STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1819

)

LEONARD C. WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Palatka, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 27, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Charles E. Felix, Esquire

400 West Robinson Avenue Orlando, Florida 32801

For Respondent: Mr. Charles Holcomb, Esquire

653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922

1. By administrative complaint filed November 16, 1976, petitioner alleged that respondent, having received a commission from the seller on account of the sale of land, also collected a commission from the buyers on account of the same transaction, and without the sellers' knowledge, all of which allegedly constitutes "fraud, misrepresentation, concealment, false pretenses, dishonest dealing, trick, scheme or device, and breach of trust in a business transaction, a violation of Subsection 475.25(1)(a)." In addition, the administrative complaint alleged that respondent received moneys as commission which were not deposited in his broker's escrow account, "in violation of 475.25(1)(c) and . .

   . in violation of 475.25(1)(i), and is guilty of collecting money in connection with real estate brokerage transaction not in the name of the employer and without the express consent of the employer, in violation of 475.25(1)(d)

   
   

2. From January 15, 1974, through September, 1977, respondent White worked as a real estate salesman and managed the Crescent City branch office of Inman Realty for Mr. George H. Inman of Ocala. One day in January of 1974, Mr. and Mrs. John K. Gore expressed to respondent an interest in buying land. In the ensuing months, respondent spent time with the Gores when they were in Crescent City and corresponded with them when they were not. He drove them around town on errands and into Gainesville for medical treatment and was otherwise helpful. Throughout this period, Mr. and Mrs. Neil Marsh Thorn had listed with Inman Realty a certain tract of land in Putnam County, which was subdivided into lots.

3. Respondent introduced the Gores to the Thorns. The Gores decided to buy a lot from the Thorns for three thousand dollars ($3,000.00). Respondent's wife drew up a contract to effect the transaction, which was signed by all parties on June 3, 1975. Later the same day respondent received a check in the amount of three hundred dollars ($300.00) from Ada G. Thorn. The check bore the name King and Thorn, Inc., and was drawn on the Peoples Bank of Crescent City, to respondent's order. In the lower left hand corner were the words "used parts." Petitioner's exhibit No. 2. Respondent endorsed this check and applied the proceeds to his own use. At the hearing, respondent testified that the check given to him by Mrs. Thorn was in payment, not for used parts, but for used tools: chain block, electric hand grinder, drill, "some puller tools like you pull bearings with and so on, and there may have been a few other miscellaneous things." (R84) In fact, however, Mrs. Thorn gave respondent the check as payment for his commission on the sale of land to the Gores, just as Mr. Thorn testified. The "used parts" notation was placed on the check at respondent's request for the stated reason of concealing the true nature of the transaction.

   
   

4. Later another contract was drawn up by a lawyer and the transaction was closed anew. Eventually, the Gores moved into a trailer on the lot, with respondent's help. About the time of the move, the Gores paid respondent a sum of money in partial payment of a commission. Respondent testified:

   
   

   Each time they referred to commission, they [the Gores] were referring to gratitude money, or whatever you want to call it, for the services that I did for them. It had nothing to do with the transaction of real estate. It had to do with setting up the mobile home, so on and so forth.

   
   

   In fact, respondent solicited a commission from the Gores without telling them that the Thorns had already paid a commission on the same transaction, and converted the money to his own use when he received it.

   
   

5. Respondent represented to Mr. Inman that he had collected and would collect no commission on account of the Thorns' sale of land to the Gores.

CONCLUSIONS OF LAW

The evidence established that respondent was guilty of violations of Sections 475.25(1)(a), (c), (d) and (i), Florida Statutes (1977), as alleged in the administrative complaint.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondent's real estate salesman's license.

DONE and ENTERED this 3rd day of March, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

904/488-9675

COPIES FURNISHED:

Mr. Charles E. Felix, Esquire Florida Real Estate Commission

400 West Robinson Avenue Orlando, Florida 32801

Mr. Charles Holcomb, Esquire 653 Brevard Avenue

Post Office Box 1907 Cocoa, Florida 32922

Docket for Case No: 77-001819

Orders for Case No: 77-001819