v. ) CASE NO. 92-1989
DEBORAH M. SEGERT, )
Respondent. )
Pursuant to notice, a formal hearing was held in this case on September 21, 1992, in Brooksville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
For Petitioner: Janine B. Myrick
DPR, Div. of Real Estate
The issue is whether the real estate license of Respondent, Deborah M. Segert (Segert), should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.
Petitioner, Department of Professional Regulation (DPR), presented the testimony of Ivette Summers, Stanley D. Varvel, Sandra Varvel, Scott A. Poquette, Sue J. Forcino, John A. Rorabacker, Doris Ross, James Knight Foster, Adele Poston, Winston Griffith, and Marjorie G. May. DPR's Exhibits 1 and 7-19 were admitted in evidence.
At the onset of the hearing, DPR's Motion to Amend the Administrative Complaint was GRANTED and that ruling is made a part of this Recommended Order. Segert did not appear for the hearing despite notice. The beginning of the hearing was delayed fifteen minutes to allow for Segert's late arrival, but she failed to appear at any time during the hearing.
The record was left open for late filed exhibits, namely deposition testimony of certain witnesses who failed to appear. Subsequently, DPR decided
to rely on the evidence already of record and chose to file its proposed findings of fact and conclusions of law on October 15, 1992.
DPR's proposed order was timely filed. Segert has made no contact and has filed no proposals. DPR's proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Segert is now and was at all times material to this case a licensed real estate salesperson in the State of Florida having been issued license number 0527365. Her last license issued was as a salesperson, % New Horizons Realty of Central Florida, Inc., 1411 Kass Circle F, Spring Hill, Florida 34606.
On July 5, 1990, Ivette Summers entered a lease agreement to rent property at 10567 Chalmer Street, Spring Hill, Florida, from Consumer Aid Realty, Inc., (hereafter CAR) for $450.00 per month.
The Summers-CAR lease was negotiated by Segert on behalf of CAR.
Segert suggested to Summers that the monthly rent be paid in cash.
Summers followed Segert's suggestion and made the monthly rent payments in cash to Segert.
Segert gave Summers receipts for the cash rent payments.
Summers paid a pro rata share of the monthly rent for August, 1990, and the security deposit with a money order in the amount of $762.04.
The $762.04 was an overpayment and Summers received a $100.00 refund check #1214 dated July 31, 1990, drawn on the account of Consumer Aid Realty, Inc. Property Management and signed by Doris J. Ross.
On January 26, 1992, Stanley and Sandra Varvel entered into a lease agreement to rent property at 10565 Chalmer Street from CAR for $485.00 per month.
Segert negotiated the lease on behalf of the CAR and at Segert's instruction the Varvels paid the rent to her in cash.
Stanley Varvel received receipts from Segert for the cash rent payments.
On September 6, 1991, Segert gave Sandra Varvel a receipt for rent paid in cash for the month of September 1991.
The Varvel lease agreement was altered to show a start date of October 1, 1992, and a term of six months. The Varvels were not aware of and did not authorize the changes in the lease. The Varvels moved into the property in February 1991.
On May 9, 1991, Scott Poquette and Sue Forcino entered a lease agreement to rent property at 10573 Chalmer Street, Spring Hill, from CAR for
$450.00 per month.
Segert represented CAR in the lease agreement with Poquette and Forcino and collected the rent.
On July 15, 1991, Poquette gave Segert check #101 payable to CAR for
$450.00 for rent for the month of July 1991.
Poquette and Forcino gave Segert cash for the security deposit and first month's rent for the property at 10573 Chalmer Street and paid rent in cash to Segert for at least two other months.
Segert gave Poquette and/or Forcino receipts for rent paid in cash for August and September 1991.
John Rorabacher was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from May, 1990, until November, 1991.
Doris J. Ross was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from its inception until approximately May, 1990.
Doris J. Ross' signature appears on the refund check, #1214 dated July 31, 1990, given to Ivette Summers and drawn on the account entitled Consumer Aid Realty Inc. Property Management.
James K. Foster was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from October 15, 1990, until August 7, 1991.
Adele Poston was registered with the Department of Professional Regulation, Division of Real Estate, as a qualifying broker for CAR from sometime in August, 1991, until sometime in October, 1991.
During the time Rorabacher, Ross, Foster and Poston were brokers for CAR, Segert was employed as a real estate salesperson for CAR.
Segert never gave Rorabacher, Ross, Foster, or Poston cash for rent payments for properties managed by CAR.
Winston Griffith was the owner of Consumer Aid Realty, Inc.
Griffith is not and has never been a real estate licensee.
Segert was employed by CAR as a real estate salesperson from January, 1990, until September, 1991.
Jesse Newberry, owner of the rental properties managed by CAR, requested an audit of the records pertaining to the properties.
The date for the audit was set for September 18, 1991, and Segert was advised by Griffith to be prepared to review the records. Segert immediately resigned her employment with CAR and took the property management records and other documents belonging to CAR.
On September 16, 1991, Griffith contacted Attorney Richard Padgett for advice regarding Segert's resignation and taking of corporate records. Padgett
sent a letter to Segert requesting her attendance at the September 18, 1991, audit with Jesse Newberry and production of the records.
Segert did not appear at the audit and as of the date of the formal hearing has not returned the corporate records nor delivered to Griffith any of the rental funds she received from tenants.
Marjorie May is employed as an investigator and auditor with the Department of Professional Regulation.
May investigated the complaint filed by Griffith against Segert.
Since Segert had taken the property management records, May was unable to conduct a complete audit. With the assistance of Griffith's accountant and reconstructed records, May determined that Segert had taken approximately
$20,177.03 in rental funds and security deposits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 475.25, Florida Statutes (1991), provides that the Florida Real Estate Commission may place a licensee on probation; suspend a license for a period not exceeding ten (10) years; revoke a real estate license; impose an administrative fine not to exceed $1,000 for each count or separate offense; and issue a reprimand or; any or all of the foregoing, if it finds that a licensee has violated Section 475.25, Florida Statutes.
Section 475.25(1)(b), Florida Statutes (1991), proscribes fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction.
Section 475.25(1)(d)1, Florida Statutes (1991), proscribes, in pertinent part, failing "to account or deliver to any person, including a licensee under this chapter, 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 delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document 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."
Section 475.25(1)(k), Florida Statutes (1991), proscribes a salesperson's failure 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.
Section 475.25(1)(e), Florida Statutes (1991), proscribes violations of Chapter 475 or any lawful provisions made or issued under Chapters 475 and 455, Florida Statutes.
The burden of proof is on DPR to prove the counts of the Administrative Complaint by clear and convincing evidence.
Segert did not appear personally or by representative so there was no challenge of the facts as presented by DPR's witnesses and exhibits.
Uncontradicted testimony must be accepted as proof of a contested issue. Howell v. Blackburn, 100 Fla. 114, 129 So. 341 (1930); Levy v. Cox, 22 Fla. 546 (1886); Florida East Coast Railway v. Michini, 139 So.2d 452 (Fla. 2d DCA 1962); Kinney v. Mosher, 100 So.2d 644 (Fla. 1st DCA 1958).
The duties and responsibilities of a licensed real estate salesperson are no less than those of a broker. Section 475.01(1)(d), Florida Statutes (1991), defines a salesperson as "a person who performs any act specified in the definition of 'broker,' but who performs such act under the direction, control, or management of another person. A salesperson renders a professional service and is a professional within the meaning of Section 95.11(4)(a)."
"The broker in Florida occupies a status under the law with recognized privileges and responsibilities." Zichlin et ux. v. Dill et ux., 25 So.2d 5 (Fla. 1946). Segert did not fulfill her responsibilities as a licensee. She repeatedly received rental funds from various tenants and did not turn the funds over to her employing broker so they could be delivered to the rightful owner, the landlord. Not only did she deprive the landlord of the proceeds, she kept the funds that would have ordinarily gone to her employer for the management fee. Additionally, Segert placed the tenants in a precarious position since they were paying rent yet, neither CAR nor the landlord had any way of knowing that.
Culpable negligence had been defined as "that reckless indifference to the rights of others, which is equivalent to an intentional violation of them." Jackson v. State, 100 So.2d 839, 840 (Fla. 1st DCA 1958). In construing Section 475.25(1)(b), Florida Statutes, the courts have defined the requirements of a real estate broker and stated, "The statute is not ambiguous, and the words used therein must be construed according to their usual and natural meaning. It requires nothing more of a real estate dealer or broker than an honest, open and fair relationship with his clients, such as is normally expected of a businessman of sound integrity." Richard v. McCoy, 212 So.2d 672, 674 (Fla. 1st DCA 1968).
At best, Segert's actions and/or omissions herein evince culpable negligence; at worst, fraud or theft. Segert recklessly jeopardized the various qualifying brokers as they were ultimately responsible, in the eyes of the Department of Professional Regulation, for her actions. See Chapter 21V-14, Florida Administrative Code. She also exposed the corporate entity and owner Winston Griffith to possible criminal and/or civil liability.
"Thus, Florida courts elevate the level of duty of a broker to that of an attorney or banker in that the broker's relation to the public exacts the highest degree of trust and confidence. MacGregor v. Florida Real Estate Commission, 99 So.2d 709, 711 (Fla. 1958); Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857, 858 (1942); Chisman v. Moylan, 105 So.2d 186, 189 (Fla. 2d DCA 1958)." Young v. Field, 548 So.2d 784, 786, (4th DCA 1989).
In the case sub judice, the brokers, the corporate employer, and the tenants relied on Segert as a professional real estate salesperson. Such reliance is to be expected when one deals with a professional licensed by the State. "The real estate business has become a highly specialized one and the real estate broker is now the confidant of the public in much the same manner as
the lawyer and the banker. His relation to the public exacts the highest degree of trust and confidence and the law imposes on appellee the duty of enforcing its standards." Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 6 So.2d 857, 858, (Fla. 1942). The licensure system was designed specifically to provide the consuming public with the assurance they would deal with competent, proficient, trustworthy individuals. Segert's actions herein do not in any way meet the standards established for licensed real estate salespersons.
In Shelton v. Florida Real Estate Commission, 121 So.2d 711, 712 (Fla. 2d DCA 1960), the Court states, "The statutes regulating the activities of real estate brokers in their business were designed for the protection of the public and the safeguarding of persons who deposit their money and place their trust in the hands of real estate brokers."
In the case at bar, Segert violated her responsibilities to CAR, the registered brokers, and the landlord by taking the funds which were to be held for the benefit of others. This was not a case where the funds were not kept intact or commingled since Segert never even delivered the funds.
It is settled law that there must be no showing of damage to any individual or the public in general for disciplinary action pursuant to Chapter 475, Florida Statutes. "Beyond this the statute distinctly provides that a real estate broker may be punished for misconduct without the showing of actual damage. This phase of the statute is highly salutary for the very simple and well known reason that after the failure of a broker to fulfill his duty to the principal results in a situation where no actual damage can be proven or where such damages may be speculative." MacGregor v. Florida Real Estate Commission, 99 So.2d 709, 713 (Fla. 1958).
Unfortunately in the case herein there was substantial damage suffered by Segert's various victims. Segert's repeated fraudulent activities in relation to the investing public of the State of Florida establishes her threat to the citizenry.
DPR's uncontroverted proof is clear and convincing, and sufficient to justify the imposition of penalties within the range of those provided for in the above-cited statutory authority and Chapter 21V-24, Florida Administrative Code. For all of the above-stated reasons, Segert is guilty of having committed violations of Sections 475.25(1)(b), (d)1., and (e), (k), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Division of
Real Estate, through the Florida Real Estate Commission, enter a Final Order revoking the real estate license issued to Deborah M. Segert.
DONE and ENTERED this 4th day of November, 1992, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1992.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1989
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation,
Darlene F. Keller, Division Director Division of Real Estate
Janine B. Myrick, Senior Attorney DPR, Division of Real Estate
Deborah M. Segert 7290 Radcliff Street
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.
