10-010432PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Pamela Sue Simmons And Karle John Simmons Status: Closed Recommended Order on Thursday, April 14, 2011.

Summary: Respondents breached their clients' trust when they allowed a person to move into the clients' home without the clients' permission and without obtaining a lease or security deposit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10432PL

)

PAMELA SUE SIMM ONS AND )

KARLE JOHN SIMMONS, )

)

Respondents. )

)

RECOMMENDED ORDER

On February 18, 2011 , a duly - noticed hea ring was held by

video teleconference with sites in Tallahassee an d Jacksonville ,

Florida , before Lisa Shearer Nelson , an Administrative Law Judge

of the Division of Administrative Hearings .

APPEARANCES

For Petitioner: Patrick Cunningham, Esquire

Department of Business and

Professional Regulation

4 00 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent s : No appearance

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondents, Pamela

Sue and Karl e Simmons, are guilty of violatin g section

475.25(1) ( b), Florida Statutes (2007), and if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

On December 15, 2009, Petitioner, Department of Business and

Professional Regulation (Petitioner or the Department ) , filed a

two - count Admin istrative Complaint against Respondents, Pamela

Sue Simmons and Karle John Simmons, alleging that they had

violated section 475.25(1)(b), Florida Statutes. Respondents

disputed the allegations in the Administrative Complaint and on

November 22, 2010, the matter was referred to the Division of

Administrative Hearings for a section 120.57(1) hearing.

On December 20, 2010, a Notice of Hearing was issued

scheduling the ca se to be heard February 18, 2011 , and the case

proceeded as scheduled. Respondents were provided notice at the

address provided by the Department at the time the case was

referred to the Division, and nothing has been returned to the

Division as undeliverable. When the hearing commenced

February 18, 2011 , at 9:30 a.m., the Respondents did no t appear.

A twenty - minute recess was taken in order to give Respondents an

opportunity to arrive. When the hearing reconvened, Respondents

had not appeared, and the Department elected to proceed with its

case. The Department presented the testimony of R obert Krantz,

Patsy Bickel and David Bick el, and Petitioner's Exhibits 1

through 5 were admitted into evidence. When the hearing

concluded at 10:56 a.m., Respondents had not appeared.

The T ranscript of the hearing was filed with the Division

March 16, 2011, and the Department filed its Proposed Recommended

Order on March 18, 2011. Respondents did not file a post - hearing

submission. Unless otherwise specified, all references to

Florida Statutes are to the 2007 codification.

FINDINGS OF FACT

1. Petiti oner is the state agency charged with the

responsibility to license and regulate real estate professionals

pursuant to section 20.165 and chapters 120, 455 , and 475,

Florida Statutes.

2. At all times relevant to the Administrative Complaint,

Respondent Pa mela Simmons was a licensed real estate sales

associate issued license number 695141. The last license issued

was as an active sales associate with Atlantic Partners Real ty ,

LLC, 4116 3 r d Street, Jacksonville Beach, Florida 32250.

3. At all times materi al to the Administrative Complaint,

Respondent Karle Simmons was a licensed real stated sales

associate, issued license number 3106888. The last license

issued to Karle Simmons was as an inactive sales associate at

4045 Lionheart Drive, Jacksonville, Flor ida .

4. Sometime in 2005, Pamela Simmons sold a home to David

and Patsy Bickel located at 1613 Rain Bird Court, Jacksonville,

Florida.

5. After living in the home for approximately a year,

Mr. Bickel was offered a job in North Carolina, and the Bickels

decided to sell the Rain Bird Court home. They were able to stay

at a home owned by Ms. Bickel's father in North Carolina and

planned to do so until the Rain Bird Court home sold.

6. The listing agreement to sell the Rain Bird Court home

lists Pamela Si mmons as the listing sales agent for Prudential

Network Realty, and the term for the listing was September 1,

2006 , through March 1, 2007.

7. The Bickels believed that their stay in Mrs. Bickel's

father's home would be short, and they left their personal

belongings, such as furniture, linens, china and kitchenware,

intact at the Rain Bird home.

8. The items remaining at the home included personal

financial information, which the Bickels would not have left if

someone else would be living in their home. While cable and

phone had been disconnected, the Bickels continued to pay for

water and electricity at the home .

9 . The house did not sell during the listing period.

10 . Mrs. Bickel kept in contact with the Simmons through

phone calls and e - mails. He r primary contact was with Pamela

Simmons.

11 . After several months, the Bickels discussed options for

dealing with the home, including the possibility of a lease

purchase arrangement. They were hesitant to go in this

direction, however, because of the pot ential for damage to their

home . Moreo ver, they never agreed to rent the home and never

were presented with a lease of any kind for a ny tenant.

1 2 . On or about July 9, 2007, the Bickels returned to

Jacksonville to check on their home and see how to proceed in

terms of relisting it . When they arrived at the Rain Bird C ou r t

home, it was after midn ight. Upon approaching the house , they

could see lights on inside and it appeared that the house was

occupied.

13. Mr. Bickel got out of the car and ap proached the house.

He saw that there was a missing pane on the garage door, and he

could hear the washer and dryer running . At this point,

Mr. Bickel called the police.

1 4 . The police verified that the Bickels owned the home and

then spoke to the man a nd woman who were in the house. The man

represented that the realtor, "Karle," had rented the house to

him, but that while he had been in the h ome for approximately two

weeks, he had paid no rent and had no lease agreement.

15. The officer called Karl e Simmons, who then spoke

briefly to Mr. Bickel. Karle apparently attempted to remind

Mr. Bickel that permission to obtain a renter had been obtained

verbally, but Mr. Bickel was not interested in entertaining such

a suggestion.

1 6 . The Bickels were very disturbed by finding someone in

their home, among their belongings, and filed a complaint with

the Northeast Florida Association of Realtors (NEFAR) and with

the Department of Business and Professional Regulation. After a

hearing which both the Bickels a nd the Simmons attended, NEFAR

imposed a fine and required the Simmons to attend ethics classes.

1 7 . During DBPR's investigation into the Bickels'

complaint, Karle and Pamela Simmons spoke to the investigator ,

Robert Krantz. They also submitted two joint , unsigned letters,

one during the investigation and one in response to the

Administrative Complaint. In both letters, consistent with their

statements to Mr. Krantz , Respondents indicated that they had

rented the Rain Bird Court home to Mr. Moffett, the man found

there on July 9, 2007, on a month - to - month basis, but that they

believed the Bickels had given them verbal authorization to do

so. They acknowledged that they had no written authorization to

rent the property; had collected no rent or security d eposit ; did

not have a lease signed by Moffett or the Bickels; and had no

property management agreement with the Bickels .

1 8 . Clear and convincing evidence indicates that the

Bickels neither authorized the pursuit of having a t en an t in

their home, nor a greed to have this specific t en an t. Clear and

convincing evidence was also presented that the Bickels received

no compensation for Mr. Moffett's use of their home.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes (2010) .

20 . This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend or revoke

Respondents' lice nses as real estate associates. Petitioner

bears the burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence. Dep' t

of Banking & Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Tu rlington , 510 So. 2d 292 (Fla. 1987).

2 1. 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 test imony 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 b e established.

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

v. Walker , 429 So. 797, 800 (Fla. 4 th DCA 1983).

22 . Count One of the Administrative Complaint alleges that

the Respondent Pamela Sue SimmonsÓ conduct violated s ection

475. 25(1)(b), Florida Statutes. Count Two makes the same

allegation with respect to Karle Simmons. Section 475.25(1)(b),

provides in pertinent part, that the Florida Real Estate

Commission may discipline a licensee who:

(b) Has been guilty of fraud,

misrepr esentation, 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 forme d 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 n o 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 p ublic.

23 . The Department has proven the allegations in the

Administrative Complaint by clear and convincing evidence. While

only Pamela Simmons' name is on the listing agreement, it is

clear that Pamela and Karle Simmons worked together with respect

t o the Bickels' property. Clear and convincing evidence was

presented to demonstrate that the Respondents provided access to

someone to stay in the Bickels' home without their permission.

Not only was there no property management agreement in place, the

B ickels gave neither written nor verbal permission to have

someone live in their home. Moreover, the Respondents provided

a ccess for Mr. Moffett to stay in the home without a lease;

without paying rent; and without paying any sort of security

deposit. T heir actions clearly represent a blatant breach of

trust in violation of section 475.25(1)(b) .

2 4 . The Florida Real Estate Commission has adopted

Disciplinary Guidelines to provide notice of the range of

penalties normally imposed for violations of dis ciplinary

provisions over which the Commission has final order authority.

§ 455.2273, Fla. Stat. At the time of the conduct in this case,

Florida Administrative Code Rule 61J2 - 24.001(3)(c) provided that,

for culpable negligence or breach of trust, th e re commended range

of penalty wa s from a $1,000 fine to a one - year suspension. The

rule has since changed to provide, for a first - time offense, a

fine of $1,000 to $2,500 and a 30 - day suspension to revocation.

25 . Petitioner has cited to the version of the rule now in

effect. An administrative rule is operative from its effective

date. Jordan v. Dep't of Prof. Reg. , 522 So. 2d 450, 452 (Fla.

1st DCA 1988)(rules are presumed to operate prospectively,

especially where the rule has penal characteristics). I n Jordan ,

the question arose whether disciplinary guidelines adopted after

the recommended order was submitted to the Board of Nursing and

before the case was considered by the Board should be applied.

The court held that there were no circumstances prese nt that

would required the agency to apply the rule retroactively.

26 . The undersigned concludes that the more prudent view

requires that the version of the Disciplinary Guidelines in

effect at the time of the conduct by Respondents must be applied.

Ap plication of this iteration of the guidelines e nsures that the

licensees are on notice of the type of penalty applicable to

prohibited conduct at the time the conduct is committed.

Under that version of the rule and under section 475.2273(3),

however, th e Commission is allowed to consider aggravating

factors in determining the appropriate penalty to the be imp osed.

In this case, Respondent s ' actions are particularly horrific.

Not only did they act without specific, written permission, but

they allowed a stranger to occupy the Bickels' home with

absolutely no arrangements made to protect their property , and no

way to limit access to their confidential documents contained in

the home . While the Bickels were struggling to sell their home,

Respondents' acti ons meant that they were also paying for

utilities for an occupied home as opposed to a vacant one, with

no mechanism to be reimbursed. To allow Mr. Moffett and his

companion access to the house was an egregious violation of the

Bickels' trust and privacy , which could have had disastrous

consequences. Th o s e who can be so cavalier about the belongings

of others should not have another person's most valuable asset

placed in their care.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Real Estate Commission enter a

Final Order finding that Respondents, Pamela Sue Simmons and

Karle Simmons, violated section 475.25(1)(b), imposing fines of

$1,000 each and revoking each Respondent's licens e.

DONE AND ENTERED this 14 th day of April , 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 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14 th day of Ap r il , 20 11 .

COPIES FURNISHED:

Patrick J. Cunningham, Esquire

Department of Business a nd

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

Pamela Sue Simmons

Karle John Simmons

2417 Brook Parkway

Jacksonville, Florida 32246

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 days from the date of this recomm ended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.