STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-821

)

FLORIDA GOLD COAST REAL ) ESTATE III, INC., MARTIN S. ) STEINHARDT AND VERNON J. QUIGLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on July 1, and September 8, 1982, in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Cynthia G. T. Allen, Esquire

Gerald S. Lesher, Esquire

189 Bradley Place

Palm Beach, Florida 33480

For Respondents Martin

Steinhardt and Florida Rod Tennyson, Esquire Gold Coast Real Estate 325-C Clematis Street

III, Inc.: West Palm Beach, Florida 33401

For Respondent: Vernon J. Quigley, pro se

8920 North Military Trail

Palm Beach Gardens, Florida 33410

This matter arose on Petitioner's Administrative Complaint charging Respondent with lease, zoning and building permit violations pertaining to a real estate school operated from a condominium office building. Respondents Steinhardt and Florida Gold Coast Real Estate III, Inc. (FGCRE) are also charged with failure to deliver a real estate commission.

Respondents were unrepresented at the initial hearing and a continuance was granted to permit them to retain counsel. Subsequently, the Administrative Complaint as to Respondent Quigley was dismissed. An Amended Administrative Complaint was presented at the continued hearing but was rejected as not timely. See Rule 28-5.202, Florida Administrative Code.

The parties submitted proposed findings of fact and conclusions of law. The proposed findings are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Martin S. Steinhardt was president of FGCRE and was a qualifying real estate broker for this corporation. Steinhardt was also the president and operator of Gold Coast School of Real Estate III, Inc. (GCSRE), which is not a party to this proceeding, during the pertinent period.

   
   

2. On May 8, 1979, Steinhardt, on behalf of GCSRE, entered into a lease with Robin Cook pertaining to two units of a condominium office building in West Palm Beach. Numerous problems arose thereafter culminating in the eviction of GCSRE by Court Order issued on September 30, 1981.

   
   

3. Petitioner established that the lease was in violation of the condominium association by-laws. This was, however, the responsibility of the lessor who was a member of the association and bound by its rules. The disputes which arose over parking, noise, damage to property, etc. were landlord-tenant matters and are not relevant to the statutes under which Respondents are charged here.

   
   

4. Steinhardt and GCSRE violated local ordinances by failing to obtain an occupation license, a building permit, and a certificate of occupancy. However, these violations were resolved when the necessary documents were secured, and no formal legal action was taken.

   
   

5. Vannoy Banks was associated with Steinhardt in the operation of FGCRE. He obtained a listing on a house which was subsequently purchased by an employee of FGCRE. Banks believed he was entitled to 50 percent of the $1,300 sales commission, which had been reduced and deferred to accommodate the buyer.

   
   

6. Following this sale, Banks and Steinhardt dissolved their relationship and have subsequently been involved in disputes and litigation over other matters. Banks has not been paid a share of this commission nor has he received an accounting on the transaction.

   
   

7. The testimony of the buyer and seller established that a commission of

   $1,300 was paid on the transaction. Steinhardt concedes that he did not deliver any of these funds to Banks nor did he furnish a formal accounting. However, he contends that Banks was not due a separate commission since he shared in the corporate profits and that Banks never demanded a commission share or an accounting.

   
   

   CONCLUSIONS OF LAW

   
   

8. Subsection 475.25(1), Florida Statutes (F.S.), provides in part:

   
   

   1. The board may deny an application for licensure or renewal, may suspend a

      license for a period not exceeding 10 years, may revoke a license, may impose an admin- istrative fine not to exceed $1,000 for

      each count or separate offense, or may is- sue a reprimand, if it finds that the li-

      censee or applicant has:

      (b) Been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach

      of trust in any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law

      or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and has committed an

      overt act in furtherance of such intent, design, or scheme. It shall be immaterial to

      the guilt of the licensee that the vic- tim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a cus- tomer or a person in confidential relation with the licensee, or was an indentified member of the general public;

      (d) Failed to account or deliver to any person, including a licensee under this chap- ter, 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 en- titled to such accounting and delivery, 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 cir-

      cumstances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of

      the escrowed property, or if conflicting de- mands have been made upon him for the escrowed property, which property he still maintains

      in his escrow or trust account, the licensee shall promptly notify the board of such doubts and shall promptly:

      1. Request that the board issue an escrow disbursement order determining who is entitled to the escrowed property; or

      2. With the consent of all parties, submit the matter to arbitration; or

      3. By interpleader or otherwise, seek adjudication of the matter by a court.

      If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may

      be filed against the licensee for failure to account for, deliver, or maintain the escrowed property;

      
      

9. Subsection 475.25(1)(b), F.S., condemns dishonesty and corruption in any real estate transaction. Respondents are charged with such misconduct in the condominium tenancy. Although there were various grounds for complaint by the condominium association and the City of West Palm Beach, none of these matters involved any corrupt conduct or dishonest dealing on the part of any Respondent to this proceeding. Therefore, Counts 1, 2, and 3 of the Administrative Complaint should be dismissed.

   
   

10. Subsection 475.25(1)(d), F.S., requires a broker to deliver or account for real estate commissions as agreed or upon demand of a person entitled thereto. Vannoy Banks testified that he was entitled to such a commission but produced no documents to demonstrate that he was due a commission or that he had ever made a demand for such. There was no evidence beyond his testimony to support his version of the commission dispute. In view of the animosity between Banks and Steinhardt, this evidence is not sufficient to support a finding of guilt. Count 4 of the Administrative Complaint should therefore be dismissed.

RECOMMENDATION

From the foregoing findings, it is RECOMMENDED:

The Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 6th day of October, 1982, in Tallahassee, Florida.

R. T. CARPENTER, 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 6th day of October, 1982.

COPIES FURNISHED:

Cynthia G. T. Allen, Esquire Gerald S. Lesher, Esquire

189 Bradley Place

Palm Beach, Florida 33480

Rod Tennyson, Esquire 325-C Clematis Street

West Palm Beach, Florida 33401

Vernon J. Quigley

8920 North Military Trail

Palm Beach Gardens, Florida 33410

Frederick H. Wilsen, Esquire Department of Professional

Regulation

P.O. Box 1900

Orlando, Florida 32802

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

Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000821

Orders for Case No: 82-000821