STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4066

)

JEAN GRAMOLINI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice mailed to the parties, a formal hearing was conducted in this case on November 9, 1992, in Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Theodore R. Gay, Senior Attorney

Department of Professional Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: (No appearance for Respondent.)

STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 475.25(1), Florida Statutes. By Administrative Complaint the Respondent is charged with having violated subsections (b), (d), and (l) of Section 475.25(1), Florida Statutes, by reason of fraud or misrepresentation in a business transaction, by failing to account for or deliver a deposit, and by having filed a report known to be false.

PRELIMINARY STATEMENT

The formal hearing in this case was scheduled to begin at 1:00 p.m. on November 9, 1992. At the scheduled time and place the Petitioner was present through counsel, but there was no appearance by or on behalf of the Respondent. Due to the Respondent's failure to appear, the Hearing officer postponed the commencement of the hearing for approximately twenty minutes, during which inquiry was made as to whether the Respondent had left any message to explain her failure to appear. There was no such message.

Shortly after 1:20 p.m. on November 9, 1992, the Hearing Officer called the hearing to order and afforded the Petitioner an opportunity to present evidence

in support of the allegations in the Administrative Complaint. The Petitioner presented the testimony of two witnesses and offered eleven exhibits, all of which were received in evidence. The presentation of the Petitioner's evidence was concluded at approximately 2:50 p.m., at which time the record of the hearing was closed. There was no appearance by or on behalf of the Respondent at any time during the hearing.

The parties were allowed ten days from the filing of the transcript within which to file proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on December 3, 1992. On December 14, 1992, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all findings of fact proposed by the Petitioner has been incorporated in the Findings of Fact in this Recommended Order. In the preparation of this Recommended Order the Hearing Officer has drawn extensively from the Petitioner's proposals.

The Respondent did not file a proposed recommended order, nor has any other form of post-hearing communication been received from the Respondent.

FINDINGS OF FACT

1. The Respondent Jean Gramolini was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0367905. The last license issued was as a broker-salesperson.

   
   

2. On June 16, 1989, the Respondent became a Management Broker for the

   1. Department of Veterans Affairs (hereafter "the VA"). At that time her duties as a Management Broker were explained to her through a Management Broker Manual which she received from the VA and through VA training. Those duties, at all times material hereto, included the following:

      
      

      1. Inspection of VA-owned foreclosure properties assigned to her by the

         VA.

         
         

      2. Within 15 days of notification of a property assignment, preparation

         and forwarding to the VA of a Property Management Report for the property. For properties built before 1978, the Property Management Report was to include a Defective Paint Report.

         
         

      3. Engagement of the services of workers to prepare and maintain the assigned properties for resale. For lawn mowing services and for jobs under

   $200, the Respondent was to pay the workers out of her own pocket and then be reimbursed by the VA. The Respondent was to submit to the VA on a monthly basis a consolidated invoice in order to claim reimbursement from the VA for such out- of-pocket payments.

   
   

3. Beginning some time in 1988 or 1989, the Respondent engaged the services of Nowak Property Management (hereafter "NPM") to provide certain services for her on properties assigned to her by the VA. Those services included lawn mowing, boarding up windows, cleaning up debris from houses, and taking trash to the dump. Each month Alan Nowak (hereafter, "Nowak"), owner and president of NPM, submitted to the Respondent for direct payment by her a list of lawns mowed and invoices for jobs under $200.

   
   

4. The business relationship between the Respondent and NPM was satisfactory at first, but some time early in 1991, Nowak noticed that the Respondent began to be late in giving him checks.

5. On August 3, 1991, at the Respondent's request, Nowak met with her at her office. At that time, Nowak had already submitted NPM invoices to the Respondent and had already claimed payment due thereon from the Respondent in the amount of $6,663, as follows: $1,720 for July 1991 lawns; $2,650 for June 1991 jobs under $200; and $2,293 for July 1991 jobs under $200 (hereafter, "the Invoices"). The Respondent told Nowak that she was terminating the business relationship between herself and NPM because Charles Daughtry of the VA had told her she should do so. In fact, Charles Daughtry had not made such a statement to her. The Respondent also reviewed all of the Invoices and arbitrarily and without justification stated to Nowak that she would be willing to pay NPM only

   $3,593 in exchange for a signed release from further liability on the Invoices. Nowak refused the offer and on August 19, 1991, sent a letter to the VA describing the situation and attaching a copy of the Invoices (hereafter, "Nowak's letter" or "the Nowak letter"). In September of 1991 Nowak filed a complaint against the Respondent with the Department of Professional Regulation. Some time in October of 1991 Nowak offered to accept partial payment from the Respondent, at which time the Respondent told Nowak that she would not pay him anything. This was the last communication between Nowak and the Respondent, and Nowak never received any payment or partial payment from the Respondent for the Invoices.

   
   

6. The Nowak letter was received by the VA and on August 22, 1991, it was routed to Charles Daughtry (hereafter, "Daughtry"). Daughtry, at the time of the hearing, had been a Realty Specialist in the Property Management Section of the VA for nine years. As such, his duties included monitoring the performance of Management Brokers within his assigned geographic area of responsibility. At the time of the Nowak letter, Daughtry was, and since about August 1990 had been, assigned to the area where the Respondent functioned as Management Broker.

   
   

7. Upon receipt of Nowak's letter, Daughtry reviewed the Respondent's Consolidated Invoices, from which it appeared that the VA had already paid the Respondent for the work represented by the Invoices. On October 3, 1991, Mr. Daughtry met with the Respondent at her office and requested that she provide him with certain of her cancelled checks, the numbers of which he obtained from the Consolidated Invoices which she had previously submitted to the VA.

   
   

8. In response to Daughtry's request, on October 16 and 21, 1991, the Respondent provided certain of her cancelled checks to Daughtry. The numbers of the cancelled checks did not match the numbers of the checks which Daughtry had requested, but Daughtry was able to infer a correlation based upon a comparison of the amounts and the payees. Contrary to the Respondent's duties as explained to her in the manual and at her initial VA training, and contrary to the Respondent's representations contained in the Consolidated Invoices themselves, in several instances, the Respondent had claimed reimbursement in her Consolidated Invoices for payments which she had not yet made, including reimbursement for payment of the Invoices. Daughtry became convinced of this as a result of his review of the Respondent's Consolidated Invoices, cancelled checks, and Nowak's letter. As a result, he recommended that the Respondent's status as a Management Broker be terminated, and it was. Daughtry prepared a letter notifying the Respondent of her termination, and the letter was sent to her on October 30, 1991.

   
   

9. Under the circumstances, Daughtry concluded that the Invoices should be paid in full by the VA. Upon Daughtry's recommendation, the VA, on November 26, 1991, sent a check to Nowak for $6,643 as payment in full of the Invoices.

10. Subsequently another instance came to light in which the Respondent failed to pay for services for which she had already claimed and received payment as reimbursement from the VA. That instance involved C & J Housecleaning, and the amount was approximately $4,500.

    
    

11. At the time of her termination as a VA Management Broker, the Respondent, with respect to each of six different properties, had sent to the VA a Property Management Report with a Defective Paint Report indicating "no defective paint," when in fact there was flaking or peeling paint that should have been reported. The circumstances were such that the Respondent had to have known that the reports were false. The Respondent inspected the properties herself, and the flaking and peeling paint was fairly obvious. In some instances the flaking and peeling paint was near the roof. In those instances it was even less likely that the Respondent could have over looked the defective paint conditions, since the Respondent inspected the roofs of all of the properties. The Respondent signed the Defective Paint Reports.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. 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 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

    
    

14. Section 475.25(1), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

* * *

(b) Has been guilty of fraud, misrepre-sentation, concealment, false

promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation or territory. . .

* * *

(d)1. Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence

of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission if a civil judgment relating to the practice of the licensee's profession has been obtained against the licensee and said judgment has not been satisfied in accordance with the terms of the judgment within a reasonable time, or any secret or illegal profit, or any divisible share or portion thereof, 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.

* * *

(l) Has made or filed a report or record which the licensee knows to be false, has willfully failed to file a report or record required by state or federal law, has willfully impeded or obstructed such filing, or has induced another person to impede or obstruct such filing; but such reports or records shall include only those which are signed in the capacity of a licensed broker or salesperson.

1. The Respondent's actions in claiming and receiving reimbursement from the VA for payments which she had not yet made, and, as in the cases of NPM and C & J Housecleaning, for payments which she never made, involved numerous misrepresenta-tions and breached the trust placed in her by the VA as a VA Management Broker. Such actions constitute misrepresentation and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint.

   
   

2. The Respondent's failure to pay NPM and C & J Housecleaning even after she received the so-called "reimburse-ment" from the VA for their work is a failure to account and deliver funds in violation of Section 475.25(1)(d), Florida Statutes, as alleged in Count II of the Administrative Complaint. It may be true that had the Respondent followed proper VA procedure she would never have come under a duty to account or deliver to any person funds she received from the VA, since those funds would have been true reimbursements to herself of her own funds. Nevertheless, once the Respondent had received funds from the VA for the work by NPM and C & J Housecleaning, and once those funds were demanded by the persons entitled to receive the funds, the Respondent was under a duty to deliver those funds to them.

   
   

3. The Respondent's filing of Defective Paint Reports indicating "no defective paint" in the cases of the six properties where the paint was peeling or flaking constitutes the making or filing of a report which the licensee knows to be false, in violation of Section 475.25(1)(1), Florida Statutes, as alleged in Count III of the Administrative Complaint. The Defective Paint Reports were signed by the Respondent in her capacity as a licensed real estate broker within

the meaning of Section 475.25(1)(1), Florida Statutes, since in order to be a Management Broker for the VA, the Respondent was required to be a licensed real estate broker.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect:

1. Concluding that the Respondent is guilty of having violated subsections (b), (d), and (1) of Section 475.25(1), Florida Statutes, as charged in Counts I, II, and III of the Administrative Complaint; and

   
   

2. Imposing an administrative penalty comprised of an administrative fine in the amount of One Thousand Dollars ($1,000.00) and revocation of the Respondent's license.

DONE AND ENTERED this 15th day of January, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1993.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

Ms. Jean Gramolini

901 South Surf Road, #304

Hollywood, Florida 33019

Ms. Jean Gramolini 1310 North 69th Avenue

Hollywood, Florida 33024

Darlene F. Keller, Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-004066

Orders for Case No: 92-004066