CORTHLAND R. DUSSEAU, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on May 23, 1983, in St. Petersburg, Florida. The issue for determination was whether the real estate license issued to Respondent should be suspended, revoked, or otherwise disciplined because of alleged misconduct as set out in the Administrative Complaint.
For Respondent: Stephen M. Crawford, Esquire
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
On October 26, 1982, an Administrative Complaint was filed in this case alleging in two counts that (1) Respondent operated as a salesman for one not registered as his employer, and (2) Respondent collected money in connection with a real estate brokerage transaction not in the name of his licensed employer and without the express consent of his licensed employer, in violation of Sections 475.42(1)(b) and (d) Florida Statutes (1981), respectively.
Respondent thereafter executed an Election of Rights form disputing the allegations against him and demanded a formal hearing.
Petitioner presented the testimony of Timothy J. Kerwin; James W. Roberts, Jr.; and Respondent; and Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf and presented the testimony of Mark M. Mayers.
At all times pertinent to the allegations contained in this case, Respondent was a Florida licensed real estate salesman, having been issued license numbered 0376339.
Respondent had been employed by American Specialty Properties (ASP) for several years as an expediter prior to being assigned to Tampa, Florida. As an expediter, his duties were to take over stagnated operations of his employer and take whatever action was necessary to clear blockages and bring the operation to a successful conclusion.
Respondent came to Tampa to resolve difficulties his employer, ASP, was encountering in regard to certain properties it had contracted to purchase at the Mission Bell Square shopping center being developed in Tampa by K-Mart Corporation. ASP wanted to build on the out-lots and lease the properties to various selected tenants. However, numerous legal and technical problems had come up that delayed the projects, and Respondent was to resolve those problems and get the structures erected and leased.
It very soon became apparent to Respondent that his duties for ASP would not occupy all his time, so he secured the permission of Mark M. Mayers, president of ASP and Respondent's employer, to apply for a Florida real estate license and, once having secured it, to engage in outside employment to earn extra income.
In furtherance of that plan, after becoming licensed as a real estate salesman, Respondent entered into an arrangement with Timothy Kerwin, president of Max Properties, Inc., in November, 1980, whereby Respondent's license would be registered with that firm, but no actual work would be done within that relationship by Respondent until some further date when Respondent was finished with his Mission Bell Square duties and room was available for him within the Max Properties organization. Kerwin says he does not recall knowing of Respondent's other employment with ASP until February, 1982, when he discovered that Respondent had been instrumental in the sale of the four out-lots at Mission Bell Square, which sale had not gone through Max Properties. He does admit, however, that Respondent may have discussed his work with ASP earlier than February, 1982, and in fact may have advised him that he, Respondent, still had work to do for ASP before he could do work for Kerwin. Kerwin did not, however, check with ASP to determine Respondent's status when he became aware of the possible conflict. When Kerwin found out about the closing of the sales on the Mission Bell Square out-lots, he questioned Respondent about them, and Respondent readily advised him that two lots had been closed and the remaining two were about to be closed.
Respondent did bring about the sale of the four out-lots in question. At the time he did this, he was an employee of ASP and paid a regular salary of
$2,000 per month plus expenses.
A memorandum purportedly from Mr. Mayers dated March 25, 1982, to James
W. Roberts, Jr., an independent real estate broker who-had done work on this property for ASP, indicates Respondent was to receive $1,250 commission for the sale of each of the four lots. However, Mr. Mayers indicated that he did not prepare the memorandum, did not sign it, and renounced it. In fact, Mr. Mayers' assistant, Tom Ferguson, in discussions with Mr. Roberts, indicated that notwithstanding the commissions mentioned in the memorandum, Respondent was paid only salary and expenses, and no commissions. I find, therefore, that Respondent
did not receive any commission for these transactions nor, for that matter, at any time while he was an employee of ASP.
The sale of the four lots was dictated by Respondent's employers at ASP, who, because of changed economic factors, made a business decision to dispose of the four properties rather than follow the prior plan of developing and leasing them. Respondent, in arranging the sales, was following the directions of his employers--not serving as a broker or salesman for commission. The sales were arranged through the offices of Mr. Roberts, and Respondent did not receive any commission out of these sales. He did, however, receive a bonus to his regular salary from ASP, his employer, as a reward for extricating his employer from a potentially unprofitable business arrangement. The negotiations for the sale, however, were conducted during the time Respondent's real estate license was registered with Max Properties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
In Count I, Respondent is alleged to have violated Subsection 475.42(1)(b), Florida Statutes (1981), which states:
No person licensed as a salesman shall operate as a broker or operate as a salesman for any person not registered as his employer.
and thereby violating Subsection 475.25(1)(a), Florida Statutes (1981), which states:
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 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:
(a) Violated any provision of s. 475.42 or of s. 455.227(1) . . . .
by having operated as a broker or as a salesman for a person or corporation not registered as his employer.
The evidence submitted at this hearing clearly shows that at the time Respondent was instrumental in the sales of the out-lots at K-Mart Mission Bell Square Plaza, he was a full-time, salaried employee of ASP, the owner of the properties. Part of his duties with ASP at that time were to bring about the disposal of those properties, and he did so without receiving any commission on the sale. The brokerage/sale of the properties was arranged by James W. Roberts, Jr., whose company received a commission on the sale. That Respondent may have worked with Roberts in bringing about the sale notwithstanding, he was, at that time, the employee and agent of, and was following the direction of, his major, full-time employer, ASP, and he did not serve as salesman or broker in this transaction.
In Count II, Respondent is alleged to have violated Subsection 475.42(1)(d), Florida Statutes (1981), which states:
No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or
otherwise, except in the name of the employer and with the express consent of the employer; and no real estate salesman, whether the holder of a valid and current license or not, shall commence or maintain any action for a commission or compensation in
connection with a real estate brokerage transaction against any person
except a person registered as his employer at the time the cause of action is alleged to have arisen.
and thereby violated Subsection 475.25(1)(a), Florida Statutes (1981), cited supra, by collecting money in connection with a real estate brokerage transaction not in the name of, or with the express consent of, his licensed employer.
The evidence does not show that the Respondent received any money other than his regular salary and expenses from his employer, ASP, for the sale of these properties in question. Any implication of payment, however, has been clearly shown by the testimony of Mr. Mayers and Mr. Roberts to have been in the form of a bonus rather than commission, and there is no impropriety or irregularity proscribed in this or any other statute in its receipt.
