STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION/FLORIDA REAL )

ESTATE COMMISSION (formerly ) BOARD OF REAL ESTATE), )

)

Petitioner, )

)

vs. ) CASE NO. 82-1078

)

GERALD GOLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, on June 24, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mr. Gerald Golub

11025 University Boulevard

Orlando, Florida 32817

This matter arose on Petitioner's Administrative Complaint which charges Respondent with failure to account for or deliver real estate commissions to a salesman in his employ, in violation of Subsection 475.25(1)(d), Florida Statutes (1979)(F.S.). The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Gerald Golub, held real estate broker's license number 0032443, issued by the Florida Real Estate Commission and was registered as a broker with Gerald Realty, 11025 University Boulevard, Orlando, Florida 32817.

   
   

2. During December, 1978, S. Michael Senia, a registered real estate salesman then employed by Respondent, negotiated a 3-year lease between Pentagram, a Florida general partnership, as lessor and S. and M. Specialities, Inc., doing business as Global Coach and Armor Manufacturing Company as lessee.

   
   

3. This lease extended through December 31, 1981, and provided that Respondent was to receive commissions, from Pentagram, paid over the 3-year period of the lease as follows:

   7 percent during the first year

   5 percent during the second year

   3 percent during the third year

   
   

4. Respondent and Senia agreed that Senia was to receive 60 percent of the above commissions as salesman, and Respondent was to retain the remaining 40 percent as broker. Respondent received the commissions as provided in the lease and paid Senia his share until he left Respondent's employ in November of 1979. Senia also received commissions for the months of December, 1979, and January and February, 1980. Thereafter the commission payments to Senia ceased.

   
   

5. Beginning in May, 1980, Senia made demand upon Respondent for an accounting or delivery of the commissions which he claimed were due. See Petitioner's Exhibits one and two. On July 24, 1981, and October 8, 1981, representatives of the Department of Professional Regulation requested that Respondent provide Senia with an accounting of the commissions due on the aforementioned lease.

   
   

6. Respondent failed to provide Senia or Petitioner with an accounting or delivery of the aforementioned commissions claimed until after the Administrative Complaint was filed against Respondent on December 29, 1981. However, Respondent had advised Senia, around midyear 1981, that he would not pay the $144 due at the end of April, 1980, until Senia returned office keys, certain files and a list of items he was working on when he left Gerald Realty. See Petitioner's Exhibit one.

   
   

   CONCLUSIONS OF LAW

   
   

   Section 475.25, 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 re- voke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

      (d) 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 ab- sense of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, ab- stract 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 pro- fit, 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 circumstances. However, if the licensee, in good faith, enter-

      tains 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 prop- erty; 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 result- ing therefrom, no administrative complaint may be filed against the licensee for fail- ure to account for, deliver, or maintain the escrowed property . . .

      
      

7. Respondent failed to provide the accounting or delivery of commissions required by the above provisions until after the Administrative Complaint was filed. If, as Respondent contends, he had good faith reasons for not delivering to Senia the latter's share of the commissions, he was nonetheless required by the above quoted provisions to promptly notify Petitioner of such reasons. Respondent was further required to exercise one of the three "escape procedures" described in the above statute. Respondent failed to notify Petitioner of his reasons for withholding the commissions and did not exercise the required escape procedure. He is, therefore, guilty of violating Subsection 475.25(1)(d), F.S., as charged in the Administrative Complaint.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of violating Subsection 475.25(1)(d), F.S., and, in consideration thereof, fine Respondent

$500.

DONE and ENTERED this 4th day of August, 1982 in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

FILED with the Clerk of the Division of Administrative Hearings this 4th day of August, 1982.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gerald Golub

11025 University Boulevard

Orlando, Florida 32817

Frederick H. Wilsen, Esquire State Office Building

400 West Robinson Street Orlando, Florida 32801

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001078

Orders for Case No: 82-001078