12-004134PL Department Of Business And Professional Regulation, Real Estate Commission vs. Judy Limekiller Status: Closed Recommended Order on Friday, June 21, 2013.

Summary: Respondent signed documents for sellers and misrepresented her signatures as those of sellers, and therefore violated the statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, REAL

ESTATE COMMISSION ,

Petitioner ,

vs. Case No. 12 - 4134PL

JUDY LIMEKILLER ,

Respondent .

/

REC OMMENDED ORDER

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

on April 8, 2013, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH) in Sarasota, Florida.

APPEARANCES

For Petitioner: Su san Leigh Matchett, Esquire

Department of Business and

Professional Regulation,

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: James H arwood, Esquire

1277 North Semoran Boulevard

Suite 106

Orlando, Florida 32807

STATEMENT OF THE ISSUES

Whether Judy Limekiller (Respondent) committed the violation

alleged in the Administrative Complaint dated August 30, 2012,

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Real Estate (Petitioner) , filed a one - count

Administrative Complaint against Respondent that alleg ed a

violation of section 475.25(1)(b), Florida Statutes (2012). The

alleged violation stemmed from RespondentÓs dealings with

individuals whose signatures were affixed to documents by

Respondent. It is undisputed the individuals , who m Respondent

represe nted , did not personally sign the documents. Respondent

maintains that she had the individualsÓ permission to sign

papers, that there was no intent to defraud anyone, and that no

one suffered any monetary loss as a result of the documents being

signed by her.

The matter was forwarded to DOAH for formal proceedings on

December 21, 2012. An Initial Order was issued on December 26,

2012. After a number of continuances requested by the parties,

the case was heard on April 8, 2013.

At the hearing, Petitione r presented the testimony of

Respondent, Patricia Craig Voigt, Darla Furst, Kelli Quigley,

Paula Rees, and Lisa Arena. Respondent testified in her own

behalf and presented witnesses Terrance Coveney, Lisa Arena, and

Robert Limekiller. PetitionerÓs Exhibi ts 1 through 12 were

admitted into evidence. RespondentÓs Exhibit 1 was also received

into evidence.

The Transcript of the proceedings was filed with DOAH on

April 24, 2013. A Motion for Extension of Time to File Proposed

Recommended Order was granted. The parties timely filed proposed

recommended orde r s that have been considered in the preparation

of this Recommended O rder. All references to law are to Florida

Statutes (2012) unless otherwise stated.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida created

by s ection 20.165, Florida Statutes. Petitioner is charged with

the responsibility of regulating the real estate industry in

Florida pursuant to c hapters 455 and 475, Florida Statutes. As

such, Petitioner is fully authorized to prosecute disciplinary

cases against real estate licensees.

2. Respondent was at all times material to this matter, the

holder of a Florida real estate license, license number 3131887.

At all times material to the allegations of this case Respondent

w as an active sales associate with Michael Saunders and Company.

3. RespondentÓs address of record is 1529 Pelican Point

Drive, HA 205, Sarasota, Florida.

4. In January 2012 , Respondent was a sales associate

handling a transaction with Regina Zahofnik (Ms . Zahofnik) .

Ms. Zahofnik was the seller of property located at 4527 MacEachen

Boulevard, Sarasota, Florida. Respondent admits she signed

Ms. ZahofnikÓs name to a Cancellation of Contract and Release.

Respondent did not have written authorization to s ign for

Ms. Zahofnik. Instead, she maintains Ms. Zahofnik gave her

verbal authority to sign the document.

5. In February 2012 , Respondent was a sales associate

handling a transaction with Lynda Kravitz. Ms. Kravitz was the

seller of property located at 1526 Pelican Point Drive, BA 147,

Sarasota, Florida. Respondent signed Ms. KravitzÓ name to a

SellerÓs Property Disclosure Statement. Ms. Kravitz did not

authorize Respondent to sign the document.

6. In February 2012 , Respondent was a sales associat e

handling a transaction with Cherryne Kravitz. Ms. Kravitz was

the seller of property located at 1526 Pelican Point Drive,

BA 147, Sarasota, Florida. On or about February 10, 2012,

Respondent signed Ms. KravitzÓ name to a Residential Contract for

Sale and Purchase. Ms. Kravitz did not authorize Respondent to

sign the document.

7. In all situations, Respondent believed she was

authorized to sign the documents. She claims either e - mail or

text message gave her the go - ahead to sign documents so that t hey

could be timely processed. In the case of Ms. Zahofnik, the

Ðdeal was deadÑ and could not close. Since the buyer elected to

walk away from the purchase when the seller could not complete

the transaction, Respondent maintains that no party was injured

by the signing of the document and that by doing so the refund to

the buyer was processed.

8. In the case of the Kravitz sale, Respondent signed the

property disclosure because she knew the property better than the

sellers and an expedited completion o f the paperwork was

requested. Again, Respondent states Ms. Kravitz authorized the

signature.

9. And with regard to the signing of the contract,

Respondent asserts that Ms. Kravitz was slow to return the

contract and that she was getting pressure from the other

Ms. Kravitz to get the paperwork completed. Eventually, both

Kravitz daughters signed the contract. Respondent does not deny

signing the contract.

10. As a result of the allegations of this case, Michael

Saunders and Company incurred expens es and lost commissions.

11. Petitioner did not present evidence regarding the cost

of investigating this matter.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties thereto pursuant to s ections

120.569 and 120.57(1), Florida Statutes.

13. Petitioner seeks to impose administrative penalties

against Respondent that include the suspension or revocation of

her real estate license. Therefore, Petitioner has the burden of

proving the specific allega tions of fact that support its charges

by clear and convincing evidence. See Dep Ó t of Banking & Fin . ,

Div . of Sec . & Inv . Prot . v. Osborne Stern & Co. , 670 So. 2d 932

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

and Pou v. Dep Ó t of Ins . & Treasurer , 707 So. 2d 941 (Fla. 3d DCA

1998).

14. What constitutes Ðclear and convincingÑ evidence was

described by the court in Evans Packing Co. v. Dep Ó t of Agric . &

Consumer Servs . , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989),

as follows:

[C]lear 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 evidence must

be precise and explicit and the witnesses

must be lacking in confusion as to the fac ts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact the firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla . 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re Davey ,

645 So. 2d 398 (Fla. 1994); and Walker v. Dep Ó t of Bus . & Prof Ó l

Reg . , 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

15. Section 475.25, Florida Statutes, authorizes Petitioner

to discipline any Florida real estate licensee who commits any of

a number of offenses defined by the statute. Pertinent to this

case, however, is the following provision that Petitioner alleged

Respondent violated:

(1) The commiss ion may deny an application

for licensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, r egistration, or permit;

may impose an administrative fine not to

exceed $5,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that the

licensee, registrant, permittee, or

applicant:

* * *

(b) Has been guilty of fraud,

misrepresentation, 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 formed 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 no 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 public.

16. Based upon the undisputed testimony in this cause,

Respondent signed documents with signatures other than her own.

That is to say, she signed othersÓ names on documents with the

intention that those s ignatures be treated as the original

personsÓ signatures. Respondent did not have a power of attorney

to sign for anyone. Respondent maintains she was given verbal

authority to sign. This claim conflicts with the deposition

testimony of the persons for whom Respondent signed.

17. Based upon the foregoing, Petitioner has established by

clear and convincing evidence that Respondent violated the

provisions of law cited in the Administrative Complaint. It is

improper to sign anyoneÓs name other than your o wn to legal

documents. RespondentÓs well - meaning intentions do not excuse

her misconduct. Contracts are legally binding documents. Only

the named party may sign. Disclosures are intended to protect

parties so that all known problems or conditions of a property

may be fully known. Even if Respondent assisted an owner in the

preparation of a disclosure form, the owner is responsible to the

buyer to assure the accuracy of the disclosure. Respondent

misrepresented the signatures to her company as those of the

persons named. Such misrepresentation is ground for discipline.

18. Petitioner has adopted rules to establish guidelines

for the punishment of violations of real estate law. Florida

Administrative Code Rule 61J2 - 24.001 provides, in part:

(1) Pur suant to Section 455.2273, F.S., the

Commission sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapter 455 or

475, F.S. The purpose of the disciplinary

guidelines is to give notice to licensees of

the range of penalties which normally will be

imposed for each count during a formal or an

informal hearing. For purposes of this rule,

the order of penalties, ranging from lowest

to highest, is: reprimand, fine, probation,

suspension, and revocation or denial.

Pursuant to Section 475.25(1), F.S.,

combinations of these penalties are

permissible by law. Nothing in this rule

shall preclude any discipline imposed upon a

licensee pursuant to a stipulation or

settlement agreeme nt, nor shall the range of

penalties set forth in this rule preclude the

Probable Cause Panel from issuing a letter of

guidance.

(2) As provided in Section 475.25(1), F.S.,

the Commission may, in addition to other

disciplinary penalties, place a licensee on

probation. The placement of the licensee on

probation shall be for such a period of time

and subject to such conditions as the

Commission may specify. Standard

probationary conditions may include, but are

not limited to, requiring the licensee: to

at tend pre - licensure courses; to

satisfactorily complete a pre - licensure

course; to attend post - licensure courses; to

satisfactorily complete a post - licensure

course; to attend continuing education

courses; to submit to and successfully

complete the state - ad ministered examination;

to be subject to periodic inspections and

interviews by a DBPR investigator; if a

broker, to place the license on a broker

associate status; or, if a broker, to file

escrow account status reports with the

Commission or with a DBPR i nvestigator at

such intervals as may be prescribed.

(3) The penalties are as listed unless

aggravating or mitigating circumstances apply

pursuant to subsection (4). The verbal

identification of offenses is descriptive

only; the full language of each sta tutory

provision cited must be consulted in order to

determine the conduct included. [Table

Omitted]

For the violation alleged in this case the first violation

penalty range is an administrative fine of $1,000 .00 to $2,500 .00

and a 30 - day suspension to re vocation of license. The second and

subsequent violations increase the penalties to a fine of

$2,500 .00 to $5,000 .00 and six - month suspension to revocation.

19. Aggr ava ting circumstances were not provided at hearing.

Respondent maintains that she is t he primary wage earner in her

household and that should she lose her license the family will

suffer significant financial hardship. Based upon the foregoing,

Respondent asserts that should be considered in determining what

the penalty should be .

20. Th e disciplinary guidelines place restrictions and

limitations on the exercise of the CommissionÓs disciplinary

authority. See Parrot Heads, Inc. v. Dep Ó t of Bus . & Prof Ó l

Reg . , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)(ÐAn

administrative agency is bound by its own rules . . . creat[ing]

guidelines for disciplinary penalties.Ñ); and £ 455.2273(5), Fla .

Stat. In accordance with the guidelines, it is therefore

recommended that Respondent be fined not less than $2 , 500.00, be

suspended for 30 days, and be place d on probation for a length of

time deemed appropriate by the Florida Real Estate Commission.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Florida Real Estate Commi ssion finding Respondent in violation of

the provision of law set forth in the Administrative Complaint as

alleged by Petitioner, imposing an administrative fine in the

amount of $2,500.00, and imposing a suspension of RespondentÓs

real estate license for a period of 30 days, with probation to

follow for such period of time as the commission deem s

appropriate.

DONE AND ENTERED this 21st day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrativ e 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 21st day of June , 2013 .

COPIES FURNISHED:

Susan Leigh Matchett, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

James P. Harwood, Esquire

James Harwood, P.A.

Suite 106

1277 Nort h Semoran Boulevard

Orlando, Florida 32807

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Juana Watkins, Director

Division of Real Estate

400 West Robinson Street, Suite N801

Orlando, Florida 32801

Darla Furst, Chair

Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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 that

will issue the Final Order in this case.