STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASIMIR M. SZPAK, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1584

)

DALE W. JOHNSON AND )

ROBERT V. CLARK, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice the above cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on October 29, 1976, in Jupiter, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

2699 Lee Road

Winter Park, Florida 32789

For Respondent Stephen C. Frasier, Esquire Dale W. Johnson: 310 Denver Avenue

Post Office Box 2210 Stuart, Florida

For Respondent W. Dave Womack, Esquire Robert V. Clark: Post Office Box 3009

Tequesta, Florida

The Florida Real Estate Commission (hereinafter sometime referred to as the Commission), by administrative complaint and its nominal Petitioner Casimir M. Szpak, seeks to revoke or suspend or otherwise discipline licensee Dale W. Johnson who holds license no. 0044488 and licensee Robert V. Clark, who holds license no. 0015169 based upon the following two Counts:

Count 1 in summary form, is against the broker, Dale W. Johnson Realty, for employing broker salesman Robert V. Clark as a real estate salesman at times during which Clark was not registered with the Commission as his (Respondent Johnson) employing broker.

Count 2 is that Respondent Robert V. Clark operated as a salesman for broker Dale W. Johnson while he was not registered with the Commission as his employer.

Based upon my observation of the witnesses and their demeanor while testifying, I make, the following:

FINDINGS OF FACT

1. Testimony elicited during the course of the hearing established that beginning in April of 1975, Respondent Clark showed prospective tenants various condominiums that were either for sale or lease and that he received commissions for the annual rentals of the apartments in which he was successful in renting. (See for example Commission's Exhibits 8, 9 and 10, offered and received into evidence without objection).

   
   

2. On or about May 3, 1975, John Gill, a broker that had been associated with Dale W. Johnson Realty Corporation as a broker was notified by letter that his association with Johnson Realty Corporation was terminated as of the effective date of that letter. He was further advised to return all keys etc. to the front office and that the Commission would be notified by mail on May 5, 1975, that his association was terminated. (See Commission's Exhibit #6, received into evidence). Documents received into evidence established that Respondent Clark was associated with Global Properties Inc., of North Palm Beach at least during the period of September, 1974 through March, 1976, which of course are the same periods during which he was associated with Dale W. Johnson Realty Inc. At no time did Respondent Clark notify the Commission that he was associated with Dale W. Johnson Realty Corporation as either a broker or a salesman.

   
   

3. Edwin J. Nelson, a broker associated with the firm Global Property Sales, Inc., testified that Respondent Clark was employed by Global as a salesman and was so employed during times material to the allegations in the administrative complaint filed herein. He testified further that while there were meetings wherein brokers and salesmen advised other brokers and those in charge at Global of their brokerage activities, Respondent Clark never advised that he had any activities with Kingman Acres, which was the condominium development in which evidence reveals that Respondent Clark showed prospective tenants condominiums for lease and/or sale. He testified that while at times there are co-brokerage agreements with various realty corporations, there was never any co-brokerage agreement with Dale W. Johnson Realty, Inc. Additionally, he testified that he had no knowledge of Respondent Clark's association in any manner with Kingman Acres or Dale W. Johnson Realty, Inc.

   
   

4. Respondent Clark testified that he was hired by Dale W. Johnson to research the feasibility of establishing a sales program to sell condominiums at Kingman Acres and that should a feasible program develop, an agreement would be entered between the parties to set up an office to sell condominium units to prospects. He testified that the study was undertaken based on the sagging sales at Kingman Acres. An examination of the notations on checks introduced into evidence revealed that Respondent Clark was paid commissions for securing options and leases from prospective purchasers who executed options to purchase and lease agreements. Respondent Clark's explanation that notations on checks issued him represented amounts that were commissions from rentals of apartments were simply bookkeeping entries is regarded as unpersuasive and his testimony in that respect is therefore discredited. Based on his admission that he showed condominiums to persons interested in the sale and lease of such, I find that the checks were payments for commissions as noted thereon.

   
   

5. Respecting a letter dated April 1, 1975, which in essence stated that Respondent Clark was authorized by his broker Edwin J. Nelson, of Global Property Sales, Inc., to research the feasibility of establishing a sales program at Kingman Acres is disputed by Nelson's own testimony that he had no

   knowledge whatsoever of Respondent Clark's association with Dale W. Johnson Realty, Inc.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding.

   
   

7. The parties were duly noticed pursuant to the provisions of Chapter 120 and Chapter 475, Florida Statutes.

   
   

8. Respondent Johnson, by paying a compensation of valuable consideration to Respondent Clark for his professional acts and services including procuring persons to execute lease and lease options, to purchase condominiums at Kingman Acres, is guilty of having employed Respondent Clark as a real estate salesman while he had not been issued, by the Commission, a valid current registration as a salesman in violation of Subsection 475.42(1)(c), Florida Statutes, and in violation of Subsection 475.25(1)(d), Florida Statutes.

   
   

9. Respondent Clark's activities as set forth above reflect that he was operating as a real estate salesman for a person not registered as his employer in violation of subsection 475.42(1)(b) Florida Statutes, and Subsection 475.25(1)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law I recommend:

1. That the registration of Dale W. Johnson be suspended for one year.

   
   

2. That the registration of Respondent Robert V. Clark be suspended for one year.

DONE and ENTERED this 17th day of January, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Robert V. Clark Dale W. Johnson

Realtek Real Estate Inc. Miles Grant Realty Corporation 1620 U.S. 1 5111 Southeast Miles Grant Road

Jupiter, Florida 33458 Stuart, Florida 33494

1. Dave Womack, Esquire Stephen C. Frasier, Esquire Post Office Box 3009 310 Denver Avenue

   Tequesta, Florida Post Office Box 2210 Stuart, Florida

   Frederick H. Wilsen, Esquire 2699 Lee Road

   Winter Park, Florida 32789

   
   

   ================================================================= AGENCY FINAL ORDER

   ================================================================= FLORIDA REAL ESTATE COMMISSION

   FLORIDA REAL ESTATE

   COMMISSION, An Agency

   of the State of Florida,

   
   

   Petitioner, PROGRESS DOCKET NO. 2827 MARTIN COUNTY

   vs. DOAH CASE NO. 76-1584

   
   

   DALE W. JOHNSON and ROBERT V. CLARK,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   At a regular meeting of the Florida Real Estate Commission held at its Executive Headquarters in Winter Park, Florida, on March 16, 1977,

   
   

   PRESENT: John R. Wood, Chairman

   Maggie S. Lassetter, Vice Chairman Levie D. Smith, Jr., Member

   
   

   APPEARANCES: Frederick H. Wilsen, Attorney for Petitioner Stephen C. Frazier, Attorney for Johnson

   W. Dave Womack, Attorney for Clark

   
   

   This matter came on for Final Order upon the Hearing Officer's Recommended Order, the Petitioner's and Respondents' Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral arguments of counsels for Petitioner and Respondents, and statements by the Respondents in person, and the Commission being fully advised in the premises finds:

   
   

   1.

   
   

   The Respondent, Dale W. Johnson, is a real estate broker registered with the Commission in the employ of Dale W. Johnson Realty Corp., 371 Midway Road, Fort Pierce, Florida 33450.

   2.

   
   

   The Respondent, Robert V. Clark, is a real estate broker registered with the Commission in the employ of Arbor Clark Realty Inc., 13842 U.S. Highway 1, Juno Beach, Florida 33408.

   
   

   3.

   
   

   The Petitioner's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be denied.

   
   

   4.

   
   

   That Respondent Johnson's exceptions to the Hearing Officer's Recommended Order are not well taken and should be denied except as to penalty.

   
   

   5.

   
   

   That Respondent Clark's Exceptions to the Hearing Officer's Recommended Order are not well taken and should be denied as to penalty.

   
   

   6.

   
   

   The Hearing Officer's Recommended Order is supported by competent, substantial evidence in the record and should be adopted as to the Order of the Commission except as to penalty.

   
   

   7. IT IS THEREUPON ORDERED THAT:

   1. the Petitioner's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, denied;

      
      

   2. that Respondent Johnson's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, denied except as to penalty;

      
      

   3. that Respondent Clark's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, denied except as to penalty;

      
      

   4. that the Hearing Officer's Findings of Fact and Conclusions of Law be, and the same are hereby, adopted by the Commission;

      
      

   5. that the Hearing Officer's Recommended Order as to penalty is rejected.

8.

IT IS THEREUPON ORDERED that the Respondent, Dale W. Johnson, be, and he is hereby, found guilty of violating Subsections 475.42(1)(c) and 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint and for said violations the registration of Respondent Dale W. Johnson is hereby suspended for a period of six (6) months.

9.

IT IS THEREUPON ORDERED that the Respondent, Robert V. Clark, be, and he is hereby, found guilty of violating Subsections 475.42(1)(c) and 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint and for said violations the registration of Respondent Robert V. Clark is hereby suspended for a period of six (6) months.

10.

IT IS FURTHER ORDERED that on or before the effective date of this Final Order, Respondent Johnson and Respondent Clark shall surrender their registration certificates to the Commission by return mail.

DONE and ORDERED at Winter Park, Florida, this 18th day of March, 1977.

Chairman

Vice Chairman

Member

I CERTIFY that I mailed a copy of the foregoing Final Order to Stephen C. Frasier, Attorney for Respondent Johnson, 310 Denver Avenue, P.O. Box 2210, Stuart, Florida 33494, and W. Dave Womack, Attorney for Respondent Clark, P.O. Box 3009, Tequesta, Florida 33458, by United States registered mail this 18th day of March, 1977 33740.

Executive Director

NOTICE TO RESPONDENTS

This Final Order shall become effective on the 18th day of April, 1977.

However you have a right of review by an Appellate Court, if you desire.

Docket for Case No: 76-001584

Orders for Case No: 76-001584