STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2293

)

FRANK LA VIOLA LEE and ) FRANKLEE REAL ESTATE, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in St. Petersburg, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 13, 1978. The parties were represented by counsel:

For Petitioner: Robert J. Pierce, Esquire

400 West Robinson Avenue Orlando, Florida 32801

For Respondent: John E. Swisher, Esquire

Suite 140, Executive Building 1135 Pasadena Avenue South

St. Petersburg, Florida 33707

By administrative complaint filed May 27, 1977, petitioner alleged that respondent Lee, while "the registered active broker for" respondent Franklee Real Estate, Inc. "refused and continues to refuse to pay" Charles A. Sines his portion of a real estate commission paid to respondents on account of a contract between Hoyt Development Company and Mr. and Mrs. Edward O. Niles, which was "entered into as a result of the efforts of Charles M. Sines during the course of his employment as a salesman" by respondents. Petitioner alleges that the refusal to pay Mr. Sines constitutes a "violation of Subsection 475.25(1)(a), Florida Statutes," and, in count two, that the respondents "have failed to account and deliver a share of a real estate commission to the person entitled thereto, in violation of Subsection 475.25(1)(c), Florida Statutes."

FINDINGS OF FACT

1. Charles A. Sines worked for respondents as a real estate salesman from October of 1974 until March 26, 1975. During this time, respondents had an agreement with Hoyt Development Corporation (HDC), a construction company, under which HDC, upon entering into a construction contract with any customer whom employees of respondent Franklee Real Estate, Inc. brought to HDC, paid respondents a commission of three percent of the price charged for construction. Under an oral agreement between respondents and the real estate salespersons in their employ, respondents were to pay half of any such commission to the real

   estate salesperson (if any) who introduced the prospect to HDC, or was otherwise "the procuring cause" of a construction contract.

   
   

2. It was not a requirement of his employment that Mr. Sines sell his own property through respondents, and in addition to working for respondents, Mr. Sines was trying to sell certain of his own properties, including a parcel at 4321 Pompano Drive, Southeast., St. Petersburg, also known as lot 11, block 1, Lewis Island Subdivision, Section 1. On February 5, 1975, Mr. and Mrs. Sines entered into a contract to sell this lot to Mr. and Mrs. Edward O. Niles. Since Mr. and Mrs. Sines did not use the services of any broker, no real estate commission was owed on account of the sale of the lot to Mr. and Mrs. Niles.

   
   

3. In arranging this sale, Mr. Sines had learned that Mr. Niles wanted a house built on the property. Mr. Sines showed Mr. Niles floor plans for some of the homes built by HOC, took Mr. Niles to see some homes built by HDC in Greenhrook, and eventually introduced Mr. Niles to Mr. Hoyt. Mr. Hoyt referred Mr. Niles to Dennis L. Thompson, vice-president of HDC. Mr. Niles, who is a draftsman, drew house plans to which he proposed various changes from time to time. Negotiations between Mr. Niles and Mr. Thompson eventuated in a contract between HDC and Mr. and Mrs. Niles on March 6, 1975. Petitioner's exhibit No.

1. This contract was superseded by an almost identical contract on March 24, 1975. Petitioner's exhibit No. 4. Closing was delayed approximately a year because of financing difficulties, including Mr. Sines' refusal to subordinate his rights in the property. After the closing, on account of this transaction, HDC paid Franklee Real Estate, Inc. nine hundred ninety dollars ($990.00) as commission.

   
   

2. Mr. Sines had left respondents' employ by the time he learned from Albert Krause, respondents' office manager, that Mr. and Mrs. Niles had reached an agreement with HDC. Mr. Sines telephoned respondent Lee and asked for his share of the commission. At that time, respondent Lee told Mr. Sines that Mr. Sines was entitled to no portion of the commission because he had left respondents' employ before the agreement between HDC and Mr. and Mrs. Niles had been entered into. At the final hearing, respondent Lee testified that Mr. Sines was not entitled to a portion of the commission because respondent Lee had met Mr. Niles before Mr. Sines met Mr. Niles, but Mr. Niles' testimony contradicted respondent Lee's testimony on this point and respondent Lee's self- serving assertion was deemed incredible.

   
   

3. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner did not prove a violation of Section 475.25(1)(a), Florida Statutes (1977), nor do the facts alleged in count one of the administrative complaint constitute a violation of that subsection. See Borne v. Florida Real Estate Comm., 163 So.2d 515 (Fla. 1st DCA 1964); Florida Real Estate Comm. v. Thomas L. Pittman and Pittman Real Estate, Inc., No. 77-1663 (DOAH; Jan. 25, 1978). Petitioner did establish, however, that respondent Lee, acting in his own behalf and on behalf of respondent Franklee Real Estate, Inc., "[f]ailed to account or deliver to [Mr. Sines] . . . property such as money . . . ." Section 475.25(1)(c), Florida Statutes (1977); petitioner thereby demonstrated grounds for disciplinary action against respondents.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED

That petitioner suspend respondents' real estate brokers' licenses for sixty (60) days.

DONE and ENTERED this 25th day of April, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

904/488-9675

APPENDIX

Paragraphs one, two, three, six, ten and eleven of respondents' proposed findings of fact have been adopted, in substance, insofar as relevant.

1. Paragraphs four and eight of respondents' proposed findings of fact have to do with the nature of Mr. and Mrs. Sines' security interest in the property at 4321 Pompano Drive, Southeast, and the manner in which it was extinguished, matters which were not developed coherently in the evidence and which are essentially irrelevant to the present proceeding.

2. Paragraph five of respondents' proposed findings of fact has not been adopted. No contract between Mr. Sines and Mr. Niles consisted of two meetings.

3. Paragraph seven of respondents' proposed findings of fact accurately reflects the evidence (except that Mr. Niles said he had been told he had to sell so as not to have two loans guaranteed by governmental entities), but is irrelevant to the present proceeding.

4. Paragraph nine of respondents' proposed findings of fact has been rejected as unsupported by the evidence (assuming "the sale of the property in question" refers to the sale by Mr. and Mrs. Sines to Mr. and Mrs. Niles).

5. Paragraph twelve of respondents' proposed findings of fact has been rejected as unsupported by the evidence.

COPIES FURNISHED:

Robert J. Pierce, Esquire

400 West Robinson Avenue Orlando, Florida 32801

John E. Swisher, Esc.

Suite 140, Executive Building 1135 Pasadena Avenue South

St. Petersburg, Florida 33707

Docket for Case No: 77-002293

Orders for Case No: 77-002293