STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE )

COMMISSION (formerly Board of ) Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 82-842

)

WILLIAM F. CASLER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 7, 1982. The following appearances were entered:

APPEARANCES

For Petitioner: Theodore R. Gay

Tallahassee, Florida

For Respondent: William F. Casler, Sr.

St. Petersburg Beach, Florida

The Petitioner has filed an Administrative Complaint against the Respondent. Petitioner is seeking to suspend or revoke the Respondent's license to practice real estate, or to take other appropriate disciplinary action against the Respondent. The Respondent requested a formal administrative hearing, and Petitioner forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated April 23, 1982.

At the final hearing, Petitioner called the following witnesses: Sandra McCoy, a licensed real estate broker/salesman who formerly worked with the Respondent; Joyce Clifton, a licensed real estate salesman; and Ronald Lau, an investigator formerly employed by the Department of Professional Regulation.

Respondent testified as a witness on his own behalf. Petitioner's Exhibits 1, 2 and 3 and Respondent's Exhibits 1, 2 and 3 were offered into evidence and received. The parties have submitted post-hearing memoranda which include Proposed Findings of Fact and Conclusions of Law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The issues in this proceeding are whether the Respondent has violated provisions of the real estate licensing law and, if so, what disciplinary action should be taken against him. The Administrative Complaint is in two counts.

The Petitioner is charged with failing to account and deliver a share of a real estate commission to a real estate salesman and with failing to keep the Petitioner advised as to the nature and location of his real estate activities. Respondent denies these allegations.

There were conflicts in the testimony of the witnesses, specifically between the testimony of Sandra McCoy and the testimony of the Respondent. In resolving the inconsistencies, due regard has been given to the extent to which the witnesses' testimony is corroborated by other evidence and the demeanor of the witnesses at the hearing.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent has been licensed by the Petitioner as a real estate broker.

   
   

2. During November, 1979, the Respondent was the broker for a condominium project located in Seminole, Florida, known as Seminole Country Green. Sandra McCoy was a real estate salesman licensed by Petitioner. She obtained her license in May, 1979, and between then and November, 1979, practiced in general real estate sales. She was interested in working in on-site condominium sales. She applied for positions with the Respondent and with several other brokers. A few days prior to November 11, 1979, McCoy went to work with the Respondent. It was the Respondent's intention, communicated to McCoy, that she not immediately engage in sales of condominium units, but rather that she serve as a receptionist and take time to study the various condominium documents and to learn about the units that she would be selling.

   
   

3. On November 1, 1979, Joyce Clifton, a real estate salesman who worked with another firm, visited the Seminole Country Green project. Clifton had clients who were interested in purchasing a condominium. Clifton had read about Seminole Country Green and felt that it might be the sort of property that her clients desired. When she arrived at the project on November 11, Clifton, accompanied by her husband, was met by Sandra McCoy. McCoy spent approximately

   45 minutes showing the project and several condominium units to the Cliftons. Mrs. Clifton filled out a registration card listing her clients in order to assure that she would be entitled to receive her appropriate share of any real estate commission that ultimately resulted. On the next day, November 12, Mrs. Clifton returned to the project with her clients. She asked for Sandra McCoy, but McCoy was not present. Clifton showed her clients around the project unaccompanied by any of Respondent's employees. On November 13, Clifton's clients returned to the project and entered into a contract to purchase a unit. The contract was prepared by McCoy, and McCoy's signature appears as a witness to the signature of the purchasers.

   
   

4. It was the Respondent's practice to have new salesmen serve a training period whereupon he would enter into an employment contract. Such a contract, which would have been effective November 15, 1979, was presented to Sandra McCoy. McCoy declined to sign the contract, stating that she wished to have it examined by an attorney. Actually, McCoy had employment applications pending with other brokers. After working with Respondent for approximately ten days, she was offered a position at a larger condominium project by one of these

   brokers, and she accepted it. She notified the Respondent and left Seminole Country Green immediately. This occurred within a few days of November 13, 1979. In order to close on the transaction with Clifton's clients, a salesman at Seminole Country Green had many responsibilities beyond merely drafting a contract. Carpeting, wallpaper, and appliance selections needed to be made, and numerous details needed to be arranged. McCoy performed none of these functions. They were performed by the Respondent personally, who was shorthanded due to McCoy's leaving the project.

   
   

5. Respondent and McCoy never entered into any contract whereby McCoy would serve as a real estate salesman. While such a contract was offered her, she did not sign it. No implied contract arose between the parties. While McCoy performed services in the transaction with Clifton's clients which would ordinarily be performed by a real estate salesman, she was not serving in that capacity at that time with the Respondent. Rather, she was working as a trainee. She was not authorized to show apartments and to prepare sales documents. The amount of commission that the Respondent received in the transaction with Mrs. Clifton's clients was not made a matter of evidence.

   
   

6. It is charged in the Administrative Complaint that the Respondent failed to keep the Petitioner apprised of the nature and location of his business during 1981. One of the Petitioner's investigators sought to locate Respondent during July or August, 1981, using what he considered to be the most current address from the petitioner's file. It is apparent that wherever the investigator obtained an address, it was not the most current material on file with Petitioner. The evidence reveals that Respondent did business during 1981 in several different capacities at several different locations. The evidence also reveals that he submitted several change of status and change of address forms to Petitioner. The evidence does not reveal that Respondent was at any time other than current in registering his business status and location with Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

8. The Respondent is charged in Count I of the Administrative Complaint with violating Section 475.25(1)(d), Florida Statutes, in that he failed to account and deliver a share of a real estate commission to Sandra McCoy. The evidence does not establish that Sandra McCoy was entitled to any share of a real estate commission, and Count I of the Complaint should be dismissed.

   
   

9. In Count II of the Administrative Complaint, it is charged that the Respondent violated the provisions of Sections 475.22, 475.23, and 475.25(1)(e), Florida Statutes, as well as various rules of the Petitioner by failing to properly register the nature and location of his businesses. These allegations are not supported by the evidence.

RECOMMENDATION

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

That a final order be entered by the Department of Professional Regulation, Florida Real Estate Commission, dismissing the Administrative Complaint filed against William F. Casler, Jr.

RECOMMENDED this 17th day of August, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 17th day of August, 1982.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William F. Casler, Sr., Esquire 7217 Gulf Boulevard, Suite 14

St. Petersburg Beach, Florida 33706

Fred Wilsen, Esquire Department of Professional

Regulation

400 West Robinson Orlando, Florida 32801

Mr. C. B. Stafford Executive Director

Florida Real Estate Commission

P. O. Box 1900

Orlando, Florida 32802

Mr. Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000842

Orders for Case No: 82-000842