STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-3952

)

JENNIFER DAWN JEWELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard by video teleconferencing before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on June 14, 1995.

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Jennifer D. Jewels, pro se

110 Coral Fish Lane East Jupiter, Florida 33477

STATEMENT OF THE ISSUE

The issue in this case is whether respondent's real estate license should be disciplined for the reasons given in the administrative complaint filed on March 9, 1994.

PRELIMINARY STATEMENT

This matter began on March 9, 1994, when petitioner, Department of Business and Professional Regulation, Division of Real Estate, issued an administrative complaint charging respondent, Jennifer Dawn Jewels, licensed as a real estate salesperson, with having operated without an active license during the period October 1, 1993, through February 1994. Respondent denied the allegation and requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on June 16, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

Thereafter, the case was consolidated with Case No. 94-3953, which principally involved a complaint issued against respondent's husband, also a realtor. After a hearing was conducted in Case No. 94-3953 on May 8, 1995, that case was abated and severed from the instant case on May 31, 1995.

By notice of hearing dated September 14, 1994, a final hearing was scheduled on October 26, 1994, in Jacksonville, Florida. At petitioner's request, the hearing was rescheduled to January 10, 1995. At respondent's request, the matter was continued to May 8, 1995, and then again to June 14, 1995, at the same location. The final hearing was conducted by video teleconferencing with petitioner and the undersigned in Jacksonville, Florida, and respondent in West Palm Beach, Florida. On May 7, 1995, the case was transferred from Hearing Officer Charles C. Adams to the undersigned.

At final hearing, petitioner presented the testimony of Sandra Bryant, a licensed real estate broker/salesperson. Also, it offered petitioner's exhibits 1-4 which were received in evidence. In addition, it was authorized to take a post-hearing deposition of Sandra Mannis, a licensed real estate broker. That deposition was taken by telephone on June 29, 1995, and the transcript was filed on July 26, 1995. Respondent testified on her own behalf and offered respondent's exhibit 1 which was received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on August 10, 1995. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Jennifer Dawn Jewels, held real estate salesperson license number 0380700 issued by petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesperson at Jennifer Jewels Real Estate, Inc., 2865 Plummers Cove Road, Jacksonville, Florida.

   
   

2. On September 30, 1993, respondent's license became involuntary inactive and invalid due to non-renewal. It remained in that status until February 22, 1994, when respondent late-renewed her license as voluntary inactive.

   
   

3. On October 20, 1993, Sandra Bryant, a broker/salesperson with Prudential Network Realty in Jacksonville, Florida, prepared a deposit receipt and purchase and sale agreement on behalf of David and Kathryn Pierce for a residence located at 12085 Dividing Oaks Trail, East, Jacksonville, Florida. The contract was presented to respondent, who was the listing agent for the sellers, Robert and Janet Kreis. The contract was eventually accepted on

   October 25, 1993, after a counteroffer was prepared and submitted by respondent. Respondent admits that she handled the transaction on behalf of the sellers and received a commission for her services. This occurred when she did not have an active license.

   
   

4. On September 17, 1993, respondent solicited and obtained a listing agreement for a residence located at 938 West Satsuma Circle, Jacksonville, Florida. The property was listed in the multiple listing service maintained by the local board of realtors. Based on that listing, Sandra Mannis, a real estate salesperson with Prudential Network Realty in Jacksonville, Florida made an appointment to show the property. When Mannis showed the property on January 20, 1994, she executed a rejection of subagency and sent it to respondent, who

   signed the document as an agent for the seller. At that time, respondent did not hold an active license.

   
   

5. Paragraph 10.b. of the complaint also alleges that on November 19, 1993, respondent "solicited and obtained a listing agreement from Thomas A. and Judith Ann Boyles for the sale of property located at 12343 Silent Brook Trail, N., Jacksonville, Florida." There is, however, no evidence to support this charge.

   
   

6. At hearing, respondent acknowledged that her license lapsed in September 1993, but said this was inadvertent and unintentional. Later, after learning her license had not been renewed, she took 14 hours of courses in order to reactivate her license. Respondent pointed out that during an eighteen month period, the firm had $23 million in closings, and contended these transactions are the only "bad" sales out of that total.

   
   

7. On August 16, 1994, respondent was reprimanded, placed on one year probation, fined $500 and ordered to take a 45 hour post-licensure education course for "culpable negligence; improper use of Realtor identification or designation; operat(ing) as a salesperson without being holder of a valid and current license as a salesperson; (and) advertis(ing) property or services which is misleading in form or content." Other than that proceeding, there is no evidence that she has been the subject of any other disciplinary action during her fourteen year tenure as a licensee. Finally, it is noted that neither the consumers or the public suffered harm by virtue of respondent's conduct.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

   
   

9. Because respondent's real estate license is subject to suspension or revocation, petitioner must prove the allegations in the complaint by clear and convincing evidence. Lewis v. State, Department of Professional Regulation, Division of Real Estate, 529 So.2d 751 (Fla. 3rd DCA 1988).

   
   

10. The administrative complaint alleges that respondent has violated Subsection 475.42(1)(a), Florida Statutes, on three occasions by having operated as a salesperson without a valid and current license. By clear and convincing evidence, petitioner has established that, on two occasions between October 1993 and February 1994, respondent operated as a salesperson without a valid license. A third charge pertaining to the Boyles transaction should be dismissed.

    
    

11. Rule 61J2-24.001, Florida Administrative Code, provides a range of disciplinary guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapter 475, Florida Statutes. For a violation of subsection 475.42(1)(a), paragraph (3)(u) of the rule provides for a penalty of up to three years suspension or revocation of the license. At the same time, paragraph (4)(a) of the rule provides that the Real Estate Commission can deviate from the normal guidelines in imposing discipline if there are aggrevating circumstances present. In this case, the aggrevating circumstances include a prior incident involving the same offense and disciplinary action against the licensee in 1994. Mitigating circumstances include the fact that there was no harm to the consumer or public. Under these circumstances, petitioner's suggested penalty of one year suspension of respondent's license is appropriate. A fine is not deemed to be necessary.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty

of violating Section 475.42(1)(a), Florida Statutes, on two occasions and that her license be suspended for one year.

DONE AND ENTERED this 14th day of August, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 14th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3952

Petitioner:

Petitioner's proposed findings have generally been accepted, with certain modifications.

COPIES FURNISHED:

Janine B. Myrick, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Ms. Jennifer D. Jewels

110 Coral Fish Lane East Jupiter, Florida 33477

Darlene F. Keller, Director Division of Real Estate

P. O. Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 94-003952

Orders for Case No: 94-003952