STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3623

)

GARY R. BERKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 3, 1984, in Orlando, Florida. The transcript was received on April 23, 1984, and the parties requested 30 days thereafter to submit proposed findings of fact and conclusions of law, waiving the time limitation for the issuance of this recommended order. Proposed findings and conclusions were submitted, and these have been considered. Where not adopted and incorporated herein they were found to be irrelevant, immaterial, or not supported by the weight-of the evidence, and have been rejected.

APPEARANCES

For Petitioner: Robert Lee, Esquire

Post Office Box 1900 Orlando, Florida 32801

For Respondent: Gary Siegel, Esquire

Post Office Drawer 965 Fern Park, Florida 32730

By Administrative Complaint filed on October 25, 1983, the Respondent was charged with ten counts of preparing leases, collecting rents and deposits, and receiving compensation without the prior knowledge and consent of his employer, Act Now Real Estate, Inc. The Respondent was also charged with an eleventh count alleging that he requested another real estate salesman to pay a commission directly to him, thereby avoiding a brokerage commission to Act Now Real Estate, Inc. These charges were denied by the Respondent, and the matter went to a formal hearing.

The Petitioner presented five witnesses including the Respondent, and ten exhibits which were received in evidence. Prior to the commencement of the hearing, one of the ten counts charging the Respondent with unauthorized collection of rents and deposits was dismissed. Count eleven charging the Respondent with avoiding payment of a commission to his broker-employer by requesting another salesman to pay the commission directly to him was also abandoned by failure of the Petitioner to present evidence on this count.

FINDINGS OF FACT

1. The Respondent, Gary R. Berkson, is a licensed real estate salesman, holding license No. 034697.

   
   

2. From September 27, 1980, until May of 1983, the Respondent as a salesman working as an independent contractor for Act Now Real Estate, Inc., a corporate broker whose active qualifying brokers and officers were Robert F. Picheny and Thelma R. Sarkas.

   
   

3. Robert F. Picheny was subpoenaed and requested to bring with him the records of Act Now Real Estate, Inc., showing the disbursement of commissions to the Respondent. These records did not contain any entries relating to rental transactions involving the persons named in the complaint as having paid commissions to the Respondent.

   
   

4. The only lease offered and received in evidence was between Samuel Schnur, as lessor, and lessees named Davis and Johnston. Samuel Schnur, presented as one of the Petitioner's witnesses, did not pay a rental commission to the Respondent in connection with this lease.

   
   

5. Another lease transaction where the Respondent was alleged to have received rental commissions was between Sami Elmasri, as landlord, and Donald Bauerle, as tenant. Sami Elmasri, presented as another of the Petitioner's witnesses, testified that he paid a $300 commission, but that this was not paid to the Respondent. This commission was paid to another salesman, Wendy Corman.

   
   

6. The final witness for the Petitioner, except for the Respondent, was Wendy Corman. She showed Mr. Elmasri's property to persons wishing to rent through a lead given by the Respondent. She was paid a $300 commission by Mr. Elmasri. The Respondent did not receive any of this commission.

   
   

7. The Petitioner's final witness was the Respondent, who testified that he never received a commission for rental property. The only money he received in connection with rental properties was a management fee he received on some properties owned by Richard Jacobson. This fee was in payment for management services consisting of arranging for repairs to the properties such as painting it, repairs to the plumbing and the garage door, and being available to tenants with problems in the absence of the owner. These management fees continued even after the Respondent left Act Now Real Estate, Inc., until Mr. Jacobson assumed the management duties himself.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Section 120.57(1), Florida Statutes.

   
   

2. Section 475.25(1)(a), Florida Statutes, authorizes the Florida Real Estate Commission to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense, or issue a reprimand, if it finds that a licensee has violated any of the provisions of Section 475.42, Florida Statutes.

   
   

3. Section 475.42(1)(d), Florida Statutes, prohibits a salesman from collecting "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 (E.S.) However, there was not presented by the petitioner sufficient evidence to support a finding that the Respondent collected any commissions or rentals or any other money in connection with any real estate brokerage transaction except in the name of his employer. The only evidence presented was supplied by the Respondent, to the effect that he received some fees for management services which were not rendered in connection with any brokerage transactions. Since the Respondent was working for Act Now Real Estate, Inc., as an independent contractor and not as an employee, this collection of management fees not connected with any brokerage transaction does not violate this statute.

   
   

4. Section 475.42(1)(b), Florida Statutes, prohibits a salesman from operating "as a broker" or "as a salesman for any person not registered as his employer." There was not presented sufficient evidence to support a finding that the Respondent violated this statute.

   
   

5. Section 475.25(1)(b), Florida Statutes, authorizes the discipline of a licensee who is found guilty of fraud, misrepresentation, concealment, false promises false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. There is not sufficient evidence to support a finding that the Respondent is guilty of violating this statutory proscription.

   
   

6. In summary, the Petitioner failed to substantiate the allegations of the Administrative Complaint with substantial competent evidence, and the complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed against the Respondent,

Gary R. Berkson, be DISMISSED.

This Recommended Order entered this 13th day of June, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1984.

Docket for Case No: 83-003623

Orders for Case No: 83-003623