Notice was provided and a formal hearing was held in this case via video-teleconferencing. The parties were located in Jacksonville, Florida. The Administrative Law Judge, Charles C. Adams, was located in Tallahassee, Florida. The hearing date was February 10, 1997. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes, (1996 Supp.).
For Petitioner: Christine M. Ryall, Esquire
For Respondent: Thomas C. Santoro, Esquire
Should Respondent have his Florida Real Estate Broker's License disciplined by Petitioner for violating provisions within Chapter 475, Florida Statutes?
Petitioner charged Respondent in Administrative Complaint, FDBPR Case No. 96-80326 for alleged violations of Sections 475.25(1)(e) and .42(1)(a) and (d), Florida Statutes. Respondent disputed the allegations in the Administrative Complaint and requested a hearing in accordance with Section 120.57(1), Florida Statutes (1996 Supp.). In turn Petitioner forwarded the case to the Division of Administrative Hearings to assign an Administrative Law Judge to resolve the factual disputes between the parties concerning the Administrative Complaint. The undersigned conducted that hearing on the aforementioned date.
Petitioner called Marguerite A. Barr and LynnMarie Maloney Jones as its witnesses. Petitioner's Exhibits A through F were admitted. Respondent testified in his own behalf. Respondent's Exhibits 2, 3 and 4 were admitted. Respondent's Exhibit 1 was denied admission.
A hearing transcript was prepared and filed with the Division of Administrative Hearings on February 26, 1997. The parties filed proposed recommended orders. Those proposals have been considered in the preparation of the recommended order.
Petitioner is a Florida regulatory agency charged with the responsibility and duty to discipline its licensees for violations of Chapters 455 and 475, Florida Statutes and associated rules. Those actions are brought through administrative complaints.
Petitioner regulates Respondent's real estate practice in Florida. Respondent practices in accordance with a Florida Real Estate Broker's license, No. 0605307.
At times relevant to this inquiry Respondent has not acted as an independent broker. Rather, Respondent has conducted real estate business as a broker-salesperson with McAfee Enterprise, Inc. t/a Re-Max On Park Avenue, located at 2233 Park Avenue, Suite 500, Orange Park, Florida, 32702-5567. Within the relevant time period Respondent's supervising broker at the Re- Max firm was Ann McIvey.
On February 28, 1995, Respondent, as listing agent for Re-Max On Park Avenue, entered into an exclusive right of sale listing agreement with Marguerite A. Barr to sell Ms. Barr's real estate located at 6720 S. Long Meadow Circle in Jacksonville, Florida.
By the terms of the listing agreement Ms. Barr agreed to pay Re-Max on Park Avenue:
. . . 5 ½% of the total purchase price whether a buyer is secured by the REALTOR, the SELLER, or by any other person, or if the Property is afterwards sold within 6 months
from the termination of this agreement or any extension thereof, to any person to whom the Property has been shown during the term of this Agreement.
The listing agreement entered into between Respondent in behalf of Re-Max On Park Avenue and Ms. Barr also stated that:
. . . in the event this Agreement is cancelled by SELLER before its expiration, or SELLER otherwise prevents performance hereunder, the SELLER agrees to pay REALTOR on demand, as liquidated damages, the brokerage fee due REALTOR as though Property had been sold, or the amount of broker's expenses, the same being bonafide, fair and reasonable as a result of an arm's length negotiation.
Separate and apart from the terms set forth in the listing agreement, Ms. Barr requested, before she signed the contract, that Respondent inform her concerning her opportunity to cancel the contract at any time. Respondent answered that the contract could be cancelled by Ms. Barr before the home was sold, in which case Ms. Barr would be responsible for paying the advertising cost by Re-Max on Park Avenue. Ms. Barr was amenable to that arrangement.
On May 8, 1995, Ms. Barr called to inform Respondent that she was terminating the contract to sell her home. This was followed by correspondence dated May 9, 1995, addressed to Re-Max On Park Avenue, attention to Respondent, notifying Re-Max On Park Avenue that the contract to sell the home was being cancelled.
In response to the cancellation Respondent wrote the following letter to Ms. Barr:
Mrs. Marguerite A. Barr 1364 Lamboll Avenue
Jacksonville, Florida 32205-7140 Dear Meg:
As you requested I have withdrawn your property located at 6720 Longmeadow Circle South from active listing for sale in the MLS and in my files. I hope you will be happy with your new arrangement and I wish you and your daughter the best.
According to our contract, you agreed to reimburse me for expenses I incurred in marketing your property the event you decided to cancel prior to the expiration of said contract. A list of expenses follows:
Two insertions in Homes &
Land Magazine $249.21
500 Flyers to Realtors
(250 twice) @ $.06 each 30.00
Total $279.21
Please forward a check in that amount to me at my office. Please remember that in the terms of our contract if anyone who has seen the property during my active term of the contract purchases the property you will still be obligated to pay the agreed upon commission to my firm.
Regards,
W. Wane Wier Broker-Salesman
Per the request in the correspondence from Respondent to Ms. Barr, Ms. Barr contacted the Respondent and arranged to pay $50.00 a month to reimburse the costs described by the Respondent. Ms. Barr wrote three checks to the Respondent in his name, Wane Wier, without reference to Re-Max On Park Avenue. Respondent put those checks in his personal checking account.
Respondent had originally taken money from his personal account to advertise the Barr property.
On or about August 31, 1995, Ms. Barr sold her home on
S. Long Meadow Circle to Jane Richardson. Respondent learned of the sale. Believing that the sale was a transaction that entitled Re-Max On Park Avenue to collect the 5 ½% real estate fee in accordance with the listing agreement, Respondent spoke to his supervising broker, Ms. McIvey, to ascertain the proper course for collecting the commission. Ms. McIvey advised Respondent that he should contact his attorney to see if the commission that was allegedly due Ms. McIvey and Respondent could be obtained by Respondent's counsel.
Respondent took the advice of his supervising broker and contacted Thomas C. Santoro, Esquire, who was practicing at 1700 Wells Road, Suite 5, Orange Park, Florida 32073. In conversation Respondent explained to Mr. Santoro, that he believed that Ms. Barr owned the real estate commission. Respondent asked Mr. Santoro to write a letter to Ms. Barr to solicit the commission. Respondent feels confident that he told Mr. Santoro that Mr. Santoro should advise Ms. Barr to pay the commission to Re-Max On Park Avenue, given that was the normal course of events in seeking payment for commissions. To assist Mr. Santoro, Respondent left a written memorandum which among other things stated:
. . . I feel that Ms. Barr has violated our listing agreement and should pay me and my
company the full commission due under the terms of that agreement.
Please take any steps necessary to have Ms. Barr honor our agreement, and advise me what I should do.
On January 12, 1996, Mr. Santoro wrote Ms. Barr requesting payment of the commissions in the amount $3,397.50 related to the claimed balance due, after crediting Ms. Barr with
$150.00 paid for advertising costs. This correspondence stated:
Please be advised that you must forward a cashier's check in the amount of $3,397.50 made payable to W. Wane Wier, Re-Max On Park Avenue, within ten (10) days of receipt of this letter, which I have forwarded by certified mail as well as regular U.S. Mail.
I have been instructed to proceed with appropriate action should you fail to make the payment as stated above
Please Govern Yourself Accordingly.
Respondent did not see the January 12, 1996, letter before it was sent to Ms. Barr. He did receive a copy of the correspondence. Respondent has no recollection of noticing that the correspondence said that the $3,397.50 should be made payable to W. Wane Weir, Re-Max On Park Avenue. In any event, Respondent did not take any action to correct the letter to reflect that the payment should be made to Re-Max On Park Avenue only.
Prior to the charges set forth in the present Administrative Complaint Respondent has not been the subject of accusations about his conduct as a realtor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Section 120.57(1), Florida Statutes (1996 Supp.).
Because Petitioner seeks to discipline Respondent's license to practice real estate, Petitioner must prove by clear and convincing evidence that the allegations set forth in the Administrative Complaint are true. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
To the extent that the Respondent is accused of violating provisions within Chapter 475, Florida Statutes, he is presumed to know the law. See Wallen v. Fla. Dept. of Professional Regulation, Division of Real Estate, 568 So.2d 975 (Fla. 3rd DCA 1990).
Section 475.01(1)(d), Florida Statutes, defines a "Salesperson" as:
. . . a person who performs any act specified in the definition of 'broker' but who performs such act under the direction, control or management of another person.
A "Broker-salesperson" is defined at Section 475.01(1)(e), Florida Statutes as:
A person who is qualified to be issued a license as a broker but who operates as a salesperson in the employ of another.
A "Broker" is defined at Section 475.01(1)(c), Florida Statutes.
In the transaction involving Ms. Barr, Respondent acted as a "Broker salesperson." As such he operated under Ms. McIvey's direction, control and management when doing business for Re-Max On Park Avenue. Respondent was in the employ of Ms. McIvey, a "Broker" as defined at Section 475.01(1)(c), Florida Statutes. Ms. McIvey was the supervising broker for Re-Max On Park Avenue.
Respondent in Count I to the Administrative Complaint is accused of violating Section 475.42(1)(a), Florida Statutes, which states:
No person shall operate as a broker
or salesperson without being the holder of a valid and current active license therefore.
The term "operate" is defined at Section 475.01(3), Florida Statutes, as:
Whenever the word 'operate' or 'operating' as a broker, broker-salesperson, or salesperson appears in this chapter; in any order, rule, or regulation of the commission; in any pleading, indictment, or information under this chapter; in any court action or proceeding; or in any order or judgment of a court, it shall be deemed to mean the commission of one or more acts described in this chapter as constituting or defining a broker, broker-salesperson, or salesperson, not including, however, any of the exceptions stated therein. A single such act is sufficient to bring a person within the meaning of this chapter, and each act, if prohibited herein, constitutes a separate offense.
The conduct which Respondent engaged in in collecting the $150.00 for advertising costs, which he personally expended
and for which he was personally reimbursed and the reimbursement placed in his personal account, without the participation of his supervising broker Ms. McIvey ,constituted operation as a broker outside his broker-salesperson license opportunities. Thus, Respondent is subject to the discipline called for in Section 475.25(1)(a), Florida Statutes.
By contrast the attempt to obtain the 5½% real estate commission fee in concert with the supervising broker, Ms. McIvey and his attorney, in which Respondent's name and Re-Max On Park Avenue are referred to in the contact with Ms. Barr through Mr. Santoro's correspondence, does not constitute independent operation as a broker as contemplated in Section 475.42(1)(a), Florida Statutes. Therefore, Petitioner is not subject to the discipline announced in Section 475.25(1)(a), Florida Statutes. In acting in concert with his supervising broker and attorney to obtain the real estate commission, Respondent did not act outside the classification of broker-salesperson in this operation.
Count II to the Administrative Complaint charges Respondent with violating Section 475.42(1)(d), Florida Statutes, which states:
No salesperson 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 salesperson, 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 salesperson performed the act or rendered the service for which the commission or compensation is due.
Respondent violated this provision by collecting the reimbursement for advertising costs from Ms. Barr, a part of a real estate brokerage transaction. The payment for advertising costs was outside the name of his employer Re-Max On Park Avenue and in his personal name, deposited to his personal account and without the consent of his employer Re-Max On Park Avenue in the person of the supervising broker Ms. McIvey. For this violation Respondent is subject to the penalties set forth in Section 475.25(1)(a), Florida Statutes.
Concerning the attempt to have Ms. Barr pay the disputed real estate commission, the consultation with Ms. McIvey, discussion with Mr. Santoro and contact with Ms. Barr, by Mr. Santoro constitute an attempt to collect the commission in the name of the employer and with the express consent of the employer through its supervising broker Ms. McIvey. The fact that Respondent's name appeared with Re-Max On Park Avenue in the letter addressed to Ms. Barr by Mr. Santoro does not change that perception.
The effort to obtain the commission was not the commencement or the maintenance of an action in connection with the brokerage transaction directed against Ms. Barr. Mr. Santoro
stopped short of bringing a suit to obtain the commission, that is to say, commencing or maintaining an action.
In summary, the attempts to collect the commission do not lead to the conclusion that Respondent violated Section 475.42(1)(d), Florida Statutes, and he is not subject to discipline for that alleged violation as envisioned by Section 475.25(1)(a), Florida Statutes.
Counts I and II allege violations of Section 475.25(1)(e), Florida Statutes, which states:
No person shall violate any lawful order or rule of the Commission which is binding upon him.
It has not been shown that Respondent violated any lawful order or rule of the Commission. Therefore, Respondent has not violated Section 475.42(1)(e), Florida Statutes , and is not subject to the discipline set forth in Section 475.25(1)(a), Florida Statutes.
In deciding the appropriate penalty, Respondent's absence of previous violations is taken into account. The recommendation for penalty acknowledges the guidelines set forth in Rule 61J2-24.001, Florida Administrative Code.
That a final order be entered finding the Respondent in violation of Section 475.42(1)(a) and (d), Florida Statutes, dismissing the complaint for alleged violations of Section 475.25(1)(e), Florida Statutes, imposing a $1,000.00 fine consistent with Section 475.25(1)(a), Florida Statutes, and Rule 61J2-24.001, Florida Administrative Code.
Christine M. Ryall, Esquire Department of Business and
Thomas C. Santoro, Esquire 1700 Wells Road, Suite 5 Orange Park, FL 32072
Henry M. Solares, Division Director Division of Real Estate
Linda L. Goodgame, General Counsel Department of Business
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
