STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-287

)

JOSEPH D. CHITKIN )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause in the Third Floor Conference Room at 401 NW 2nd Avenue, Miami, Florida, on April 9, 1979, beginning at 3:30 p.m. before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings.

ISSUE

1. Whether the Respondent, Joseph D. Chaitkin, operated as a broker although he had no broker's license.

   
   

2. Whether the salesman's license #0149332 of Respondent should be suspended, or whether other disciplinary measures should be imposed.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Joseph D. Chaitkin, pro se

133 Allamanda Avenue

Port Richie, Florida 33568 FINDINGS OF FACT

1. An administrative complaint was filed on June 9, 1977, against Rental Finders, Inc., Thomas J. Capobianco, and Respondent Joseph D. Chaitkin. Thereafter, an Order of Dismissal was filed by the Petitioner Commission as to Respondents Rental Finders, Inc. and Thomas Capobianco, reciting that .Rental Finders, Inc. was no longer registered with the Commission, and that Mr. Capobianco had previously been tried, found guilty, and suspended by the Petitioner Commission for similar improper rental activities, and that the charges in this cause against him should be dismissed. The charges contained in Count One alleging that Respondent Chaitkin had acted as a broker without having a broker's license were not dismissed, but all other counts in the

   Administrative Complaint were withdrawn. An administrative hearing was requested by the Petitioner Commission.

   
   

2. Respondent Chaitkin was a salesman and office manager of Rental Finders, Inc. of Fort Lauderdale during the period of time including April, 1976, to June, 1977. Respondent denied that he was acting as the broker of the office. He testified that he checked with the broker at any time necessary, usually by telephone. He admitted that the broker did not spend much time in the Fort Lauderdale office, but stated that the broker received a portion of the income from the business.

   
   

3. Posted in the office was the name, Thomas Capobianco, Registered Real Estate Broker. Mr. Capobianco lived in Orlando, Florida, and the office of Respondent Chaitkin was in Fort Lauderdale, Florida.

   
   

4. A witness for the Petitioner Commission, former salesman Brian Burns, worked with the firm of Rental Finders, Inc. together with Respondent Chaitkin from April of 1976, to October, 1976. Mr. Burns stated that 99 percent of the business involved real estate rentals. Mr. Burns was interviewed and hired, and the financial arrangements were made by Respondent Chaitkin. Mr. Burns did not know who the real estate broker for the firm was until two days after he began work. He saw the broker once, and he stated that Respondent and the broker, Thomas Capobianco, did not recognize each other on that occasion. The witness stated that Respondent Chaitkin made all financial arrangements, including hiring and firing of personnel, and in fact ran things in the office. Mr. Burns said that the Respondent would not inform the salesmen how they could contact the broker.

   
   

5. Petitioner Commission filed a Final Argument and Memorandum of Law, and Respondent filed a handwritten statement saying that he was convinced of his innocence of the charges presented at the hearing. These instruments were considered in the rendition of this Order.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

   
   

7. Section 475.42 Violations and penalties.-- provides:

   
   

   1. VIOLATIONS.--

      (b) No person registered as a real estate salesman shall operate as a real estate broker or operate as a salesman for any person not registered as his employer.

      
      

8. Section 475.01 Definition of terms used in chapter.-- provides:

   
   

   1. Every person who shall, in this state,

      for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraise, auction, sell, exchange, buy or rent, or

      offer, attempt or agree to appraise, auction or negotiate the sale, exchange, purchase or

      rental of any real property, or any interest in, or concerning the same, including mineral rights or leases; or who shall advertise or hold out to the public by any oral or printed solicitation or representation that such person is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting real estate, or interests therein, including mineral rights or leases,

      of others; and every person who shall take any part in the procuring of sellers, purchasers, lessors, or lessees of the real property, or interests therein, including mineral rights

      or leases, of another; or who shall direct or assist in the procuring of prospects, or the negotiation or closing of any transaction which does, or is calculated to, result in

      a sale, exchange, or leasing thereof, and who shall receive, expect, or be promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who are members of partnerships or officers or directors of corporations engaged in performing any of the aforesaid acts or services; each and every such person shall be deemed and held to be a "real estate broker" or a "real estate sales-man, as hereinafter classified, unless said person when performing the act or acts herein specified shall be acting as an attorney-in-fact for the purpose of the execution of contracts or conveyances only, or as an attorney-at-law within the scope of his duties as such, or when acting

      as the administrator, executor, receiver, trustee, or master under or by virtue of an appointment by will or by order of a court

      of competent jurisdiction, or as trustee under a deed of trust, or under a trust agreement, the ultimate purpose and intent whereof shall be charitable, philanthropic, or providing for those having a natural right to the bounty of the donor or trustor; nor shall the term broker or salesman be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or

      indirectly the result of the service of buying, selling, exchanging or leasing said property; nor shall said terms be applied to one officer of every corporation engaged in the sale of its own properties who shall be its president unless otherwise provided

      in its charter or bylaws, if said corporation shall not otherwise be classed as a real

      estate broker or a salesman; nor shall said terms apply to any employee of a public utility, a rural electric cooperative, a railroad, or the Department of Transportation, who acts within the scope of his employment, for which no compensation in addition to the employee's salary is paid, to buy or lease

      any real property or any interest in real property for the use of his employer; nor shall said terms be applied to one resident manager of an apartment building complex and one nonresident manager of such complex

      who are employed by a registered real estate broker or by the owner of the apartment building complex to lease the residential apartments in such complex.

      
      

   2. Every person who comes within the

   meaning of the preceding subsection, and shall not be within the exceptions named, and whose business policies and acts are free from the direction, control or management of another person, and all members of a partnership, and all officers and directors of a corporation, which partnership or corporation is defined by said subsection to be a real estate broker, shall be deemed and held to be operating as real estate brokers; and every other person who shall come within the terms "real estate broker" or "real estate salesman," as defined in the preceding subsection, shall be deemed and held to be operating as real estate salesmen.

   
   

9. Section 475.25 Grounds for revocation or suspension.-- provides:

   
   

   1. The registration of a registrant may be suspended for a period not exceeding 10 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:

      (d) Violated any of the provisions of this chapter, or any lawful order, rule or regulation made or issued under the provisions of this chapter;...

      
      

10. There is insufficient evidence that Respondent Chaitkin was in fact operating free from the direction, control, or management of another, and therefore operating as a broker in violation of the foregoing statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against the Respondent, Joseph D. Chaitkin, be dismissed.

DONE and ORDERED this 28th day of June, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Mr. Joseph D. Chaitkin

133 Allamanda Avenue

Port Richie, Florida 33568

Docket for Case No: 79-000287

Orders for Case No: 79-000287