vs. ) CASE NO. 79-952
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 4, 1980, in Tampa, Florida.
Petitioner filed an Administrative Complaint against Respondent, Lillian Gail Slattery, trading as Slattery Realty, seeking to revoke, suspend, or otherwise discipline her real estate broker license. Accordingly, the issue for determination is whether Respondent's license should be revoked, suspended, or otherwise disciplined.
Petitioner presented the testimony of Roy H. Mueller, Paul William Martin, and Robert John Corda. Petitioner's Exhibits 1 through 8 were also received in evidence.
Petitioner requested and was granted leave to file proposed findings of fact in the form of a proposed recommended order after the conclusion of the hearing but failed to do so.
At all times material hereto, Respondent, Lillian Gail Slattery, trading as Slattery Realty, was registered as a real estate broker with the Petitioner holding License No. 0081632.
On or about February 13, 1978, Roy H. Mueller gave to Respondent in her capacity as a real estate broker a written rental listing and written authority to find a lessee for a house owned by him and located at 805 Peninsula Road, Tarpon Springs, and to act as property manager.
Respondent negotiated a written lease dated April 15, 1978, whereby Reginald Richard agreed to lease the subject property at a rental of $210 per month for twelve months commencing on that date.
Respondent failed to forward to Mueller any of the rental monies for the subject property until June 12, 1978, when she issued a check in the amount of $210, which check was written on her Slattery Realty Escrow account. Although Mueller twice presented the check for payment, it was not honored, since Respondent's escrow account did not contain sufficient funds for payment.
On August 11, 1978, Respondent forwarded to Mueller a second check written on her escrow account in the amount of $610. This check constituted the only rent monies forwarded by Respondent although Respondent, by that date, had collected $945 in rent monies from Richard.
Mueller terminated Respondent's authority to act as property manager in August 1978 and instructed Richard to pay his rent monies directly to Mueller.
During the term of Mueller's agreement with Respondent, Respondent never rendered an accounting of monies received by her and never communicated to Mueller any reason for her failure to immediately forward to him the monies she collected for him on his behalf. Further, no accounting has been given to Mueller since the termination of that management agreement, and Respondent has never paid Mueller all the monies due him, despite demands made.
At all times material hereto, Respondent had, and maintained as a real estate broker, one escrow account, Account No. 1003186 at Ellis Springs Bank in Tarpon Springs, Florida. Between April 6, 1978, and October 2, 1978, twenty- eight checks written on that account were dishonored for "not sufficient funds."
Respondent's escrow account bank statements during the term of her management agreement with Mueller do not reflect any deposit attributable to Richard's rental payments. Further, on most dates the balance in Respondent's escrow account was far less than the amount of rent collected by her from Richard even if his rent monies were the only monies being held by her in escrow.
Respondent made payable to Stockton, Whatley and Davin the following checks drawn on Respondent's escrow account, for her own use and benefit:
Check No. 382 for $389.97 dated June 16, 1978
Check No. 393 for $315.82 dated August 11, 1978
Check No. 439 for $306.54 dated October 16, 1978
Respondent issued checks on her escrow account which were dishonored upon presentment for reasons of insufficient funds and overdrafts, as follows:
Check for $35 returned on April 3, 1978 Check for $300 returned on May 16, 1978 Check for $317 returned on June 2, 1978 Check for $61.23 returned on June 13, 1978 Check for $210 returned on July 7, 1978 Check for $210 returned on July 17, 1978
Check for $315.82 returned on August 21, 1978 Check for $100 returned on September 21, 1978 Checks for $65 returned on September 25, 1978
Checks for $371.57 returned on September 27, 1978 Check for $65 returned on September 28, 1978 Check for $50 returned on September 29, 1978
Respondent issued checks on her escrow account which were dishonored for insufficient funds, as follows:
Check No. 363 for $300 dated March 20, 1978, to Melvin McKnight
Check No. 370 for $264.80 dated May 1, 1978, to George Yucabis
Check No. 399 for $100 dated August 24, 1978, to John Williams
Check No. 420 for $15 dated September 19, 1978, to C.F.M. 5519, Inc.
Check No. 425 for $65 dated September 26, 1978, to Susan Bera
Respondent issued on her escrow account the following checks, each payable to "cash," the majority of which bear Respondent's endorsement and were used for her own purposes:
Check No. 377 for $225 dated May 30, 1978
Check No. 387 for $220 dated July 24, 1978
Check No. 417 for $200 dated September 15, 1978
Check No. 431 for $150 dated October 6, 1978
Check No. 432 for $314.81 dated October 6, 1978
Check No. 443 for $260 dated October 24, 1978
Respondent issued on her escrow account the following checks to purchase a Cadillac automobile for her own purposes:
Check No. 440 for $500 dated October 18, 1978, payable to Robin's Wheels
Check No. 442 for $612 dated October 20, 1978, payable to Robin's Wheels
Respondent issued on her escrow account the following checks for her own use and benefit:
Check No. 379 for $126.29 dated June 5, 1978, payable to General Telephone
Check No. 389 for $35 dated July 28, 1978, payable to Sun Market
Check No. 397 for $93.59 dated August 16, 1978, payable to Sears
Check No. 398 for $50 dated August 17, 1978, payable to Sun Market
Check No. 403 for $14.29 dated September 2, 1978, payable to K-Mart
Check No. 405 for $15 dated September 5, 1978, payable to C.F.M. 5519, Inc.
Check No. 407 for $20 dated September 7, 1978 payable to C.F.M. 5519, Inc.
Check No. 408 for $4.45 dated September 9, 1978, payable to Perm City
Check No. 416 for $5.06 dated September 14, 1978, payable to K-Mart
Check No. 426 for $64 payable to Delta Airlines
Check No. 435 for $100.32 payable to General Telephone
Respondent failed and refused to present to Petitioner's investigator documents to establish the origin of deposits made to her escrow account although Petitioner issued and served upon Respondent two subpoenas duces tecum for the production of such documentation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Before its substantial revision effective July 1, 1979, Section 475.25, Florida Statutes (1977), provided, in pertinent part, as follows:
The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the 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; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction . .
. or,
* * *
(c) Failed to account or deliver to any person . . . any personal property such as money, fund, deposit, check, draft . . . or thing of value . . . which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances, and 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 deliver . . . or,
* * *
(i) Failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check or draft, entrusted to him by any person dealing with him as a broker, in escrow with a title company or banking institution located and doing business in Florida, or, deposit said funds in a trust or escrow bank account maintained by him with
some bank located and doing business in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized. . . .
* * *
(3) The registration of a registrant may be revoked if the registrant shall be
found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.
Since all events alleged herein occurred during 1978, the wording of Section
475.25 prior to its revision applies.
The allegations contained in the Administrative Complaint filed in this cause comprise thirteen separate counts of violations of statutory requirements by the Respondent. Petitioner failed to present any evidence regarding Count Ten and Count Twelve and failed to introduce into evidence many of the exhibits attached to the Administrative Complaint. Further, Petitioner failed to introduce into evidence copies of its rules allegedly violated by Respondent although Petitioner did reference on the record rules which were repealed effective January 1, 1980, and are no longer contained in the Florida Administrative Code.
However, Petitioner has established by uncontroverted evidence that Respondent repeatedly (if not continuously) during 1978 engaged in dishonest dealing, culpable negligence, breach of trust, failure to deposit entrusted monies into an escrow account, and failure to account for or deliver monies to her principal Mueller timely or upon demand. Respondent's transactions with Mueller and her habit of writing checks from her escrow account for her personal use and/or writing checks from her escrow account without sufficient funds clearly constitute repeated violations of Section 475.25(l)(a), (c), and (i), Florida Statutes (1977).
Although the only penalty imposed for violations of Subsections (a), (c), and (i) of Section 475.25(l), Florida Statutes (1977), is suspension for a period not exceeding two years, it is not necessary to consider the appropriate cumulative length of suspensions for the numerous violations committed by Respondent. Under the facts of this case, it is clear that the totality of violations comprise a course of conduct or practices which show Respondent to be so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of investors or those with whom she may sustain a confidential relation may not safely be entrusted to her. Accordingly, Petitioner has met its burden of proof to affirmatively demonstrate that revocation of Respondent's license pursuant to Section 475.25(3), Florida Statutes (1977), is the only appropriate penalty. Respondent's failure to even appear at the hearing in this cause further supports the revocation of her license.
Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a final order be entered revoking Respondent's real estate broker license.
DONE AND ENTERED this 6th day of July 1981 in Tallahassee, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1981.
Ms. Lillian Gail Slattery t/a Slattery Realty
Ms. Nancy Kelley Wittenberg Secretary
Mr. C. B. Stafford Executive Director Board of Real Estate
