10-009617PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Amie Layne Bennis Status: Closed Recommended Order on Friday, March 18, 2011.

Summary: Petitioner failed to prove allegations in Administration Complaint because it failed to prove Respondent received or expected compenation for services she provided as a favor to complainant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 9617PL

)

AMIE LAYNE BENN IS, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 9, 2011 , a final hea ring was held using video

teleconferencing with sites in Jacksonville and Pensacola ,

Florida , before Li sa Shearer Nelson , an Administrative Law Judge

appointed by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: Patrick Cunningham, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: Richard Withers, Esquire

Post Office Box 2807

Orlando, Florida 32802 - 2807

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

sections 475.42(1)(b) & (d) and 475.25(1)(k) & (d)1., Florida

Statutes (2008), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On March 17, 2009, Petitioner, Department of Business and

Professional Regulation, Division of Real Estate (DBPR or

Petitioner), filed a four - count Administrative Complaint against

Respondent, Amie Layne Bennis, asserting violations of sections

475.42(1)(b) & (d) and 475.25(1)(k) & (d)1. Respondent disputed

the allegations in the Admin istrative Complaint and requested a

hearing pursuant to section 120.57(1), Florida Statutes. On

October 12, 2010, the matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

On October 27, 2010, a Not ice of Hearing was issued

scheduling the case for hearing January 3, 2011. At Respondent's

request, the case was continued until February 9, 2011, and

proceeded as rescheduled.

At hearing, Petitioner presented the testimony of Jack Case,

John McGroarty, and Robert Richardson, and Petitioner's Exhibits

1 - 3 were admitted into evidence. Respondent testified on her own

behalf by telephone, but submitted no documents. The Transcript

of the proceedings was filed with the Division on February 18,

2011. Petiti oner filed its Proposed Recommended Order on

February 25, 2011, and Respondent filed a Proposed Recommended

Order on March 7, 2011. No objection has been made to date

regarding the late - filing of Respondent's Proposed Recommended

Order, and both submissio ns have been considered in the

preparation of this Recommended Order. All references to Florida

Statutes are to the 2008 version unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of r eal estate brokers and salespersons

in the State of Florida pursuant to section 20.165 and chapters

455 and 475, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Respondent was a licensed real estate

sales ass ociate registered with Century 21 Richardson Agency.

3. Respondent's license is currently null and void.

Respondent no longer resides in Florida, but lives with her

husband who is in the military, stationed in Hawaii.

4. Respondent met John P. McGroar ty on a flight from

California, during which they struck up a casual conversation.

At some point, she believed that they became friends.

5. Respondent began performing "favors" for Mr. McGroarty

with respect to rental properties he owned in the Pensaco la area,

such as placing a "for rent" sign in front of a house.

6. One property owned by Mr. McGroarty was located at 1025

Willow Lake Circle in Pensacola. Respondent assisted in leasing

the property to Jennifer and Michael Gosnell for $1,000 a month.

7. The form used for the lease to the Gosnells was a

Florida Association of Realtors form Respondent obtained from her

office. In several places, the preprinted form referenced

Century 21 Richardson Agency. In some but not all instances, the

reference t o Century 21 is lined through and the name Annie

Pierce (Respondent's name before she married) is inserted.

8. Mr. McGroarty testified that he should have received

$1,000 a month for a year. However, the written term of the

lease was for six months, fr om May 14, 2006 , through November 14,

2006. Mr. McGroarty acknowledged receiving $5,800 from

Respondent.

9. Respondent received cash payments from the tenants for

rent and deposited the money in her personal checking account,

and then wrote Mr. McGroarty personal checks and on at least one

occasion, apparently sent a cashier's check. Mr. McGroarty

received what were clearly personal checks and cashed them.

10. Respondent received no compensation for assisting

Mr. McGroarty, and did not ask for any. She thought there was a

possibility he might buy other property from her, but no promise

to that effect was ever made.

11. Respondent did not receive the funds from the tenants

or disburse funds to Mr. McGroarty through her broker. In fact,

her broker was u naware that she was handling the rental funds

related to the Willow Lake Circle property.

12. At some point, the tenants became behind in their rent.

There were times when they did not pay the entire amount due , and

Respondent had to go to the home to co llect the rent . Respondent

told Mr. McGroarty she could no longer continue assisting him

with collection of the rent.

13. Mr. McGroarty called Mr. Richardson, Respondent's

employer, and complained to him. However, neither Mr. McGroarty

nor any of his properties were listed with Century 21.

14. Mr. Richardson confronted Respondent regarding the

rental payments, and she told him that she was acting on her own

as a friend to Mr. McGroarty, and that she had neither charged

nor expected to receive a commis sion.

15. There was no persuasive evidence that Respondent

retained any funds received from the tenants that she should have

forwarded to Mr. McGroarty.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the subject mat ter and the parties to this

action in accordance with s ections 120.569 and 120.57(1), Florida

Statutes.

17. The Department seeks to discipline Respondent's license

as real estate sales associate. It therefore has the burden of

proving the allegations of the Administrative Complaint by clear

and convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

18. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 42 9 So. 797, 800 (Fla. 4th DCA 1983).

19. Moreover, in disciplinary proceedings, the statutes and

rules for which a violation is alleged must be strictly construed

in favor of Respondent. Elmariah v. Dep ' t of Prof ' l Reg . , 574

So. 2d 164 (Fla. 1st DCA 1990 ); Taylor v. Dep ' t of Prof ' l Reg . ,

534 So. 782, 784 (Fla. 1st DCA 1988).

20. The Administrative Complaint in this case contains four

separate counts. Count One charges Respondent with having

operated as a broker while licensed as a sales associate in

vi olation of section 475.42(1)(b), and therefore, in violation of

section 475.25(1)(e).

21. Section 475.42(1)(b) provides that "[a] person licensed

as a sales associate may not operate as a broker or operate as a

sales associate for any person not regist ered as her or his

employer." Section 475.25(1)(e) makes it a disciplinary offense

to violate any of the provisions of chapter 475.

22. In order to prove that Respondent acted as a broker in

violation of section 475.42(1)(b), Petitioner must demonstrate

that Respondent's actions are within the definition "broker" in

section 475.01. The Legislature has defined the term "broker" as

follows:

(1)(a) ÐBrokerÑ means a person who, for

another, and for a compensation or valuable

consideration directly or indir ectly 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 takes any part in the

procuring of sellers, purchaser s, 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 ; . . .

(Emphasis supplied.)

23. There is no clear and convincing evidence that

Respondent acted as a broker, because there is no competent,

substantial evidence that she received or expected to receive any

compensation for collecting the rent on Mr. McGroarty's property

and forwarding the proc eeds to him. The best that can be said is

that she hoped that, by helping Mr. McGroarty out with his rental

property, she might have the prospect of a future sale. However,

the evidence on this issue was more in the form of a vague hope

than any real exp ectation of compensation.

24. Mr. McGroarty acknowledged that there was no property

agreement and that he did not pay Respondent anything for her

assistance. Moreover, his claim that he believed Century 21

Richardson Agency was representing his inte rests is not

particularly credible. He acknowledged that he only dealt with

Respondent, and that he received and cashed checks from her

personal account. He claimed to be owed $12,000 when the lease

only covered a six - month period at $1,000 a month. He was

willing to take advantage of free services and only complained

when those services were no longer forthcoming. While there was

evidence presented that Respondent continued to collect rent and

forward it to Mr. McGroarty for a few months after the leas e

expired, there is no evidence that Respondent collected any rent

that she did not forward, or that she had any obligation to

collect the rent at all, much less to do so after the expiration

of the lease.

25. Without some form of payment or agreement to pay, or

expectation on Respondent's part that she will be compensated for

her services, she has not acted as a broker. Pa n ton & Co.

Realty, Inc. v. Wood , 958 So. 2d 541 (Fla. 4th DCA 2007). An

argument could be made that where, as here, a person is li censed

as a real estate professional, any actions dealing with the sale

or rental of property should come within the parameters of

regulation by the Florida Real Estate Commission. However, the

element of consideration is an essential statutorily - mandated

requirement in proving the violations charged against Respondent.

Count One has not been demonstrated by clear and convincing

evidence.

26. Count Two charges Respondent with violating section

475.42(1)(d), and therefore violating section 475.25(1)(e) .

Section 475.42(1)(d) provides as follows:

475.42(1)(d) A sales associate may not

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 sales associate, 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 register ed as her or his employer at

the time the sales associate performed the

act or rendered the service for which the

commission or compensation is due.

As stated in paragraph 21, section 475.25(1)(e) makes it a

disciplinary offense to violate any of the prov isions of chapter

475.

27. There is no clear and convincing evidence that

Respondent violated section 475.42(1)(d) because there is no

evidence that she engaged in a real estate brokerage transaction,

given the failure to prove that she received or expec ted any

compensation for collecting rent on the Willow Lake Circle

property. There was no evidence that Respondent ever attempted

to maintain any action against anyone for a commission related to

the property. Count Two has not been proven.

28. Count T hree charges Respondent with failing to maintain

trust funds in the real estate brokerage escrow account or some

other proper depository until disbursement thereof was properly

authorized in violation of section 475.25(1)(k). This subsection

makes a disci plinary violation where a licensee:

(k ) 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,

bankin g 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

entrust ed to her or him by any person dealing

with her or him as agent of the registered

employer . . . . (Emphasis supplied.)

29. Because the Department did not prove by clear and

convincing evidence that Mr. McGroarty was dealing with

Respondent as an agent o f Century 21 Richardson Agency, Count

Three has not been proven by clear and convincing evidence.

30. Finally, Count Four charges Respondent with failing to

account or deliver funds in violation of section 475.25(1)(d)1.

This subsection makes it a viola tion when a person

(d)1 . 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 th e practice of the

licenseeÓs 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 portio n thereof, which has

come into the licenseeÓs hands and which is

not the licenseeÓs property or which the

licensee is not in law or equity entitled to

retain under the circumstances.

31. This charge has not been proven by clear and convincing

evidence. The problem with Count Four is not the failure to

demonstrate that Respondent received or expected compensation,

but rather the absence of evidence that there were any funds that

she received from the tenants that she did not in fact forward to

Mr. McGroa rty.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED :

T hat the Florida Real Estate Commission enter a Final Order

dismissing the Administrative Complaint.

DONE AND E NTERED this 18 th day of March , 20 11 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18t h day of March , 20 11 .

COPIES FURNISHED:

Patrick J. Cunningham, Esquire

Department of Business and

Professiona l Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

Richard W. Withers, Esquire

Bogin, Munns, & Munns, P.A.

Post Office Box 2807

2601 Technology Drive

Orlando, Florida 32802 - 2807

Thomas W. O'Bryant, Jr. , Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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 da ys 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.