STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1150

) REAL ESTATE MERCHANDISERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 1, 1981, in Fort Lauderdale, Florida. A final transcript of the proceedings was received by this Division on July 14, 1981.

APPEARANCES

For Petitioner: John R. Huskins, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. George May

2300 West Oakland Park Boulevard, Suite 202 Fort Lauderdale, Florida 33311

STATEMENT OF THE ISSUE

The issue posed for decision herein is whether or not the Respondent failed to account for or deliver commission monies due to a sales associate.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found.

1. During times material herein, Respondent, Real Estate Merchandisers, Inc., was a licensed real estate corporate broker (License No. 0056693) with its principal business office located at 2300 West Oakland Park Boulevard, Suite 202, Fort Lauderdale, Florida. During July, 1980, Respondent entered into an employment agreement with salesperson Patricia Rathgeb whereby Ms. Rathgeb would, while acting in her capacity as a real estate salesperson, receive a sixty-five percent (65%) share of commission fees paid when Ms. Rathgeb was the procuring cause of a realty transaction which resulted in the payment of a commission. (See Petitioner's Exhibit No. 1).

2. On August 27, 1980, Ms. Rathgeb discussed, negotiated and obtained a contract for purchase whereby Gil Mansito, or his assigns, agreed to purchase from Hurt Enterprises, a California corporation, a four-bedroom residence situated at 11500 Northwest Sixth Street, Plantation Acres, Broward County, Florida. (Petitioner's Exhibit No. 2). The transaction closed on November 19, 1980, with Respondent receiving a commission fee of $8,400.00 for said transaction. Pursuant to the employment agreement entered between the parties (Ms. Rathgeb and Respondent), Ms. Rathgeb demanded her pro-rata share of the commission fee or $5,460.00 based on a sixty-five percent (65%) split of the $8,

   400.00 commission received by Respondent. Ms. Rathgeb has demanded and Respondent refuses to account for or otherwise deliver to Ms. Rathgeb any portion of the commission received from the Mansito transaction.

   
   

3. On September 29, 1980, while acting in her capacity as salesperson with Respondent, Ms. Rathgeb negotiated and obtained two contracts whereby Bruce W. Hoch agreed to purchase from Evelyn B. Springer two vacant lots located at 11500 Northwest 27th Street, Plantation Acres, Broward County, Florida. On December 1, 1980, the transactions closed and Respondent received commission fees totaling $1,600.00 based on Ms. Rathgeb's efforts. Ms. Rathgeb demanded

   $1,040.00 as her portion of the commission received by Respondent. Respondent, through the person of its qualifying broker, George May, refuses to remit, deliver or otherwise account to Ms. Rathgeb for its failure to deliver or account for the commission monies demanded.

   
   

   Respondent's defense.

   
   

4. The Respondent defended, through broker, George May, its failure to account for or deliver to Ms. Rathgeb commissions due from the aforementioned transactions on the theory that Ms. Rathgeb was negotiating and receiving outside commission monies from transactions which were being consummated through the good will, advertising and other efforts of Real Estate Merchandisers while she was employed to devote her full-time efforts to Real Estate Merchandisers. Respondent's assertion in this regard were considered and were rejected for lack of proof. In any event, the undersigned advised Respondent during the hearing that the proper procedure to seek redress from Ms. Rathgeb for those claims, which were not a part of the subject Administrative Complaint, was through the filing of a written complaint, properly executed, with the Board of Real Estate, and not as a set-off to the allegations herein. 1/

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Petitioner, Board of Real Estate is derived from chapter 475.25, Florida Statutes (1979).

   
   

8. During times material, Respondent, Real Estate Merchandisers, as a real estate corporate broker with License No. 0056693, was subject to the disciplinary provisions of Chapter 475.25, Florida Statutes (1979).

9. Respondent, by its failure to account and deliver to its associate salesperson, Patricia Rathgeb, her share of commission monies due from the Gil Mansito/Hurt Enterprises, Inc., transaction, violated Chapter 475.25(1)(d), Florida Statutes (1979).

   
   

10. Respondent, by its failure to account and deliver to its associate salesperson, Patricia Rathgeb, commission monies due from the sale of realty in the Hoch/Springer transaction, violated Chapter 475.25(1)(d), Florida Statutes (1979).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's corporate broker license be suspended for a period of two (2) years.

DONE and ENTERED this 24th day of August, 1981 at Tallahassee, Florida.

JAMES E. BRADWELL, 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 24th day of August, 1981.

ENDNOTE

1/ During the hearing, Respondent asserted that the undersigned Hearing Officer was biases or otherwise prejudiced and should therefore, disqualify himself as the Hearing Officer in this hearing. The undersigned denied this requires as it was related only to Respondent's attempt to wander all over the lot, to repeatedly ask questions which were irrelevant to the proceedings herein and were not calculated to lead to evidence which would be helpful in resolving the issues posed by the Administrative Complaint. The undersigned sustained Petitioner's counsel's objection to Respondent's repetitive questions in that view as being irrelevant and repetitious. Accordingly, the Motion to Recuse based on the above assertions by Respondent was denied. (Tr. pp. 29-31 and 43- 49).

COPIES FURNISHED:

James R. Huskins, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Mr. George May

2300 West Oakland Park Boulevard Suite 202

Fort Lauderdale, FL 33311

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 81-001150

Orders for Case No: 81-001150