STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO 93-6802

)

MARY K. CONNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 23, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772

For Respondent: Mary K. Conner, pro se

522 Orange Drive, #16

Altamonte Springs, Florida 32701 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether disciplinary action should be taken against Respondent's license as a real estate sales person for violations of Sections 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed a two count Administrative Complaint on October 22, 1993.

Respondent timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct a formal hearing.

At the formal hearing, Petitioner presented the testimony of Respondent and Mrs. Nancy Donaldson, escrow agent for the transaction at issue. Petitioner also presented the deposition testimony of Mr. Richard Moncello, the former employing broker for Respondent.

Petitioner submitted 10 exhibits for admission in evidence. Petitioner's Exhibits 1-4 and 6-10 were admitted in evidence without objection. Petitioner's Exhibit 5 was admitted in evidence over objection.

Petitioner's Exhibit 1 is a certified copy of Respondent's licensure file.

Petitioner's Exhibit 2 is a copy of the contract for sale and purchase of the real property in question. Petitioner's Exhibit 3 is a copy of the closing statement. Petitioner's Exhibit 4 is a copy of the check from the closing agent for a portion of the commission. Petitioner's Exhibit 5 is a copy of a mortgage note for the balance of the commission. Petitioner's Exhibit 6 is a copy of the advertisement for the real property at issue in this proceeding. Petitioner's Exhibit 7 is a copy of two business cards used by Respondent. Petitioner's Exhibit 8 is a copy of a letter to Mr. Moncello. Petitioner's Exhibit 9 is a copy of a letter from Mr. Moncello to Respondent. Petitioner's Exhibit 10 is the deposition testimony of Mr. Moncello.

Respondent testified in her own behalf. Respondent submitted a revised copy of the mortgage note for the balance of the commission as her only exhibit which was admitted in evidence without objection.

A transcript of the formal hearing was not requested by either party. Petitioner timely filed proposed findings of fact and conclusions of law on March 31, 1994. Respondent did not submit proposed findings of fact and conclusions of law. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624.

   
   

2. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982.

   
   

3. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time.

   
   

4. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to

   $156.75 under the fee arrangement between Respondent and Mr. Moncello.

   
   

5. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent.

   
   

6. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00.

7. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing.

   
   

8. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks disciplinary action against a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Respondent is not guilty of misrepresentation, concealment, false promises, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction within the meaning of Section 475.25(1)(b), Florida Statutes. Petitioner failed to show by clear and convincing evidence that Respondent had the intent required in Section 475.25(1)(b). Respondent was suffering from the adverse effects of pain medication and was not fully aware of the surrounding facts and circumstances. Respondent's testimony was credible and persuasive and not rebutted by clear and convincing evidence presented by Petitioner.

    
    

12. Respondent is guilty of violating Sections 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes. Section 475.25(1)(a), in relevant part authorizes the imposition of the penalties prescribed in Section 475.25(1) if Respondent is guilty of violating any of the provisions in Section 475.42.

    
    

13. Respondent operated as a broker or as a salesperson for one who was not registered as her employer in violation of Section 475.42(1)(b). An employer is defined in Section 475.25(2) as a broker who employs a salesperson.

    
    

14. Section 475.25(1) authorizes Petitioner to place a licensee on probation, impose an administrative fine, suspend the license, or revoke a license for the violations committed by Respondent. Disciplinary guidelines are further explained in Florida Administrative Code Rule 21V-24.001(1).

    
    

15. When mitigating circumstances are present, deviation from prescribed disciplinary guidelines is authorized. Mitigating circumstances include without limitation: (a) the lack of severity of the offense; (b) the degree of harm to the consumer or public; (c) the number of counts in the Administrative Complaint; (d) the number of times the offenses previously have been committed by the licensee; (e) the disciplinary history of the licensee; (f) the status of the licensee at the time the offense was committed; (g) the degree of financial hardship incurred by the licensee as a result of the imposition of a fine or

    suspension of a license; and (h) whether a letter of guidance has previously been issued to the licensee. Florida Administrative Code Rule 21V-24

    .001(4)(b).

    
    

16. Respondent has no previous disciplinary history and has never committed a similar offense. The severity of the offense is great whenever the offense involves the misuse of funds. The degree of harm to the consumer or public in this proceeding is not as great as it would have been had Respondent misappropriated funds of a seller or purchaser.

    
    

17. Respondent suffered from a medical condition at the time of the closing and from the adverse affects of pain medication. The closing occurred within six days of the date of the contract. The amount due the broker is a de minimis portion of the total commission due in the transaction. Respondent has caused the buyers to execute a promissory note in favor of the broker for an amount substantially in excess of the amount to which the broker is entitled.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section

475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year.

DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802

Petitioner's Proposed Findings of Fact 1-15 Accepted in substance

Respondents' Proposed Findings of Fact

Respondent did not submit proposed findings of fact

COPIES FURNISHED:

Ms. Mary K. Conner, pro se

522 Orange Drive, #16

Altamonte Springs, Florida 32701

James H. Gillis, Esquire Senior Attorney

Florid Department of Business and Professional Regulation

Division of Real Estate Legal Section-Suite N308

400 W. Robinson Street, North Tower Orlando, Florida 32801-1772

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

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

Jack McRay, Esquire Acting General Counsel

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0729

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: 93-006802

Orders for Case No: 93-006802