STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3178

)

MARY ANN HOLT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, on September 30, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Mary Ann Holt

2059 Knoll Crest Drive Arlington, Texas 76014

This matter arose on Petitioner's Administrative Complaint against Respondents Mary Ann Holt, Donna E. Duffy and Best Sellers Group, Inc. Subsequent to referral of this case to the Division of Administrative Hearings, Petitioner dismissed its complaint as to the latter two Respondents. No notice of this action was given either to the Hearing Officer or to Respondent Holt.

Proposed findings were due to be filed on November 22, 1982 (transcript filed November 8, 1982). Post hearing depositions were to be filed within 30 days of the hearing or an extension requested. Respondent did request a 15 day extension to file proposed findings, but none regarding the depositions. The time to file depositions and proposed findings has expired and none have been received.

FINDINGS OF FACT

1. Respondent Holt is a registered real estate salesman having been issued license number 0334695. She has not been issued a real estate broker's license.

   
   

2. Count II of the Amended Administrative Complaint concerns a failure by the original Respondents to timely place an earnest money deposit in escrow. These funds came into the hands of Donna Duffy, the broker, and Best Sellers

   Group, Inc., the brokerage firm, on February 14, 1981, but were not deposited until February 23, 1981. Former Respondent Duffy and Respondent Holt testified on the question of who was responsible for making the deposit. These individuals have had a falling out and their testimony was conflicting as well as self-serving. Other testimony supporting this charge was inconclusive.

   
   

3. Counts II and III concern a property lease which Respondent arranged for out of state property owners after she left the Atkins, Green, Stauffer and Clark brokerage. The lease arose out of an exclusive right of sale listing with this firm. However, the brokerage was not interested in handling the lease and Respondent undertook this transaction as a favor to the property owners.

   
   

4. Holt located a potential lessee in October, 1980. She then forwarded a copy of the lease agreement to the owners along with a bill for her expenses and her personal check for $495. This amount equaled the first month's rent and security deposit which she had collected from the lessee. Thereafter, the property owners negotiated Holt's check, but it was dishonored by the bank. Subsequently, the property owners were deprived of a further $395 in rent collected by Holt. In August, 1981, Holt made restitution in the amount of

   $890.

   
   

5. In mitigation, Holt stated that her estranged husband had withdrawn the original funds intended to cover the returned check. She also had experienced other expenses of divorce and family problems which led her to spend funds she subsequently collected. In further mitigation, Holt pointed out that she did not seek a commission for obtaining the lease, nor did she charge a monthly fee as is customary in such matters when handled through a brokerage.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 475.25, Florida Statutes (F.S.), empowers Petitioner to discipline real estate brokers and salesmen for enumerated acts and omissions. Penalties upon a finding of guilt include license suspension, license revocation and fines. Subsection 475.25(1)(k), F.S., requires brokers to place earnest money deposits immediately in escrow. Salesmen are required to place such funds with their brokers.

   
   

7. Under Count I of the Administrative Complaint, Respondent Holt is charged with violating this provision. Although Petitioner demonstrated that certain funds were not timely deposited, it was not shown to have been Holt's responsibility. Rather, her broker who had received the funds blamed Holt for not making the deposit she herself was responsible for under Subsection 475.25(1)(k), F.S. In view of this and the dismissal of charges against the responsible broker without notice to Respondent Holt, this charge should be dismissed.

   
   

8. Counts II through VI concern violations arising from the lease transaction whereby Holt acted without the supervision of a broker and improperly handled funds she collected. It was demonstrated that Holt did act independently of a broker in arranging the lease. Although she claims to have had the advice and approval of her previous and (then) current brokers, she acted entirely on her own in arranging the lease and collecting rent and the security deposit. As such, she violated Subsection 475.42(1)(a), F.S., which prohibits any person from acting as a real estate broker. 1/ This is in further violation of Subsection 475.25(1)(a), F.S., which incorporates Subsection 475.42, F.S., by reference.

9. Respondent Holt is also charged with failure to deliver funds to the person entitled to such delivery in violation of Subsection 475.25(1)(d), F.S., and with culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), F.S. Holt failed to deliver some $890 to the property owners entitled to these funds and is thus guilty of violating Subsection 475.25(1)(d), F.S. By placing such funds in her own account, she knowingly exposed this money to withdrawal by her husband. She is therefore guilty of culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), F.S.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent Mary Ann Holt guilty as charged in Counts II through VI of the Amended Administrative Complaint, and suspending her real estate salesman's license for a period of three years.

DONE and ENTERED this 11th day of January, 1983, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.

ENDNOTE

1/ Subsection 475.01(3), F.S., includes, among others, the leasing of property as a broker's function. Subsection 475.01(4), F.S., requires salesmen to perform such functions under the direction of another.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mary Ann Holt

2059 Knoll Crest Drive Arlington, Texas 76014

William M. Furlow, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003178

Orders for Case No: 81-003178