STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION )

(formerly Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 82-204

) FREC NO. 0013799

GEORGE F. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the City Council Chambers, City Hall, 2200 Second Street, Fort Myers, Florida, on April 29, 1982. 1/

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance.

ISSUES

The issues presented in this case concern an Administrative Complaint brought by the Petitioner against the Respondent, accusing the Respondent of failing to account or deliver, upon demand, money which he would not be entitled to retain, which money was due and owing to a real estate salesman employee of the Respondent broker, all in violation of Subsection 475.25(1)(d), Florida Statutes.

FINDINGS OF FACT

1. On December 9, 1981, Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate, now Florida Real Estate Commission, filed an Administrative Complaint against Respondent alleging the violation referred to in the Issues statement of this Recommended Order. Respondent who is a licensed real estate broker in the State of Florida, having been issued License No. 0137645, requested a Subsection 120.57(1), Florida Statutes, hearing, to resolve the factual disputes between the parties and the case was subsequently referred to the Division of Administrative Hearings for consideration. This request for assignment of a Hearing Officer was received on January 28, 1982, by the Division and a formal hearing was conducted on April

   29, 1982. Notwithstanding notice provided to the parties, Respondent did not attend the hearing.

   
   

2. At all times pertinent to the Administrative Complaint, Respondent, George F. Lewis, was the record broker for George F. Lewis Realty, Inc., located at 4237 Cape Coral Bridge Road, Fort Myers, Florida, 33907, the address listed with Petitioner as the business premises for Respondent.

   
   

3. On December 2, 1981, Eleni Kaklis, a licensed Florida real estate salesman, employed by George Lewis Realty, Inc., while acting in the capacity of real estate salesman for that corporation, participated in the execution of a contract for sale and purchase in Lee County, Florida. The sellers were James Henry and Ruth Elizabeth Aalderink, and the purchasers were Stanley M. and Mary Jo Shaver. The terms and conditions of that contract may be found in the Petitioner's Exhibit No. 4, which is a copy of the contract admitted as evidence. The contract concerned residential property, and that property had been the subject of a listing through a real estate firm unaffiliated with the Lewis corporation. The listing broker was Aloia Realty. Kaklis had reviewed the multiple listings book in her office with the purchasers and had shown several other residences before the Shavers decided to purchase the Aalderink property. She also prepared the purchase contract which has been discussed. Respondent was not involved in the transaction, in the sense of actively showing property or consulting with the clients or in the preparation of the contract.

   
   

4. A real estate closing was held on the Aalderink property in February, 1981.

   
   

5. On February 17, 1981, George Lewis Realty, Inc., was paid a commission in the amount of $1,587.00, which represented the fifty (50) percent commission entitlement for the selling broker, with an equal amount being due the listing broker, Aloia Realty. The money paid the Lewis corporation was by a check which check was cashed by George Lewis. See Petitioner's Composite Exhibit No. 3.

   
   

6. In keeping with the terms and conditions of the employment agreement between Kaklis and George F. Lewis Realty, Inc., set forth in Petitioner's Exhibits Nos. 5 and 6, specifically the numbered paragraphs 4 and 5, at page 11 of Petitioner's Exhibit No. 6, Kaklis was to receive fifty (50) percent of the commission paid to George F. Lewis Realty, Inc., less franchise fees due to Better Homes and Gardens. (Petitioners Exhibit No. 5, is constituted of a copy of excerpts of the contract between Kaklis and Lewis Realty, Inc., in the person of George Lewis, and Petitioner's Exhibit No. 6 is a format of the complete contract signed by Kaklis with the corporation through the offices or George Lewis, broker for the corporation.)

   
   

7. Respondent was responsible for and obligated to Kaklis for the payment of her commission fee, which had been given to him by Kaklis by the delivery of a title company check which has been discussed herein. Nonetheless, Kaklis did not receive the commission fee for the sale of the Aalderink property and has been refused that commission in the face of repeated demands, on at least three

   (3) occasions. Respondent has always answered that request by stating that he did not have the money.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

9. Respondent is accused in this action of a violation of Subsection 475.25(1)(d), Florida Statutes, for failing to account or deliver, upon demand, money which he is not entitled to retain. This relates to his failure to pay a commission to Eleni Kaklis.

   
   

10. The subject provision makes it a violation for a broker to have:

    
    

    Failed to account or deliver to

    any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law, or

    in the absence of a fixed time, upon demand of the person entitled to such accounting and deliver, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share

    or portion thereof, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circum- stances. . . . Subsection 475.25(1)(d), Florida Statutes.

    
    

    On this occasion, Respondent was obligated to pay the commission fee to Kaklis and having failed to make that payment has violated Subsection 475.25(1)(d), Florida Statutes, and is subject to the penalties set forth in Section 475.25(1), Florida Statutes.

    
    

11. Based upon a full consideration of the facts and conclusions reached, it is

RECOMMENDED:

That a final order be entered by the Petitioner which suspends the license of Respondent, broker's license No. 0137645, for a period of one (1) year.

DONE and ENTERED this 22nd day of June, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 22 day of June, 1982.

ENDNOTE

1/ This Recommended Order is being entered following the review of the proposed recommended order offered by the Petitioner, as received by the Division of Administrative Hearings on May 21, 1982. To the extent that the proposed recommended order is consistent with this Recommended Order, it has been utilized. To the extent that the proposed recommended order is inconsistent with this Recommended Order, it is rejected.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

George F. Lewis

4237 Cane Coral Bridge Road Fort Myers, Florida 33907

George F. Lewis 3923 Marvaez Street

Fort Myers, Florida 33901

George F. Lewis 4708 S.E. 8th Court

Cape Coral, Florida 33904

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Fred Wilsen, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000204

Orders for Case No: 82-000204