STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2544

)

EARNEST KELLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice dated November 17, 1981, this cause came on for hearing on December 22, 1981, before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings in Miami, Florida.

APPEARANCES

For Petitioner: Theodore J. Silver, Esquire

9445 Bird Road

Miami, Florida 33165

For Respondent: Did not appear and was not represented.

By Administrative Complaint dated September 2, 1981, Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee and against his license as a real estate salesman. Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, and this matter was referred to the Division of Administrative Hearings on October 12, 1981. Accordingly, the issues for determination are whether Petitioner should take disciplinary action against Respondent, and, if so, what action is appropriate.

Petitioner presented the testimony of Andrew Kasprik and Joyce Boggs. Additionally, Petitioner's Exhibits numbered 1, 2, 3, and Composite 4 were admitted in evidence.

FINDINGS OF FACT

1. On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981.

   
   

2. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida.

   
   

3. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services.

4. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325.

   
   

5. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property.

   
   

6. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property.

   
   

7. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. Section 475.25(1)(a), Florida Statutes (1979), authorizes Petitioner to take disciplinary action against a licensee for violation of any provision of Section 475.42, Florida Statutes. The disciplinary action authorized includes revoking or suspending the licensee's license.

   
   

10. Count I of the Administrative Complaint charges Respondent with violating Section 475.42(1)(d), Florida Statutes (1979), which provides:

    
    

    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 con- sent of the employer . . . .

    
    

11. Additionally, Count II of the Administrative Complaint charges Respondent with violating Section 475.42(1)(b), Florida Statutes (1979), which provides that: "No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer." Petitioner has met its burden of proving that Respondent has violated both statutory provisions as alleged in its Administrative Complaint.

    
    

12. Since Respondent failed to appear at the hearing in this cause, there is no evidence in this record either in explanation of the conduct charged in the Administrative Complaint or in mitigation of any disciplinary action which Petitioner may take against him, and Petitioner has offered no evidence in aggravation thereof. The evidence of violation of the regulatory statutes is uncontroverted, but there is no evidence indicating that Respondent's act was other than an isolated transaction.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months.

RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982

COPIES FURNISHED:

Theodore J. Silver Esquire 9445 Bird Road

Miami, Florida 33165

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

130 North Monroe Street Tallahassee, Florida 32301

Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156

Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Carlos B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF

REAL ESTATE,

Petitioner,

1. CASE NO. 81-2544

   DPR 0013961

   EARNEST KELLY,

   License No. 0326902 Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Real Estate Commission upon the Petitioner's Motion or Final Order. A formal hearing was held on December 22, 1981, which resulted in a Recommended Order filed on February 19, 1982 by Linda M. Rigot, Hearing Officer for the Division of Administrative Hearings.

   
   

   The Commission, having reviewed the Recommended Order, the pleadings and the complete record, finds that:

   
   

   1. The Recommended Order, a copy of which is attached to this Order, is adopted and incorporated by reference in this order as to all Findings of Fact and Conclusions of Law;

      
      

   2. The Recommended Order is rejected as to the suggested penalty and the petitioner's Exceptions to the Recommended Order, a copy of which is attached to this Order, are adopted and incorporated in this Order by reference to the extent that they are not inconsistent with this Order.

It is therefore ORDERED that the license of Respondent Ernest Kelley is suspended for a period of one (1) year. It is further ORDERED that a fine of five hundred dollars (500) is imposed against the Respondent on each of the Counts of the Complaint for a total fine of one thousand dollars ($1,000). This Order shall be effective thirty (30) days from the date that it is filed with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 16th day of March, 1982.

Sonny Wright, Chairman Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Frederick H. Wilsen, Assistant General Counsel, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, Earnest Kelley, 8640 S.W. 112th Street, Miami, Florida 33156, Silver, Levy and Hershoff, Mr. Theodore J. Silver, Esquire, Attorney for Petitioner, 9445 Bird Road,2nd Floor, Miami, Florida 33165 and Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, Department of Administration, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 9th day of APRIL 1982.

Docket for Case No: 81-002544

Orders for Case No: 81-002544