STATE OF FLORIDA ,. , DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
FLORIDA REAL ESTATE COMMISSION
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FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,
Petitioner,
DBPR Case NO. 200.8030310
SUSAN KAY BERGMAN,
Respondent.
State of Florida, Department of Business and Professional Regulation, Division of Real Estate ("Petitioner") files this Administrative Complaint against Susan Kay Bergman ("Respondent") and alleges:
ESSENTIAL ALLEGATIONS OF MATERIAL FACT
Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, of the Florida Statutes and the rules promulgated pursuant thereto.
Respondent is and was at all times material hereto a licensed Florida real estate broker, issued license number 497011
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in accordance with Chapter 475 of the Florida Statutes.
The last license issued was as an active broker associate at Charles Rutenberg Realty Inc., 1545 s. Belcher Road, Clearwater, Florida 33764.
On or about July 2006 Respondent was registered as a sales associate with Re Partners Tampa Inc., a licensed real estate brokerage.
On or about July 2006 Respondent was contacted by Yves Ulysse (Buyer) for the purchase of a real property.
Respondent made a credit check on Buyer which revealed two outstanding bills, one with Alltel for $327 and another with Aqua Finance, Inc., for $3,000.
Respondent advised Buyer to pay the Alltel and Aqua Finance bills prior to attempting to purchase a real property.
On or about July 31, 2006 Respondent received from Buyer the amount of $327.00 for Respondent paying the Buyer's debt with Alltel for the same amount. A copy of the payment is attached hereto and incorporated herein as Administrative Complaint Exhibit
1.
On or about August 28, 2006 Respondent received from Buyer the amount of $3,000 for Respondent paying the Buyer's debt with Aqua Finance for same amount.
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Respondent failed to place the $3,327.00 with her qualifying broker.
At.all times material Respondent failed to pay Buyer's debt with Altell or Aqua Finance.
On or about January 3, 2007 Respondent knew or should have known that Buyer entered into a stipulation agreement paying Aqua Finance the amount of $2,910.71 for the debt the Respondent received money to pay and failed to pay. A copy of the agreement is attached hereto and incorporated herein as Administrative Complaint Exhibit 2.
Respondent knew or should have known that buyer paid Aqua Finance the amount of $2,910.71.
Respondent knew or should have known that Buyer paid Altell the amount of $327.
Respondent advised Buyer that Respondent would use the money received from Buyer for $3,327 as down payment for the property to be purchase by Buyer.
Buyer made repeated demands on or around March 2007 for the return of the $3,327.00.
Respondent failed to account and deliver to Buyer the amount of $3,327 received for the purchase of a real property after the Respondent failed to pay the debts to Altell and Aqua Finance
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ads agreed.
Respondent failed to account and deliver to Buyer the amount of $3;327 after the Respondent failed to negotiate a real property for Buyer to purchase.
Respondent failed to deliver funds received from Buyer for the purchase of a real property to Respondent' s broker of record.
At all times, Respondent's broker/employer was not made aware of these transactions.
COUNT ONE
Based upon the foregoing, Respondent is guilty of dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes.
Based upon the foregoing, Respondent is guilty of failure 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,
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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, in
violation of Section 475.25(1)(d)l., Florida Statutes.
COUNT THREE
Based upon the foregoing, Respondent is guilty of failure to immediately place, upon receipt, any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as a broker in escrow with a title company, banking institution credit union, or savings and loan association located and doing business in this state, or to deposit such funds in a trust or escrow account maintained by her or him with some bank, credit union, or savings and loan association located and doing business in this state, wherein the funds shall be kept until disbursement thereof is properly authorized; or has failed, if a sales associate to immediately place with her or his registered employer any money, fund, deposit, check, or draft entrusted to her or him by any person
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dealing with her or him as agent of the registered employer in violation of Section 475.25(1)(k), Florida Statutes.
COUNT FOUR
Based upon the foregoing, Respondent is guilty of having collected any money in connection with any real estate brokerage transaction except in the name of the employer and with the express consent of the employer and is guilty of commencing or maintaining any action for a commission or compensation against any person except his registered employer in violation of Section 475.42(1)(d), Florida Statutes and, therefore, in violation of Section 475.25(1)(e), Florida Statutes.
WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission, or the Department of Business and Professional Regulation, as may be appropriate, to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalties which may be imposed for violation(s) of Chapter 475 of the Florida Statutes, depending upon the severity of the offense{s), include: revocation of the license or registration or permit; suspension of the license, registration or permit for a period not to exceed ten (10) years, imposition of an administrative fine of up to $5,000 for each count or offense;
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imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant or permittee to complete and pass additional real estate education courses; publication; or any combination of the foregoing which may apply. See Section 475.25(1), .Florida Statutes and Florida Administrative Code Rule 61J2-24.001. The penalties which may be imposed for violation(s) of Chapter 455 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license, registration, or permit; suspension of the license, registration, or permit for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or permittee to complete and pass additional real estate education courses; publication; restriction of practice; injunctive or mandamus relief; imposition of a cease and desist notice; or any combination of the foregoing which may apply. See Section 455.227, Florida Statutes and Florida Administrative Code Rule 61J2-24.001.
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Signed this 1.9 day of
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NER
/k
PCP: RD/GS 7/09
n1fer Leigh Blakeman Senior Attorney Florida Bar No. 0506877
Division of Real Estate Department of Business and Professional Regulation, Legal Section - Suite N 801 Hurston Bldg. North Tower
400 West Robinson Street Orlando, Florida 32801-1757
(407) 481-5632
(407) 317-7260 FAX
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Administrative Complaint
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NOTICE TO RES.P.qNttlif ;'\.'
PLEASE BE ADVISED that mediation uhder Section 120.573 of the Florida Statutes, is not available for administrative disputes involving this type of agency action.
PLEASE BE FURTHER ADVISED that pursuant to this Administrative Complaint you may request, within the time allowed by law, a hearing to be conducted in this matter in accordance with Sections 120.569 and 120.57 of the Florida Statutes; that you have the right, at your option and expense, to be represented by counsel or other qualified representative in this matter; and that you have the right, at your option and expense, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on your behalf if a formal hearing is requested.
PLEASE BE FURTHER ADVISED that if you do not file an Election of Rights form or some other responsive pleading with the Petitioner within twenty-one (21) days of receipt of this Administrative Complaint, the Petitioner will file with the Florida Real Estate Commission a motion requesting an informal hearing and entry of an appropriate Final Order which may result in the suspension or revocation of your real estate license or registration. Please see the enclosed Explanation of Rights and Election of Rights form.
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.
Au 28 2007 . ?_:47PM
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EXHIBIT #-L-------
OF
PAGE J
IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, FOR
HILLSBOROUGH CQPJ'fJ;Y, A
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CIVIl.. DIVISION, : ' ..
Case No.: O -"2, l? I --:()_
Defendant(s}. I
STIPULATION OF THE PARTIES AND ORDER RATIFYING
Pursuant to the Mediation Conference held the S'.)day af ----r;;_.,.,°'J - ,200-7 theparties
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agree to abide by the following: ,
Plaintiffls) and Defendant(s) agree(s) that €'.$ LJ ( tj-C(e: \ 11"\A '4 J1.{<1 { wiJl pay
·ft-1U.I'.\ '"""'-A ¼ (v--c:/ Q, { ;c g_·:fHr:a_ a · $ ·2<l10'--, I in final settlement of this matter.
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·'2.1>,. 'Th nnili'sittl m i amount includes the following:
Principal amount
Attorney's fee
Court costs
$ .2..7tb·2-7
'$
$ --======-
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Interest to this date $ - l q '+ · Y:: '+:
Total $ 1...<jlD · 1i
YUe lJ(V I.".:i: ,,._,,I"\ ; c\ '-" Aug ( will make payment as follows until indebtedness is paid in fu11:
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( / $ each and every beginning _
Total payment due wiU be paid in one lump sum by ':::> { Q 7
( ) Other,
This stipulation wilJ be concluded by
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The parties include in this agreement the following:
AUMINISTRATIVE COMPLAINT EXHIBIT# Z .
. PAGE / OF
STIPULATION OF THE PARTIES
Case No.:
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No money in escrow account. . . . .
Plaintiff{s) and Defendant(s) agree(s) fo:r\m i \ bw tobe re] d to
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Upon signing the Order Ratifying Stipulation by the judge. the clerk's office wilJ release the money in the escrow account less clerk's fees, according to the terms agreed upon in the stipulation.
The Plaintiff will submit a notice of dismissal to the court at the following address when the stipulation is satisfied. If the stipulation is satisfied through payment by check, a notice of dismissal will be submitted upon clearance of check.
Clerk of Circuit Court County Civil Division
P. 0. Box 11 JO Tampa, Florida 33601
[f the Defendant defaults hereunder, the Plaintiff will submit to the court an affidavit of default/non- compliance for Final Judgment for the:
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agreement wnoun less any payments made. ( - i-
origina.J amount sought in Statement of Claim less any payments made.· fl 3 '- S"· .-:.9 ..,,_,,
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The affidavit of default/non-compliance shall set forth the date of default; dollar amount of 1 -
payment(s) made by Defendant(s} to date; manner of application of payment(s); and outstanding balance due and owing to Plaintiff.
\,r:;Payment was made in full at this mediation by ( ) check.
Payment(s) will be made by ( ) check, ( ney order, ( )cashier's check. or ( ) cash.
Payments wiJI be ( ;iled ( )hand delivered, ( ) picked up. The address is as follows:
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This stipulation shall be submitted to the court:
mmed iate]y upon signature of the parties and/or their attorneys (if any).
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after lO days, if the parties or their attorneys have not subm ittcd an objection in wri1ing to the agreement.
The parties agree that a faxed signature may be attached to this agreement reached via telephone.
AFTER COURT REVIEW THE STIPULATION SHALL BE ENTERED AS AN ORDER OF THE COURT. ALL PARTIES HAVE BEEN ADVISED THAT INFORMATION OBTAINED THROUGH THE PROCESS OF
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AUMINISTR.ATIVE COMP' - 'M-::·
EXHIBIT #- LMl,'iI . \
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PAGE d-.- OF /_
MEDIATION WILL BE HELD AS CONFIDENTIAL BY THIS·PROGRA.M WITHIN THE LIMITS OF THE LAw.
ANY PARTY SIGNING FOR THE PLAlNTIFF(S) OR DEFENDANT(S) S QllfING WITH FULL SETTLEMENT
AUmORITY FROM THE RESPECTIVE PARTY(S). \ ' ? 8 r..2,. \ 1• b
Case No.: () ·· 1. ',? ISO
Division: _1-.;;.;. _
i Date
Phone: (
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Plaintiff 2: Defendant 2:
ORDER RATIFYING STIPULATION
The Court finding that the parties have entered into an agreement and stipulation in the above--<:aptioned case and that agreement and stipulation has tx:en approved by the parties' counsel,. if any; and the court finding that the above agreement and stipulation is lawful by its terms. within the jurisdiction of the court, and in the best interests of the parties; it is hereby,
ORDERED that the above agreement and stipulation signed by the parties is hereby ratified by this Court. Unless otherwise provided in the above Stipulation, if the defendant(s) fail(s) to comply with the tenns of the stipulation, the plaintiff{s) ma.y file an affidavit of balance due. Final Judgment on Stipulation will be entered and execution for unpaid amount will be issued upon request of plaintiff(s). The interest on the unpaid balance of the stipulation will accrue at the Statutory rate pursuant to
F.S. 55.03.
DONE AND ORDERED in chamber.; in Tampa., Florida this day of _,
County Judge
Attorneys and Pro Se Parties given copy of Stip at mediation conference.
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