STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4095

)

CATHRYN JACKMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 12, 1995, in Orlando, Florida. Petitioner, its witnesses, and the court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida. Respondent did not appear at the formal hearing, was not represented by counsel, and submitted no evidence.

APPEARANCES

For Petitioner: Steven W. Johnson, Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308 Post Office Box 1900

Orlando, Florida 32802 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (e), and (k), Florida Statutes, 1/ by: committing fraud, deceit, dishonesty, or breach of trust in a business transaction; acting as a broker; and failing to place funds with her registered employer; and if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on February 24, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of three witnesses, by live testimony, and the telephone deposition testimony of two more witnesses as late filed exhibits. Petitioner submitted five documentary exhibits for admission in evidence. Petitioner's exhibits were admitted in evidence

without objection. The identity of witnesses and exhibits and the rulings regarding each are set forth in the record of the formal hearing.

A transcript of the formal hearing was not requested by either party.

Petitioner timely filed its proposed recommended order ("PRO") on February 16, 1996. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is licensed as a real estate sales person under license number 0555229. The last license issued to Respondent was issued as a sales person percentage A.A. Carnes, Inc., 1399 W. Highway 434, Longwood, Florida 32750.

   
   

2. In August, 1993, Respondent operated as a licensed real estate sales person for Mannix Realty, Inc. Respondent managed rental property located at 3551 Malona Drive in Orlando, Florida. The rental property was owned by Ramesh and Harjit Zala who lived outside the state (the "Zalas" property).

   
   

3. On November 1, 1993, Respondent solicited and negotiated a lease agreement with Scott and Winifred Houldin at the monthly rental of $2,100 (the "tenants"). The tenants paid two months rent to Respondent as a reservation deposit.

   
   

4. Respondent appropriated the reservation deposit and rental income for her own personal use. She failed to disclose the rental agreement, reservation deposit, or rental income to Mr. Amos W. Harris, Respondent's broker.

   
   

5. Respondent requested the owners and the tenants to direct all correspondence to Respondent's home address. The owners and tenants complied with Respondent's request.

   
   

6. Respondent did not disclose the transaction to Mr. Harris. Respondent neither accounted for nor returned the rental funds to her broker or to the owners.

   
   

7. In August 1993, Respondent managed rental property located at 1346 Stearman Court in Orlando and owned by Robert and Patricia Sheetz (the "Sheetz" property). The owners lived outside the state.

   
   

8. After Respondent assumed responsibility for the Sheetz property, the rental income declined and expenses increased. Although the Sheetz property was rented, Respondent failed to deliver the rental income from the Sheetz property.

   
   

9. In December, 1993, the owners discovered that the rental property was in fact occupied. They informed Mr. Harris, and demanded delivery of the rental income. Mr. Harris was unaware that the property was rented or that Respondent had failed to deliver the rental income from the property.

   
   

10. On December 29, 1993, Mr. Harris confronted Respondent. Respondent paid $475 of the rental income to the owners of the rental property. Mr. Harris subsequently terminated Respondent's employment.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

12. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint.

    
    

14. Petitioner showed by clear and convincing evidence that Respondent violated Section 475.25(1)(b). In two separate real estate transactions, Respondent converted to her own personal use rental income and deposits belonging to others by: fraud; misrepresentation; concealment; false promises; dishonest dealing by trick, scheme, or device; and by breach of trust in a business transaction. Respondent concealed actions from her broker by conducting business out of her personal residence.

    
    

15. Petitioner showed by clear and convincing evidence that Respondent violated Sections 475.25(1)(e) and (k). Respondent failed to immediately place with her registered employer the rental income and deposits from two separate real estate transactions.

    
    

16. Petitioner showed by clear and convincing evidence that Respondent violated Sections 475.25(1)(e) and 475.42(1)(b). Respondent operated as a broker while licensed as a sales person by depositing rental income and deposits into an account other than that of her registered owner and by conducting business from an address other than that of her registered employer.

    
    

17. Section 475.25 authorizes Petitioner to revoke Respondent's license. See also, Florida Administrative Code Rule 1V-24.001. Revocation of a license under Section 475.25 should be aimed at the dishonest and unscrupulous. Cf. Dryer v. Florida Real Estate Commission, 370 So.2d 95, 100 (Fla. 4th DCA 1979); Brod v. Jernigan, 188 So.2d 575, 581 (Fla. 2d DCA 1966); Rivard v. McCoy, 212 So.2d 672, 674-676 (Fla. 1st DCA 1968). Respondent was dishonest and unscrupulous in two separate business transactions.

    
    

18. The amount of money that Respondent converted was significant. The harm to Respondent's clients was egregious. Respondent has not made restitution and has made no attempt at restitution.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Sections 475.25(1)(b), (e), (k), and 475.42(1)(b); and revoking Respondent's real estate sales license.

RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 27th day of March 1996.

ENDNOTE

1/ All section references are to Florida Statutes (1995) unless otherwise stated.

COPIES FURNISHED:

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

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

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Steven W. Johnson, Senior Attorney Division of Real Estate

Department of Business and Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772

Cathryn Jackman, pro se 220-D Riverbend Drive

Altamonte Springs, Florida 32714

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 10 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: 95-004095

Orders for Case No: 95-004095