STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF ) REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1409

)

PATRICIA SUE SHELLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 4, 1992. With the concurrence of the parties, the hearing officer participated by conference telephone from her office in Tallahassee, Florida. The parties and witnesses participated from the Hurston Building in Orlando, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32802

For Respondent: Patricia Sue Shelley, pro se

2413 Euston Road

Winter Park, FL 32789-3416 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent is guilty of dishonest dealing, culpable negligence or breach of trust in violation of Subsection 475.25(1)(b), F.S.; and guilty of failing to properly place with her employer money entrusted to her as an agent, in violation of Rule 21V-14.009, F.A.C. and Subsections 475.25(1)(e) and (k), F.S., as alleged in an administrative complaint dated October 30, 1991.

PRELIMINARY STATEMENT

In response to the administrative complaint Patricia Sue Shelley returned an election of rights form disputing the allegations and requesting a formal hearing.

Ms. Shelley did not appear at the hearing, but her husband appeared and testified on her behalf. He explained that she is under psychiatric care at home.

Petitioner presented two witnesses and four exhibits, received in evidence without objection. As stated above, Ms. Shelley's witness was her husband, Clifford Shelley.

After the hearing, Petitioner submitted a proposed recommended order, with findings of fact which are substantially adopted here. Patricia Shelley filed a letter, comprising her argument, and several attachments. While those attachments would ordinarily be disregarded in the absence of leave to file late exhibits, under the circumstances, they have been considered in the deliberations leading to this recommended order. The attachments reflect the

on-going dispute between Ms. Shelley and her employer, a dispute that is irrelevant to the charges here, for reasons described below.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes and the rules promulgated pursuant thereto.

   
   

2. The Respondent, Patricia Sue Shelley, is now and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0454282 in accordance with Chapter 475, Florida Statutes. The last license issued was effective 3/10/92, with a home address of 2413 Euston Road, Winter Park, Florida 32789-3416.

   
   

3. From July 9, 1990 to December 5, 1990, the Respondent was licensed as a real estate salesperson with Don Gallagher, Inc. t/a The Prudential Gallagher Properties (Petitioner's Exhibit #4). Her status was property manager.

   
   

4. While employed as the property manager the Respondent collected $1,450 in rental funds during November and December 1990, but failed to deliver the rental funds to her employing broker. The Respondent and the broker had an ongoing commission dispute and the Respondent kept the $1,450 because she felt that the broker owed her the money.

   
   

5. On December 7, 1990, the Respondent delivered a check from her personal account in the amount of $1,450, to the broker notated: "$ rent for Curry Ford and Dover Circle". These were properties being managed by the broker. (Petitioner's Exhibit #1).

   
   

6. On December 8, 1990, the broker deposited the Respondent's check into escrow, but the check was returned annotated: "payment stopped do not redeposit." (Petitioner's Exhibit #2).

   
   

7. On December 17, 1990, employing broker Don Gallagher sent the Respondent a demand letter, but the Respondent refused to deliver the trust funds to Don Gallagher. (Petitioner's Exhibit #3).

   
   

8. Petitioner's husband recommended that she keep the rental money and get with Don Gallagher about the commission. He later recommended that she just

   give the money back and is not sure why she did not. She has been under a physician's care for manic depression for about 1 1/2 years.

   
   

9. Ms. Shelley's license record includes no other alleged violations or discipline.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.57(1), F.S. and 455.225(5), F.S.

    
    

11. Section 475.25, F.S. provides, in pertinent part:

    
    

    475.25 Discipline.-

    (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 $1,000 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

    . . .

    (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.

    . . .

    (k) . . . has failed, if a salesperson, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer . . .

    
    

12. Rule 21V-14.008, F.A.C. defines "deposit" to include the rental funds received and withheld by Respondent. Rule 21V-14.009, F.A.C. requires that any real estate salesperson who receives a deposit shall immediately, at first opportunity, pay over the funds to the broker or employer under whom she is licensed as a salesperson.

    
    

13. The Petitioner failed to prove by clear and convincing evidence that Ms. Shelley's actions were fraudulent, as provided for in Section 475.25(1)(b), F.S.; but Petitioner did prove, and Ms. Shelley admitted, her failure to deliver the funds to her employer/broker.

14. Ms. Shelley's claim to commissions that were not paid to her does not excuse her failure. Other remedies exist for resolving commission disputes, but with regard to the rental funds her obligation under the law and rules of the Florida Real Estate Commission is unequivocal.

    
    

15. Chapter 21V-24, F.A.C. provides disciplinary guidelines adopted by the Florida Real Estate Commission, with provisions for aggravating or mitigating circumstances. The guidelines provide for a minimum of a 90 day suspension and

$1,000 fine, up to revocation, for violation of Section 475.25(1)(k), F.S. The penalty recommended here is within that guideline and that for violations of Section 475.25(1)(e), F.S. and considers the licensee's lack of prior violations or discipline history.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that a Final Order be entered, finding Patricia Sue Shelley violated Sections 475.25(1)(e) and (k), F.S., suspending her license for two years, with the condition that the suspension be lifted anytime after 90 days, if restitution of $1,450 is made to her former employer/broker. After suspension is lifted, Respondent should be placed on probation for one year under such conditions as may be appropriate, including participation in continuing education courses regarding the handling of deposits and other funds received in trust.

DONE and ENTERED this 29th day of October, 1992, at Tallahassee, Florida.

MARY CLARK

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 29th day of October, 1992.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional

Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32802

Patricia Sue Shelley, pro se 2413 Euston Road

Winter Park, FL 32789-3416

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Darlene F. Keller, Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900

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 consult with 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: 92-001409

Orders for Case No: 92-001409