Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
Findings Of Fact 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: 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. 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. 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. 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. 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. 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.
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
Findings Of Fact Respondent is a registered real estate broker and was so licensed at all times relevant to this proceeding. At the time of the alleged forgeries, Respondent was an officer of John F. Ring Realty, Inc., and was the manager of that firm's office at 201 North University Drive, Ft. Lauderdale, Florida. On June 25, 1980, Respondent wrote two checks on the account of John F. Ring Realty, Inc., payable to Phyllis Cohen in the sum of $425, and to Ann Sanders in the sum of $550. On July 10, 1980, and on the same account, Respondent wrote a second check to Phyllis Cohen in the amount of $1,000. On September 19, 1980, on the same account, Respondent wrote a check payable to Dan Dickerhoff in the sum of $1,210. Respondent wrote a fifth check on this account on September 26, 1980, payable to Rose Friedman, in the sum of $815. All of these checks were purportedly written to cover sales commissions. Each check bore an endorsement which was purportedly that of the payee, and was endorsed by Respondent. Each named payee testified that the endorsement was not his or her signature, that he or she was not entitled to the funds represented by the checks, and never received the check or the funds. Each identified the signature of Respondent as the drawer. Respondent admitted to his ex-partner, Petitioner's investigator and Phyllis Cohen that he had endorsed and cashed these checks. Respondent also apologized to Ann Sanders when she confronted him with the forgery. These were statements against interest and are therefore admissible as hearsay exceptions. 1/ Respondent's character witnesses established that he has a good reputation in the realtors community. These witnesses have found Respondent to be honest and reliable, and would continue doing business with him regardless of any adverse findings here.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of allegations set forth in the Administrative Complaint. It is further RECOMMENDED that Respondent's license as a real estate broker be revoked. DONE AND ENTERED this 28th day of December, 1981, in Tallahassee, Florida. R. T. CARPENTER, 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 28th day of December, 1981.
Findings Of Fact Respondent, Richard C. Lightner, was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0408120. The last license issued to Respondent was as a broker, with a home address of 1221 Duval Street, Key West, Florida 32040. Respondent, or a representative on his behalf, did not appear at the hearing to refute or otherwise contest the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department enter a Final Order revoking Respondent's Real Estate brokers license. DONE and RECOMMENDED this 29th day of July, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 4th day of August, 1988. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 Raymond O. Bodiford, Esquire 515 Whitehead Street Key West, Florida 33040 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE Petitioner vs. Case No. 0154510 DOAH No. 87-3668 RICHARD C. LIGHTNER III Respondent /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. At all times relevant to this proceeding, respondent Lydon was registered with the Florida Real Estate Commission as a real estate salesman. By an administrative complaint filed on February 8, 1978, the petitioner sought to revoke, suspend or otherwise discipline the respondent's license and right to practice thereunder. The ground for such complaint is that respondent collected money as a salesman in connection with a real estate brokerage transaction in a name not his employer's and without the express consent of his employer. The respondent admits, and the evidence demonstrates, that in December of 1973, the respondent obtained a listing agreement for the sale of real property from Mary E. Renney, brought the seller Renney and the buyer Stephen together, prepared the contract for sale and obtained a check made payable to him in the amount of $500.00 for this transaction, which check was cashed by him. Mr. Lydon testified that he did these things as a personal favor to Mrs. Renney and that his broker knew about these transactions. No evidence was presented that respondent's broker gave his express consent to the events described herein.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Alford R. Lydon, Sr., be found guilty of the charges contained in the administrative complaint dated February 8, 1978, and that said finding constitute the written reprimand discussed above. Respectively submitted and entered this 2nd day of April, 1979, in Tallahassee, Florida. DIANE D. TREMOR. Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Alford R. Lydon, Sr. 3301 58th Avenue North Lot 146 St. Petersburg, Florida 33714
The Issue Whether Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent is guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction, in violation of Section 475.25(1)(b) Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to account and deliver funds, in violation of Section 475.25(1)(d)1., Florida Statutes. Whether Respondent's real estate broker's license should be disciplined based upon the allegation that Respondent is guilty of failure to maintain trust funds in a real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.005(1)(k), Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Leslie L. White is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0095441 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker with an address of Les White Realty, 6313 Wynglow Lane, Orlando, Florida, 32818-1311. Respondent's license is currently under suspension for failing to pay a fine and failure to complete certain education courses. On or about September 28, 1993, Respondent negotiated a contract between himself, doing business as Les White Enterprises, as seller, and Charles and Greta White, as buyers, (no apparent relationship to Respondent) to purchase Lot Number 18, Whisper Ridge subdivision in Orange County, Florida and build a house thereon for the total sum of $79,000. Respondent prepared the contract, using the standard Contract for Sale and Purchase form approved by the Florida Association of Realtors and The Florida Bar. Les White Enterprises was listed as the "Seller" and Charles White and Greta White, his wife, were listed as "Buyers". The Buyers agreed to purchase Lot 18 and to have a house constructed on the site by the Seller. The Buyers agreed to seek "new financing at prevailing interest rates" in the amount of $75,550; put down a $2,000 deposit and pay an additional $1,450 at closing. The contract called for the deposit to be held in escrow by Les White Realty/Builders. The $2,000 deposit was paid in cash by the Buyers and given to Respondent. The Respondent did not place the $2,000 deposit in an escrow account contrary to the express terms of the contract. Respondent did not acknowledge receipt of the deposit in his capacity as a broker. At the time the contract was signed, the Buyers knew that the Respondent did not own or have title to Lot 18, and that the purchase price of the lot exceed the amount of the deposit. The Buyers consented to the Respondent using the funds to acquire the property. Respondent was unable to purchase Lot 18, and sought the Buyers' permission to purchase Lot 2 instead and construct a house on it in accordance with the parties' prior agreement. The Buyers reluctantly agreed. On February 18, 1994, Buyers gave Respondent a cashier's check for $1,200 for the purpose of clearing the land and beginning construction of a home for them on Lot 2. The funds were not placed in escrow. The Respondent utilized the funds received from the Buyers and acquired title to Lot 2 in his name alone on or about February 25, 1994. The Respondent cleared Lot 2 in preparation for construction, obtained building plans and applied for building permits in connection with building a house on said lot. Shortly thereafter, Respondent notified the Buyers that the private investors, who approved their loan application, had discontinued financing of the Respondent's construction loan and he was unable to construct the house. The transaction failed to close and the Buyers demanded that Respondent return the earnest money deposit. Respondent was unable to return to return the $3,200 earnest money deposit to the Buyers. Respondent filed for personal reorganization under Chapter 13 of the United States Bankruptcy Code. Throughout the course of this transaction, Buyers dealt with Respondent in his capacity as a broker/builder. In 1994 and 1995, the Florida Real Estate Commission found Respondent guilty of violating the provisions of Section 475.25(1)(b) and (1)(d)1., Florida Statutes on three occasions. Following the third offense, Respondent's license was suspended for six months and it is presently under suspension for failure to pay his administrative fines and complete other requirements of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b), (d)1., and (k), Florida Statutes; and guilty of having been found guilty for a second time (or more) of misconduct that warrants suspension, in violation of subsection 475.25.(1)(o), Florida Statutes; it is further RECOMMENDED that Respondent's licensed be revoked. DONE and ENTERED this 4th day of October, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1996. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Gillis and Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the respondent's license as a real estate broker should be revoked, suspended, or otherwise disciplined because respondent entered a plea of guilty to the offense of unlawful compensation.
Findings Of Fact Respondent is and was at all times pertinent to this proceeding a licensed real estate broker with the State of Florida, holding license number 0166810. On June 18, 1982, an information was filed in the circuit court charging that between the dates of December 10, 1980 and December 1, 1981, the respondent "did corruptly request, solicit, accept or agree to accept money not authorized by law for past, present, or future performance, to wit: by sending business to Don's Alignment Shop, which said ALBERT RONALD HURLBERT did represent as having been within his official discretion in violation of a public duty or in performance of a public duty, in violation of Section 838.016, Florida Statutes." On July 16, 1982, the respondent appeared before Judge Thomas Oakley and entered a plea of guilty to the offense of unlawful compensation as charged in the information. Adjudication of guilt was withheld and respondent was placed on probation for a period of four years. Respondent was given an early release from probation on August 30, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter an order finding that the respondent has been convicted or found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing and revoking the respondent's real estate license. DONE and ENTERED this 27th day of February, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 27th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Mr. Albert R. Hurlbert c/o Hurlbert Realty 8117 Lakeland Street Jacksonville, Florida 32205 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32303 Howard Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, FL 32802
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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 =================================================================
