No. OO-49.

380 So.2d 1057 (1979)

Lawrence S. ROBERTS and Larry Roberts, Inc., a Florida Corporation, Petitioners, v. Kenneth N. AYERS, Hearing Officer, Division of Administrative Hearings, Florida Department of Administration and the Florida Real Estate Commission, Respondents.

District Court of Appeal of Florida, First District.

Rehearing Denied February 20, 1980.

Attorney(s) appearing for the Case

Guyte P. McCord, III of Spector & Tunnicliff, Tallahassee, for petitioners.

Howard Hadley and Kenneth M. Meer, Orlando, for respondents.

ROBERT P. SMITH, Jr., Acting Chief Judge.

Lawrence Roberts and Larry Roberts, Inc., are licensed by the Florida Real Estate Commission as a real estate broker and a corporate real estate broker. They seek a writ of prohibition to arrest disciplinary proceedings against them on an amended administrative complaint filed January 17, 1979 by the Commission. The charge is that petitioner Roberts, acting for his own account, entered into a contract for sale of property owned by him, accepted a $2,000 deposit from the purchaser, breached a warranty of access set out in the contract and failed to return the purchaser's $2,000 deposit, allegedly stating that "he could not return the money because he did not have it."

The present petition urges that the Commission is without jurisdiction to discipline Roberts and his corporation because the alleged acts, constituting cause for discipline, were not committed by him as a broker. Today we rejected that contention in Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1979). The petition urges also that Peck Plaza Condominiums et al. v. Division of Florida Land Sales et al., 371 So.2d 152 (Fla. 1st DCA 1979), forecloses the Commission from deciding disciplinary matters which require construction and interpretation of contracts. But here the Commission does not seek to enforce contractual rights, as was the case in Peck, but only to inquire into alleged violations of sections 475.25(1)(a) and (c), Florida Statutes (1977). See also State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 492 (Fla. 1973).

Finally, Roberts urges that the Commission lacks jurisdiction because, contemporaneously with the filing of the administrative complaint, Roberts filed a complaint in the Circuit Court of Seminole County for a declaratory judgment concerning the contract in question and his obligations under it. Thus, Roberts urges, section 475.25(1)(c) forecloses Commission jurisdiction. That statute provides that a registered broker may be disciplined for failing to account or deliver to another any fund which has come into his hands and is not his property, of which he is not entitled to retain, under the circumstances;

... provided, however, that, if the registrant shall, in good faith, entertain doubt as to his duty to account and deliver said property, or as to what person is entitled to the accounting and delivery, or if conflicting demands therefor shall have been made upon him and he has not appropriated the property to his own use or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of the question, in a proper court, and shall abide, or offer to perform, the advice of the commission or the orders of the court or arbitrators, no information against him shall be permitted to be maintained... .

The escape provisions of section 475.25(1)(c) must be timely invoked. Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972), cert. den., 273 So.2d 766 (Fla. 1973). From the allegations of the petition and the record supplied, it does not appear as a matter of law that Roberts is entitled to the benefit of the escape provisions of the statute. The contract was made in February 1976 and it contemplated closing in August 1976. The administrative complaint, and the declaratory judgment complaint which sought to supervene the administrative proceeding, were filed in January 1979.

The Commission has clear authority to proceed. The petition for writ of prohibition is


LARRY G. SMITH, J., and WOODROW M. MELVIN, Associate Judge (Ret.), concur.


ROBERT P. SMITH, Jr., Judge.

By petition for rehearing petitioners urge that our opinion appears to rule (incorrectly, they say) that Section 475.25(1)(c), Florida Statutes (1977), applies to brokers in their conduct with respect to their own property. Petitioners urge that this particular subsection applies only to brokers who, in the language of the statute, "[f]ailed to account or deliver to any person" the money or things named "which has come into his hands, and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances ...," and that this particular subsection can apply only to brokers acting as brokers. See Cannon v. Florida Real Estate Comm'n, 221 So.2d 240, 241 fn. 2 (Fla 4th DCA 1969). The cause of our reference to Section 475.25(1)(c) was petitioners' contention that their use of its escape provisions deprived the Commission of jurisdiction to proceed on a complaint charging, in part, violation of Section 475.25(1)(c). We found that the Commission is not deprived of power to proceed. Neither in our original opinion nor now do we pass on the question of whether, on the facts, petitioners' alleged conduct would constitute a violation of Section 475.25(1)(c). The question of statutory interpretation is one properly for the Commission in the first instance, and it has jurisdiction to make that interpretation. In any event, if petitioners' interpretation of Section 475.25(1)(c) is correct, the Commission retains clear jurisdiction to proceed under Section 475.25(1)(a), affording grounds for discipline whether or not the broker was acting as a broker when dealing dishonestly in "any business transaction."

The petition for rehearing is DENIED.

Larry G. SMITH, J., and MELVIN, WOODROW M., Associate Judge, concur.


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