STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-1743

)

NICOLE DOROTHY NEHRKE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 14, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, No. N 308 Orlando, Florida 32801

For Respondent: Stephen Post, Esquire

600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

On January 22, 1998, the Department of Business and Professional Regulation filed an Administrative Complaint against Respondent, alleging that she had violated a statute regulating her conduct as a licensed real estate salesperson, and Respondent timely requested an evidentiary hearing regarding the allegations contained in the Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Steven J. David and of Mike Nickas. Additionally, Petitioner's Exhibits numbered 1 and

2 were admitted in evidence. Respondent offered no evidence.

Although both parties were afforded leave to file proposed recommended orders, only Petitioner did so. No transcript was filed.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a real estate salesperson in the State of Florida, having been issued license number 0611282.

2. At all times material hereto, Respondent was employed by Steven J. David at Century 21 Tri City Realty, Inc., in Fort Lauderdale as a licensed real estate salesperson. Her duties were selling and leasing real estate and managing properties owned by her employer. She was paid a commission on transactions she handled.

3. In November 1996, Mike Nickas began receiving late notices from various mortgage companies which held mortgages on properties owned by him and David. He and David began investigating how that could be.

4. They discovered that Respondent had written seventeen checks totaling in excess of $8,000 during 1996 from the business accounts payable to "cash" or to herself and had forged Nickas' signature to those checks. Those payable to "cash" were endorsed and cashed by her. Respondent was not a signatory on those accounts.

5. In order to hide her theft, Respondent wrote in the checkbook that each check was "void" or wrote false entries as to the amount of the check and the payee. Further, when the bank statements arrived at the business each month, Respondent removed the unauthorized checks from the envelope.

6. Respondent was not authorized to sign Nickas' name to any of those checks. Further, Respondent was not authorized to write those checks payable to herself or to write them payable to "cash" and then cash them herself.

7. When David and Nickas confronted Respondent with their discovery, she admitted that she had written the checks without authorization.

8. Respondent's employment was terminated.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction

   over the parties hereto and the subject matter hereof. Sections

   
   

   120.569 and 120.57(1), Florida Statutes.

   
   

10. The Administrative Complaint filed in this cause charges Respondent with violating Section 475.25(1)(b), Florida Statutes, by being 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. Petitioner has met its burden of proving that Respondent is guilty of that statutory violation by clear and convincing evidence.

11. Respondent violated Section 475.25(1)(b), Florida Statutes, when she wrote each check without authorization, forged an authorized signature, and converted the money to her own use, purposefully taking steps to cover up her dishonest act. Accordingly, Respondent violated Section 475.25(1)(b) seventeen times.

12. Respondent offered no evidence to explain her illegal conduct or in mitigation of any penalty to be assessed against her. The record in this cause reveals that Respondent cannot be trusted with access to other people's money, and her access by licensure should be terminated. Any penalty less than revocation would allow Respondent to continue to present a danger to the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her license as a real estate salesperson.

DONE AND ENTERED this 13th day of October, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1998.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street, No. N 308 Orlando, Florida 32801

Stephen Post, Esquire 600 South Andrews Avenue

Fort Lauderdale, Florida 33301

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares, Division Director Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

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: 98-001743

Orders for Case No: 98-001743