STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-2085

) (PD 19610)

CURCIO REALTY, INC., and )

ALAN E. BUCCHINO, )

)

Respondents. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on February 26, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard W. Wasserman, Esquire

420 Lincoln Road, Suite 324 Miami Beach, Florida 33139

By Administrative Complaint issued on May 22, 1980, the Board of Real Estate seeks to suspend or revoke the real estate licenses held by Respondents, or otherwise discipline them, for failure to account for and deliver a share of a real estate commission to a former salesman allegedly entitled thereto, in violation of Section 475.25(1)(d), Florida Statutes. Four witnesses were presented in support of the Administrative Complaint, and Respondent Alan E. Bucchino, a broker with Curcio Realty, Inc., the other Respondent, testified in defense of the conduct upon which the charge is based. Five exhibit's were introduced, all of which were received in evidence except for Respondents' Exhibit 1.

The transcript was filed on March 18, 1981. Proposed findings of fact submitted by Respondents have been considered; those not adopted were either irrelevant, not supported by the weight of the evidence, or contained ultimate conclusions of law. None were submitted by Petitioner, and the time for filing expired April 2, 1981.

FINDINGS OF FACT

1. Respondent, Curcio Realty, Inc., is a registered corporate real estate broker holding license number 0019070. Respondent, Alan E. Bucchino, is a registered real estate broker holding license number 0011003, and he is an active officer of Curcio Realty, whose business address is 4951 North East 6th Avenue, Miami, Florida.

   
   

2. William F. Johnson became an employee of Curcio Realty on April 15, 1974, as a real estate salesman, licensed by the State. In accordance with the custom of the office, Mr. Johnson signed the company's Policy Book which contained specific office policies adopted by Curcio Realty governing the conduct of its business.

   
   

3. In May of 1979, Mr. Johnson took his son to see property located at 14430 North East 14th Avenue in Miami for possible purchase. Mr. Johnson's son and his business partner decided to make an offer to purchase, and they nominated an attorney in Miami to act as trustee for them in the transaction. A contract was prepared, and signed by this trustee on May 10, 1979, offering to pay $30,000 for the subject property, for which the seller was asking $36,000. The transaction was conditioned upon the purchaser obtaining financing for 25 years on a minimum of $24,000. Other conditions are not relevant.

   
   

4. This offer, together with a $1,000 deposit, was submitted to the seller by Mr. Bucchino, along with another contract for purchase which had been negotiated by another broker. The seller accepted the other contract, instead of the one submitted on behalf of Mr. Johnson's son and his partner, because it was a cash transaction not subject to financing. The $1,000 deposit was returned to the trustee acting for Mr. Johnson's son. However, the parties did not close on the all-cash contract.

   
   

5. Thereafter, on June 19, 1979, Mr. Johnson transferred his real estate license from the office of Curcio Realty to another broker's office, and was no longer employed by or associated with Curcio Realty. Between this date and June 29, 1979, Mr. Bucchino attempted to reactivate the May 10 contract. On June 29 he inquired of Mr. Johnson whether his son would still be interested in purchasing the subject property. This was satisfactory. Mr. Bucchino suggested that the parties execute a new offer, but Mr. Johnson preferred to have the May

   10 contract updated. The changed contract, now dated June 30, 1979, together with another $1,000 deposit, was resubmitted to the seller. This offer was accepted by the seller on July 19, 1979. The sale was closed on or about October 4, 1979.

   
   

6. No real estate commission was paid to Mr. Johnson. This precipitated the complaint which culminated in this proceeding. Although Mr. Johnson's son and his partner both assert that they were acquainted with the subject property by Mr. Johnson, and that it was Mr. Johnson's efforts that resulted in their purchase of this property, these facts are not determinative in the total circumstances surrounding this case.

   
   

7. The relationship between the real estate salesman, Mr. Johnson, and the brokers, Mr. Bucchino and Curcio Realty, is governed by the Policy Book referred to above. The Petitioner contends that paragraph 7 on page 5 is applicable, because the subject transaction was a "deal in progress at the time the salesman leaves" the employ of Curcio, requiring division of the commission between the salesman and the broker. However, the May 10 offer, which was submitted while Mr. Johnson was employed by Curcio Realty, did not become a contract by

   acceptance. Thus, when Mr. Johnson left Curcio Realty on June 19, 1979, there was no transaction pending, no "deal in progress".

   
   

8. Paragraph 8 on page 5 of the Policy Book governs this transaction. It provides "Any deals. . .revived through efforts of this organization's salesmen with office prospects, after a salesman has left this office, are to be considered new deals. The departing salesman will have no interest in them. .

   .". A broker has not earned a real estate commission until both the buyer and the seller have agreed to a transaction. The May 10 contract did not result in any commission payable to anyone. The June 30 contract resulted in an earned commission on July 19 when it was accepted by the seller. After June 19 Mr.

   Johnson was not employed by Curcio Realty. Accordingly, the terms of the Policy Manual to which Mr. Johnson agreed, particularly paragraph 8 on page 5, bar any obligation to him.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 475.25(1)(d), Florida Statutes, authorizes the Board of Real Estate to suspend or revoke a real estate license, or impose a fine, if it finds that a licensee has "failed to account or deliver to any person, including a licensee under this Chapter . . . upon demand of the person entitled to such accounting and delivery, any personal property such as money, . . . including a share of a real estate commission . . ." However, the allegations against the Respondents in this proceeding, as set forth in the Administrative Complaint, have not been proven by substantial, competent evidence; thus, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be

dismissed.

THIS RECOMMENDED ORDER entered on this 6 day of April, 1981.

William B. Thomas Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1981.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional Regulation

130 North Monroe Tallahassee, Florida 32301

Richard W. Wasserman, Esquire

420 Lincoln Road Suite 324

Miami Beach, Florida 33139

Docket for Case No: 80-002085

Orders for Case No: 80-002085