STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2542

)

BRIAN ROTHSCHILD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 14 January 1982 at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael Jay Cohen, Esquire

Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: Brian Rothschild, pro se

201 Hendricks Isle

Fort Lauderdale, Florida 33301

By Administrative Complaint dated 15 September 1981 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the registration of Brian Rothschild, Respondent, as a real estate salesman. As grounds therefor it is alleged that Respondent filed a civil action for the collection of a real estate commission against one other than his employer and filed a lis pendens against the property involved, in violation of Sections 475.25(1)(a) and 475.42(1), Florida Statutes.

At the commencement of the hearing Respondent's Motion to Dismiss the proceedings on grounds the Administrative Complaint was defective and that he had been denied due process was denied. Petitioner offered into evidence Requests for Admissions to which Respondent failed to respond and these were admitted into evidence as Exhibit 1. Thereafter, Petitioner called four witnesses, including Respondent; Respondent testified in his own behalf and eight exhibits were admitted into evidence. Proposed findings submitted by Petitioner and not included below were not supported by competent evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. At all times relevant hereto Brian Rothschild, Respondent, was registered with the Florida Board of Real Estate as a real estate salesman and was employed by Mascar Realty, Inc. Thomas Palumbo was the active broker for Mascar Realty, Inc.

   
   

2. On 15 January 1981 Respondent obtained a listing contract on a residence from Annette Seidman. This exclusive right of sale was for a six- month period and provided for a commission of ten percent (10 percent) upon sale. The contract was accepted by Palumbo as broker and active firm member.

   
   

3. Shortly after executing the listing contract Mrs. Seidman became dissatisfied with the services of Respondent, her husband became ill and also faced a jail sentence for contempt of court, and she wanted to take the house off the market. She communicated the desire to take the house off the market to Respondent.

   
   

4. Respondent communicated this information to Palumbo, who sent Mrs. Seidman a letter largely drafted by Respondent (Exhibit 2). Subsequently, Mrs. Seidman talked with Palumbo, told him of her personal problems, advised that she would reimburse Mascar Realty for the costs incurred in servicing the listing agreement, and that she was not satisfied with Respondent. Two incidents which disturbed Mrs. Seidman occurred when she returned home following an open house held by Respondent at her residence. One of these incidents was the presence of several young girls outside the house talking to Respondent, and another was seeing Respondent remove a pistol from the waistband of his trousers and place it in his briefcase as he prepared to leave.

   
   

5. Upon receipt of this information and the agreement by Mrs. Seidman to reimburse the realty firm, coupled with his belief that the house would not sell at the asking price, Palumbo released Mrs. Seidman from the listing agreement.

   
   

6. After executing the release Palumbc called Respondent into his office and told him he had released the listing. Respondent testified that Palumbo fired him; Palumbo testified Respondent resigned and he (Palumbo) was happy to have Respondent go. Whichever version is true is not material.

   
   

7. Shortly after his employment was terminated with Mascar Realty, Respondent filed a complaint in the Circuit Court in Broward County against Annette Seidman for the commission he would have earned had he sold the house, and for other damages allegedly resulting from the termination of the listing agreement. He also filed a notice of lis pendens in the property records of Broward County which was not authorized by the owner of the property against which it was filed.

   
   

8. The complaint was dismissed by the Circuit Court and Respondent has appealed this decision to the District Court of Appeal. As the result of the complaint and appeal filed by Respondent, Mrs. Seidman has incurred expenses for attorney's fees which she would not have incurred had the complaint and lis pendens not been filed.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Section 475.42(1), Florida Statutes, provides in pertinent part:

    
    

    (d) [A]nd no real estate salesman, whether the holder of a valid and current

    license or not, shall commence or maintain any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as his employer at the time the cause of action is alleged to have arisen.

    
    

    (j) No broker or salesman shall place,

    or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit or other writing which purports to affect the title

    of, or encumber, any real property if the same is known by him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.

    
    

11. By filing suit against Annette Seidman for the commission he would have earned had he sold her property while the listing was still in effect, Respondent clearly violated Section 475.42(1)(d) above quoted.

    
    

12. A notice of lis pendens is described in Black's Law Dictionary, Fifth Edition 1979, as:

    
    

    A notice filed on public records for

    the purpose of warning all persons that the title to certain property is in litigation, and that they are in danger of being bound by an adverse judgment. The notice is for the purpose of preserving rights pending

    litigation. Mitchell v. Federal Land Bank of St. Louis, 206 Ark. 253, 174 S.W.2d 671, 674.

    Purpose of "lis pendens" is to notify prospective purchasers and encumbrancers that any interest acquired by them in property

    in litigation is subject to decision of court and while it is simply a notice of pending litigation the effect thereof on the owner of the property is constraining.

    Beefy King Intern., Inc. v. Veigle, C.A. Fla. 464 F.2d 1102, 1104.

13. Obviously, a lis pendens affects the title of the property against which it is filed. Since the evidence was undisputed that Mrs. Seidman did not authorize Respondent to file the notice of lis pendens, and that the lis pendens was filed for the purpose of collecting the commission the Respondent believed was due him Respondent violated Section 475.42(1)(j) above quoted.

    
    

14. Section 475.25(1)(a), Florida Statutes, authorizes the Board to impose certain punishment, including revocation of license, on a registrant who has violated any of the provisions of Section 475.42, Florida Statutes.

    
    

15. From the foregoing it is concluded that Respondent has violated the provisions of Section 475.42(1), Florida statutes that these violations were done with the full knowledge of the statutes and for the purpose of collecting a commission on property which was not sold. It is further concluded that these acts indicate a callous disregard for the obligation of a registrant to refrain from taking advantage of a customer in a real estate transaction. It is, therefore,

RECOMMENDED that the registration of Brian Rothschild as a real estate salesman be REVOKED.

ENTERED this 3rd day of February, 1982, in Tallahassee, Florida.

K. N. AYERS 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 3rd day of February, 1992.

COPIES FURNISHED:

Michael Jay Cohen, Esquire Suite 101, Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Brian Rothschild

201 Hendricks Isle

Fort Lauderdale, Florida 33301

Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick B. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002542

Orders for Case No: 81-002542