STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Real Estate )

)

Petitioner, )

)

vs. ) CASE NO. 81-1926

)

BRUCE R. DOWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on November 25, 1981, in St. Augustine, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Robert F. Spohrer, Esquire

ZISSER ROBISON SPOHRER WILNER & HARRIS, P.A.

303 Liberty Street Jacksonville, Florida 32202

The issue involved in this case is whether the Respondent's real estate salesman's license should be revoked, suspended, or other penalties imposed due to Respondent's (1) alleged misrepresentations concerning the advertising and leasing of a rental home owned by Respondent's daughter and her husband, (2) making certain alleged verbal misrepresentations to the lessee, and (3) failing to inform his employing broker of the subject transaction.

At the hearing Petitioner's Exhibits 1-6 were offered and admitted into evidence. Frances Rowe Petty and Frank Robert Maxwell testified on behalf of the Department. Respondent's Exhibit 1 was offered and admitted into evidence. Allen R. Pacetti and Bruce R. Dowell testified for the Respondent.

Proposed Findings of Fact and Conclusions of Law were filed by the parties.

Those findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent Bruce R. Dowell was licensed as a real estate salesman in the State of Florida and presently holds license number 0022658.

   
   

2. The Respondent is employed as a real estate salesman by Allen Pacetti, a licensed real estate broker doing business as Pacetti Realty Company, 49 Cordova Street, St. Augustine, Florida 32084.

   
   

3. Mr. Pacetti has a policy within his office of permitting his real estate salespersons to assist members of their immediate families with real estate transactions without involving the office or notifying the broker. Accordingly, the Respondent did not inform Mr. Pacetti of his efforts to rent his daughter's home.

   
   

4. The Respondent's daughter and son-in-law, Mr. and Mrs. William Kasperski, owned a residence next door to the Respondent at 202 Coquina Avenue, St. Augustine, Florida, which they rented while they were out of the state for extended periods of time. The home would be shown to prospective tenants by either Mr. Dowell, his wife or other family members depending upon who was home when prospective tenants arrived. The rental property had been leased to at least two other tenants prior to the incident which prompted the instant complaint.

   
   

5. In March, 1980, the Respondent placed an ad in the general classified section of the St. Augustine Record advertising the Kasperski home for rent. The advertisement was seen by a co-worker of Mr. and Mrs. G. David Petty who inspected the home and recommended it to them.

   
   

6. Mr. Petty and his wife Frances Petty subsequently examined the home and orally agreed to a monthly rental of $265. Neither the Petty nor the Respondent requested or offered to sign a written lease. The Respondent informed the Petty that the owner was not expected to return to Florida for at least a year.

   
   

7. The Pettys made an initial payment to the Respondent of $85 which represented a pro-rata share of the March rent. The Respondent would collect the checks from the Pettys and forward them to the Kasperskies who at the time were residing in Pennsylvania.

   
   

8. The Respondent did not receive a fee, commission or any other renumeration in return for renting his daughter's home.

   
   

9. During the course of the Petty three-month occupancy, the Respondent became concerned over the condition of the home and alterations which were made by the Pettys without prior authorization from the owners. The Respondent conveyed his concerns over the condition of the property to his son-in-law who in turn contacted an attorney in Pennsylvania, Louis D. Poulette. Mr. Poulette informed the Pettys by letter that the lease was terminated by the owners effective July 31, 1980. The Pettys vacated on July 15, 1980, and were refunded the balance of their rent payment for July, 1980.

   
   

10. On August 1, 1980, the Respondent readvertised the property and it was rented in September, 1980 for $265 per month.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. The Administrative Complaint filed July 14, 1981 alleged that the Respondent violated Sections 475.25(1)(b), 475.42(1)(d) and 475.25(1)(a), Florida Statutes, in his dealings with his broker and the Pettys.

    
    

13. Section 475.25(1)(b), Florida Statutes, provides that a licensee who

    is

    
    

    "guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract., written, oral express, or implied, in a real estate

    transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and has committed an overt act in furtherance of such intent, design, or scheme. It shall be immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee, or was an identified member of the general public;

    
    

    is subject to disciplinary action as provided at Section 475.25(1), Florida Statutes. A registered real estate agent may be disciplined for his dishonest conduct of business affairs for his own account, as well as for such conduct in transactions in which his only interest is as a broker. Sellars v. Florida Real Estate Commission, 380 So.2d 1052, 1054 (Fla. 1st DCA 1979); McKnight v. Florida

    Real Estate Commission, 202 So.2d 199, 200 (Fla. 2nd DCA 1967), cert. den., 209

    So.2d 672 (Fla. 1968).

    
    

14. The evidence reflects that as a favor to his daughter and son-in-law, the Respondent rented their house which was adjacent to his when they were out of state. In renting the property, the Respondent used his personal telephone number and did not involve his employer, Pacetti Realty Company, either directly or indirectly. Mr. Pacetti did not object to the Respondent renting the property on behalf of his daughter and never asserted that any fee or commission was due his office as a result of the rental. With regard to the terms of the lease agreement, the information furnished the Pettys by the Respondent was accurate and did not constitute fraud or misrepresentation, in that his daughter did not plan on living in the house for at least a year and in fact did not occupy the house after the Pettys vacated the premises. Either party in this transaction could have demanded a written lease to protect their respective interests but neither did so. Under such circumstances, the Respondent should

    not be disciplined for his son-in-law's actions in terminating the oral agreement when he became concerned about the condition of his property

    
    

15. In Count II the Respondent is charged with violating Section 475.25(1)(d), Florida Statutes which provides that a salesman shall not collect any money in connection with a real estate brokerage transaction as commission, deposit, payment, rental or otherwise except in the name of the employer and with the expressed consent of the employer. The undisputed testimony of the Respondent's broker, Mr. Pacetti, was that he had an office policy which permitted associates to act on behalf of their immediate families in real estate transactions without involving his office. All monies paid by the Pettys were accounted for and paid by the Respondent to his daughter and son-in-law. The Respondent neither charged nor received a fee, commission or obtained any valuable consideration in this transaction. Assuming that the statute is applicable to the facts of this case, it is apparent that its primary purpose is to protect the interests of the broker/employer and as such may be waived by the broker. See Gilman v. Butzloff, 22 So.2d 263 (Fla. 1945); 92 C.J.S. Waiver, at 1066-1067. The testimony of Mr. Pacetti established such a waiver, and therefore insufficient competent substantial evidence was introduced to prove a violation of Section 475.25(1)(d), Florida Statutes.

    
    

16. Count II also charged that Respondent violated Section 475.42(1)(b), Florida Statutes, which prohibits a real estate salesperson from operating as a broker or operating as a salesperson for one not registered as his employer. Again, assuming without deciding that the statute is applicable to the situation presented in this case, the evidence established that the Respondent broker knowingly and voluntarily waived his rights as to this type of transaction.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Real Estate, enter a final order dismissing the Administrative Complaint filed against the Respondent, Bruce R. Dowell. DONE and ORDERED this day 3 of February, 1982, in Tallahassee, Florida.

SHARYN L.SMITH

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.

COPIES FURNISHED:

Barry Sinoff, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Robert F. Spohrer, Esquire ZISSER ROBISON SPOHRER WILNER & HARRIS, P.A.

303 Liberty Street Jacksonville, Florida 32202

C. B. Stafford, Executive Director Florida Real Estate Commission

400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32801

Docket for Case No: 81-001926

Orders for Case No: 81-001926