STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

an agency of the State of Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 78-812

) Progress Docket No. 3321 FLORIDA COAST REALTY, INC., and )

STEVEN R. MYER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled cause in the conference room at 3040 East Commercial Boulevard, Ft. Lauderdale, Florida, before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, beginning at 1:00 p.m. on August 7, 1978.

ISSUE

Whether the license of Respondents should be revoked or suspended or other discipline imposed.

FINDINGS OF FACT

Upon consideration of the evidence received, the testimony elicited at the hearing, argument of counsel and memoranda submitted by the parties, I find:

1. Respondent, Florida Coast Realty, Inc., was issued License Number 0168325 as a registered real estate broker corporation. Respondent Steven R. Myer, holds license number 0110787 as a registered real estate broker. Respondent Myer is an Active Firm Member for Respondent, Florida Coast Realty, Inc.

   
   

2. In general, the contention of the Petitioner Commission is that the Respondents failed to pay an employee, Sam Blumner, a real estate commission due him on two occasions contrary to certain provisions in Chapter 475, Florida Statutes.

   
   

3. The contentions of the Respondents are that the dispute was contractual and not within the jurisdiction of the Petitioner, that they tried to avoid an information being filed against them, and that the alleged offense's are insufficient to justify suspension or revocation.

   
   

4. On November 1, 1976, Florida Coast Realty, Inc., by Steven R. Myer, entered into a contract agreement with Sam Blumner whereby Mr. Blumner was to receive a fee earned as a result of service performed by Mr. Blumner as a real estate salesman with Florida Coast Realty, Inc. Subsequently, on January 13, 1977, Sam Blumner was terminated as a salesman with Florida Coast Realty, Inc.,

   and a notice of registrant change was nailed by the corporation to the Pompano Beach-Deerfield Beach Board of Realtors and received by the Board on January 18, 1977.

   
   

5. A transaction pertinent to subject hearing was entered into on or about November 11, 1976 in which Walter Ross and Sam Blumner were the "listing" salesmen for property owned by Frank S. Holsclaw and Florence Holsclaw. It was ultimately purchased by Dennis F. and Dione Dicataldo, but subsequent to the termination of the employment of Blumner by Respondents.

   
   

6. Mr. Blumner made a claim for $297.00 which represented one-half the listing, or twelve and one-half percent of the office profit. He testified that he was listed on the office "log" as co-lister. Nothing was paid to Mr. Blumner although Mr. Walter Ross, a broker formerly associated with Respondent Florida Coast Realty, Inc. and the co-lister was paid twelve and one-half percent of the office profit. Mr. Ross estimated that he received between $250.00 and $260.00 as "half" listing commission.

   
   

7. Mr. Blumner's name did not appear on the listing contract in the transaction because he had not yet been listed as a member of the Board, and only the name of Walter Ross was listed as "salesperson". Mr. Ross testified that he and Sam Blumner were listed together on the transaction and that he himself received half of the listing commission.

   
   

8. A registered realtor associate who worked for Respondent, Florida Coast Realty, Inc. at the time, Dorothy E. Reagan, testified that Walter Ross and Sam Blumner were the listing salesmen on the Holsclaw-Dicataldo transaction.

   
   

9. The Respondents did not dispute the fact that Walter Ross was paid but one-half the listing commission although they pointed out his was the only name on the written contract. No evidence was entered by the Respondent showing that the remaining one-half of the listing commission was paid by Respondents to anyone.

   
   

10. A second transaction pertinent to this hearing was entered into on December 31, 1977 with Mr. and Mrs. Haarar as sellers, and Mr. and Mrs. Grimes as buyers. The closing was several months later and after Mr. Blumner had left the employment of Florida Coast Realty, Inc. Mr. Blumner was the salesman who first showed the purchaser the home later purchased by Mr. and Mrs. Grimes, and was the "procuring cause" of the sale. He made an offer to the seller and counter offer of the seller to the buyer. He related to the Grimes the offer of

    $27,000, which was the final purchase price of the home and showed these purchasers other property for sale. Mr. Blumner was not paid a commission for the sale of the home. Both Mr. Ross and Mrs. Reagan testified that Mr. Blumner was the salesman on the transaction.

    
    

11. Mr. Jerome T. Myer of the Respondent Florida Coast Realty, Inc., stated that Mr. Blumner should have been paid, but not the full commission inasmuch as he had not done the follow-up work involved after the initial procurement of a purchaser for the property. The Respondent, Steven R. Myer and his brother Jerome T. Myer did the follow-up work on the sale of the property in the Haarar-Grimes transaction.

    
    

12. Mr. Blumner contends that he made demands for his money both as a co- lister and a salesman, but that no money was paid him. He testified that he would have foregone his commission as a co-lister in the amount of some $260.00 had he received a commission as salesman in the Haarar-Grimes transaction, a sum

    of some $567.00. Mr. Blumner testified that he endeavored to talk to the Respondent Steven R. Myer about the commission but was interrupted by Jerome Myer, and that he told the Respondents he would have to seek redress through the Petitioner, Florida Real Estate Commission, if he did not receive a commission.

    
    

13. A letter was sent to the Petitioner by Respondent Myer on April 7, 1977 requesting information as to the jurisdiction of Petitioner relative to "a dispute with one of my former associates regarding commission money". The Commission acknowledged the correspondence and Respondent Myer was informed that the Commission had received a complaint against him alleging he had failed to account or deliver a commission to a salesman, and that it was being assigned for investigation. The Respondents made little or no effort to settle the dispute prior to the hearing.

    
    

    CONCLUSIONS OF LAW

    
    

14. Section 475.25(1)(c) Florida Statutes provides:

    
    

    475.25 GROUNDS FOR REVOCATION OR SUSPENSION.-

    (1) The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension,

    or both, upon a finding of facts showing that the registrant has:

    * * *

    (c) Failed to account or deliver to any person, including registrants under this chapter, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document, or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances, and at the time which has been agreed upon or is required by law, or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery; provided, however, that, if the registrant shall, in good faith, entertain doubt as to

    his duty to account and deliver said property, or as to what person is entitled to the accounting and delivery, or if conflicting demands therefor shall have been made upon

    him and he has not appropriated the property to his own use or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of

    the question in a proper court and shall abide, or offer to perform, the advice of the commission or the orders of the court or arbitrators, no information against him shall be permitted to be maintained; or, ...

    
    

    The Respondents have not complied with the requirements of the foregoing statute. A fee was due Mr. Blumner as a co-lister and It was not paid by the Respondent Myer Individually or by the Respondent corporation.

    
    

15. The letter written by the Respondent Myer on April 7, 1977 did not comply with the foregoing statute. The record shows that Respondent failed to make a good faith effort to settle the dispute and no monies were shown to have been placed in Respondent's escrow bank account as required by Section 475.25(1)(c) although it was admitted by Mr. Jerome Myer, an associate in the Respondent corporation, that a commission was due Sam Blumner.

    
    

16. Extenuating circumstances in favor of the Respondents are that the former associate and employee Sam Blumner failed to do expected follow-up labor in regard to the sale of the Haarar-Grimes transaction. There are many hours spent once a sale has been made and a deposit received, but Sam Blumner did not do the follow-up work and was therefore a cause of the dispute over the commission in the Haarar-Grimes sale.

There are no extenuating circumstances for the failure of Respondents to pay the co-listing fee to Sam Blumner.

RECOMMENDATION

Suspend the license of the Respondents until the commission has been paid to Sam Blumner as co-lister in the Holsclaw-Dicataldo transaction and a settlement has been made in regard to the Haarar-Grimes transaction.

DONE and ENTERED this 21st day of November, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Steven L. Josias, Esquire P. 0. Box 23536

Fort Lauderdale, Florida 33308

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

=================================================================

STATE OF FLORIDA

FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

an agency of the State of Florida, Petitioner,

vs. CASE NO. 78-812

Progress Docket No. 3321 FLORIDA COAST REALTY, INC., and Broward County

STEVEN R. MYER,

Respondents.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida, on January 9, 1979,

Present: Levie D. Smith, Jr. Chairman Arthur N. Hamel, Vice Chairman Virginia H. Bishop, Member

This matter came on for Final Order upon the Administrative Complaint, the Recommended Order of the Hearing Officer together with the record. The Commission having fully reviewed the entire record, the Findings of Fact, the Conclusions of Law, and the Recomended Order of the Hearing Officer and the Commission being fully advised in the premises finds:

1.

Accordingly to the Records of the commission, Defendant Florida Coast Realty, Inc. is registered with the Commission as a real estate broker corporation and Defendant Steven R. Myer is registered with the Commission as a real estate broker, 4622 N. Federal Highway, Lighthouse Point, Florida 33064.

2.

The Hearing Officer's Findings of Fact, Conclusions of Law are supported by competent, substantial evidence of record and should be adopted by the Commission.

3.

The Hearing Officer's Recommended Order that the Plaintiff suspend the license of the Defendants until the commission has been paid to Sam Blumner as

co-lister in the Holsclaw-DiCataldo transaction and a settlement has been made in regard to the Haarar-Grimes transaction should not be adopted by the Commission.

4.

IT IS THEREFORE ORDERED that the Findings of Fact and the Conclusions of Law of the Hearing Officer are adopted by the Commission. The Recommended Order of the Hearing Officer is not adopted.

5.

IT IS FURTHER ORDERED that Defendant Florida Coast Realty, Inc., license 0168325, and Defendant Steven M. Myer, License 0110787, be and they are hereby found guilty of the charges as alleged in the Administrative Complaint and the Defendants' right to practice thereunder, are hereby suspended for a period of one (1) monthly, said suspension to become effective upon the effective date of this Order as provided by law.

DONE and ORDERED at Orlando, Florida this 9th day of January, 1979.

BY ORDER OF THE COMMISSION

FOR Levie D. Smith, Jr.

Chairman

AGAINST

Arthur N. Hamel Vice Chairman

FOR

Virginia H. Bishop Member

CERTIFICATE OF MAILING

I HEREBY CERTIFY that a copy of the foregoing Final Order was mailed to: Steven L. Josias, Esquire, Josias & Shulmister, Attorney for the Defendants, 3040 East Commercial Blvd., Ft. Lauderdale, Florida 33308, by United States registered mail this 12th day of January, 1979.

(Signed) C. B. STAFFORD

Executive Director

JAD:BA PD3321

Docket for Case No: 78-000812

Orders for Case No: 78-000812