STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2528

)

HARVEY T. ESTES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice at Tampa, Florida, on January 12, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

Freeman & Lopez, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

For Respondent: Richard S. Patterson, Esquire

Post Office Box 24571 Tampa, Florida 33623

ISSUE PRESENTED

Whether Respondent's license as a real estate salesman should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, F.S., as set forth in Administrative Complaint, dated September 2, 1981.

This case involves Petitioner's allegations that Respondent should be disciplined under Subsection 475.25(1)(b), Florida Statutes, for dishonest dealing by trick, scheme, device, and breach of trust in a business transaction. Specifically, it is alleged that while Respondent was in the process of applying for his Florida real estate salesman's license, he was associated with Realty Exchange, Inc., of Tampa, Florida, and, during that association, made copies of the firm's real estate listings and placed the same on his home computer, and failed to return them after passing his real estate examination and obtaining employment elsewhere.

At the commencement of the hearing, Petitioner moved to correct an inaccurate statutory reference in paragraph nine of the Administrative Complaint which cited Chapter 473 rather than 475, Florida Statutes, as the statute in question. The motion was granted.

Petitioner called one witness and the Respondent to testify at the hearing, and Respondent testified in his own behalf. The Petitioner submitted five exhibits in evidence and the Respondent submitted two exhibits. Although the Administrative Complaint seeks to take disciplinary action with respect to Respondent's real estate salesman's license, the uncontroverted testimony of Respondent at the hearing established that he has held a real estate broker's license since October 13, 1981.

FINDINGS OF FACT

1. Respondent, Harvey T. Estes, has been a licensed real estate broker in Florida since October 13, 1981. He previously had been licensed as a real estate salesman on or about April 1, 1980 (testimony of Respondent).

   
   

2. On or about March 13, 1980, Respondent contacted Realty Exchange, Inc., Tampa, Florida, concerning possible future employment after he obtained his Florida real estate salesman's license. Respondent was planning to take the real estate examination in approximately two weeks. When Paul R. Young, of Realty Exchange, Inc., learned of Respondent's prior successful record as a real estate salesman in Oklahoma, he encouraged Respondent to familiarize himself with the office and its real estate listings, and to view the exterior of the listed properties so that he would be in a position to start work immediately when he obtained his salesman's license (testimony of Young, Respondent, Respondent's Exhibit 1).

   
   

3. Although Respondent was not employed by Realty Exchange, Inc., he signed a standard form used by the firm indicating that he was an "independent contractor salesman," which stated that he was responsible for his own expenses and received no remuneration from the broker, and that his "association" with the broker could be terminated by either party at any time upon notice. This "agreement," which was signed only by Respondent, was prospective in anticipation of his future association with the firm.

   
   

4. Respondent was at Realty Exchange, Inc., for three or four days prior to king his examination for salesman. During this period, with the knowledge of Young, he made copies of various cards in office files which contained information concerning commercial properties which had been listed with the firm. The majority were "open" listings which had been obtained orally and were not supported by written listing agreements, and a small number were "exclusive" listings. At no time did Respondent ever observe any listing agreement signed by a prospective seller of property. Respondent noted that some of the information on the cards was inaccurate, and he could find no office correspondence with any of the property owners. He also determined that on one of the cards, the owner's name was incorrect and he personally changed it to reflect the correct name of the seller.

   
   

5. Respondent placed some of the information from the cards in his home computer and developed financial data concerning a particular property, such as a cash flow analysis, cost per unit, and income per square foot. He also provided Realty Exchange, Inc. with the names of his former out-of-state clients who might be interested in purchasing Florida property (testimony of Young, Respondent, Petitioner's Exhibits 1,4).

   
   

6. The evidence is conflicting as to whether Respondent returned to the Realty Exchange, Inc., office after taking the salesman examination. Young testified that he came back the following week and "hung around the office for a few days" and then left stating that he was going "up the country" for a few

   days. Young said that Respondent never returned again to the office, but that he called John White, the broker and president of the firm, on April 23 or 24, telling White that he had made another connection with a broker who paid 100 percent commissions, and that he would rather work by himself. At that time, White purportedly asked Respondent to turn in all of the "listings" and Respondent indicated that he would do so the first of the week. White did not testify at the hearing, however, as to this alleged phone conversation.

   
   

7. Respondent testified that he never returned to the office after taking the examination, but phoned White's secretary and told her that he was not returning to the office. Respondent further claimed that he did not recall any conversation with White and that no one requested he return the listing information until his next employer, Mr. Ragan of Ragan Realty, at some undisclosed date, told him that Realty Exchange Inc., wanted their listing information returned. At this point, Respondent gathered up the information and returned it. In addition, he erased all the data he had entered in his computer. Ragan did not testify at the hearing and Young was not privy to the alleged telephone conversation between White and Respondent.

   
   

8. Documentary evidence shows that Young complained to Petitioner by a letter dated May 2, 1980, concerning Respondent's failure to return the listing information and requesting that an investigation be undertaken. Respondent sent a letter to Young, dated June 17, 1980, which was received on June 20, reciting that the listing sheets were enclosed, and Young acknowledges that they were then received. Young testified that Respondent was never provided a written request to return the listing information because the firm did not know where he was located. However, information concerning Respondent's address and telephone number was available in the office files (testimony of Young, Respondent, Petitioner's Exhibits 2-4, Respondent's Exhibit 1). It is found that the Respondent's version of the circumstances surrounding the return of the listing information is credible and unrebutted by competent evidence.

   
   

9. While employed with Ragan Realty, Respondent made a personal offer to purchase an apartment complex which was one of the properties carried under an open listing by Realty Exchange, Inc. Although Ragan Realty did not have a listing on the property, it did have information on the property that had been circulated to Ragan and several others by the owner. Respondent did not purchase the property. He has had no other dealings with any of the properties on which he obtained information from Realty Exchange, Inc. (testimony of Young, Respondent, Petitioner's Composite Exhibit 4).

   
   

10. Petitioner issues a handbook which contains its interpretation of various provisions of applicable real estate law. Section 10.23 of the handbook, which was applicable during the incident involved herein, provides that it is "bad faith" for a salesman to copy records, listings, or other confidential information found in the files of the broker and to take them for his later use (Petitioner's Exhibit 5)

    
    

    CONCLUSIONS OF LAW

    
    

11. The Administrative Complaint herein is predicated solely on Respondent's alleged failure to turn over the copies of listing information he had made, or copies of information that he had placed in his home computer, pursuant to the request of Mr. John White, president of Realty Exchange, Inc., to which request Respondent had agreed. Respondent's alleged failure in this regard is charged as a violation of Subsection 475.25(1)(b), Florida Statutes, as constituting dishonest dealing or breach of trust in a business transaction.

12. Petitioner has failed to establish its allegations by competent evidence. No credible evidence was presented that Mr. White had requested Respondent to return the listing information in question. The evidence did show that when Respondent was made aware by his employing broker of a request by Realty Exchange, Inc. to return the material which he had copied with permission of that firm, he did so without delay.

    
    

13. The complaint contains no allegation that Respondent misused any of the information which was in his possession with the consent of the firm, and, even if it had, the evidence was insufficient to show that the isolated offer on one of the properties covered by an open listing would constitute dishonest dealing or breach of trust. Respondent was never employed by Realty Exchange, Inc., but was merely permitted to acquaint himself with their office procedures and business in the expectation that he would be associated with the firm after obtaining state licensure as a salesman.

    
    

14. In view of the foregoing, it seems unnecessary to consider the requirement of Subsection 475.25(1)(b) that the specified misconduct must arise in a "business transaction". It is conceivable, of course, that a licensed salesman could be found to have violated the statute in a particular business deal with his broker, or vice versa, but the evidence is insufficient to show that there was any such transaction between Respondent and Realty Exchange, Inc. which could possibly fall within the scope of a business relationship.

    
    

15. The fact that Respondent made a personal offer to purchase a property which had been the subject of an open listing by Realty Exchange, Inc. cannot possibly constitute a finding of dishonest conduct. Respondent was acting in his own behalf and the particular property was generally known to be for sale. In any event, as heretofore stated, the Administrative Complaint did not allege any improper use of the listing information and the evidence fails to show misconduct on the part of Respondent in this respect.

RECOMMENDATION

That the Board of Real Estate dismiss the charges against Respondent, Harvey T. Estes.

DONE and ENTERED this 25th day of March, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 25th day of March, 1982.

COPIES FURNISHED:

Grover C. Freeman, Esquire FREEMAN & LOPEZ, P.A.

4600 West Cypress, Suite 410

Tampa, Florida 33607

Richard S. Patterson, Esquire Post Office Box 24571

Tampa, Florida 33623

Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801

Fred Wilsen, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002528

Orders for Case No: 81-002528