STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-076

)

ALLAN N. SERINO, )

)

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 18 May 1982 at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Craig R. Wilson, Esquire

315 3rd Street, Suite 204

West Palm Beach, Florida 33401

By Administrative Complaint dated 4 December 1981 the Department of Professional Regulation, Board of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the real estate salesman license of Allan N. Serino, Respondent. As grounds there for it is alleged that Respondent was guilty of false representations in indicating he was a member of a multiple listing service when he was not; that Respondent acted as a broker in renting an apartment for the owner thereof; that Respondent failed to immediately deposit monies entrusted to him in an escrow account; and that he purported to work for two brokers when he was registered with only one.

At the hearing Petitioner called one witness; two witnesses, including Respondent, testified on behalf of Respondent and three exhibits were admitted into evidence. Exhibit 1, the deposition of the complaining witness, has five exhibits attached, and Exhibit 2 is an affidavit of the owner of the apartment here involved offered on behalf of Respondent.

FINDINGS OF FACT

1. Allan N. Serino, Respondent, is licensed by the Petitioner as a salesman and was so licensed at all times here relevant. He was employed as a salesman in the office of Champion Properties, Inc., a Century 21 franchisee, located at 1900 South Federal Highway, Delray Beach, Florida.

2. Respondent's wife is also an associate in the Champion Properties office. The broker at Champion Properties, Inc., is a member of Multiple Listing Service (MLS) and the office had available the use of MLS.

   
   

3. Sometime around mid-1980 Respondent sold a condominium to Norman Bonchick and assured Bonchick there would be no problem renting this unit. Shortly after the sale the rental market became depressed and the promised tenant did not materialize. The property was initially listed with Mrs. Serino but, prior to the end of 1980, this listing was withdrawn.

   
   

4. After the listing was withdrawn, Respondent placed a "for rent" sign on the apartment and placed his home telephone number on the sign. He did this as a favor to Bonchick and neither expected, nor received, any compensation for his services.

   
   

5. Mrs. Anne Oliveri became aware that the apartment was for rent when a business associate called Serino's home telephone to inquire if the property was still for rent and asked Mrs. Serino to contact Mrs. Oliveri to set up an appointment to view the apartment. Respondent called Mrs. Oliveri and showed her the apartment on 13 January 1981. At this time Respondent advised Mrs. Oliveri of the rental terms which she accepted, and a lease was prepared which Respondent executed as agent. Mrs. Oliveri gave Respondent a check made payable to him for $1,275, comprising first and last months' rent plus security deposit of $425.

   
   

6. The lease (Exhibit 2 attached to Exhibit 1) provided, inter alia, that the lease could be terminated upon 60 days' notice, in writing, by either party.

   
   

7. At the time the lease was executed Respondent gave Mrs. Oliveri one of his business cards on which he had written his wife's given name, had encircled his home telephone number, and pencilled in "before 9." The card also indicated the office was a member of MLS. At this time Mrs. Oliveri was not sure if Respondent was acting as a real estate agent, was the owner of the property, or was an independent agent for the owner.

   
   

8. Respondent deposited the check for $1,275 in his account and gave the proceeds to Bonchick a few days later when Bonchick arrived in town. Bonchick paid no commission to Respondent or to the realty firm where Respondent was employed at this time or any other time while Mrs. Oliveri occupied the apartment.

   
   

9. Mrs. Oliveri remained in the apartment for some five to six months before notifying Respondent, by letter dated June 24, 1981, that she would quit the premises on July 15, 1981, and demanded refund of her last month's rent and security deposit. Respondent, by letter dated June 26, 1981, advised Mrs. Oliveri that all monies were held by the landlord, that he had advised the landlord of her request, and that any settlement of her claim would be between her and Bonchick. Apparently Mrs. Oliveri was unsatisfied with the result of her negotiations with Bonchick and filed the complaint against Respondent which led to these charges.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. The business card which Respondent used contained the letters "MLS" near the top of the card alongside "Century 21" and above "CHAMPION PROPERTIES, INC., REALTOR." Respondent's name is near the bottom of the card under which is his designation of "REALTOR-ASSOCIATE." By this card Respondent does not hold himself out as a member of MLS; only that the office was a member of MLS, which was true at that time.

    
    

12. Respondent signed the lease as agent for the owner. Even if he did not have actual authority to act as agent for his principal in this matter when he executed this lease as agent, this action was subsequently ratified by Bonchick. At no time was Respondent acting under the authority of his license or for any compensation. Section 475.01(3), Florida Statutes, provides in pertinent part:

    
    

    "Broker" means a person, who

    for another, and for a compensa- tion or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an interest to collect

    or receive a compensation or valuable consideration therefor, appraises ... rents ... any real property ....

    
    

13. Section 475.25(1)(d), Florida Statutes, authorizes disciplinary action against a licensee who has:

    
    

    Failed to account or deliver to any person, including a licensee

    under this chapter, at the time which has been agreed upon or is requested by law, or in the absence of a fixed

    time, upon demand of the person entitled to such accounting or delivery, any personal property, such as money

    which has come into his hands and which is not his property ....

    
    

14. No evidence was presented that Respondent failed to deliver any monies received for the apartment to Bonchick. Under the circumstances there was no requirement that these funds pass through the real estate firm holding Respondent's license. His services for Bonchick were gratuitous and nothing in the real estate license law precludes a licensee from performing a gratuitous service.

    
    

15. Although Respondent acted as agent for Bonchick while his registration was held by Champion Properties, Inc., he performed no services for Champion Properties in conflict with the service performed in his gratuitous agency relationship with Bonchick. Rule 21V-6.06, Florida Administrative Code, provides in part:

    
    

    A salesman or broker-salesman may

    not be employed by more than one broker, or by a broker and an employing owner.

16. Here, Respondent was in technical violation of this rule even though he did not receive compensation for his services to Bonchick. The rule contemplates services performed for a consideration and not gratuitous services. However, Respondent was acting as agent for Bonchick in a real estate transaction while registered as a salesman with Champion Properties, Inc.

    
    

17. From the foregoing it is concluded that Respondent did not act as a broker, did not fail to account for any funds entrusted to him, that at the time the funds were delivered to him by Mrs. Oliveri she did not deliver those funds to him as an employee of Champion Properties, Inc., and there was no requirement for Respondent to deliver those funds to his broker at Champion Properties. Respondent did serve as agent for Bonchick, albeit gratuitously, while Respondent was employed by Champion Properties, Inc., as a salesman and was in technical violation of Rule 21V-6.06, Florida Administrative Code. It is, therefore,

RECOMMENDED that Allan N. Serino be issued a written reprimand for serving as agent for Norman Bonchick in renting the apartment owned by Norman Bonchick while Respondent was employed by a registered real estate broker.

ENTERED this 16th day of June, 1982, at Tallahassee, Florida.

K. N. AYERS 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 16th day of June, 1982.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire C. B. Stafford, Executive Department of Professional Director

Regulation Florida Real Estate Commission

130 North Monroe Street Post Office Box 1900 Tallahassee, Florida 32301 Orlando, Florida 32802

Craig R. Wilson, Esquire Samuel R. Shorstein, Secretary RUFFOLO & WILSON Department of Professional

315 3rd Street, Suite 204 Regulation

West Palm Beach, Florida 33401 130 North Monroe Street

Tallahassee, Florida 32301

Docket for Case No: 82-000076

Orders for Case No: 82-000076