STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A final hearing was held, as previously scheduled, on April 17, 2009, by video teleconference between sites in Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge Eleanor M. Hunter of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801 Orlando, Florida 32801

For Respondent: Caroline Mohan, pro se

3333 South Congress Avenue, Suite 400 Delray Beach, Florida 33445

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, a licensed Florida real estate sales associate, violated provisions of Subsections 475.25(1)(b), 475.25(1)(d)1., 475.25(1)(e),

475.42(1)(b), and 475.42(1)(d), Florida Statutes (2007),1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On October 20, 2008, Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate, issued a four-count Administrative Complaint in FDBPR Case

No. 2008013157, against Respondent, Caroline Mohan. The complaint alleged violations of certain provisions of the statutes and rules governing real estate sales associates. While she was acting as the listing agent for the sale of a residence in Wellington, Florida, the complaint alleges that Respondent failed to properly account for funds paid as a deposit by a prospective buyer.

Respondent, Caroline Mohan, timely filed a request for an administrative hearing, which was forwarded to the Division of Administrative Hearings on February 19, 2009. A final hearing was held at the places and on the date set forth in the Notice of Hearing.

At the final hearing, Petitioner called three witnesses: Investigator Jonathan Platt; Coral Shores Realty Broker Ronald

Cika; and Jannet Rodriguez, the owner of Closings Unlimited Title Company. Respondent offered the following three exhibits that were received into evidence without objection: (1) The purchase and sales contract for the Wellington Residence; (2) Ms. Mohan's real estate licensure history; and (3) The Investigative Report.

Respondent testified on her own behalf and also called one witness, Garth Smith. Respondent offered the following four exhibits that were received into evidence without objection:

1. Response to Administrative Complaint; (2) Response from one of the buyers, Mr. Garth Smith; (3) E-mail from Coral Shores; and (4) Facsimile transmission from South East Land Title, Inc.

   The one-volume Transcript of the hearing was filed on

   
   

   May 18, 2009. Proposed Recommended Orders were filed on May 28, 2009, and June 2, 2009.

   FINDINGS OF FACT

   
   

   1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the Department), is the state agency responsible for licensing and monitoring real estate sales associates within the state. It is charged also with the duty to prosecute administrative complaints for violations of the law by real estate sales associates.

   2. Respondent, Caroline Mohan (Ms. Mohan), is a licensed real estate sales associate who holds License No. 3087231. She

      was registered as a sales associate with Coral Shores Realty (Coral Shores) in Fort Lauderdale, Florida, from September 12, 2005, to March 28, 2008.

   3. At all times relevant to the charges against her, Ms. Mohan was the Coral Shores sales associate who was the listing agent for Anthony Mannarino, the seller of property

      located at 10530 Versailles Boulevard, Wellington, Florida (the "subject property"). At closing, Coral Shores was to have received at 2.5 percent commission and pay a portion of the commission to Ms. Mohan.

   4. Dawn Campbell and Garth Smith (the buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the subject property from Mr. Mannarino. Pursuant to the contract, the buyers were to deposit $10,000 in an escrow account in two $5,000 installments. The Contract was signed on or about March 12, 2007.

   5. The transactions took place electronically and

      
      

      Mr. Smith sent Ms. Mohan a photocopy of a $5,000 check that he was supposed to have deposited, under the terms of the contract, in the account of Closings Unlimited Title Company (Closings Unlimited), but he never sent the check to Closings Unlimited.

   6. The seller asked Ms. Mohan to have the buyer use a different escrow agent, Southeast Land Title (Southeast), and so

      the buyer wired $5,000.00 to Southeast, but the Contract was not amended to reflect the name of the new escrow agent.

   7. A $5,000 deposit was sent to Southeast by the buyers, but they never paid the $5,000 balance due on the deposit.

      Mr. Smith testified the he could not make the second payment because he gave $5,000 in cash to an employee to deposit in his account so that he could make a wire transfer, but the employee took the money.

   8. On April 3, 2007, Southeast faxed a notice to Coral Shores, with an attached letter to the buyers, informing them of its intention to respond to a demand (presumably by the seller) to release the $5,000 held in escrow related to the subject property.

   9. As a result of a complaint filed by Dorothy Hoyt, a representative of Southeast, the matter was investigated and an Administrative Complaint filed against Respondent. The Administrative Complaint alleges that Ms. Mohan personally received funds, fraudulently failed to account for those funds, and acted, without the proper license, as a broker by accepting the deposit.

   10. The Department's investigator testified that he was never able to determine if the escrow deposit was deposited at any bank, lending institution or with Dorothy Hoyt of Southeast Land Title of Boca Raton. He "believe[s] there was a wire for

       one deposit made, but [he] did not receive confirmation of that." Regarding his conversations with Ms. Hoyt, the investigator reported "she did state that . . . she had received

       - eventually received $5,000.00 and was still waiting [for] another $5,000.00 in order to have the full $10,000.00 deposit."

   11. In his report, the Department's investigator claimed that Respondent was terminated from employment by her Coral Shores broker, Ronald Cika, as a result of her misconduct in handling transactions related to the subject property. That claim was contradicted by Mr. Cika and by Ms. Mohan. Their testimony was supported by the contents of e-mails between his office and Respondent that show that she became inactive as a realtor while traveling overseas with an offer to reactivate with the same broker upon her return.

   12. Mr. Cika testified that he is aware of a lawsuit filed by Dawn Campbell related to a different address on the same street, 10526 Versailles Boulevard, but that he is not aware of any issues related to 10530 Versailles Boulevard, the subject property.

   13. Jannet Rodriguez, owner of Closings Unlimited, testified that she was never contacted and never opened a file to serve as either an escrow or closing agent for the subject property at 10530 Versailles Boulevard. She, too, is involved only in issues related to 10526 Versailles Boulevard.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2008).

   15. Petitioner has the burden of proof in this matter.

       
       

       Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The standard of proof for a licensure disciplinary case is clear and convincing evidence. Osborne Stern and Co., Inc. v. Department of Banking and Finance, 670 So. 2d 932 (Fla. 1996).

   16. Clear and convincing evidence is an intermediate standard of proof which is more than the "preponderance of the evidence" standard used in most civil cases, but less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2nd DCA 1970). Clear and convincing evidence has been defined as evidence that:

       [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the fats in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (citations omitted).

   17. Section 475.25, Florida Statutes, entitled Discipline, states:

       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 $5,000 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, misrepresentation, 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; has violated a duty imposed upon her or him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; ...

          
          

          * * *

          
          

          1. 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, . . .

             
             

   18. There is no evidence that Respondent committed the offenses described in Subsection 475.25(1)(b), Florida Statutes,

       as alleged in Count One of the Administrative Complaint. The evidence indicates that Respondent instructed the prospective buyers to make the deposit as requested by the seller.

   19. There is no evidence that Respondent committed the offenses prohibited in Subsection 475.25(1)(d)1., Florida Statutes, as alleged in Count Two of the Administrative Complaint, because there is no evidence that Respondent ever received and, therefore, failed to account for or deliver the funds for the deposit in connection with the transaction.

   20. Count Three re-alleges that Respondent violated Subsection 475.25(1)(b), Florida Statutes, and that she violated Subsection 475.25(1)(e), Florida Statutes, as follows:

       1. Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

       
       

   21. There is no evidence that Respondent has violated the provisions of Chapter 475 or Chapter 455, Florida Statutes.

   22. Count Four of the Administrative Complaint alleged that Respondent violated Subsection 475.42(1)(d), Florida Statutes, as follows:

       (d) A sales associate may not collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer; . . .

   23. Count Four also alleged that a violation of Subsection 475.45(1)(d), Florida Statutes, constitutes a violation of Subsection 475.25(1)(e), Florida Statutes, because a statute, order, or rule under Chapters 475 and 455, Florida Statutes, has been violated.

   24. There is no evidence that Respondent collected any money in connection with the transaction related to the Subject Property and, thus, no evidence that she committed the offenses alleged in the Administrative Complaint.

   25. Petitioner failed to establish the allegations in the Administrative Complaint against Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Caroline Mohan.

DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.

ENDNOTE

1/ All references to Florida Statutes, not otherwise indicated, are to Statutes in effect in 2008.

COPIES FURNISHED:

Patrick J. Cunningham, Esquire Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801 Orlando, Florida 32801

Caroline Mohan

3333 South Congress Avenue, Suite 400 Delray Beach, Florida 33445

Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite N802 Orlando, Florida 32801

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 09-000950PL

Orders for Case No: 09-000950PL