STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-275

)

MOLLIE LEE WARRINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Coral Gables, Florida, on May 3, 1977, before the undersigned hearing officer.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789 For Respondent: No Appearance

ISSUE

Whether the real estate license of respondent should be revoked or suspended for operating as a broker while registered with the petitioner as a salesman, in violation of subsections 475.01(3) - 475.25(1)(d), 475.42(1)(b), and 475.42(1)(e), Florida Statutes.

Neither respondent nor any representative in her behalf appeared at the hearing. Notice of the hearing was provided the respondent by the petitioner through U.S. registered mail on April 12, 1977. Respondent acknowledged receipt of the notice on April 18, 1977. (Petitioner's Exhibit 1)

By correspondence to petitioner, dated April 23, 1977, which was received on April 27, 1977, respondent requested a postponement until two of her former employers were subpoenaed for the hearing. She also mentioned in her letter that she had been unable to locate the address of a third former employer. In fact, two of the individuals had already been subpoenaed by petitioner to testify at the hearing, and on May 2, 1977, petitioner's investigator attempted to deliver a subpoena for the third person to the respondent at her home after calls to her listed telephone number had not been answered. Further attempts to locate the respondent on that day were without avail. (Petitioner's Exhibit 2, Testimony of Greene)

The request for continuance was not brought to the hearing officer's attention by either party until May 2, 1977, at which time petitioner's counsel

advised him of the request and that respondent could not be located on that date.

At the commencement of the hearing, after being advised in the premises, the hearing officer determined that respondent had received adequate notice of the hearing and that, not having been informed that her request for a postponement had been granted, it was incumbent upon her to be present at the hearing either to pursue her request or defend her interests, if she so desired. There being no apparent justifiable cause for her absence, the matter was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), F.A.C.

FINDINGS OF FACT

1. Respondent is now and was at all times alleged in the administrative complaint a registered real estate salesman employed by Happy Home Hunters, Inc., a broker corporation. (Petitioner's Exhibit 4)

   
   

2. In the spring of 1974, Doris Espinosa a registered real estate broker, was working with respondent at a firm named Home Locators, in Miami, Florida. Respondent requested that Espinosa join her in a new firm that was to be financed by one Chester Kaye. A corporation, Happy Home Hunters, Inc., was thereafter formed with Espinosa as president and active firm member. George Girard was an officer of the corporation, also. Espinosa was with the firm only approximately fifteen days. Neither Kaye nor respondent was an officer of the corporation. The firm engaged in the listing and rental of apartments as its primary business at 6730 Biscayne Boulevard, Miami, Florida. Both Espinosa and respondent endeavored to secure listings of rental apartments and then locate tenants from whom a fee was obtained. Both could countersign checks of the firm and together they handled the financial matters. Kaye was seldom present at the office. (Testimony of Espinosa)

   
   

3. On April 24, 1974, the firm applied for registration with petitioner, and listed David G. Weiner as president and active firm member, and George Girard as secretary-treasurer. Girard is respondent's husband. Weiner was paid a fee of $100.00 per month to serve as broker for the firm. He served in this capacity for several months and visited the office three or four times for two or three hours each time to "make sure everything was run according to the rules and regulations " of petitioner. However, he did not sign checks, hire or fire sales personnel, handle any of the financial matters, place advertisements or receive any accounting as to the operations of the business. All such matters were handled either by respondent or Kaye. However, Kaye was seldom in the office. Respondent served as sales or office manager, and, in fact, supervised the business operations, although the final decisions were made by Kaye. (Testimony of Weiner, Petitioner's Exhibit 3)

   
   

4. On April 25, 1974, respondent submitted a Business Information Form for membership in the Better Business Bureau of South Florida. On the form, she listed herself as treasurer of the corporation, and in the accompanying letter requesting a representative of the bureau to visit the offices, she stated "I try very hard to run a good business." On July 1 and July 8, 1974, in responding to complaints filed against the firm with the bureau, respondent listed her title as "Owner." (Testimony of Smathers, Petitioner's exhibits 5, 6)

   
   

   CONCLUSIONS OF LAW

   
   

5. In its administrative complaint, petitioner alleges that, from April 24 to August 29, 1974, respondent supervised the activities of salesmen employed by

   Happy Home Hunters, Inc., and performed the duties of a broker on behalf of that firm in the following manner:

   
   

   1. Hired and fired sales personnel

   2. Instructed sales personnel in the handling of the general public

   3. Received monies from sales personnel in the office

   4. Handled disgruntled clients who came in and demanded refunds

   5. Made decisions regarding the refund of monies to clients

   6. Signed checks on behalf of Happy Home Hunters, Inc.

   7. Placed ads in newspapers on behalf of Happy Home Hunters, Inc.

   8. Received her instructions directly from the principal stockholder, Chester Kaye, as opposed to the registered broker

   9. Supervised the activities of the registered broker David Weiner

   10. Established the office policy and operating procedures for Happy Home Hunters, Inc.

   
   

   Petitioner alleges that by reason of the foregoing acts, the business policies and acts of respondent were free from the direction, control and management of another person, and that she is therefore guilty of operating as a real estate broker as defined in subsection 475.01(3), Florida Statutes, while registered as a real estate salesman in violation of subsections 475.42(1)(b), 475.42(1)(e) and 475(1)(d), Florida Statutes. At the hearing, petitioner withdrew the allegation concerning a possible violation of subsection 475.42(1)(e).

   
   

6. Subsection 475.25(1)(d) provides that the registration of a registrant may be suspended for violation of any of the provisions of Chapter 475 or any lawful order, rule or regulation made or issued under the provisions of that chapter. Subsection 475.42(1)(b) provides in part that "No person registered as a real estate salesman shall operate as a real estate broker . . ." Subsection 475.42(3)(a) provides that the words "operate as a broker" are deemed to mean the commission of one or more acts described in subsections 475.01(2) and (3). Subsection 475.01(2) lists various acts that constitute performing as a broker or salesman, and subsection 475.01 (3) provides that every person who comes within the meaning of that preceding subsection, and not within certain exceptions,". . . whose business policies and acts are free from the direction, control or management of another person . . ." is deemed to be operating as a real estate broker.

   
   

7. The evidence in this case, although general in nature, establishes that, during the greater part of the period embraced within the allegation, respondent effectively was in charge of the real estate firm with which she was employed. The broker served only as a figurehead, and, in effect, "sold" his license for a nominal monthly sum and engaged only in perfunctory supervision of business operations. Respondent held herself out to the public to be variously an officer of the corporation and its owner. She performed functions normally reserved to and required of the broker member, such as unsupervised placement of advertising and handling of funds. However, there was no evidence that respondent actually hired and fired sales personnel or instructed them in the handling of the general public. It was shown that she made decisions concerning

   refund of monies to clients and received her instructions directly from the principal stockholder as opposed to the registered broker. It was not established that she supervised the activities of the registered broker or set office policy and operating procedures for the firm.

   
   

8. It is apparent from the foregoing that respondent performed one or more of the acts set forth in subsection 475.01(2) which constitute acting as a broker or a salesman. Although the details of specific real estate transactions were not placed in evidence, it is clear that she took part in the procuring of tenants or lessors of real property and assisted in the negotiation of transactions calculated to result in rental of real property for a fee or other compensation, and that she held herself out to the public to be engaged in the leasing or renting of real estate or interests therein.

   
   

9. The key question is whether or not her acts were "free from the direction, control or management of another person," thus justifying a conclusion that she "operated" as a real estate broker. Although the words "another person as used in the statute are not elsewhere defined, in this context it is deemed necessarily to mean a registered broker. Otherwise, a salesman's acts might be under the control, as here, of a financial contributor to the corporation but still escape the prohibition against operating as a broker. It is thus concluded that respondent violated subsection 475.42(1)(b) by operating as a real estate broker in the manner above-described, and thereby grounds for disciplinary action exist under subsection 475.25(1)(d) as a violation of Chapter 475.

   
   

10. In determining what penalty should be assessed for respondent's action, no evidence was presented that she has been disciplined previously by the Real Estate Commission. It is further considered that in matters of this nature, it is incumbent upon the registered broker to insure proper supervision over his salesmen which evidently was not done here. Consequently, it is believed that justice would be adequately served by limiting disciplinary action to a written reprimand.

RECOMMENDATION

It is recommended that petitioner issue a written reprimand to respondent Mollie Lee Warrington for violation of subsection 475.42(b), Florida Statutes, as authorized by subsection 475.25(1)(d), Florida Statutes.

DONE and ENTERED this 31st day of May, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Mollie Lee Warrington

990 Northeast 189th Terrace Miami, Florida 33138

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

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

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. PROGRESS DOCKET NO. 3141

DADE COUNTY

MOLLIE LEE WARRINGTON, DOAH CASE NO. 77-275

Respondent.

/

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on July 20, 1977,

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

Appearances: Richard J. R. Parkinson, Attorney for Plaintiff

No Appearance for Defendant.

This matter came on for Final Order upon the Plaintiff's Administrative Complaint, the Hearing Officer's Recommended Order and the Plaintiff `s Exceptions thereto, together with the record and oral argument of counsel for the Plaintiff, and the Commission having fully reviewed the entire record, the Findings of Fact and the Conclusions of Law in the Recommended Order, and the Commission being fully advised in the premises, finds:

1.

That according to the records of the Commission, Defendant Mollie Lee Warrington is registered with the Commission as a non-active real estate salesman, 990 Northeast 89th Terrace, Miami, Florida 33138.

2.

That the Findings of Fact as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Findings of Fact of the Commission.

3.

That the Plaintiff's Exceptions to Paragraph 6 of the Conclusions of Law as set forth in the Recommended Order of the Hearing Officer are well taken and should be sustained.

4.

That the Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Conclusions of Law by the Commission.

5.

That the Plaintiff's Exceptions to the Recommendation of the Hearing Officer are well taken and should be sustained.

IT IS THEREUPON ORDERED that the Findings of Fact and Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Off icer be, and they are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission.

IT IS FURTHER ORDERED that Defendant Mollie Lee Warrington be, and she is hereby, adjudged guilty of violating Subsection 475.42(1)(b) and Subsection 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint.

IT IS FURTHER ORDERED that for such violations, the registration of Defendant Mollie Lee Warrington be, and the same is hereby, suspended for a period of one (1) year, said suspension to become effective upon the effective date of this Order as provided by law.

DONE and ORDERED at Winter Park, Florida, this 25th day of July, 1977.

Maggie S. Lassetter Vice-Chairman

Levie D. Smith, Jr. Member

I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Mollie Lee Warrington, Defendant, 990 Northeast 89th Terrace, Miami, Florida 33138, by United States registered mail this 25th day of July, 1977.

C. B. Stafford Executive Director

NOTICE TO DEFENDANT:

This Order shall become effective on the 24th day of August 1977. However, you have a right of review by an Appellate Court, if you desire.

Please comply with this Order. We are including an envelope for your convenience in surrendering your registration certificate.

RJRP/sl

Docket for Case No: 77-000275

Orders for Case No: 77-000275