STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-170

) WIT ZAJACK and HOME HUNTERS II, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearing in this cause was held pursuant to notice on May 5, 1982, in Orlando, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Board of Real Estate (now Florida Real Estate Commission) against the Respondents, Wit Zajack and Home Hunters II, Inc.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Benjamin T. Shuman, Esquire

611 North Pine Hills Road Orlando, Florida 32808

ISSUE

The issues in dispute in this matter are as follow:

1. Was the Respondent, Wit Zajack, responsible for the acts of the Respondent, Home Hunters II, Inc., and its employees prior to July 7, 1981, when Zajack's registration as the corporate broker's active firm member became effective?

   
   

2. Was Zajack relieved of responsibility for the acts of the corporate broker by appointing a manager and delegating duties to the manager?

   
   

3. Did the Respondents use an advance fee rental contract containing information as required by Rule 21V-10.30, Florida Administrative Code?

   
   

4. Was the language used in said contract by the Respondents contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and in violation of Section 475.453, Florida Statutes?

5. Did the Respondents fail to refund advance fees upon demand in violation of Sections 475.25(1)(e) and 475.453(1), Florida Statutes?

The proposed findings as submitted in this matter by the parties have been considered by the Hearing Officer. To the extent they have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Wit Zajack, is a licensed real estate broker holding License #0219881.

   
   

2. The Respondent, Home Hunters II, Inc., was a corporate real estate broker holding License #0218141. At the time of the accounts described in the Administrative Complaint, Home Hunters was operating as a corporate real estate broker.

   
   

3. Home Hunters was engaged in a rental service business and advertised rental property information or lists, collecting an advance fee from prospective lessees. Zajack was aware that Home Hunters was engaged in the advance fee rental business from the beginning of his association with the firm.

   
   

4. Zajack applied for registration as the active firm member for Home Hunters on March 5, 1981. His application contained various discrepancies and was returned for correction on May 8, 1981. The application was corrected and returned after 20 days 1/ to the Board of Real Estate, whereupon Zajack was registered as the active firm member effective July 6, 1981.

   
   

5. On or before May 6, 1981, Zajack was held out to the public as being affiliated with Home Hunters by a sign at Home Hunters' offices on Colonial Drive in Orlando, Florida.

   
   

6. At all times material to the allegations of the Administrative Complaint, Zajack was an officer of Home Hunters.

   
   

7. Home Hunters used the contract form exemplified in Petitioner's Exhibits 8 and 11 from the start of its business activities until March of 1982. This form does not contain the language required by Rule 21V-10.30, Florida Administrative Code.

   
   

8. At least as early as October of 1981, Zajack was aware of the fact that Home Hunters' contract did not meet the requirements of Rule 21V-10.30, Florida Administrative Code. He directed Tom O'Toole, the manager of Home Hunters, to correct the forms around the first part of 1982, but the forms were not corrected.

   
   

9. Zajack referred all calls and letters of complaint which he received regarding the failure of Home Hunters to make refunds to O'Toole. O'Toole was given the responsibility to deal with all disputes for Zajack. Zajack did not follow up on the complaints.

   
   

10. During this time, Zajack resided in Fort Myers, Florida. O'Toole and Zajack's business partner, Ralph Snyder, Jr., organized and ran Home Hunters.

11. Melissa Diehl entered into an advance fee rental contract with Home Hunters on July 1, 1981, paying Home Hunters $50 for this service Diehl did not receive information on apartments which was consistent with the specifications she had given Home Hunters, or which were available for rental. She called Home Hunters about apartments she saw listed in its advertisements in the newspaper and was advised they had been rented. Diehl located a rental on her own and requested a refund from Home Hunters. She made several demands for a refund but never received a refund. She specifically asked to speak with Zajack but was told he was not available.

    
    

12. On June 16, 1981, Brenda Mosely entered into an advance fee rental contract with Home Hunters, paying Home Hunters $50 for its services. Mosely called Home Hunters as required by the contract but did not receive listing information which was consistent with the specifications she had stated in her contract. Mosely orally requested a refund of her money after the 21-day period. She was advised to put her request in writing, which she did. She was denied a refund by Home Hunters on the basis that she had not called for 21 days, because she had not called on weekends when Home Hunters was closed.

    
    

13. Ralph Tropf contracted with Home Hunters on March 26, 1981, for rental information, paying a $50 fee to Home Hunters in advance for its services. None of the information he received was consistent with the specifications he had given to Home Hunters. Tropf called for the 21-day period required in the contract and found a rental on his own. On April 16, 1981, Tropf made a written request for a refund. He never received a reply from Home Hunters. Tropf reported the matter to the Better Business Bureau, which forwarded to him the reply of O'Toole which stated Tropf had not complied with the terms of the contract to call for 21 days. On April 27, 1981, O'Toole advised Tropf that Zajack was the person to whom Tropf should detail his complaints.

    
    

14. In March of 1981, Mrs. Gwenda Eva Roe had a similar experience to those described above in attempting to obtain a refund of money paid by her minor daughter to Home Hunters for rental information services.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1) , Florida Statutes. The Board of Real Estate (now Florida Real Estate Commission) has authority to discipline its registrants pursuant to Chapter 475, Florida Statutes.

    
    

16. In Count I of the Administrative Complaint, the Board has charged the Respondents with violation of Section 475.453, Florida Statutes, by failing to place in its contract the language required in Rule 21V-10.30, Florida Administrative Code. In Count II, the Board charges Respondents with violation of Section 475.25(1)(e), Florida Statutes, by failing to make a refund as required by Section 475.453(1), supra.

    
    

17. The first issue is whether the Respondent, Wit Zajack, may be disciplined for acts of the corporate broker which occurred before he was duly registered as the active firm member. It is concluded that where a broker applies to be an active firm member, holds himself out to the public as an active firm member, and eventually is registered as the active firm member, he is responsible for the acts of the corporate broker which occurred between the date of his application and the date of actual registration. Zajack is legally responsible for the acts of Home Hunters II, Inc., between March 5 and July 7,

    1981, and may be disciplined for any of the acts of the corporation for which he had applied to be registered as the active firm broker.

    
    

18. With regard to the second issue of whether an active firm member may avoid his responsibility for the acts of a corporate broker by delegating responsibilities to other persons licensed or unlicensed, the whole object of requiring an active firm member is to have a real person who is answerable to the Board for the acts of the corporate broker. The facts reveal that Zajack attempted to avoid this responsibility by referring all complaints he received about Home Hunters back to O'Toole. Zajack should have been placed on notice by the complaints he received that Home Hunters needed his personal supervision.

    An active firm member can delegate duties but not his responsibility for the acts of the corporation. Zajack may not avoid his responsibility for the acts of the corporate broker operating under Zajack's appointed manager.

    
    

19. With regard to the remaining issues, the contracts in evidence do not contain the language required by Rule 21V-10.30, Florida Administrative Code. The Respondents are guilty of violating Section 475.453, Florida Statutes. The language requiring persons to call each day for 21 days is void because it is contrary to the provisions of Section 475.453, Florida Statutes. The failure to call each day for 21 days may not be a basis for denial of a refund. The failure of Home Hunters to make refunds upon request is contrary to Section 475.453, supra, and punishable under Section 475.453(3)(b). Further, it is a violation of the broker's duty to account for and deliver money due a client contrary to Section 475.25(1)(e) , Florida Statutes.

RECOMMENDATION

Having found that the Respondents, Wit Zajack and Home Hunters II, Inc., are in violation of Rule 21V-10.30, Florida Administrative Code, and Sections

475.453 and 475.25(1)(e), Florida Statutes, it is recommended that the license of Wit Zajack be suspended for one year.

DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of July, 1982.

ENDNOTE

1/ It is the policy of the Board to register the applicant effective the date of the original application if the applicant corrects deficiencies within 20 days.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Benjamin T. Shuman, Esquire 611 North Pine Hills Road Orlando, Florida 32808

C. B. Stafford, Executive Director

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. DOAH NO. 82-170

WIT ZAJACK and HOME HUNTERS II, INC.,

Respondent.

/

FINAL ORDER

This cause came before the Florida Real Estate Commission upon the Petitioner's Motion for Final Order. A formal hearing was held on May 5, 1982, which resulted in a Recommended Order filed on July 22, 1982 from Stephen F. Dean, Hearing Officer of the Division of Administrative Hearings.

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.

However, as to the Recommendation, it is rejected; and it is ORDERED that the registration of Respondent Home Hunters II, Inc. be revoked.

It is further ORDERED, pursuant to s475.25(1) and s455.227(2), Florida Statutes, that Respondent Wit Zajack pay a fine of $1000 to the Department of Professional Regulation on or before the effective date of this Order and that the license of Respondent Zajack be suspended for 180 days. However, 90 days of said suspension shall be lifted if restitution is made to the following people in the following amounts, or if a good faith effort to make restitution is made.

The following is a list of amounts of restitution necessary and of the names of persons to whom said restitution is to be paid:

Wanda West $50 Blaine Johnson $60

This order shall be effective 30 days after the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 1st day of December 1982 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: Benjamin T. Shuman, Esquire, 611 North Pine Hills Road, Orlando, Florida 32808; to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Bruce Lamb, Staff Attorney, Dept. of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, this 27th day of December, 1982.

Harold R. Huff

Docket for Case No: 82-000170

Orders for Case No: 82-000170