STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY L. DEGAYNER )

)

Petitioner, )

)

vs. ) Case No. 97-2721

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISON OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in Daytona Beach, Florida, on August 13, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael S. Teal, Esquire

William R. Alexander, Esquire

114 West Rich Avenue DeLand, Florida 32720

For Respondent: Manuel E. Oliver, Esquire

Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioner, Nancy L. DeGayner, demonstrated

that she is qualified to be licensed as a real estate salesperson in the state of Florida.

PRELIMINARY STATEMENT

The Petitioner filed an application for licensure as a real estate salesperson with the Department of Business and Professional Regulation, Division of Real Estate, which was received by the Division in October of 1996. In said application, the Petitioner indicated that she had been convicted of a crime and attached a statement referencing question number nine (9) stating as follows:

My Real Estate License was suspended July 26, 1991, due to many allegations made against me. I was placed on probation while an intensive, thorough investigation was administered by many governmental agencies.

The allegations were not substantiated. There were no convictions.

I was discharged from probation. The proceedings in this case were terminated pursuant to Florida Statutes August 18, 1994; Instrument #941250; Book: 3944; Page: 1025;

R. Michael Hutcheson, Judge Circuit Court Volusia County, Florida.

DUI 12/14/84.

The Florida Real Estate Commission entered an Order on April 16, 1997, denying the Petitioner’s application for licensure and advising her of her right to a formal hearing on the issue. The Petitioner requested a formal hearing, and the Department of Business and Professional Regulation referred the case to the Division of Administrative Hearings.

The case was noticed for hearing and heard as noticed on August 13, 1997. The Petitioner testified on her behalf and presented the testimony of two witnesses: Pamela Shewan and Winston Schwartz. The Petitioner offered nine (9) exhibits into

evidence, and exhibits 3-9 were admitted over the objection of the Respondent. The Respondent offered two (2) exhibits into evidence, both of which were admitted. The Respondent offered no witnesses in this case.

Following the formal hearing the parties requested an extension of time to file their proposed findings in this case. Their motion was granted extending the time for filing until October 28, 1997. The parties filed proposed Recommended Orders in this case, which were read and considered.

FINDINGS OF FACT

1. On or about October 7, 1996, the Petitioner, Nancy L. DeGayner, filed an application for licensure as a real estate salesperson with the Division of Real Estate.

2. The Petitioner responded in the affirmative to question nine (9) in the application which inquired whether the applicant had been convicted of a crime. The Petitioner enclosed a written statement which stated as follows:

   My Real Estate License was suspended July 26, 1991, due to many allegations made against me. I was placed on probation while an intensive, thorough investigation was administered by many governmental agencies.

   
   

   The allegations were not substantiated. There were no convictions.

   
   

   I was discharged from probation. The proceedings in this case were terminated pursuant to Florida Statutes August 18, 1994; Instrument #941250; Book: 3944; Page: 1025;

   R. Michael Hutcheson, Judge Circuit Court Volusia County, Florida.

   
   

   DUI 12/14/84.

3. Question thirteen (13) of the application inquired whether the applicant had had any license to practice a regulated profession revoked in this state upon grounds of fraudulent or dishonest dealing or violation of law. The Petitioner answered no to this question.

4. On December 14, 1990, the Department of Professional Regulation, now the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against the Petitioner.

5. The Administrative Complaint alleged that:

   
   

   1. The Petitioner was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest by trick, scheme or device, comparable negligence, and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.

   2. The Petitioner failed to account for delivered trust funds in violation of Section 475.25(1)(d), Florida Statutes.

   3. The Petitioner failed to prepare and sign the required written monthly escrow reconciliation statements in violation of Rule 21V-14012(1)(2), Florida Administrative Code, and thereby violated Section 475.25(1)(e), Florida Statutes.

   4. The Petitioner failed to maintain trust funds in a brokerage escrow bank account or in some other proper depository until disbursement was properly authorized in violation of Section 475.25(1)(k), Florida Statutes.

   5. The Petitioner was guilty of a course of conduct or practice which showed that she was so incompetent, negligent, dishonest or untruthful that the money, property, transactions, and the rights of investors, or those with whom she may sustain a confidential relationship, may not safely be entrusted to her in violation of Section 475.25(1)(o), Florida Statutes.

6. On July 16, 1991, the Florida Real Estate Commission held a hearing and issued a Final Order on the Administrative Complaint filed against the Petitioner. The Petitioner failed to appear, although she had been duly served with notice of the hearing. The Commission entered its Final Order which found that the Petitioner had been served with the Administrative Complaint, that she had failed to request a hearing, that she was in default, and that a prima facie case had been established against the Petitioner in the proceedings. The facts and legal conclusions contained in the complaint were adopted as true and the Petitioner’s license was revoked.

7. The Administrative Complaint filed by the Department of Business and Professional Regulation against the Petitioner had arisen out of acts which were the basis for criminal charges brought in the Circuit Court of Volusia County, Florida, on or about February 20, 1991, in Case No. 90-7033. These criminal charges arose out of allegations of misfeasance by the Petitioner in the management of her real estate brokerage concerns. As a result of these charges, the business records of

   these concerns were seized by the law enforcement officials, and the Petitioner was charged with multiple counts of grand theft.

8. Based upon the evidence presented at the hearing, it is clear that the Petitioner entered a plea of convenience to two

   (2) counts of grand theft, a third degree felony. As a result of the Petitioner's plea, the Circuit Court entered its Order withholding adjudication and placing the Petitioner on probation for a period of five (5) years. A special condition of the probation was that the Petitioner should make restitution of the funds which she had allegedly taken from accounts placed in her trust. The funds and all of the Petitioner’s business accounts were placed in the registry of the court and from those funds restitution was made to all of the Petitioner’s clients.

9. The circumstances indicate that the Petitioner had the money on hand in her business accounts to meet all of the obligations to her clients at the time the charges were brought, and she had not taken any of the money entrusted to her. At the conclusion of the accounting and reimbursement of the clients, the court discharged the Petitioner’s probation and entered an Order to that effect on August 2, 1994. (See transcript, at page 30, et seq.)

10. Since her conviction, the Petitioner has been continually employed. She was employed with Perkins Family Restaurant from November 1991 until November 1996. She was employed as a salesperson of advertising for WROD from December 1996 to May 1997. She was employed at the Daytona Beach Regency

    from May 1997 until July 1997 and has been employed with Winston/James Development since July 1997 in a non-real estate capacity.

11. The Petitioner has been responsible for the money of her employers and the monies of others entrusted to her in all of the jobs at which she has been employed.

12. Following her plea and the entry of the Order of Probation, the Petitioner sought the permission of her probation officer to leave the state and moved to her mother's home in Wisconsin in early 1991. She was employed thereafter in businesses unrelated to real estate.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, and this Order is entered pursuant to Section 120.57(1), Florida Statutes.

14. Section 475.17, Florida Statutes, entitled “Qualification for Practice” provides in pertinent parts as follows:

    (A). A applicant for licensure who is a natural person must be . . . honest, truthful, trustworthy, and of good character, and have a good reputation for fair

    dealing . . .[.] If . . . his. . . license to practice . . . has been revoked . . . by this or any other state . . . the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the Commission that the interest to the public and investors will not be endangered by the granting of the registration.

15. The burden is upon the Petitioner to establish her qualifications for licensure as a real estate salesperson by a preponderance of the evidence. See Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

16. The Division of Real Estate denied the application for the Petitioner for two reasons: (1) Petitioner's failure to reveal on the application that her previous license had been revoked, and (2) Petitioner's conviction of an offense relating to her good character and trustworthiness.

17. With regard to the Petitioner’s alleged failure to reveal the revocation of her brokerage license, the application reveals that the Petitioner referenced the events which gave rise to the revocation of her previous license. The Petitioner’s statement appended to her application indicates that she was not seeking to conceal from the Department the earlier events according to the Petitioner’s testimony.

18. Following her plea and the entry of the Order of probation, the Petitioner sought the permission of her probation officer to leave the state and moved to her mother's home in Wisconsin in early 1991. She was employed thereafter in businesses unrelated to real estate. The Petitioner, left the state and did not attend the Commission's meeting.

19. The questions on the application are intended to generate information about the applicant upon which the Commission can base its decision about licensure prior to investigation. As this case reveals, the Petitioner gave sufficient information about herself for the Commission to develop the information about the revocation of her license. The matter of whether of the license was suspended or revoked is a technical issue as opposed to a failure to reveal the information of the prior discipline.

20. Regarding the Petitioner’s plea to criminal charges and the Court’s withholding of adjudication, the facts presented by the Petitioner, which were uncontroverted, indicate that the plea was one of convenience and that the Petitioner made restitution

    to all of the clients to whom she owned money. The undersigned questioned the Petitioner at length regarding the events regarding the restitution paid to her clients. The restitution was made without additional monies from the Petitioner’s business accounts which had been seized by the state and subsequently paid into the registry of the Criminal Court upon the Petitioner’s motion. Neither the probation authorities nor the Real Estate Commission desired to assume responsibility for conducting an accounting and paying-out these funds because of the complexity of the accounting issues involved. This explains to some extent the Petitioner’s entry of the plea of convenience on the serious charges pending against her. Although the Petitioner may have been less diligent in her accounting for the funds entrusted to her care than she should have been, there was no loss of monies in her trust.

21. The issue raised by the Petitioner’s application is whether the Petitioner’s character and reputation are sufficiently rehabilitated to warrant re-licensure of the Petitioner. The Petitioner has applied for licensure as a real estate salesperson, and a real estate salesperson may not maintain or account for funds in escrow accounts. The obligation of real estate salespersons is to promptly transmit funds coming into their hands to their broker. It is the responsibility of the broker to deposit and account for those funds.

22. Given the Petitioner’s employment without complaint in positions in which she has had to act as a conduit for monies

    between clients and her employer since the revocation of her license and the entry of her plea, the Petitioner has re- established her good reputation and character.

23. Petitioner's answers to questions nine (9) and thirteen

(13) on the application, do not reveal an intent to conceal her earlier problems given her extended, although vague explanation of the events.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Florida Real Estate Commission enter its Final Order approving the Petitioner’s Application for Licensure as a real estate salesperson; however, because of the previous problems related to the Petitioner’s management of professional accounts, it is recommended that an entry be made to her licensure file that she may not be granted a license as a real estate broker without the Commission’s reconsideration of her qualifications to manage such accounts.

DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997.

COPIES FURNISHED:

Michael Teal, Esquire

William R. Alexander, Esquire

114 West Rich Avenue DeLand, Florida 32720

Manuel E. Oliver, Esquire Suite 107 South Tower

400 West Robinson Street Orlando, Florida 32801

Henry Solares, Division Director Department of Business and

Professional Regulation

400 West Robinson Street Orlando, Florida 32302

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard T. Ferrell, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 97-002721

Orders for Case No: 97-002721