12-001264PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Sarah Elizabeth Hendrick Status: Closed Recommended Order on Wednesday, August 8, 2012.

Summary: Respndent violated statutes by acting as a real estate sales associate for an entity that was not registered as her employer, and for assisting an unlicensed entity in selling real estate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1264PL

)

SARAH ELIZABETH HENDRICK , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on June 20, 2012 , by video teleconference at sites in

Tallahassee and Lakeland, Florida , before Thomas P. Crapps, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Megan Demartini, Esquire

Paul Rendleman, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 N orth Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: N o Appearance by

Sarah Elizabeth Hendrick, pro se

527 Ridges Drive

Dundee, Florida 33838

STATEMENT OF THE ISSUES

Whether Respondent violated sections 475.42(1 ) ( b) and (e),

and 455.227(1 ) ( j), Florida Statutes (2011), as alleged in the

Administrative Complaint; and , if so, the appropriate penalty. 1/

PRELIMINARY STATEMENT

On December 15, 201 1, Petitioner, Department of Business

and Professional Regulation, Division of Real Estate

(Department), filed a two - count Administrative Complaint against

Respondent , Sarah Elizabeth Hendrick (Ms. Hendrick). The

Administrative Complaint charges Ms. Hendr ick with violating the

following: section 475.42(1)(b), which prohibits a licensee

from operating as a sales associate for an entity not registered

as her employer; section 475.25(1)(e), which subjects a licensee

to discipline for violating any provisions of chapter 475; and

section 455.227(1)(j), which prohibits a licensee from aiding,

assisting, procuring, employing , or advising any unlicensed

person or entity to practice a profession contrary to

chapter 455.

On January 11, 2012, Ms. Hendrick disputed the material

facts contained in the Administrative Complaint, and requested a

formal hearing pursuant to chapter 120, Florida Statutes.

On April 11, 2012, the Department sent Ms. HendricksÓs

request for hearing to the Division of Administrative Hearings

(D OAH). On April 12, 2012, an Initial Order was issued to the

parties, and based on the joint response , a final hearing was

set for June 20, 2012.

The Department presented the testimony of Robert Howes

(Mr. Howes) and introduced into evidence Exhibits 1 th rough 5.

The Department requested official r ecognition of sections

475.25(1)(e), 475.42(1)(b), and 455.227(1)(j), which was

granted.

Ms. Hendrick failed to appear for the hearing. A review of

the case docket showed that she failed to file a request for a

continuance. Further, at the beginning of the hearing, the

undersigned inquired of the Department's counsel and learned

that Ms. Hendrick had not contacted the Department indicating

that she would not be able to attend the hearing. Having found

that pro per notice had been given, the undersigned inquired

whether the Department wanted DOAH to relinquish jurisdiction or

proceed with the hearing. The Department elected to present its

case before the undersigned, and the hearing was held.

The Department or dered a transcript of the proceedings ,

which was filed with DOAH on July 6, 2012. The Department

submitted a P roposed R ecommended O rder on July 16, 2012.

Ms. Hendrick did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times releva nt, Ms. Hendrick held real estate

sales associate license number 3239708 with the State of

Florida.

2. From February 24 to April 18, 2011, Ms. Hendrick was

registered with the Department as a sales associate with Florida

Home Choice Realty, LLC, which is a brokerage company located in

Winter Haven, Flor ida, and holds license number

CQ 1037790. The record shows that Ms. HendricksÓs license was

inactive for t he time period of April 18 - 20, 2011. Her license

was then activated for the time period of April 2 0, 2011 , until

April 20, 2012. During the time period of April 20, 2011 to

April 20, 2012, Ms. Hendrick was listed in the Department's

records as a sales associate affiliated with EZ Choice,

Incorporated, trading as EZ Choice Realty license number

CQ 103 6523. Since April 20, 2012, Ms. HendricksÓs real estate

sales associate license has been listed as inactive with the

Department.

3. La Roca Realty International Corporation (La Roca

Realty) is a corporation organized under the laws of the State

of Flor ida , and listed with the State of Florida, Department of

State. The Articles of Incorporation on file with Florida

Department of State show that Ms. Hendrick incorporated La Roca

Realty on October 27, 2010, listing herself as registered agent ,

initial off icer , and director. On November 23, 2010,

Ms. Hendrick filed an amendment to the Articles of

Incorporation , removing herself as initial officer and director,

and placing ownership of the stock in Mr. Harry Hunt and

Ms. Louise Allen.

4. A Certificate of Non - Licensure, dated May 10, 2012,

shows "no evidence that La Roca Realty ever had a current or

active license as a r eal e state brokerage in the State of

Florida , in accordance with c hapter 475, Florida Statutes." As

such, it is clear that at all times p ertinent to this case, La

Roca Realty did not hold a brokerage license.

5. In late March 2010, Mr. Howes, a real estate investor

from Canada , sought to invest in Florida. Mr. Howes was seeking

to purchase between 10 and 15 homes in the Orlando, Florida ,

area. Mr. Howes holds a real estate license in Canada; thus, he

is familiar with purchasing and investing in real estate.

6. Mr. Howes contacted a Florida b ank located in

Kissimmee , to discuss his potential investment. During the

meeting, the bank loan officer informed Mr. Howes that he had a

friend who was a realtor and could help him . The loan officer

introduce d Mr. Howes to Ms. Hendrick on March 30, 2011.

7. During the initial meeting, Ms. Hendrick provided

Mr. Howes with a business card , which sho w ed Ms. Hendrick as a

"Realtor" for "La Roca Realty . " Further, Ms. Hendrick informed

Mr. Howes that she could be his realtor, and she beg a n to

forward potential investment properties to Mr. Howes for

consideration. Further, Ms. Hendrick showed Mr. Howes specific

properties which she stated were for sale .

8. Mr. Howes became suspicious about Ms. Hendrick because

when he asked the name of the seller of the homes, Ms. Hendrick

stated that all title checks would list "owner of record."

Furthermore, Ms. Hend rick informed Mr. Howe that he should make

any escrow deposit check for the purchase of the homes payable

to La Roca Realty. Based on his prior real estate experience,

Mr. Howe knew that escrow deposit checks were made payable to

the listing agent, not th e buyer's real estate agent.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties and subject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes (2012).

10. Petitioner is the state governmental agency charged

with the licen sing and regulation of real estate brokers and

sales associates, pursuant to section 20.165 and chapters 120,

455, and 475, Florida Statutes.

11. This is a disciplinary proceeding against Respondent's

license. Accordingly, Petitioner must prove the all egations in

the Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Sec. & Inv . Prot. v. Osborne

Stern, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292, 294 (Fla. 1987).

12. Clear and c onvincing evidence requires the evidence to

be credible; the facts to which the witnesses testify to be

distinctly remembered; and the testimony to 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

Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4t h DCA 1983) ) . 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 Bus. & Prof'l Reg. , 574 So. 2d

164 (Fla. 1st DCA 1990).

13. The Agency first charged Ms. Hendrick with violating

sections 475.42(1)(b) and 475.25(1)(e). 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 registered as her or his employer." Further,

section 475.25(1)(e) makes it a disciplinary offense to violate

any of the provisions of chapter 475.

14. The issue presented here is whether Ms. Hendrick

operated as a sales associate. It is undisputed that

Ms. Hendrick ho lds a sales associate license, and that La Roca

Realty was not registered as her employer. Section

475.01(1)(j) , defines a "sales associate" as:

a person who performs any act specified in

the definition of "broker," but who performs

such act under the dir ection, control, or

management of another person. A sales

associate renders a professional service and

is a professional within the meaning of

s. 95.11(4)(a).

15. The term "broker" is fully defined in section

475.01(1)(a). 2/ In pertinent part, the def inition provides that

a " broker " is a person who , for payment , agrees to negotiate the

sale or purchase of any real property, or who holds out to the

public by any oral or printed solicitation that she is engaged

in the business of selling real property of others, or who

assists in the procuring of prospects or the negotiation or

closing of any real property transaction.

16. Here, the facts show that Ms. Hendrick informed

Mr. Howes that she was a realtor and would assist him in

identifying real propert y for him to purchase. In addition to

the oral statements to Mr. Howes, Ms. Hendrick provided Mr. Howe

with a business card showing her as a realtor for La Roca

Realty. Mr. Howes understood Ms. Hendrick to be his realtor and

that he would pay her for her work . Finally, the record showed

by clear and convincing evidence that Ms. Hendrick offered to

negotiate and help Mr. Howes purchase real estate properties for

his business, and directed Mr. Howes to make escrow deposit

checks payable to La Roca Realty. Based on the foregoing facts,

the Department showed by clear and convincing evidence that

Ms. Hendrick violated sections 475.42(1)(b) and 475.25(1)(e).

17. Count Two of the Administrative Complaint charges

Ms. Hendrick with violating section 455.227(1) (j), Florida

Statutes, which prohibits a person from "aiding, assisting,

procuring, employing , or advising any unlicensed person or

entity to practice a profession contrary to chapter 455."

18. The Department showed by clear and convincing evidence

that Ms. Hendrick assisted La Roca Realty by acting as a realtor

for the corporation, even though La Roca Realty was not licensed

in the State of Florida. Ms. Hendrick, who incorporated La Roca

Realty, knew or should have known that it was not licensed as a

b roker in the State of Florida. Additionally, the facts showed

that Ms. Hendrick requested that escrow deposit checks be made

payable to La Roca Realty and held h erself out as a "realtor"

for La Roca Realty. At the time she was requesting the escrow

check s and showing Mr. Howes properties, the record shows that

La Roca Realty was not a licensed entity. Therefore, the

Department proved by clear and convincing evidence that

Ms. Hendrick violated section 455.227(1)(j), Florida Statutes.

19. Florida Admin istrative Code Rule 61J2 - 24.001 sets

forth a range of disciplinary guidelines from which to impose

disciplinary penalties. The recommended range for a first

violation of section s 475.42(1)(b) and 475.25(1)(e) is an

administrative fine from $250.00 to $1,0 00.00 , and suspension to

revocation. Further, because Ms. Hendrick is guilty of

violating section 455.227(1)(j), the disciplinary range set out

for 475.25(1)(e), which covers a violation of any rule or order

or provision under chapters 475 and 455, is als o applicable.

The rule allows for proof of mitigating and aggravating

circumstances that allow for deviation from the guidelines. No

facts were brought forward to show that a deviation f rom the

guidelines is appropriate.

20. Based on the evidence, the undersigned finds that the

guidelines are appropriate in recommending the discipline for

the two counts. The undersigned recommends $1,000.00 ,

administrative fine for Count I, a $1,000.00 , administrative

fine for Count II, and a five - year suspension of M s. HendricksÓs

real estate license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

finding th at :

1. Ms. Hendrick violated section s 475.42(1)(b) and

475. 25 (1)(e) , as alleged in Count I of the Administrative

Complaint, and fining her $1,000.00;

2. Ms. Hendrick violated section 455.227(1)(j) , as alleged

in Count II of the Administrative Complaint, and fining her

$1,000.00 ; and

3. Suspending her real estate license for a period of five

years.

DONE AND ENT ERED this 8 t h day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 8 t h day of August , 2012 .

ENDNOTES

1/ Unless otherwise indicated, all refere nces to the Florida

Statutes are to the 201 1 version.

2/ Section 475.01 (1)(a) provides :

(a) ÐBrokerÑ means a person who, for

another, and for a compensation or valuable

consideration directly or indirectly paid or

promised, expressly or impliedly, or wi th an

intent to collect or receive a compensation

or valuable consideration therefor e ,

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 e ngaged 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

procur ing 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 n egotiation 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 e ; and all person s who advertise

rental property information or lists. A

broker renders a professional service and is

a professional within the meaning of s.

95.11 (4 ) ( a). Where the term ÐappraiseÑ or

ÐappraisingÑ appears in the definition of

the term Ðbroker,Ñ it specifically excludes

those appraisal services which must be

performed only by a state - licensed or state -

certified appr aiser, and those appraisal

services which may be performed by a

registered trainee appraiser as defined in

part II. The term ÐbrokerÑ also includes

any person who is a general partner,

officer, or director of a partnership or

corporation which acts as a b roker. The

term ÐbrokerÑ also includes any person or

entity who undertakes to list or sell one or

more timeshare periods per year in one or

more timeshare plans on behalf of any number

of persons, except as provided in ss.

475.011 and 721.20 .

COPIES FURNISHED :

Megan Demartini, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Sarah Hendrick

517 Ridges Drive

Dundee, Florida 33838

J. Layne Smith, Ge neral Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Juana Watkins, Director

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency t hat

will issue the Final Order in this case.