STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2152

)

TREMONE RUDMAN, )

)

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 July 7, 1982, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John G. DeLancett, Esquire

801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C

Orlando, Florida 32803

For Respondent: Richard H. Adams, Jr., Esquire

PLEUS ADAMS FASSETT & DIVINE, P.A.

220 North Palmetto Avenue Post Office Box 2747 Orlando, Florida 32802

The issue involved in this case is whether the license of the Respondent Tremone Rudman should be revoked, suspended or otherwise disciplined for allegedly violating Sections 475.42(1)(d) and 475.25(1)(b), Florida Statutes, by collecting monies in other than his employer's name and without his employer's express consent.

At the final hearing. Patricia Taylor and James Burns testified on behalf of the Petitioner and Petitioner's Exhibits 1-21 were offered and admitted into evidence. The Respondent Rudman testified on his own behalf.

Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being not supported by competent and substantial evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. At all material times, the Respondent Tremone Rudman was an active real estate salesman having been issued license number, 0201202.

2. The Respondent Rudman was employed by Fantastic Properties, Inc., as a salesman from February 6, 1979 until September 6, 1979.

   
   

3. The broker and owner of Fantastic Properties, Inc., from February 6, 1979 through September 6, 1979, was Elaine Mueller.

   
   

4. In July 1979, the Respondent Rudman negotiated a contract between Barbara Medema, seller, and Eugene and LaLita Mascarenhas, buyers, for two separate parcels of property described as Lot 14, Block Y, Coral Springs Subdivision Number 1 (parcel number 1) and Lot 13, Block Y, Coral Springs Subdivision Number 1 (parcel number 2).

   
   

5. The transaction involving the properties was scheduled to close on November 12, 1979, at Taylor Title and Abstract in Sunrise, Florida.

   
   

6. At the time of the closing, the Respondent Rudman and Elaine Mueller had terminated their business relationship due to personal differences. The Respondent was concerned that he would not receive his share of the Mascarenhas commission because of difficulties he was having collecting his share of other commissions from Mueller.

   
   

7. In response to his actual or perceived difficulties in obtaining pending commissions, the Respondent Rudman made demands upon Mueller, his broker, and Pat Taylor, the title agent handling the closing, to disburse the Respondent's portion of the Mascarenhas commission directly to him rather than through the broker at closing.

   
   

8. The closing, which occurred on November 12, 1979, was difficult and lasted long into the afternoon. During the course of the closing the Respondent placed calls to Taylor Title Company to ascertain when he could pick up his commission check. Elaine Mueller indicated to Taylor that the proper procedure should be that the check would be made payable to Fantastic Properties, Inc., as the broker, and that Fantastic Properties would then write a check to the Respondent, as the salesman.

   
   

9. The procedure suggested to Taylor was not acceptable to the Respondent due to his belief that Mueller might delay his check. The Respondent contacted his attorney, David Hoines, and instructed him to demand that the commission check be issued directly to the Respondent.

   
   

10. On November 12, 1979, at approximately 5:30 p.m., Hoines called Taylor Title Company, and in conversation with Mueller and Taylor, demanded that the commission check in question be paid directly to the Respondent per his client's request. Both Mueller and Taylor expressed apprehension concerning such a procedure and advised Hoines that in their opinion, they could not legally issue a commission check directly to the Respondent, a salesman.

    
    

11. Hoines reiterated his demand on behalf of his client and threatened to institute legal proceedings which could stop the closing and/or create problems for both the buyer and the seller. Hoines indicated to Taylor that he had the means at his disposal to bring the closing to a halt if the commission check was not distributed to his client as he demanded. When Taylor inquired concerning what those means were, Hoines refused to elaborate.

12. Hoines acknowledged that he had specifically made reference to a declaratory judgment action and in that sense, threatened legal action. He also stated that he ignored the statements made to him by Mueller and Taylor that the procedure he demanded that they follow was illegal.

    
    

13. As a consequence of the actions taken by the Respondent Rudman and his attorney at his initiation, Mueller was placed in an untenable position. On one hand, Mueller was threatened with legal action if she did not pay the commission to the Respondent and on the other, she knew that if the closing did not take place that day, it would probably never occur since the outstanding mortgages on the two parcels were months in arrears. Mueller's problems with the mortgages on the property were also known to the Respondent when he and his attorney demanded the commission check.

    
    

14. Mueller objected to issuing a check to the Respondent but was concerned that withholding the check could result in stopping the closing as a result of the threatened legal proceedings. Under such circumstances, Mueller did not voluntarily consent to the issuance of the check to the Respondent. As characterized by counsel for Petitioner, Mueller "acquiesced" rather than risk the possibility that the Respondent or his attorney would initiate action which could have affected the sale. Thus, the "consent" given by Mueller was under protest, the result of coercion and was not free and voluntary.

    
    

15. As a result of Respondent's demands, Pat Taylor contacted her attorney, Mr. Finn, who instructed her to type the document dated November 13, 1979, Petitioner's Exhibit 10. Mueller did not see this document nor did she assist in its preparation. On November 13, 1979, Taylor presented the document, together with a check for the Respondent's share of the commission to Respondent at his office. The Respondent accepted the check which was made payable to "Tremone Rudman". The Respondent then signed the document and added, "I do not agree to the foregoing." The Respondent subsequently negotiated the check.

    
    

16. The Respondent Rudman acknowledged that he was not collecting on behalf of the broker with whom he was employed when he received this commission, nor did he collect the funds on behalf of Fantastic Properties, Inc., for whom he was no longer employed.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1). Florida Statutes (1981).

    
    

18. The Administrative Complaint filed in this case alleges that the Respondent Rudman violated Sections 475.42(1)(a) and (d) and 475.25(1)(b), Florida Statutes (1979), which provide in pertinent part, as follows:

    
    

    475.42 Violations and penalties.--

    1. VIOLATIONS.--

       1. No person shall operate as a broker or salesman without being the holder of a valid and current license therefor.

       2. No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer.

    (d) No salesman shall collect any money

    in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer...

    
    

    475.25 Discipline.--

    (1) The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed 1,000 for each count or separate offense, or may issue a reprimand,

    if it finds that the licensee or applicant has:

    (b) Been 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. . . It shall be immaterial to the guilt of the licensee that the victim

    or intended victim of the misconduct has sus- tained no damage or loss; that the damage or

    loss has been settled. . . or that such victim or intended victim was a customer or a person in confidential relation with the licensee, . . .

    
    

19. The dispute between the parties in this case essentially involves whether the Respondent Rudman received his commission check on the Mascarenhas sale in the name of and with the "express consent" of his employing broker as required by Section 475.42(1)(d), Florida Statutes (1979). As noted by counsel for the Petitioner, no reported Florida decisions have defined the term "express consent" as contemplated by this statute. Compare MacGregor v. Florida Real Estate Commission, 99 So.2d 709 (Fla. 1958). Generally, however, "consent" is acknowledged to be a free and voluntary act which is unclouded by fraud or duress. See Black's Law Dictionary Fifth Edition, 1979, and Restatement, Second, Torts s. 10A. "Express consent" is consent, either oral or written, which is positive, unequivocal and requires no inference or implication to supply its meaning. Pacific National Agricultural Credit Corporation v. Hagerman, 55 P.2d 667, 670 (N.M. 1936).

    
    

20. Under the facts of this case, the acquiescence by Mueller after statements by the Respondent and his attorney to hold up the closing by threatening legal action and possibly jeopardizing the sale, does not constitute "express consent" as required by the statute. As a licensed broker, Mueller owed a duty to the parties of this transaction to ensure that their rights would not be affected as a result of her dispute with the Respondent and she, therefore, took appropriate steps to ensure that the closing would proceed without further incident.

    
    

21. Additionally, the statute requires that a salesman's commission check be collected "in the name of the employer." Since the check in this case was made payable to "Tremone Rudman", this condition was also not met prior to the disbursement of the commission.

22. Finally, the Respondent is charged with violating Section 475.25(1)(b), Florida Statutes, which, inter alia, prohibits a breach of trust in a business transaction. By interjecting his real or perceived dispute with Mueller into the closing process and potentially stopping the sale of the subject property, the Respondent breached a duty owed to the parties in this case. Neither a salesman nor a broker may lawfully act in a manner adverse or antagonistic to individuals with whom they have a trust relationship. By placing his own self-interest before the right of the parties to consummate a sale without regard to whatever private dispute existed between the broker and salesman, the Respondent violated Section 475.25(1)(b), Florida Statutes. See Shelton v. Florida Real Estate Commission, 120 So.2d 191, 194 (Fla. 2nd DCA, 1960) which discusses the duty owed by real estate brokers to those with whom they deal in a professional capacity.

    
    

23. In determining an appropriate penalty in this case, consideration has been given to the absence of evidence of previous disciplinary proceedings against the Respondent which resulted in a finding of guilt. Additionally, the Respondent was advised and assisted in his actions to collect his commission check through the efforts of his attorney. The undersigned does not consider the Respondent's actions in this case to be "technical" violations of Chapter 475, but rather a serious violation that could have resulted in considerable damage to the parties had the closing been halted as a result of the Respondent's demands. Considering all of these factors, a suspension of Respondent's real estate salesman's license is indicated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Petitioner enter a Final Order finding the Respondent Rudman guilty of violating Sections 475.25(1)(b) and 475.42(1)(b) and (d), Florida Statutes (1979), and suspending his real estate salesman's license for ninety

(90) days.

DONE and ORDERED this 2nd day of March, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 2nd day of March, 1983.

COPIES FURNISHED:

John G. DeLancett, Esquire 801 North Magnolia Avenue Suite 402

Post Office Box 6171-C Orlando, Florida 32803

Richard H. Adams, Jr., Esquire Carlos B. Stafford, Executive PLEUS ADAMS FASSETT & DIVINE Director

220 North Palmetto Avenue Florida Real Estate Commission Post Office Box 2747 Post Office Box 1900

Orlando, Florida 32802 Orlando, Florida 32802

William M. Furlow, Esquire Fred Roche, Secretary Department of Professional Department of Professional

Regulation - Legal Section Regulation

400 West Robinson Street 130 North Monroe Street Orlando, Florida 32801 Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0000925

DOAH NO. 81-2152

TREMONE RUDMAN,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on April 19, 1983 to issue a Final Order.

Hearing Officer Sharyn L. Smith of the Division, of Administrative Hearings presided over a formal hearing on July 7, 1982. She issued a Recommended Order on March 2, 1983, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Order is attached hereto as Exhibit A.

However, as to the Recommendation, after a complete review of the record the Florida Real Estate Commission hereby ORDERS that the Respondent's real estate license be suspended for a period of 90 days and that the Respondent pay a $500 administrative fine to the Department of Professional Regulation on or before the effective date of this Order.

The Respondent is prohibited from resuming real estate activity until after his petition for reinstatement is approved by the Florida Real Estate Commission.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of April, 1983, in Orlando, Florida.

Howard C. Babcock, Jr., Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: Richard Adams, Jr., Esquire, Post Office Box 2747, Orlando, Florida 32802; to John Huskins, Staff Attorney, Dept. of Professional Regulation, PO Box 1900, Orlando, Florida 32802; and to Hearing Officer Sharyn

L. Smith, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301, this 29th day of April, 1983.

Harold R. Huff, Director

Docket for Case No: 81-002152

Orders for Case No: 81-002152