STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-602

)

JACQUELINE B. OUSLEY and ) TOUCH OF CLASS REALTY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in West Palm Beach, Florida, on July 14, 1983, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon an Administrative Complaint filed by the Petitioner, Department of Professional Regulation, Florida Real Estate Commission, which alleges that the Respondents, Jacqueline

1. Ousley and Touch of Class Realty, Inc., violated Sections 475.25(1)(b) and (d), Florida Statutes, by making false promises, dealing dishonestly, attempting to defraud an associate out of an earned commission, and failing to account for and deliver said commission to the associate upon demand after closing. The Respondents filed a timely request for an administrative hearing, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to the provisions of Section 120.57, Florida Statutes.

   
   

   APPEARANCES

   
   

   For Petitioner: Fred Langford, Esquire

   Department of Professional Regulation

   400 West Robinson Street Orlando, Florida 32801

   
   

   For Respondents: Donald P. Kohl, Esquire

   3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461

   
   

   ISSUES

   
   

   The Administrative Complaint alleges that the Respondents are guilty of fraudulently withholding a commission and failing to account for said commission. The Respondents contend that there was no commission owed to the salesperson because the salesperson did not obtain the listing contract upon which the transaction closed and had been discharged for cause before a contract for purchase was obtained. The factual issues upon which the case is determined is whether the listing contract upon which the transaction closed was obtained by the salesperson who claimed the commission, and whether the contract for purchase was received before the salesperson was discharged for good cause.

   Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant to the allegations of the Administrative Complaint and at the time of hearing, the Respondent, Jacqueline B. Ousley, held real estate broker's license number 0333339 and operated the Respondent corporation, Touch of Class Realty, Inc., which held corporate real estate broker's license number 0218522. Both licenses were issued by the Florida Real Estate Commission. (See Petitioner's Exhibit 1.)

      
      

   2. Diane Carroll was employed by the Respondents as a real estate salesperson from February to June l2, 1982. On June 13, 1982, Ms. Carroll was discharged for good cause by the Respondents.

      
      

   3. On May 25, 1982, Ms. Carroll obtained an open listing on the Breezeway Motel, 2001 North Dixie Highway, Lake Worth, Florida, from Carl C. Summerson. This listing was good through June 25, 1982. (See Petitioner's Exhibit 2.)

      
      

   4. Based upon this contract, the Respondents showed the property to prospective buyers, to include Anthony and Deborah Hedley, the ultimate purchasers of the property. However, after the Hedleys had become interested in the property, the Respondents became aware that Summerson was not the sole owner of the Breezeway Motel.

      
      

   5. Because of the interest of the Hedleys and the prospects of selling the property, the Respondents sought and obtained an exclusive listing agreement from both owners of the motel, Carl Summerson and Roy Chapin, which was signed on June 14, 1982. As an exclusive listing, this contract supplanted the open listing obtained by Ms. Carroll on May 25, 1982.

      
      

   6. The Respondents obtained an offer to purchase the Breezeway Motel from the Hedleys on June 16, 1982, which offer was accepted by Summerson and Chapin. This transaction closed, and the Respondents received one-half of the ten percent commission, $33,800.

      
      

   7. The custom of the profession is that salespersons earn a listing commission on a listing contract obtained by them while they were employed if a contract for the purchase of the property is obtained before the salesperson leaves the broker's employment.

      
      

   8. The Respondents tendered a "referral fee" of $845 to Ms. Carroll, as opposed to a salesperson's share of the commission which was $5,070. Ms. Carroll has a civil action pending, seeking to obtain payment of the commission.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Florida Real Estate Commission has authority to discipline its licensees pursuant to Chapter 475, Florida Statutes. This Recommended Order is entered pursuant to the authority of Section 120.57(1), Florida Statutes.

      
      

   10. The Respondents are charged with violating Sections 475.25(1)(b) and (d), Florida Statutes, by fraudulently withholding a salesperson's commission

       and by failing to account for said commission upon demand of the salesperson. In order to prove the alleged violation, the Petitioner must prove that the commission was owed to the salesperson. The facts show that the contract obtained by the salesperson in this instance was supplanted by the exclusive listing agreement obtained by the Respondents and signed by both owners of the property, and that the offer to purchase was not received by the Respondents until June l6, 1982, three days after the salesperson was terminated. Although there were mitigating factors, there is no question that the discharge of the salesperson by the Respondents was for good cause.

       
       

   11. The legal issue is whether a broker owes a commission to a salesperson who obtains an open listing contract from one of two owners of real property if the salesperson is terminated for good cause before a contract for sale is received and the broker thereafter obtains an exclusive listing agreement from both owners of the property. While seemingly complex, the answer to this question is determined by well-established principles of real estate law.

First, it is well established that the listing salesperson does not become entitled to a commission until the contract for sale is obtained. See Markowitz

v. Harley (1961) 17 Fla. Supp 165. Second, a salesperson is prohibited from commencing or maintaining an action against anyone except a person registered as his or her broker when the cause of action is alleged to have arisen. See Section 475.42(1)(d), Florida Statutes. In this case, the salesperson was not employed by the broker at the time the sales contract was received. The Respondents do not owe the salesperson a commission and are not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged.

RECOMMENDATION

Having found the Respondents not guilty of violating Sections 475.25(1)(b) and (d), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Florida Real Estate Commission dismiss the Administrative Complaint against the Respondents, Jacqueline B. Ousley and Toch of Class Realty, Inc.

DONE and RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 3rd day of October, 1983.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

Donald P. Kohl, Esquire 3003 South Congress Avenue,

Suite 1A

Palm Springs, Florida 33461

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Randy Schwartz, Esquire Department of Legal Affairs

400 West Robinson Street, Suite 212

Orlando, Florida 32801

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. Case No. 0026083

DOAH No. 83-602

JACQUELINE B. OUSLEY and TOUCH OF CLASS REALTY INC.

Respondents.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on November 29, 1983 to issue a Final Order.

Hearing Officer Stephen F. Dean of the Division of Administrative Hearings presided over a formal hearing on July l4, 1983. On October 3, 1983, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact, Conclusions of Law and Recommendation, with the exception that the Commission specifically rejects the Conclusion of Law on Page

4 of the Recommended Order and makes an addition to the Conclusions of Law on Page 4. This rejection and addition are reflected on Exhibit A of this Order, which is a copy of the Recommended Order.

It is therefore ORDERED that the Complaint against the Respondents be dismissed.

DONE AND ORDERED this 29th day of November 1983 in Orlando, Florida.

Brian J. Ladell, Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: Donald P. Kohl, Esquire, 3003 South Congress Avenue, Suite 1A, Palm Springs, Florida 33461; to the Division of Administrative Hearings, Hearing Officer Stephen Dean, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Fred Langford, Attorney for Petitioner, Dept. of Professional Regulation P. O. Box 1900, Orlando, Florida 32802, this day 14th day of December 1983.

Harold R. Huff, Director

LC:pep

Docket for Case No: 83-000602

Orders for Case No: 83-000602