vs. ) Case No. 98-2363
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Don W. Davis, held a formal hearing in the above-styled case on September 29, 1998, in Gainesville, Florida.
Whether Respondent committed various violations of Chapter 475, Florida Statutes, sufficient to justify the imposition of disciplinary measures against her license as a licensed Real Estate Salesperson.
On June 21, 1996, Petitioner filed an Administrative Complaint charging Respondent with 22 violations of various provisions of Chapter 475, Florida Statutes.
Respondent disputed the factual allegations of the Administrative Complaint and requested formal administrative proceedings. The matter was forwarded to the Division of Administrative Hearings where final hearing was scheduled.
At the final hearing, Petitioner called four witnesses, and presented 18 exhibits. Respondent did not appear at the final hearing and no appearance was made on her behalf.
A transcript of the final hearing was filed on January 4, 1999. Proposed findings of fact submitted by Petitioner have been duly considered in the preparation of this recommended order. Respondent presented no proposed findings.
Respondent Barbara Gordon Schneider, at all times material to this matter, was a licensed Florida Real Estate Salesperson, holding license no. 0481077 with an address of 5825 Indian Trail, Keystone Heights, Florida 32656-9773.
As a consequence of previous disciplinary action, Respondent’s license has been suspended since February 17, 1995, due to non-payment of a fine. Basically, that case revolved around a finding of Respondent’s guilt of culpable negligence and operating as a broker while licensed as a salesperson.
Respondent did not inform her then current employer, Coursey and Associates Real Estate (Coursey and Associates) of the February 1995 suspension of her license.
Additionally, as documented by a certified copy of judgment admitted at final hearing as Petitioner’s Exhibit 2, Respondent also failed to notify Petitioner of Respondent’s plea of guilty to a felony charge of obtaining property in return for a worthless check in the Fourth Judicial Circuit, Clay County, Florida, on December 19, 1989. Adjudication was withheld by the Court and Respondent was placed on probation for 18 months.
On or about July 14, 1995, while employed as office manager and selling manager for Coursey and Associates, Respondent prepared a contract for sale and purchase for Flint and Jessica Banther as buyers for property located at
2276 Chablis Court, West, Orange Park, Florida. Also, Respondent negotiated an occupancy agreement whereby the Banthers agreed to rent the property they were planning to purchase. Kevin Coursey, the broker for Coursey and Associates, had no knowledge of this transaction although Respondent signed the occupancy agreement on behalf of Coursey and Associates.
On or about July 14, 1995, the Banthers gave Respondent a $500 cash binder for the purchase of the Chablis Court property. The money was not turned over to her employer by Respondent.
Respondent had previously procured, on or about May 17,
1995, a listing agreement on behalf of Coursey and Associates for
a home owned by Gary J. and Agnes Beagles which was located at 4854 Gopher Circle North, Middleburg, Florida.
Respondent rented the Beagles’ home to Christine and Jim Weaver, without the knowledge or permission of Kevin Coursey
on behalf of Coursey and Associates. Coursey and Associates were not in the business of brokering rental property and had no insurance to cover such activity. Respondent was accepting checks from the Weavers and depositing them into the Beagles’ bank account.
On or about June 23, 1995, Christine Weaver made check no. 2952 in the amount of $250 payable to Coursey and Associates. Respondent endorsed the check by writing “Coursey & Assoc.” On the back of the check and signed her name with “co-owner” written under her name. Kevin Coursey did not authorize Respondent to endorse the check. Respondent never informed Kevin Coursey of the check’s existence and deposited it into her personal bank account at the Jax Navy Federal Credit Union without Coursey’s authorization.
Respondent also procured renters for the Weavers’ home without the knowledge and consent of her employer. Initially, Robert and Pamela Campbell, the renters of the Weaver home, gave Respondent a check which was returned for insufficient funds. When the check was returned, the Campbells gave Respondent cash in the amount of $600 in place of the check. Respondent did not turn the cash over to the Weavers and, as a result, Coursey and
Associates were later compelled to pay the Weavers the $600.
Sometime around July 26, 1995, Respondent prepared a contract for sale and purchase for Charles Crum as the buyer of property located at 5615 Indians Trail, Keystone Heights, Florida. Crum gave Respondent a binder for the property consisting of three money orders totaling $500. The money orders were payable to Coursey and Associates, but Respondent did not deliver the funds to her employer. Approximately three weeks later, Respondent did deliver the binder, in the form of a different set of money orders, to Kevin Coursey.
At some point prior to July 30, 1995, Respondent negotiated the rental of property owned by Mr. and Mrs. Richard
J. Connell. The renter was James Cawley. This was accomplished without knowledge or consent of Kevin Coursey, although Respondent led the Connells to believe that the property was being rented through Coursey and Associates. The Connells never received the cash security deposit paid to Respondent by Cawley.
By letter dated September 19, 1995, Richard J. Connell and James L. Cawley informed Coursey and Associates of Connell’s entry into a rental agreement with that firm on February 25, 1995. Respondent had negotiated the agreement which provided that Cawley would initially rent the property for $350 a month until he established credit for the purchase. Respondent, it was agreed, on behalf of Coursey and Associates, would collect the rent every month. Coursey and Associates would receive a ten percent commission on the rental proceeds and also retain $65 per
month in escrow for repairs. Respondent signed the Connells’ names to the agreement without their consent.
Respondent left the employ of Coursey and Associates, without notice, on or about July 30, 1995, and contacted Martha J. O’Shields, co-broker for Century 21 Bryant and
O’Shields Realty, about coming to work for O’Shields. Respondent did not tell O’Shields that Respondent’s salesperson license was suspended. O’Shields hired Respondent.
On or about August 2, 1995, Respondent negotiated a contract for sale and purchase of the property owned by the Beagles. Coursey and Associates were, of course, the listing agents. Instead of presenting the offer to Coursey and Associates, Respondent presented the offer directly to the owners. Respondent signed the contract on behalf of Coursey and Associates, although she was then working for O’Shields. Respondent had the buyers of the property sign a consent to dual agency although she was not acting as a dual agent and had not been authorized by O’Shields to present the offer in this fashion.
On or about August 2, 1995, Respondent proceeded to list the buyers’ property located at 1594 Twin Oaks Drive West in Middleburg, Florida, on behalf of Bryant and O’Shields.
O’Shields discovered on or about August 15, 1995, that Respondent had taken all files upon which she was working from the office. By letter dated August 18, 1995, O’Shields notified
Petitioner that she had terminated Respondent’s employment on August 15, 1995. According to O’Shields’ notification, Respondent had sales pending and O’Shields had not been previously aware of Respondent’s license suspension.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes.
The burden of proof is on the Petitioner to prove the counts set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 475.25(1)(f), Florida Statutes, provides for discipline of a licensee by Petitioner when the licensee:
Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.
Petitioner’s Exhibit 2 is clear and convincing evidence that Respondent pled guilty to a crime involving fraudulent or dishonest dealing. Respondent is guilty of count I of the Administrative Complaint.
Respondent never notified the Florida Real Estate Commission (FREC) of her guilty plea to the felony bad check charge and, consequently, has subjected herself to discipline by FREC for violation of provisions of Section 475.25(1)(p), Florida Statutes, which authorizes discipline of a licensee who:
Has failed to inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Respondent is guilty of count II of the Administrative Complaint.
For purpose of the matters in this case, broker is defined by Section 475.01(1)(a), Florida Statutes, as follows:
'Broker' means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that she or he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated
to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. . .
Alternatively, Section 475.01(1)(k), Florida Statutes, defines a salesperson as:
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.
By clear and convincing evidence, Petitioner has shown that, in five different instances, Respondent acted as a broker without a valid and current license, a violation of Section 475.42(1)(a), Florida Statutes, which reads as follows:
No person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor.
Respondent is guilty of count III of the Administrative Complaint.
Count IV of the Administrative Complaint charges Respondent with violation of Section 425.25(1)(o), Florida Statutes, which reads, in pertinent part, as follows:
Has been found guilty, for a second time, of any misconduct that warrants her or his suspension or has been found guilty of a course of conduct or practices which show that she or he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom she or he may sustain a confidential relation, may not safely be entrusted to her or him.
Respondent is guilty of count IV of the Administrative Complaint.
Counts V, VIII, XII, XVI, and XXI of the Administrative Complaint allege Respondent’s violation of Section 475.25(1)(b),
Florida Statutes, which authorizes discipline for any licensee who:
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 or any other state, nation, or territory; has violated a duty imposed upon her or him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public.
Respondent is guilty of counts V, VIII, XII, XVI, and XXI of the Administrative Complaint.
Respondent is charged in counts VI, IX, XIII, and XVIII of the Administrative Complaint with violations of Section 475.42(1)(b), Florida Statutes, which reads as follows:
No person licensed as a salesperson shall operate as a broker or operate as a salesperson for any person not registered as her or his employer.
Petitioner did not present proof that the various employers of Respondent were not so registered as Respondent’s employers and consequently Respondent can not be found guilty of counts VI, IX, XIII, and XVIII of the Administrative Complaint.
A licensee may be disciplined by FREC when the licensee is a salesperson and fails to immediately turn over any money or deposit to the licensee’s employer. Section 475.25(1)(k), Florida Statutes. Respondent certainly violated this requirement and is guilty of counts VII and XV of the Administrative Complaint.
Counts X and XIX of the Administrative Complaint charge Respondent with violation of Section 475.25(1)(d)(1), Florida Statutes, as a licensee who:
Has failed 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, including a share of a real estate commission if a civil judgment relating to the practice of the licensee's profession has been obtained against the licensee and said judgment has not been satisfied in accordance with the terms of the judgment within a reasonable time, or any secret or illegal profit, or any divisible share or portion thereof, which has come into the licensee's hands and which is not the licensee's property or which the licensee is not in law or equity entitled to retain under the circumstances.
Respondent is guilty of these counts of the Administrative Complaint.
Counts XI and XX of the Administrative Complaint, allege Respondent’s violation of Section 475.25(1)(k), Florida Statutes, as a licensee who:
Has . . . failed, if a salesperson, to immediately place with her or his registered employer any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as agent of the
registered employer. The commission shall establish rules to provide for records to be maintained by the broker and the manner in which such deposits shall be made.
Respondent is guilty of count XI and count XX of the Administrative Complaint.
By count XIV of the Administrative Complaint, Respondent is charged with violation of Section 475.42(1)(d), Florida Statutes, which reads:
No salesperson shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer; and no real estate salesperson, whether the holder of a valid and current license or not, shall commence or maintain any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as her or his employer at the time the salesperson performed the act or rendered the service for which the commission or compensation is due.
Absent proof of registration by an employer of Respondent as such with FREC, Respondent can not be found guilty of count XIV of the Administrative Complaint.
By count XXII of the Administrative Complaint, Respondent is charged with violation of Section 475.25(1)(q), Florida Statutes, which authorizes discipline for any licensee who fails to meet certain notice requirements to members of the public required by provisions of Sections 475.276 and 475.278, Florida Statutes, respectively. Inadequate evidence was
presented upon which to find Respondent guilty of this count of the Administrative Complaint.
The FREC is authorized to revoke a license in instances of egregious and multiple violations. Section 475.25, Florida Statutes, and Rule Chapter 61J2-24.00, Florida Administrative Code.
That a final order be entered finding Respondent guilty of counts I through V, counts VII through VIII, counts X through XII, counts XV through XVI, and counts XIX through XXI of the Administrative Complaint and revoking Respondent’s license.
DONE AND ENTERED this 28th day of January, 1999, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1999.
James Kimbler, Acting Director Division of Real Estate Department of Business and
Lynda L. Goodgame, General Counsel Department of Business and
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.
