STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, v. Case No. 2016-007944 DEBRA ANN NESER, Respondent. / ADMINISTRATIVE COMPLAINT The Department of Business and Professional Regulation (Petitioner) files this Administrative Complaint against DEBRA ANN NESER, (Respondent) and alleges: 1. Petitioner is the state agency charged with regulating the practice of real estate pursuant to Section 20.165, Florida Statutes, and Chapters 120, 455, and 475, of the Florida Statutes and the rules promulgated pursuant thereto. 2. At all times material to this Complaint, Respondent was licensed as a real estate broker in the State of Florida, having been issued the following license numbers: BK 665569; 3044744; and 3318045. 3. Respondent’s address of record is 301 W. Atlantic Avenue, Delray Beach, FL 33444. Beach, FL 33435. 4. At all times material to this Complaint, Respondent was the registered broker for Renter’s Warehouse Miami, Inc., (“Brokerage”), a previously-licensed real estate brokerage in the State of Florida, having been issued license number CQ 1048030. 5. At all times material to this complaint, Brokerage maintained a Wells Fargo escrow account ending 0235 (“Account”). 6. At all times material to this complaint, Account contained third party funds entrusted to Brokerage. 7. At all times material to this complaint, Respondent was a signatory on Brokerage’s escrow accounts. 8. On or about February 5, 2016, Respondent withdrew $20,000.00 of escrowed funds from Account. 9. Petitioner’s Investigator telephonically interviewed Respondent along with her attorney. 10. During the aforementioned interview, Respondent admitted to withdrawing funds from Account. 11. Disbursement of the escrowed funds from Account had not been properly authorized. 12. To date, Respondent has not returned the previously escrowed funds. 13. From in or about February 2015, through in or about February 2016, Respondent failed to review, sign, and date one or more monthly statement-reconciliation. 14. After request of the investigator, Respondent failed to produce the brokerage’s bank statements, monthly reconciliation statements, and other documents necessary to ensure the brokerage’s compliance with Chapter 475, Florida Statutes. COUNT ONE 15. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fourteen (14), as if fully set forth herein. 16. Section 475.25(1)(d), Florida Statutes (2014-2015), subjects a licensee to discipline if the licensee: 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... 17. Based upon the aforementioned, Respondent violated Section 475.25(1)(d), Florida Statutes (2014-2015), by failing to account for and deliver third party funds entrusted to Brokerage. COUNT TWO 18. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fourteen (14), as if fully set forth herein. 19. Section 475.25(1)(k), Florida Statutes (2014-2015), subjects a licensee to discipline if the licensee: Has failed, if a broker, 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. 20. Based on the aforementioned, Respondent violated Section 475.25(1)(k), Florida Statutes (2014-2015), by disbursing escrowed funds without proper authorization. COUNT THREE 21. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fourteen (14), as if fully set forth herein. 22. Section 475.25(1)(e), Florida Statutes (2014-2015), subjects a licensee to discipline if they have “violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.” 23. Rule 61J2-14.012, Florida Administrative Code (2014-2015), requires that, Once monthly, a broker shall cause to be made a written statement comparing the broker’s total liability with the reconciled bank balance(s) of all trust accounts. . . The minimum information to be included in the monthly statement-reconciliation shall be the date the reconciliation was undertaken, the date used to reconcile the balances, the name of the bank(s), the name(s) of the account(s), the account number(s), the account balance(s) and date(s), deposits in transit, outstanding checks identified by date and check number, an itemized list of the broker’s trust liability, and any other items necessary to reconcile the bank account balance(s) with the balance per the broker’s checkbook(s) and other trust account books and records disclosing the date of receipt and the source of the funds. The broker shall review, sign, and date the monthly statement-reconciliation. 24. Based upon the foregoing, Respondent violated Section 475.25(1)(e), Florida Statutes (2014-2015), when he violated Rule 61J2-14.012, Florida Administrative Code (2014-2015), by failing to review, sign, and date one or more required monthly statement-reconciliations. COUNT FOUR 25. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fourteen (14), as if fully set forth herein. 26. Section 475.25(1)(e), Florida Statutes (2014-2015), subjects a real estate licensee or applicant to discipline for failure to follow any lawful order made or issued under the provisions of Chapters 475 or 455, Florida Statutes. 27. Section 475.5015, Florida Statutes, provides the following: Each broker shall keep and make available to the department such books, accounts, and records as will enable the department to determine whether such broker is in compliance with the provisions of this chapter. Each broker shall preserve at least one legible copy of all books, accounts, and records pertaining to her or his real estate brokerage business for at least 5 years from the date of receipt of any money, fund, deposit, check, or draft entrusted to the broker or, in the event no funds are entrusted to the broker, for at least 5 years from the date of execution by any party of any listing agreement, offer to purchase, rental property management agreement, rental or lease agreement, or any other written or verbal agreement which engages the services of the broker... 28. Based on the foregoing, Respondent has violated Section 475.5015, Florida Statutes (2014-2015), and thereby violating Section 475.25(1)(e), Florida Statutes (2014-2015), by failing to keep and make available to the department brokerages bank statements, monthly reconciliation statements, and other documents necessary to ensure the brokerage’s compliance with Chapter 475, Florida Statutes. COUNT FIVE 29. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through fourteen (14), as if fully set forth herein. 30. Section 475.25(1)(b) Florida Statutes (2014-2015), subjects a real estate licensee to discipline for: [Committing] fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick, scheme or devise culpable negligence, or breach of trust in any business transaction. 31. Based on the aforementioned, Respondent violated Section 475.25(1)(b), Florida Statutes (2014-2015), including in one or more of the following ways: by failing to account for and deliver third party funds entrusted to Brokerage; by disbursing escrowed funds without proper authorization; c. by failing to review, sign, and date one or more required monthly statement- reconciliations; and d. by failing to keep and make available to the department brokerages bank statements, monthly reconciliation statements, and other documents necessary to ensure the brokerage’s compliance with Chapter 475, Florida Statutes. oS WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission enter an order imposing one or more of the following penalties: suspension or permanent revocation of Respondent(s) license(s), restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent(s) on probation, corrective action, assessment of costs related to the investigation and prosecution of the case, and any other relief that the Commission deems appropriate. SIGNED this 18™ day of July, 2017. JONATHAN ZACHEM, Secretary Department of Business and Professional Regulation Maureen Y. White Maureen Y. White Assistant General Counsel Florida Bar No. 0106794 Office of the General Counsel 2601 Blair Stone Rd. Tallahassee, FL 32399 (850) 717-1234 Telephone (850) 921-9186 Facsimile PCP Date: July 17, 2017 PCP MEMBERS: Richard Fryer and Randy Schwartz NOTICE OF RIGHTS PLEASE BE ADVISED that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses, and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3)(a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed.

Docket for Case No: 18-004100PL