STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-155

) JACK FOLK t/a BO-JAC REALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on October 3, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Staff Attorney

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Robert L. Saylor, Esquire

SAYLOR AND COHEN

618 U.S. Highway One Post Office Box 14667

North Palm Beach, Florida 33408 ISSUE

The issue involved in this case is whether the Respondent, Jack Folk, properly accounted for real estate commissions due a former salesman in his employ as required by Section 475.25(1)(c), Florida Statutes (1978).

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent, Jack Folk, has held an active real estate brokers license.

   
   

2. From February 9, 1978, till December 14, 1978, Mrs. Evelyn Wilhelm, the Complainant, worked for the Respondent as a real estate broker.

   
   

3. Pursuant to an employment agreement signed by Mrs. Wilhelm and the Respondent, she was to receive 80 percent commission on sales subject to exceptions for sales made by the Bo-Jac Realty Office or Bo-Jac Realty Listings. Out of the 80 percent, Mrs. Wilhelm was expected to pay all of her expenses.

4. Due to continuing disagreements between the Complainant and Mr. Folk, Mrs. Wilhelm listed her license with another broker on December 14, 1978, without informing the Respondent of such action within 30 days prior to such termination as required by their employment agreement.

   
   

5. The broker that she listed her license with was not a member of the Multiple Listing Service and Mrs. Wilhelm continued to use the Respondent's Multiple Listing Service after she had severed their professional relationship.

   
   

6. Between December 18, 1978 and January 11, 1979, the Complainant continued to take referral calls from Respondent's office.

   
   

7. When the Respondent learned from Mr. Wilhelm, the complainant's husband, on January 11, 1979, that the Complainant was registered with another broker, he immediately notified the Florida Real Estate Commission of such dual registration.

   
   

8. At the time Mrs. Wilhelm left the Bo-Jac office, there were five pending or completed real estate closings in which she was involved and was owed money by the Respondent. One of these was designated as "Hart-Esposito" by the parties and is referred to as "Hart" in the Administrative Complaint.

   
   

9. The Respondent was reluctant to pay the commissions to the Complainant because of legal advice he had received from his attorney concerning Section 475.42(1)(d), Florida Statutes and a possible breach of the employment agreement.

   
   

10. This information was forwarded to the Complainant on January 25, 1979, via letter from Mr. Robert Saylor, attorney fro the Respondent.

    
    

11. Upon the advice of counsel, Mr. folk deposited the disputed commissions in an escrow account and through his attorney notified the parties of this occurrence.

    
    

12. The Complainant retained counsel who filed suit on the commissions on March 2, 1979. The Respondent counter-claimed and presented affirmative defenses outlining his position concerning the alleged breach of the employment contract and the dispute over the percentage of commissions due.

    
    

13. Counsel for both parties entered into settlement negotiations which led to a voluntary dismissal by the Complainant on January 15, 1980 of the pending civil action.

    
    

14. Although the civil action was filed by the Complainant, the Respondent also contemplated filing suit over the commissions. The Complainant simply filed her action before the Respondent's counsel file his.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over this proceeding.

    
    

16. The Respondent is charged with violating Section 475.25)(c), Florida Statutes, which authorizes disciplinary action against a realtor who:

    
    

    1. Failed to account or deliver

       to any person, including, a registrant

       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 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 de- mand of the person entitled to such accounting and delivery; provided, however, that, if the registrant shall, in good faith, entertain doubt as to what person is entitled to

       the accounting and delivery of said escrowed property, or if conflicting demands shall have been made upon him for the escrowed property,

       which property he still maintains in his escrow or trust account, the

       registrant shall promptly notify the commission of such doubts, and shall promptly:

       1. Request that the commission issue an escrow disbursement order determining who is entitled to the escrowed property, or

       2. With the consent of all parties. submit the matter to arbitration, or

       3. By interpleader or otherwise seek adjudication of the matter by a court.

          If the registrant promptly employs one of the escape procedures con- tained herein, and if he abides by the order or judgment resulting therefrom no administrative com- plaint may be filed against the registrant for failure to account

          for, deliver, or maintain the escrowed property; (e.s)

          
          

17. The testimony establishes that the Respondent promptly counter-claimed and presented affirmative defenses to the lawsuit filed by the Complainant.

    
    

18. The statute in question specifically contemplates that actions on commissions may be decided in an appropriate judicial forum.

    
    

19. In this case there was an additional reason to seek judicial clarification due to the alleged breach of the employment agreement which was

    executed prior to the effective date of Section 475.25(1)(c), Florida Statutes. Compare Section 475.25(1)(d), Florida Statutes, 1977.

    
    

20. The fact that the Complainant initially filed suite is not necessarily determinative of compliance with Section 475.25(1)(c), Florida Statutes. Compliance with the statute should not be determined by who arrives at the courthouse steps first.

    
    

21. Attorneys for both parties were in contact regarding this dispute and either could have initiated the litigation.

    
    

22. Since this matter was voluntarily settled by the parties following institution of legal proceedings, Section 475.25(1)(c), Florida Statutes has not been violated.

RECOMMENDATION

Therefore, it is RECOMMENDED:

That the complaint filed against the Respondent, is DISMISSED.

DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire C. B. Stafford, Executive Director Staff Attorney Florida Real Estate Commission Department of Professional 400 W. Robinson Street

Regulation Post Office Box 1900 2009 Apalachee Parkway Orlando, Florida 32801

Tallahassee, Florida 32301

Robert L. Saylor, Esquire 618 U.S. Highway One

Post Office Box 14667

North Palm Beach, Florida 33408

Docket for Case No: 80-000155

Orders for Case No: 80-000155