STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD T. MOONEY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1934

)

ROBERT F. TULLY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above styled cause on December 10, 1976 in the Brevard County Courthouse, Room 3, 1040 South Dixie Highway, Rockledge, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter came on to be heard upon an Administrative Complaint filed by the Florida Real Estate Commission against Robert F. Tully alleging that Tully had filed a lien against real property for the purpose of collecting a commission in violation of Section 475.42(1)(j), F.S.

Prior to taking any testimony the parties stipulated to the facts alleged in paragraphs 1 through 9 of the Administrative Complaint. There remained only the following question of law:

ISSUE

Whether recording a claim of lien by a registered real estate broker for the purpose of collecting a commission pursuant to an exclusive listing contract violated the provision of Section 475.42(1)(j)?

APPEARANCES

For Petitioner: Randy J. Schwartz, Esquire

Staff Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Edward L. Stahley, Esquire

Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922

FINDINGS OF FACT

1. Robert F. Tully is a registered real estate broker holding Certificate #0090289 issued by the Florida Real Estate Commission.

2. Robert F. Tully, on April 24, 1975, entered into a 30 day exclusive listing contract with James and Joyce Deede to find a purchaser for their residence located at 4150 Rector Road, Cocoa Beach, Florida. This contract was to continue in effect after the end of the 30 day period but could then be terminated on 10 day written notice. The Deedes were unable to produce any evidence of having given 10 day written notice and the Respondent and his agents denied having received written notice of cancellation of the contract.

   
   

3. On August 21, 1975, Mr. DeVaughn Bird, a registered real estate broker, personally contacted the Deedes to inquire about selling their house for them. At that time the property had a Tully "FOR SALE" located on it, but Bird did not contact Tully or his associate sales personnel. The Deedes advised Bird that the exclusive sales contract with Tully was no longer valid and gave Bird an open listing.

   
   

4. On August 23 and 24, 1975, Bird showed the subject property to Richard and Diane McClure at which time the Tully sign was still located on the property. A contract for sale and purchase was negotiated by Bird between the Deedes and McClures, and a closing date set. Because of difficulties, the closing was delayed and a new contract executed on October 15, 1975 for a November 7, 1975 closing. Following the execution of the initial contract, Bird put his own "SOLD" on the property.

   
   

5. Tully became aware of the sale by Bird, and contacted Bird advising him of the existence of his exclusive listing contract, and his expectation to participate in the commission. Bird informed Tully that he would not share a commission and that Tully would have to look to the Deedes for any commission due him. The Deedes refused to acknowledge Tully's claim for any commission or share thereof. At this point, Tully sought the advice of his attorney.

   
   

6. Tully's attorney advised him that Tully's contract was in full force and on the basis of the attorney's opinion law applicable to the situation, Tully was entitled to file an equitable lien against the property. Tully, based on his attorney's advice, authorized his attorney to negotiate a settlement if possible; and, if that failed, to file an equitable lien on the property. Negotiations were unsuccessful and on October 30, 1975, just prior to closing, Tully's attorney filed a claim of lien for real estate commission in the amount of $3,314.50 with the Clerk of the Circuit Court of Brevard County, Florida, and this was recorded in OR Book 1570 at Page 349 of the official records of that county. Copies of, the claim of lien were also served on the closing agent for the sale of the property.

   
   

7. The Deedes, as a result of the claim of lien, directed the closing agent to pay Tully one half the amount claimed, or $1,175.00, when Bird agreed to drop his commission from 7 percent to 5 percent of the selling price of

   $47,000. Having received payment of $1,175.00, Tully had the claim of lien immediately satisfied, which satisfaction may be found in OR Book 1572 at Page

   115 of the Public Records of Brevard County.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Real Estate Commission alleges that without regards to Tully's legal entitlement to a commission or the fact that he acted on the advice of counsel, Tully violated Section 475.42(1)(j), F.S., by filing a claim of lien to collect a commission. The provisions of Section 475.42(1)(j), supra, are clear on their face. Clearly, said section prohibits the filing of liens known to be false and liens to collect a commission. Glasser v. Florida Real

   Estate Commission, 3rd D.C.A. 1960, 117 So.2d 761, deals with whether scienter is a necessary element of proof when a registrant is charged with filing a lien known to the registrant to be false. The instant case, however, deals with the absolute prohibition against filing a lien to collect a commission. It is clear that this was the purpose and basis for the claim of lien. Even though any individual may have a right to file an equitable lien, if the person filing is a registrant under Chapter 475, the act of filing may be grounds for disciplinary action.

   
   

9. The Hearing Officer does, however, disagree with the point of view that the fact that Tully acted on advice of counsel is immaterial. While it does not insulate Tully from the effects of the law, it clearly mitigates in his favor because it indicates that (1) his action was not malicious and tends to show it was not frivolous and (2) he was concerned with whether Section 475.42(1)(j) was applicable under the circumstances he faced. His counsel's advice was that Section 475.42 (1)(j) did not apply. This was apparently the result of counsel's interpretation and application of the principles enunciated in Glasser, supra, to Tully's situation. His counsel's advice was that Tully could file the lien without violating Section 475.42(1)(j), F.S. The fact that Tully acted on the advice of counsel certainly mitigates against the penalty to be assessed because it demonstrates that his action was not malicious, frivolous, and that he was concerned with his right to file the lien in light of Section 475.42(1)(j), F.S.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Robert F. Tully to repay the $1,175.00 to the Deedes within 30 days, said period to be extended if the Deedes cannot be located, or face immediate suspension for 30 days; further, said repayment shall not act as a bar to any action by Robert F. Tully against the Deedes based on his contract with them.

DONE and ORDERED this 10th day of March, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Edward L. Stahley, Esquire Goshorn, Stahley & Miller Post Office Box 1446 Cocoa, Florida 32922

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

Winter Park, Florida 32789

Docket for Case No: 76-001934

Orders for Case No: 76-001934