STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 01-3115PL

)

PHYLLIS MAE WILSON, now known ) as PHYLLIS MAE PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on October 9, 2001.

APPEARANCES

For Petitioner: Robyn M. Severs, Senior Attorney

Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Room N308 Orlando, Florida 32802

For Respondent: Phyllis Mae Perry, pro se

1940 Northeast 55th Court

Fort Lauderdale, Florida 33308 STATEMENT OF THE ISSUES

The issues are whether Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes, or obstructed or hindered any person in the performance of his or her duties

under Chapter 475, Florida Statutes, in violation of Section 475.25(1)(i), Florida Statutes; or failed to preserve and make available to Petitioner all books, records and supporting documents, in violation of Rule 61J2-14.012(1), Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be assessed.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 22, 2001, Petitioner alleged that Respondent was a licensed real estate broker, holding license number 0462610. The Administrative Complaint alleges that, on May 24, 1999, Petitioner notified Respondent of its intention to conduct an office inspection and escrow audit, pursuant to Sections 475.22 and 475.5015, Florida Statutes, and Rule 61J2-14.012, Florida Administrative Code.

Addressed to Respondent's registered mailing address, the letter gave Respondent 15 days to respond.

By letter dated September 24, 1999, Petitioner allegedly notified Respondent that someone had filed a complaint against her and Petitioner had initiated an investigation. At the request of Petitioner's investigator, Respondent allegedly agreed to make an appointment for an office inspection, but failed to do so. By letter dated July 21, 2000, Respondent

allegedly responded to Petitioner's request, but failed to set a date for an office inspection.

Count I of the Administrative Complaint alleges that Respondent is guilty of obstructing or hindering the enforcement of Chapter 475, Florida Statutes, or the performance by any person of his or her lawful duty under Chapter 475, Florida Statutes, in violation of Section 475.42(1)(i), Florida Statutes, and thus Section 475.25(1)(e), Florida Statutes.

Count II alleges that Respondent is guilty of failing to preserve and make available to Petitioner for inspection and audit all books, records, and supporting documents, in violation of Rule 61J2-14.012(1), Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes.

Respondent requested a formal hearing on the allegations.

At the hearing, Petitioner called one witness and offered into evidence seven exhibits: Petitioner Exhibits 1-3 and 5-8. Respondent called one witness and offered into evidence ten exhibits: Respondent Exhibits 1-4, 6-7, and 10-13. All

exhibits were admitted; however, Respondent Exhibits 1, 3-4, 6, and 11 were not admitted for the truth of their contents.

Respondent proffered these exhibits, to the extent that the Administrative Law Judge excluded them.

The court reporter filed the transcript on October 31, 2001.

FINDINGS OF FACT

1. Respondent was known as Phyllis Mae Wilson, but is now known as Phyllis Mae Perry due to a change in marital status. Since 1987 or 1988, Respondent has been licensed as a Florida real estate broker, holding license number 0462610. From October 1, 1998, through June 4, 2001, Respondent registered with Petitioner her "location address" as 2200 East Oakland Park Boulevard, Fort Lauderdale. From October 1, 1994, through January 9, 2001, Respondent registered with Petitioner her "mailing address" as 1940 Northeast 55th Court, Fort Lauderdale.

2. As part of Petitioner's rotating schedule of office inspections, Monroe Berger, Petitioner's Investigation Specialist II, sent a letter to Respondent dated May 24, 1999, at 1940 Northeast 55th Court, Fort Lauderdale. The letter, which was sent by regular mail, states that Petitioner wishes to conduct an office inspection and escrow review, pursuant to cited statutes and rules. The letter warns: "Please be advised, you must respond to my request within 15 days of your receipt of this letter. Failure to do so may result in you being charged with hindrance in the enforcement of chapter 475, Florida Statutes, and administrative action may be taken against your real estate license."

3. When Mr. Berger did not receive a response to the May

   
   

   24 letter, he requested, by letter dated June 10, 1999, from the

   United States Postal Service a confirmation of the Northeast 55th Court address or, if applicable, a new address for Respondent. After the United States Postal Service verified that the Northeast 55th Court address was a good address for Respondent, Mr. Berger sent a second letter to Respondent at the incorrect address of Northeast 55th "Street," not "Court." Dated September 24, 1999, this letter advises that "a complaint has been filed against you"--evidently, by Mr. Berger. This letter gives Respondent 20 days to respond to the complaint. At some point, Respondent received this letter or a copy of it, but the record does not permit a finding, by clear and convincing evidence, as to when Respondent received this letter.

4. Respondent did not respond to the September 24 letter.

   
   

   The only information that Petitioner received from Respondent following the letters of May 24 and September 24, 1999, was a form that Respondent submitted, on January 18, 2000, to advise Petitioner of a change in licensing status of a salesperson working for Respondent. Although not intended to advise Petitioner of any changes in Respondent's location or mailing address, the form contains a new address for Respondent: 3466 Northeast 12th Terrace, Oakland Park. However, in no way does the form respond to the letters of May 24 and September 24, 1999.

5. Although Mr. Berger did not testify at the hearing, as he is now retired, his supervisor at the time testified that Mr. Berger did not pursue the investigation more vigorously on the advice of the supervisor, who counseled patience.

6. Respondent claims that a series of personal and business matters effectively prevented her from attending to such regulatory matters as updated her licensing information and seizing the initiative in response to her early contact with Mr. Berger. During this period of time, Respondent was not active in real estate, but was busy with another business that she and her husband were operating. Respondent was also deterred from producing her real estate records because she knew that a leaky roof had caused them considerable water damage.

7. At the time of her first contact with Mr. Berger, during the period relevant to this case, Respondent had no listings or pending sales, and she so informed Mr. Berger. Respondent had known Mr. Berger and his previous supervisor, whom she had sometimes called when she had had a regulatory question.

8. During the period relevant to this case, Respondent spoke with Mr. Berger four times. For the most part, they agreed that Respondent would try to reassemble whatever undamaged real estate records that she could find. By the summer of 2000, they had agreed that Mr. Berger would send her a

   questionnaire, which, when completed by Respondent, would confirm the absence of any active escrow account and would obviate the necessity of an office inspection and audit, except possibly to confirm that Respondent had properly posted a sign and license. However, Mr. Berger never sent Respondent the questionnaire, and, after health issues arose, Respondent was again prevented from pressing the matter to a conclusion.

9. Undoubtedly, Respondent did not respond as completely as she should have to the May 24, 1999, letter and to the September 24, 1999, letter, whenever she received it.

   Obviously, though, the Administrative Law Judge has credited her version of conversations with Mr. Berger in the absence of

   Mr. Berger's testimony. Although Respondent's testimony concerning Mr. Berger's casual approach to this matter is possibly inconsistent with the September 24 letter, the misaddressing of the letter precludes a determination as to when Respondent received the letter and, thus, a finding of inconsistency between Respondent's version of events and the apparently toughened approach adopted by Mr. Berger in the September 24 letter.

10. At times, Respondent's credibility seemed strained, but these occasions were limited to the seemingly endless accumulation of excuses as to why she may not have received a letter or notice or could not have dealt more directly with this

    matter at the time. More importantly, Respondent's description of the extent to which Mr. Berger casually pursued the investigation is consistent with the considerable period of time that passed during the investigation without formal action, the prior relationship that Respondent had developed with Mr. Berger and his previous supervisor, and the low risk that Respondent posed to the public, given that her real estate practice was nearly inactive in 1999.

11. For all of these reasons, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to meet any unconditional demands from Petitioner. Thus, Petitioner has failed to prove that Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes; obstructed or hindered a person in discharging his duties under Chapter 475, Florida Statutes; or failed to keep and make available to Petitioner the books, records, and documents required by law to be kept and produced upon demand.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

13. Section 475.42(1)(i) provides:

No person shall obstruct or hinder in any manner the enforcement of this chapter or the performance of any lawful duty by any person acting under the authority of this chapter . . ..

14. Rule 61J2-14.012(1) provides:

A broker who receives a deposit as previously defined shall preserve and make available to [Petitioner], or its authorized representative, all deposit slips and statements of account rendered by the depository in which said deposit is placed, together with all agreements between the parties to the transaction . . .. All such books and accounts shall be subject to inspection by [Petitioner] or its authorized representatives at all reasonable times during regular business hours.

1. Section 475.25(1)(e) provides that Petitioner may impose discipline for any violation of Chapter 475 or the rules promulgated pursuant to Chapter 475.

2. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

3. For the reasons already noted, Petitioner did not prove the material allegations by clear and convincing evidence.

4. Petitioner cites in its proposed recommended order Section 475.23, which requires that a broker update Petitioner with business address changes within ten days, or else the

broker's license shall cease to be in force. Petitioner also cites in its proposed recommended order Rule 61J2-9.007, which similarly requires the updating of licensing information.

Petitioner did not allege this statute and rule as independent bases upon which to predicate discipline, so their sole purpose is to help establish the allegation that Respondent obstructed or hindered the enforcement of Chapter 475. Although a failure to maintain current licensing information could constitute the obstruction or hindrance of the enforcement of Chapter 475, the facts in this case fail to establish such a relationship.

Respondent received the May 24 letter in a timely fashion. The apparent failure of her timely receipt of the September 24 letter was due to a typographical error in Petitioner's addressing of the letter, not due to any failure of Respondent to update Petitioner with her current address. Given the ongoing contact between Respondent and Mr. Berger during the relevant period, any shortcomings in the discharge of Respondent's duty to maintain current licensing information were immaterial to the present allegations.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 8th day of February, 2002, in Tallahassee, Leon County, Florida.

___ ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2002.

COPIES FURNISHED:

Dean Saunders, Chairperson Florida Real Estate Commission

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

Jack Hisey, Deputy Division Director Division of Real Estate

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Profession Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Robyn M. Severs, Senior Attorney Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Room N308 Orlando, Florida 32802

Phyllis Mae Perry

1940 Northeast 55th Court

Fort Lauderdale, Florida 33308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-003115PL

Orders for Case No: 01-003115PL