STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION )

GEORGE ILLI, Representative, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1023

)

AARON W. ANDORFER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on September 10, 1976, in St. Petersburg, Florida.

The following appearances were entered: Manuel E. Oliver, Winter Park, Florida, for the Petitioner; and Aaron W. Andorfer, who appeared on his own behalf.

The Florida Real Estate Commission, through its representative, George Illi ("Petitioner' hereafter), issued an Administrative Complaint against Aaron W. Andorfer ("Respondent" hereafter) on December 4, 1975. It is charged in the Complaint that the Respondent shared a real estate commission with a person not properly registered as a real estate broker. The Respondent requested that a hearing be conducted in accordance with Florida Statutes, Section 120.57 (Hearing Officer's Exhibit No. 2), and the Complaint was filed with the Division of Administrative Hearings on June 1, 1976. The final hearing was scheduled by notice dated August 17, 1976, to be conducted on September 10, 1976 (Hearing Officer's Exhibit No. 3).

The Petitioner called the following witnesses: George E. Illi, an investigator employed by the Florida Real Estate Commission; Lena Biggan, a former associate of the Respondent; and James B. Coil, the assistant vice president in charge of special investigations for the Flagship Bank. The Respondent appeared as a witness on his own behalf. Hearing Officer's Exhibits 1,2, and 3; Petitioner's Exhibits 1 through 10; and Respondent's Exhibits 1 and

2 were received into evidence at the hearing. Neither party has submitted any post-hearing memoranda.

FINDINGS OF FACT

1. The Respondent was at all material times registered with the Florida Real Estate Commission as a real estate broker, holding registration certificates numbered 001709, and 0141291.

   
   

2. The Respondent served as the real estate broker for an entity known as "Rent-A-Home, Inc." Rent-A-Home had an office in St. Petersburg and an office in Clearwater. A Mr. Richard Gindin was the Respondent's partner in Rent-A-Home.

   Gindin was not at any material time registered with the Florida Real Estate Commission as either an active or non-active real estate broker or real estate salesman.

   
   

3. During October, 1974, the Respondent took part in a real estate transaction between a Mr. and Mrs. Garrett, and a Mr. and Mrs. Churches. On October 7, 1974, the Churches signed an option to purchase certain property owned by the Garretts in Pasco County. The transaction was undertaken under the auspices of Rent-A-Home. Lena Biggan was the sales person who actually negotiated the contract. A copy of the option agreement was received into evidence as Petitioner's Exhibit 3. The Churches delivered a cashier's check in the amount of $1,500 to the Respondent as set out in the agreement. A copy of the cashier's check was received into evidence as Petitioner's Exhibit 5. Five Hundred dollars of the $1,500 was to be used as the real estate commission. The remainder was to be distributed to the Garretts. On the same day that the contract was executed, the Respondent deposited $1,400 of the $1,500 in his personal checking account at the Liberty National Bank of St. Petersburg (See: Petitioner's Exhibits 6,7). He retained $100. On the same day the Respondent issued checks from the same account in the amount of $1,000 to Cecil D. Garrett, in the amount of $166.63 to Lena Biggan, and in the amount of $166.63 to Richard Gindin. The check issued to Lena Biggan constituted her share of the $500 real estate commission. This check was received into evidence as Petitioner's Exhibit 9.

   
   

4. The check issued to Gindin was received into evidence as Petitioner's Exhibit 8. There was no direct testimony that the check issued to Gindin constituted his share of the real estate commission. The circumstances of the check, however, clearly indicate that that was the intention. The check to Biggan bore No. 563. The check to Gindin was the very next check in the Respondent's checkbook, No. 564. The next check issued from the Respondent's checkbook, No. 565, was the $1,000 check to the Garretts. The check to Biggan, and the check to Gindin were in the same amount, approximately one third of

   $500. It is indicated on each check that it was for a "comm.". There was direct testimony from Ms. Biggan that her check was for her share of the commission on the Garrett/Churches transaction. It is evident that Gindin's check was for the same purpose.

   
   

5. Prior to the Garrett/ Churches transaction, Gindin approached the Respondent with respect to forming "Rent-A-Home". Gindin told the Respondent that he would form a corporation, and he asked the Respondent to pay one third of the $500 legal fee which was required for forming a corporation. When the Respondent gave Gindin the check which has been received into evidence as Petitioner's Exhibit 9, the Respondent thought that he was paying one third of the necessary attorney's fee rather than giving a commission to Gindin in connection with the Garrett/Churches transaction. In fact Gindin never used the money to form a corporation, and he kept it as if it was a real estate commission.

   
   

6. When the Respondent delivered the check to Gindin he did in fact share a real estate commission with Gindin, a person who was not registered as a real estate broker or salesman. The Respondent thought that the check was being delivered for a legitimate purpose; however, the circumstances of the transaction were such that the Respondent should have known that Gindin was regarding the check as his share of a real estate commission.

7. In approximately January, 1975, the Respondent disassociated himself from Rent-A-Home. Gindin has apparently left the State of Florida, and has not been seen by the Respondent since January, 1975.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Florida Statutes, Sections 120.57(1), 120.60.

   
   

9. Florida Statutes, Subsection 475.25(1) provides in pertinent part as follows:

   
   

   "(1) The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final

   order of suspension, or both, upon finding of fact showing that the registrant has:

   * * *

   (f) Shared a commission with or paid a fee or other compensation to, a person not properly registered as a real estate broker 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(2)."

   
   

   The Respondent was guilty of sharing a real estate commission in connection with the Garrett/Churches transaction with a person who was not properly registered as a real estate broker or salesman.

   
   

10. The Respondent should have known that he was sharing a commission with an unregistered person, but in fact he had been euchred by said person into believing that the money was being distributed for a different purpose. This fact does not absolve the Respondent of responsibility, but it does bear upon the penalty which should be imposed.

    
    

11. The Respondent should be officially and publicly reprimanded for his violation of Florida Statutes, Subsection 475.25(1)(f).

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED that an order be entered as follows:

1. Finding the Respondent, Aaron W. Andorfer, guilty of the charges set out in the Administrative Complaint filed by George Illi, as a representative of the Florida Real Estate Commission, and formally and publicly reprimanding the Respondent for his action.

RECOMMENDED this 1st day of November, 1976, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Aaron W. Andorfer

3618 Bayshore Boulevard, Northeast St. Petersburg, Florida 33703

Docket for Case No: 76-001023

Orders for Case No: 76-001023