STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0724

)

WILLIAM H. KLEBOLD AND )

WOODMONT REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

On June 5, 1984, the undersigned Hearing Officer heard oral argument via telephone conference call on the Respondents' Motion to Dismiss. Upon review of the pleadings in this case and consideration of the arguments of counsel for the parties, and being otherwise fully advised in the premises, I hereby make the following findings of fact, conclusions of law, and recommendation for the reasons explicated below.

FINDINGS OF FACT

1. On January 23, 1984, the Secretary of the Department of professional Regulation (hereinafter "Department") signed an Administrative Complaint, count one of which alleges, in pertinent part:

   
   

   1. Respondents in their capacity as real estate brokers employed Doris H. Swanton as a real estate broker and office manager from approximately October 20, 1980 to April 18, 1982.

      
      

   2. On or about April 8, 1982 to the present, Doris H. Swanton has made numerous and repeated demands upon Respondents for the payment of

      a share of the compensation received by Respondent and earned by Doris H. Swanton while in the employ of the Respondents in the amount totalling approximately $7,815.52 involving

      a number of brokerage transactions. A copy of a list reflecting the transactions, dates and amounts owing is attached as Petitioner's Exhibit 1.

      
      

   3. Since April 8, 1982, Respondents have failed, refused and neglected to give a reasonable accounting or to pay Doris H. Swanton the $7,815.52 or any part thereof

      notwithstanding the demands for same made upon Respondents by Doris H. Swanton, the person entitled to said money.

      
      

   4. That by reason of the foregoing, Respondents are guilty of having failed to account and deliver a share of a real estate commission and other compensation to Doris H. Swanton in violation of

      Subsection 475.25(1)(d), Florida Statutes.

      
      

2. The Administrative Complaint signed on January 23, 1984, does not contain an allegation that there has been a judicial determination that Respondents are not entitled to retain the property claimed by Doris H. Swanton.

   
   

3. On February 22, 1984, the Respondents served an Answer and Written Defenses in which the Respondents, inter alia, admit the first of the paragraphs quoted in finding number 1, above, and deny the other three paragraphs quoted above. The Respondents' Answer and Written Defenses also sets forth a detailed itemization of Respondents' reasons for contending that Doris H. Swanton is not entitled to the full amount of a single one of the twelve commissions she claims are due her from the Respondents.

   
   

   ANALYSIS OF THE ISSUES

   
   

   The thesis of the Motion to Dismiss filed by Respondents is that a broker cannot be disciplined for failure to account for and deliver non-escrowed property until there has been a judicial determination that the broker is not entitled to retain the property in dispute. The case of Golub v. Department of Professional Regulation, F.R.E.C., 9 FLW 460 (Fla. 5th DCA, Feb. 23, 1984), appears to be exactly on point. There a majority of the court concluded:

   
   

   Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute [475.25(1)(d)] is authority to discipline the broker for a failure to account and deliver the property to any person,

   including a salesman, who is entitled to its prossession.

   
   

   Corollary to the quoted language from Golub is the conclusion that until there is a judicial determination that a broker is not entitled to retain non- escrowed property, the statute does not authorize discipline of a broker for failure toe account and deliver the property. In other words, when the property in dispute is non-escrowed property, a judicial determination that a broker is not entitled to retain the property is an indispensable prerequisite to the establishment of a violation of Section 475.25(1)(d), Florida Statutes, on the basis of a failure to account for or deliver such property. Accordingly, until a court determines that the Respondents in this case are not entitled to retain the property in dispute in this case, it cannot be established that Respondents have violated Section 475.25(1)(d), Florida Statutes. And inasmuch as the Administrative Complaint fails to allege that there has been any such judicial determination, the Administrative Complaint is fatally deficient.

   CONCLUSIONS OF LAW

   
   

4. With regard to claims involving non-escrowed property, there cannot be a violation of Section 475.25(1)(d), Florida Statutes, until a court determines that the broker is not entitled to retain the property in dispute.

   
   

5. The Administrative Complaint in this case, by reason of its failure to allege the existence of such a judicial determination, fails to allege facts which, if proved, would establish a violation of Section 475.25(1)(d), Florida Statutes.

   
   

6. Therefore, the Administrative Complaint in this case should be dismissed for failure to allege a violation of Section 475.25(1)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact, Analysis of the Issues, and Conclusions of Law, I recommend that the Florida Real Estate Commission issue a Final Order in this case dismissing the Administrative Complaint without prejudice to the refiling of an Administrative Complaint against these Respondents if and when a court determines that the Respondents are not entitled to the property claimed by Doris H. Swanton.

DONE and ORDERED this 3rd day of July, 1984, in Tallahassee, Florida.

MICHAEL M. PARRISH

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 3rd day of July, 1984.

COPIES FURNISHED:

Robert W. Lee, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32801

G. Michael Keenan, Esquire Post Office Box 1900

Fort Lauderdale, Florida 33302

Mr. Harold R. Huff, Director Division of Real Estate Legal Section

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 84-000724

Orders for Case No: 84-000724