STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4852

)

CECELIA N. SMILE DILLON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 31, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

Hurston Building North Tower

400 West Robinson Street, Suite N-308 Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Abe A. Bailey, Esquire

Bailey, Martin & Associates, P.A. The Chasyn Building

20401 Northwest 2nd Avenue Miami, Florida 33169

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, disciplinary action should be imposed.

PRELIMINARY STATEMENT

Petitioner served Respondent with an Administrative Complaint on July 18, 1991. Respondent requested a formal hearing on July 23, 1991. The matter was referred to the Division of Administrative Hearings on August 2, 1991, for assignment of a hearing officer, and assigned to the undersigned on August 6, 1991. A formal hearing was scheduled for October 31, 1991, pursuant to a Notice of Hearing issued on August 20, 1991.

At the formal hearing, Petitioner presented the testimony of four witnesses1 and submitted 10 exhibits for admission in evidence. Petitioner's Exhibits 1-9 were admitted in evidence without objection. Petitioner's Exhibit

10 was not admitted in evidence pursuant to the objection of Respondent.

Respondent testified in her own behalf and submitted one exhibit for admission in evidence. Respondent's Exhibit 1 was admitted in evidence without objection.3

A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on November 12, 1991. Proposed findings of fact and conclusions of law were timely filed by Petitioner on December 13, 1991, and by Respondent on November 25, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with responsibility for prosecuting administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate salesman in the state, holding license number 0189734. The license was last issued as a salesperson %Say Realty & Investments, Inc., 6306 Pembroke Road, Hollywood, Florida 33023.

   
   

2. Respondent was employed as a salesperson with Sales Alvin, Inc. from June 28, 1990, to March 10, 1991. Respondent's license was placed with Say Realty and Investments, Inc. effective March 11, 1991. During the time Respondent was employed by Sales Alvin, Inc., she carried out a series of acts in connection with the listing for rent of a condominium without the knowledge and consent of her employing broker.

   
   

3. While Respondent was a salesperson for Sales Alvin, Inc., on or about February 19, 1991, Respondent listed an unfurnished condominium for rent at a monthly rental price of $700. The condominium was owned by Mr. Roy Barrett. Respondent listed the rental unit, and Alon Granovsky, another salesperson employed by Sales Alvin, Inc., procured a tenant for the condominium.

   
   

4. Respondent drafted a lease between the tenant and the owner of the condominium on or about February 21, 1991. Respondent collected a check from the tenant in the amount of $2,100 for payment of the initial rent and security deposit. Respondent then delivered the check to the owner of the condominium, and the owner gave Respondent a receipt for $2,100.

   
   

5. Respondent gave Mr. Granovsky a personal check for $210 on or about February 21, 1991, as a commission for procuring the tenant for the condominium. Respondent did not inform her employing broker of the rental transaction or that she had given a commission check to Mr. Granovsky. Mr. Granovsky disclosed the transaction to his employing broker and delivered his commission check to his broker. Respondent's broker gained additional knowledge of the transaction when he received a money order from the tenant in the amount of $700 for the rent due for the month of March.

   
   

6. Respondent's employing broker confronted Respondent regarding the transaction. Respondent provided her employing broker with a personal check for

   $350 as a portion of the commission due the employing broker and subsequently delivered the balance of the commission due. The entire commission was disbursed by the employing broker.

7. While employed by Sales Alvin, Inc., on or about March 3, 1991, Respondent solicited and obtained a listing for the sale of a house. Respondent provided the owners of the house with a Sellers Net Sheet on the letter head and form used by Sales Alvin, Inc. The Sellers Net Sheet approximated the cash to seller at closing if the house sold at the listed price.

   
   

8. Respondent became employed by Say Realty and Investment, Inc., on or about March 11, 1991. Respondent listed the house while she was employed by Sales Alvin, Inc. When Respondent placed the house in the multiple listing service ("MLS"), she showed Say Realty and Investment, Inc., as the listing broker. When the brokers at Sales Alvin, Inc. questioned the listing with Say Realty and Investment, Inc., the listing was transferred to Sales Alvin, Inc. Respondent has no history of prior disciplinary action against her license.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof is on Petitioner in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Petitioner showed by clear and convincing evidence that Respondent violated Sections 475.42(1)(b) and (d), Florida Statutes. Sections 475.42(1)(b) and (d) provide in relevant part:

    
    

    (b) No person licensed as a salesperson shall operate as a broker or operate as a salesperson for any person not registered as his employer . .

    (d) No salesperson shall 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 . .

    
    

    Respondent conducted rental activities, including the collection of rent, deposits, and commissions, in her own behalf in violation of Sections 475.42(1)(b) and (d).

    
    

12. Sections 475.25(1)(b) and (e), Florida Statutes, provide in relevant part:

    
    

    1. The commission may . . . suspend a license . . for a period not exceeding 10 years; may revoke a license . . .; may impose an administrative fine not to exceed $1,000 for each count or separate offense . . . if it finds that the licensee . .

       (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 a business transaction.

       (e) 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.

       
       

13. Disciplinary guidelines are provided in Florida Administrative Code Rule 21V-24.001(2) and (3). For a violation of Sections 475.25(1)(b) or (e), Florida Statutes, Respondent may be placed on probation for a period of time and subject to conditions as the Commission may specify, may be fined up to $1,000 per count, may have her license suspended for up to five years, or may have her license revoked.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order suspending

Respondent's license for 90 days, imposing an administrative fine of $1,000, and placing Respondent on probation for one year subject to such reasonable conditions as may be imposed by the Commission.

DONE and ENTERED this 22nd day of January, 1992, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1992.

ENDNOTES

1/ Petitioner's witnesses were: Mr. Alon Granovsky, real estate salesman for ERA Sales/Alvin, Inc.; Mr. Martin R. Tavlin, real estate broker for ERA Sales/Alvin, Inc.; Mr. Alvin Waltzer, real estate broker for ERA Sales/Alvin, Inc.; and Mr. Ken Rehm, Investigator for Petitioner. Mr. Rehm was called as a rebuttal witness.

2/ Petitioner's Exhibit 1 is a certified copy of Respondent's licensure file. Exhibit 2 is a copy of the Respondent's responses to Petitioner's First Request For Admissions And Respondent's Admissions. Exhibit 3 is a composite exhibit consisting of copies of the rental information on the property in question in this proceeding. Exhibit 4 is a copy of a receipt for $2,100 paid by Respondent. Exhibit 5 is a copy of a check from Respondent for $210. Exhibit 6 is a copy of a letter dated March 25, 1991, from Mr. Waltzer to Respondent.

Exhibit 7 is a copy of a money order payable to Mr. Rudy Brown in the amount of

$700. Exhibit 8 is a copy of the Multiple Listing Service computer printout on the property at issue in this proceeding. Exhibit 9 is a copy of the Seller's Net Sheet for the property. Exhibit 10 is a letter dated March 9, 1991, from a Mr. and Mrs. Capp.

3/ Respondent's Exhibit 1 is the original check from Respondent to Sales Alvin, Inc. in the amount of $350.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4852

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent submitted proposed findings of fact. However, Respondent's proposed findings of fact do not comply with the form required by the order entered by the undersigned on the record at the formal hearing. Respondent's proposed findings of fact do not contain separately numbered paragraphs and do not cite to the record for the basis of the proposed finding of fact. Therefore, it has not been noted below which proposed findings of fact have been generally accepted and which have been rejected.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900

Orlando, FL 32802-1900

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

James H. Gillis, Esquire Senior Attorney

Department of Professional Regulation - Legal Section

Division of Real Estate Hurston Building North Tower

400 West Robinson Street Suite N-308

P.O. Box 1900

Orlando, Florida 32802-1900

Abe A. Bailey, Esquire

Bailey, Martin & Associates, P.A. The Chasyn Building

20401 Northwest 2nd Avenue Miami, Florida 33169

Case No. 91-4852

(continued)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-004852

Orders for Case No: 91-004852