STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1527

)

GEORGE R. GURLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Lakeland, Florida, on December 12, 1983. The issue for consideration was whether Respondent's license as a real estate broker in the State of Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

For Petitioner: Fred Langford, Esquire

Department of Professional Regulation

400 West Robinson Street, Suite 308 Orlando, Florida 32801

For Respondent: George R. Gurley, pro se

800 East State Road 540A, No. 106 Lakeland, Florida 33803

BACKGROUND INFORMATION

By Administrative Complaint dated March 28, 1983, Petitioner charged Respondent with collecting money in a real estate brokerage transaction in his own name, failing to account for money which came into his hands, engaging in various dishonest activities in the practice of real estate and either breach of trust and/or culpable negligence in a business transaction, all in violation of various subsections of Section 475.25, Florida Statutes (1979).

At the hearing, Petitioner introduced the testimony of Joseph D. De Silvestro, Doris Parker, Keneth Montgomery, Hobart H. Joost, Karen Beck and Charlie J. Ziemba, and Petitioner's Exhibits 1 through 8. Respondent testified in his own behalf and called Doris Parker.

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under

   License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979.

   
   

2. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles

   J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles

   J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again,

   $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent.

   
   

3. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service.

   
   

4. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company.

   
   

5. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979.

   
   

6. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him.

   
   

7. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley

   acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all.

   
   

8. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was.

   
   

9. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for

   $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr.

   Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission.

   
   

10. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction.

    
    

11. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

13. In Count I, Respondent is charged with collecting money in connection with a real estate brokerage transaction in his own name, and not in the name of his employer, and without the express consent of his employer, in violation of

    Subsections 475.42(1)(d) and 475.25(1)(a), Florida Statutes (1979). Subsection 475.42(1)(d) states:

    
    

    1. VIOLATIONS.--

       (d) 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 com pensation in connection with a real estate brokerage transaction against any person except a person regis tered as his employer at the time the

       cause of action is alleged to have arisen.

       
       

       Since the evidence indicates that in this case Mr. Gurley received a check in his own name and was the beneficiary of an additional check to Mr. Ziemba, both of which, when taken together, constitute one-half of the $7,000 commission called for in the contract relative to the sale of the property to Mr. De Silvestro, directly from the title company, and not through his employing broker, R/D Parker Realty, he is in violation of this particular statutory provision. That being the case, he is also in violation of Subsection 475.25(1)(a), Florida Statutes (1979), which states:

       
       

       (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 administrative fine not to exceed $1,000 for each count or sepa rate 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)....

       
       

14. In Count II of the Administrative Complaint, Mr. Gurley is alleged to have failed to account for personal property--such as money, funds, deposits, checks, etc.--which has come into his hands and which is not his property or which he is not under the law entitled to retain under the circumstances, in violation of Subsection 475.25(1)(d) Florida Statutes (1979). Under the circumstances of this case, no demand was ever made upon Mr. Gurley by R/D Parker Realty Company for any funds alleged owed to it by Respondent or belonging to it which are held by Respondent. Therefore, in light of the situation here, while Mr. Gurley may have improperly received his portion of the commission directly from the title company without going through his broker in violation of another section of the statute, his conduct does not constitute a violation of this particular subsection of the statute.

    
    

15. In Count III, Respondent is alleged to be guilty of fraud, misrepresentation, concealment, false promises, false pretenses and numerous

    other violations which, in Paragraph 25 of the Administrative Complaint, are copied directly from the language of Subsection 475.25(1)(b), Florida Statutes (1979). All of the above-indicated instances of alleged misconduct require, for a finding of guilt, some showing that Respondent misrepresented or concealed in some fashion information which he should have communicated to another to whom he owed a duty under the terms of the listing contract.

    
    

16. There is no evidence of fraud, misrepresentation, false promises, false pretenses, dishonest dealing by trick, scheme, or device, or culpable negligence in this case, especially since Gurley was working with the office manager for his brokers. At most, there is a showing of possible concealment or breach of trust in Respondent's accepting his commission directly from the proceeds of the sale and from the closing agent without his payment being channeled through his broker. That circumstance is exactly the basis for the alleged violation in Count I and is multiplicious.

    
    

17. In Count IV, Petitioner alleges that Respondent's conduct in authorizing the reduction in the commission on the sale to De Silvestro to the 5 percent paid to Respondent only and for failing to ensure the proper commission was received by his broker constitutes breach of trust and/or culpable negligence, in violation of Subsection 475.25(1)(b), which is recited above.

    
    

18. Petitioner's contention is that not only did Respondent violate the statute by accenting his commission directly in his own name, and not through his broker, but that he also had the obligation to ensure that the full commission was paid, including that portion (5 percent) which would in the ordinary course of business be payable to the broker, Parker Realty.

    
    

19. The right of sale (listing) contract calls for Parker Realty to receive a 10 percent commission on the purchase price with Respondent subsequently receiving half of that as the listing and selling agent. There is no evidence that Respondent, as the salesman, authorized the reduction in commission, but the evidence does show that he failed to ensure the proper commission was received, as was stated in the discussion of Count III. At best, this constitutes a technical breach of trust, in violation of the statute.

    
    

20. The Petitioner has submitted a Proposed Recommended Order which includes 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 above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

In light of the foregoing, it is, therefore, RECOMMENDED:

That Respondent be reprimanded.

RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 31st day of January, 1984.

COPIES FURNISHED:

Fred Langford, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. George R. Gurley

800 East State Road 540A, #106

Lakeland, Florida 33803

Mr. Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on March 20, 1984 to issue a Final Order.

Hearing Officer Arnold H. Pollock of the Division of Administrative Hearings presided over a formal hearing on December 12, 1983. On January 31, 1984, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

However, as to the Recommendation, after a complete review of the record, the Florida Real Estate Commission hereby ORDERS that Respondent's real estate license be suspended for a period of thirty (30) days.

Respondent is required to file a petition for reinstatement with the Florida Real Estate Commission.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 20th day of March 1984 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: George R. Gurley, 800 E. State Road 540A, #106, Lakeland, Florida 33803; to Hearing Officer Arnold H. Pollock, Division of Administrative

Hearings, 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 3rd day of April, 1984.

Harold R. Huff, Director

LG:pep

Docket for Case No: 83-001527

Orders for Case No: 83-001527