsequently changed agencies he took the listing with him. The subsequent sale of the property resulted in a commission to Respondent of

       $10,000.00 under the terms of the listing agreement brought about by Mr. Van Oostrum. Mr. Van Oostrum was entitled to 30% of that commission, ($3,000.00) as a result of his agreement with the Respondent. Though it appears Respondent was paid his $10,000.00 commission in full, he paid Mr. Van Oostrum only $500.00 and has failed to pay any more even in the light of repeated requests for payment by Mr. Van Oostrum and the securing of a legal judgement for the balance due against him. His one offer of compromise was totally inadequate and was rejected by his creditor, Mr. Van Oostrum.

       
       

   11. This conduct constitutes dishonest dealing and a breach of trust in a business transaction in violation of Section 475.25(1)(b). The evidence is also clear that Respondent failed to account for and deliver to Mr. Van Oostrum his

       share of a real estate commission earned through the initial listing obtained by Mr. Van Oostrum and this constitutes a violation of Section 475.25(1)(d).

       
       

   12. Petitioner urges that Respondent's misconduct in this case is sufficiently egregious to support revocation of his license as a real estate broker. His obvious cavalier attitude toward his responsibilities as demonstrated by his unexplained failure to appear at the trial of Mr. Van Oostrum's claim against him in County Court and at this disciplinary hearing indicates how little he values his license, and his established unsatisfied debt to Mr. Van Oostrum shows his utter indifference toward his bona fide obligations to his professional associates.

       
       

   13. Clearly, Respondent's attitudes toward his professional obligations, as herein demonstrated, are inconsistent with the high standards expected of real estate professionals.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered revoking all real estate licenses, as broker or salesman, held by the Respondent, Dominic Scacci.

RECOMMENDED in Tallahassee, Florida this 24 day of August, 1992.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992.

James H. Gillis, Esquire

DPR - Division of Real Estate Suite N - 308, Hurston Building

400 W. Robinson Street Orlando, Florida 32801-1772

Dominic Scacci

1880 N. Congress Avenue, #405 West Palm Beach, Florida 33401

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director Division of Real Estate

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-001304

Orders for Case No: 92-001304