Djokic v. Dep't of Bus. & Prof'l Regulation, Div. of Real Estate: Real Estate Commission Reversed

A Florida appellate court has considered whether two real estate licensees were properly disciplined by the state real estate commission.

Noreen Foley Djokic and Jeanette Teufel (collectively, "Licensees") were terminated by a brokerage firm ("Brokerage") with whom they were associated. Following termination, the Brokerage allowed the Licensees to attend a closing on a transaction the Licensees had worked on. Before attending the closing, a former employee of the Brokerage warned the Licensees that the Brokerage would not pay them their usual share of the commission check from the transaction.

Following the closing, the Licensees contacted the Brokerage and asked to exchange the full commission check received at the closing in exchange for checks from the Brokerage with their usual share of the commission. The Brokerage declined to make this exchange. Thereafter, the Licensees turned the commission check over to an attorney they retained, who successfully exchanged the commission check for a check with each of the Licensees' usual share of the commission. This exchange was accomplished within a week of the closing.

The Florida Division of Real Estate ("Division") brought disciplinary charges under two sections of Florida law against the Licensees for failing to bring the commission check immediately to the Brokerage. An administrative law judge ("ALJ") found the Licensees guilty of one violation, but exonerated them on the second charge. The Division appealed this ruling to the Florida Real Estate Commission ("Commission"), seeking to have the Licensees disciplined under both sections. The Commission agreed with the Division, and found the Licensees guilty of both charges. The Licensees appealed.

The District Court of Appeal of Florida, Fourth District, reversed both determinations of guilt. First, the court considered the Commission's decision to partially reverse the earlier judgment by the ALJ. The Commission could only reverse the ALJ if the evidence did not support the ALJ's ruling. Since the evidence before the ALJ did support its decision, the court found that the Commission had no reason to reverse the ALJ's ruling. Therefore, the court reinstated the ALJ's not guilty determination on the first charge.

The court considered whether the ALJ and the Commission had properly found the Licensees guilty on the second charge. Looking at the relevant statute, the court found that this statute addressed the failure to turn over escrowed funds promptly and did not address the failure to turnover a commission check. The purpose of this section was to protect consumers whose money was being held in escrow, not to regulate disputes between a real estate brokerage and its licensees. Therefore, the court found that the evidence did not support the finding of guilty for this violation and so the court reversed the ALJ and the Commission. Thus, the court determined that the Licensees were not guilty of the violations.

Djokic v. Dep't of Bus. & Prof'l Regulation, Div. of Real Estate, 875 So. 2d 693 (Fla. Dist. Ct. App. 2004).

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