STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION ) ex. rel. HAROLD L. CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1120

)

SALLY JANE SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case at Ft. Myers, Florida on September 30, 1976.

APPEARANCES:

For Petitioner: Manuel E. Oliver, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Sally Jane Smith

4257D, Island Circle Fort Myers, Florida

By Administrative Complaint filed May 20, 1976 the FREC ex rel Harold L. Clark, seeks to revoke, suspend or otherwise discipline the license of Sally Jane Smith as a real estate sales person. As grounds therefor it is alleged that Respondent, while registered as a salesman for a non-broker employer, obtained a listing and procured a tenant for a condominium owner thereby violating 475.42(1)(b) F.S.; and that she forged the endorsement on and deposited a check in her account made out to another person in violation of 475.25(1)(a) F.S. At the commencement of the hearing Respondent stated she desired to plead guilty to both counts in the Administrative Complaint and to submit a sworn statement in mitigation. After being fully apprised of the effects of the plea of guilty the Respondent persisted therein. During the course of her testimony she offered to submit copies of her checks to the lessors of the condominium as a late-filed exhibit. No objection was interposed and the exhibit was admitted as Exhibit 1.

FINDINGS OF FACT

1. By her plea of guilty Respondent has admitted all allegations contained in the Administrative Complaint. Her testimony was unrebutted that a Mrs. Johnson, owner of a condominium, at 1062 Highland Circle, Fort Myers, Florida, desired a tenant and approached Respondent Smith to see if she could locate a

   tenant for which Mrs. Johnson, a real estate salesman in Minnesota, agreed to pay commission. At the time this transaction occurred Respondent Smith was working as salesman for Caloosa Bayview Corporation, a non-broker.

   
   

2. Respondent Smith had to locate a key to the apartment and have the apartment cleaned and painted before it could be rented. She apprised Johnson of this before proceeding. Thereafter a tenant was obtained who made the initial payment in cash which Respondent Smith deposited in her account and submitted her check to Johnson for the deposit less her commission. The next month the rental check was made payable to Johnson, sent to Smith, and Smith endorsed Johnson's name on the check followed by her endorsement. She deposited the check in her account and transmitted to Johnson a check for this amount. Thereafter Smith advised the tenant to submit payments directly to Johnson.

   
   

3. On a subsequent visit by Johnson to Ft. Myers Johnson entered the apartment with a key she had retained and claimed the tenant had done damage to the apartment. When Respondent Smith defended the tenant by advising Johnson the damage was done prior to the present tenant's occupancy, Johnson became upset and later filed a complaint with FREC and this investigation and charges resulted.

   
   

   CONCLUSIONS OF LAW

   
   

4. The plea of guilty by Respondent is sufficient standing alone to sustain a finding of guilty. Tolar v. State, 196 So.2d 1 (Fla. Supp. 1967).

   
   

5. Section 475.25(1)(a) F.S. provides that the registration of a registrant may be suspended for a period not to exceed two years if registrant has:

   
   

   "Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach

   of trust in any business transaction,

   in this state or any other state, nation, or territory "

   
   

6. By her plea of guilty as modified by the statement under oath Respondent Smith did not place the forged endorsement on the check with the intent to defraud or dishonestly deal with anyone, and in fact, no one was defrauded.

   
   

   Section 475.42(1)(b) F.S. provides:

   "No person registered as a real estate salesman shall operate as a real estate broker, or operate as a salesman for any person not registered as his employer."

   
   

7. Here it is clear that Respondent acted in the capacity of broker when she negotiated the rental contract here involved. Whether she was actually aware that this action was in violation of the Real Estate License Laws which she denies, or had constructive knowledge that it was in violation of the Real Estate License Law, is not necessary to determine. By her plea of guilty Respondent has admitted all facts well pleaded.

8. From Respondent Smith's statement in mitigation it is evident that the endorsement placed on the check was not for the purpose of defrauding anyone, or was a breach of trust in a business transaction. It could be argued that by accepting Respondent Smith's substitute check for the check made out to Johnson, Johnson ratified the endorsement placed on her check by Respondent Smith.

   
   

9. From the foregoing it is concluded that, under the circumstances, the most serious offense here involved would not be forgery as would normally be expected, but the actions of Respondent in acting as a broker without authority. It is therefore,

RECOMMENDED that the real estate license of Sally Jane Smith be suspended for a period of three (3) months. It is further

RECOMMENDED that the execution of this suspension be stayed for a period not to exceed one year at which time unless such stay is sooner vacated by reason of other misconduct on the part of Respondent, Sally Jane Smith, the suspension be set aside.

DONE and ENTERED this 2nd day of November, 1976, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings

Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Manuel E. Oliver, Esquire 2699 Lee Road

Winter Park, Florida 32789

Sally Jane Smith 4257D Island Circle Fort Myers, Florida

Docket for Case No: 76-001120

Orders for Case No: 76-001120