STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-0697

)

GARY ALLEN GROVES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, on September 22, 1998, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Gary Allen Groves, pro se

1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

Whether the Respondent should be disciplined upon a charge that he operated as a salesman for any person not registered as his broker in violation of Section 475.42(2)(1)(b), Florida Statutes, and whether Respondent should be disciplined based upon

a charge that he collected money in connection with any real estate brokerage transaction without the express consent of his employer and not in the name of his employer in violation of Section 475.42(1)(d), Florida Statutes.

PRELIMINARY STATEMENT

The Department of Professional Regulation, Division of Real Estate, filed an administrative complaint against the Respondent on September 18, 1997, alleging that the Respondent had operated as a salesman for one real estate broker while registered with another broker, and collected money from individuals in the course of real estate transactions which he did not deposit with the broker with whom he was registered.

The Respondent disputed the charges and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The matter was referred to the Division of Administrative Hearings, where after several continuances it was scheduled for September 22, 1998, in Daytona Beach, Florida.

At hearing, the Petitioner called to testify Donal E. Harrigan, Russ Lambert, and Fadel Elbadramany. In addition, the Petitioner introduced into evidence four exhibits. The Respondent testified in his own behalf and called his ex-wife, Brenda Groves, as a witness in his behalf. In addition, the Respondent introduced into evidence four exhibits.

The Petitioner and Respondent submitted proposed findings which were read and considered.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulating and disciplining real estate salespersons.

2. The Respondent is and was at all times material to this complaint a licensed real estate salesperson in the State of Florida having been issued license no. 0593108.

3. The Respondent's current license was issued as a voluntary inactive with an address of 1421 Daytona Avenue, Holly Hill, Florida 32117.

4. In mid-1994, the Respondent was employed by Donal E. Harrigan, d/b/a Donal E. Harrigan Company (hereinafter Harrigan). The Respondent was licensed as a real estate salesperson with Harrigan, and was engaged in the selling of timeshares.

5. While employed with Harrigan, the Respondent and his wife talked with Fadel Elbadramany, the broker and owner of AAA Realty. Initially the Respondent and his wife talked with Elbadramany about the purchase of commercial real estate; however, Elbadramany solicited both of them as real estate salespersons with his company. The Respondent's then wife was eventually employed by Elbadramany as a salesperson. The Respondent discussed employment with Elbadramany; however, Elbadramany would not discuss the nature and scope of his

   business until the Respondent had signed an employment agreement containing a non-competition clause and DBPR Form 400.5.

   
   

6. The Respondent was interested in selling commercial property, but did not want to cease selling timeshares. He discussed this with Elbadramany who advised him that he could do both. Pursuant to this discussion, the Respondent filled out a DBPR Form 400.5 checking at the top of said form under Section A, "Multiple Licenses." Nothing was checked on the form indicating a change of employment or broker. The Respondent signed the form in blank and left it with Elbadramany.

7. Fadel Elbadramany was called to testify. Elbadramany testified that he employed the Respondent, that the Respondent obtained list of prospects from his office, that the Respondent never sold any real estate for him, and that he had observed the Respondent engaging in the sale of real estate which was not listed with his brokerage.

8. Brenda Groves, the ex-wife of the Respondent, was called to testify. Brenda Groves was employed by AAA Realty and Elbadramany. During her employment, a conflict arose which resulted in litigation between Brenda Groves and Elbadramany over the anti-competitive clause contained in the employment contract. Brenda Grove testified that Elbadramany threatened to get her and to get her husband.

9. Ms. Grove testified regarding the employment of her ex-husband. The Respondent was not employed by AAA Realty. Ms. Groves testimony is considered very credible.

   
   

10. There was a conflict in the testimony between Elbadramany and the Respondent concerning who filled out and completed the DBPR Form 400.5. The most credible evidence is that it was completed by Elbadramany and filed with the Department of Professional Regulation, Division of Real Estate. The form as filled out, requests only multiple licensure. The request for multiple licensure is consistent with the Respondent's intent to continue to sell timeshares for Harrigan and commercial property for Elbadramany. However, prior to commencing employment with Elbadramany, but after filling out the form, the Respondent determined that he did not want to be employed by Elbadramany.

11. Meanwhile, unbeknownst to the Respondent, the Division of Real Estate received the DBPR Form 400.5 and, because the Respondent is not a broker, did not issue him a multiple license. Instead, the Division of Real Estate shifted the Respondent's registration as real estate salesperson from Harrigan to AAA Realty.

12. Although the Respondent's registration had been changed from AAA to Harrigan, the Respondent continued to be employed by

    Harrigan and to work actively in Harrigan's business selling timeshares. The testimony of the Respondent and that of Elbadramany was that he did not do any work for AAA Realty.

13. There is no evidence in this proceeding that the Respondent received a copy of the licensing change or was made aware of this change prior to March 10, 1995.

14. On March 10, 1995, the Respondent was interviewed by an investigator of the Department of Business and Professional Regulation. At this time the Respondent became aware that his registration was with AAA Realty. As a result of this interview, the Respondent contacted the Department and discussed with them how to correct the status of his registration. In order to accomplish that in accordance with the instruction he received, the Respondent filed out a DBPR Form 400.5 registering with Harrigan by whom he had been continuously employed.

    CONCLUSIONS OF LAW

    
    

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

16. The parties were duly noticed of these proceedings and fully participated therein.

17. The Petitioner is charged with the regulation and discipline of real estate salespersons pursuant to Chapter 475, Florida Statutes.

18. The burden of proof is upon the Petitioner to prove all material allegations contained in the administrative complaint. The Petitioner must present clear and convincing evidence of the alleged violations. Smith v. HRS, 522 So. 2d 956 (Fla. 1st DCA 1988).

19. The administrative complaint charges the Respondent with operating as a salesman for Harrigan while being registered with the Department as a salesperson for AAA Realty, contrary to Section 475.42(1)(b), Florida Statutes. Further, the administrative complaint alleges that while registered with AAA Realty, the Respondent collected money from the sales of timeshares in Mr. Harrigan's behalf and did not turn the money over to the broker with which he was registered, AAA Realty, contrary to Section 475.42(1)(d), Florida Statutes.

20. The evidence presented in this case does not establish the alleged violations.

21. The documentary evidence presented shows that the change in registration was the result of the filing of a DBPR Form 400.5 requesting a multiple license. As a result of the receipt of this form, the Department changed Respondent's registration from his employing broker, Harrigan, to AAA Realty. The changing of the Respondent's registration from Harrigan to AAA Realty was inconsistent with the Respondent's intent, and no evidence was produced that the Respondent was aware prior to his

    interview on March 10, 1995, by the Department's investigator that his registration had been changed.

22. The most disinterested and knowledgeable person testifying was the Respondent's ex-wife, Brenda Groves.

    Ms. Groves was an employee of AAA Realty and Elbadramany, and was aware of the employment status of her ex-husband at the time involved in the administrative complaint. Her testimony substantiated that of her ex-husband that he was never employed by AAA Realty.

23. The record reflects an application for multiple license by the Respondent which the Department did not issue. The Department gratuitously transferred the Respondent's license from Harrigan to AAA Realty. No evidence was presented that the Respondent was aware that his license was transferred. The evidence is uncontradicted that the Respondent never did any work for AAA Realty. The more credible evidence is that the Respondent was never employed by AAA Realty.

24. No evidence was introduced that the Respondent breached any duty placed upon him as a real estate salesman with Harrigan by whom he was employed. There is no evidence the Respondent knowingly violated any regulation of the Division or any statute.

25. In sum, a real estate salesman who is employed by one broker is not in violation of the licensing statutes if his registration is transferred to another broker without his

knowledge. There is no violation of Section 475.42(1)(b) and (d), Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED:

That the Division of Real Estate enter its final order dismissing the administrative complaint against the Respondent Gary Allen Groves.

DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802

Gary Allen Groves

1500 Beville Road, Suite 606-182 Daytona Beach, Florida 32114

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-000697

Orders for Case No: 98-000697