13-000011PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Guirlande Mardy Status: Closed Recommended Order on Tuesday, April 30, 2013.

Summary: Petitioner demonstrated that Respondent's failure to account for rental proceeds received and utitlized for self without permission of client warrants revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION REAL ESTATE , )

)

Petitioner, )

)

vs. )

) Case No. 13 - 0011 PL

GUIRLANDE MARDY , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

March 11 , 2013 , by video teleconference at sites in West Palm

Beach and Tallahassee , Florida , before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings,

pursuant to the authority set forth in s ections 120.569 and

120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Christina Ann Arzillo , Esquire

Department of Business and

Profe ssional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Guirlande Mardy, pro se

14541 Draft Horse Lane

Wellington, Florida 33414

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding are whether

Respondent committed the violations alleged in the Amended

Administrative C omplaint dated February 29, 2013 , and, if so,

what disciplinary action should be taken aga inst Respondent.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Di vision of Real Estate ( Ð Division Ñ or Ð Petitioner Ñ ), alleged in

an Admini strative Complaint dated February 23 , 2012 , that

Guirlande Mardy ( Ð MardyÑ or Ð Respon dent Ñ ) violated standards

governing real estate brokers . Respondent disputed the

allegations and requested an e videntiary hearing pursuant to

s ection 120.57(1), Florida Statutes, through an Election of

Rights form.

On January 4, 2013, the case was referr ed to the Division

of Administrative Hearings and assigned to John G. Van

Laningham. On January 14, 2013, t he hearing was scheduled for

February 27, 2013. On January 29, 2013, Petitioner filed

Petitioner's Motion to Amend Administrative Complaint that wa s

granted by Order dated February 7, 2013 . The hearing was

conducted by the undersigned as scheduled on February 27, 2013 .

At hearing, Petitioner presented the testimony of four

witness es: Guirlande Mardy; Jonathan Platt, Investigator; Alix

Pasquet; and Patricia Pasquet. Petitioner ' s Exhibits one

through seven and ten through thirteen were offered and admitted

into evidence. Respondent testified on her o w n behalf but did

not offer any exhibits at the hearing .

The proceeding was recorded and transcribe d. The

Transcript of the final hearing was filed with the Division of

Administrative Hearings on March 26 , 2013 . Petitioner submitted

a timely Proposed Recommended Order , which has been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

regulation of real estate licensees pursuant to c hapter 475 ,

Florida Statutes.

2. At all times material to this case, Mardy was licensed

as a Florida Real Estate Broker . Her license number is 3048239.

No prior disciplinary action has been brought against

Respondent.

3. Mardy has been actively licensed as a broker in Florida

since April 6, 2010. From April 8, 2010, to present, Mardy also

served as the registered broker with MardyÓs Premier Properties,

Inc. , license number CQ1036525 . The brokerage company was

located at 12180 Southshore Boulevard Suite 101A, Wellington,

Florida 33414.

4. Approximately seven years ago, Mardy assisted Alix and

Patricia Pasquet (ÐPasquetsÑ ) with a rental t ransaction.

5. In 201 1 , when the Pasquets decided that they wanted to

lease a rental residence near their sonsÓ school, they decided

to contact Mardy to assist them in obtain ing the rental

residence since they had been satisfied with her previous

service .

6. T he Pasquets decided to lease the rental residence at

11188 Millpond Greens Drive, Boy n ton Beach, Florida 33473 ,

(ÐMillpondÑ ) . The Pasquets made an offer to pay the rent a year

in advance to benefit from the reduced rental amount with a full

yearÓ s payment .

7. Mardy informed the Pasque ts that the rental money

needed to be in the U . S . instead of Haiti in order to execute

the leasing agreement and then the Millpond owner would accept

their offer to lease the property if they showed proof of funds

in the U.S. prior to April 6, 2012.

8. On or about April 5 , 2012, the Pasquets wired Mardy the

total rent for the year in the amount of $33,365.00 to MardyÓ s

Pre mier Properties, Inc.Ó s bank, PNC Bank , at MardyÓs request .

Mardy received the monies in the co rporation Ós operating account

ending in 6863.

9. Mardy accepted the PasquetsÓ rental funds with the

direction to use the monies to secure Millpond as a rental

residen ce for the Pasquets.

10. On or about April 9, 2011 , the Pasquets signed a lease

addend um, which was predated to April 5, 2011. The addendum

indicated the rent payment would be wired to the Millpond owner

upon commencement of the lease or prior thereto .

11. After the addendum was signed, M r s. Pasquet tried to

follow - up with Mardy to schedu le the Millpond walk through that

had been discussed at the previous meeting. She attempted to

contact Respondent to no avail for about a week to schedule the

Millpond walk through. When Mrs. Pasquet finally reached Mardy ,

Respondent i nformed her that he r unavailability was because of a

death in the family since her grandmother had passed.

12. A round April 25, 2011, Mardy informed Mrs. Pasquet

that she no longer had the Pasquets Ó $33,365.00 .

13. Respondent provided several different reasons for use

of t he PasquetsÓ monies. All explanations given were for both a

personal and improper use, and without the Pasquets Ó permission.

Hence, the undersigned rejects any of MardyÓs excuses as valid

or credible.

14. Respondent never delivered the Pasquets Ó rent a l monies

to the Millpond owner nor closed the rental deal with the

Millpond owner o r his agent for the lease of Millpond.

15. At hearing, Respondent admitted that she used the

Pasquets Ó $33,365 .00 without their permission.

16. On or about April 26, 201 1, the Pasquets negotiated a

lease directly with Millpond owner and leased Millpond for six

months. They did the walk through on or about April 29, 2013,

and moved in to the Millpond property on or about May 8, 2013.

17. After t he Pasquets discovered that Mardy had taken

their $33,365.00, they contacted an attorney to assist them with

the matter to try to get the rental monies back.

18. The police also became involved in the attempt of t he

Pasquets to get their rental monies back . When the police

becam e involved, Respondent agreed to pay the money back to the

Pasquets.

19. On or about July 7, 2011, Respondent paid the Pasquets

$10,000 .00 with check number 75053315 - 2.

20. On or about July 8, 2011, Respondent paid the Pasquets

$3 , 365.00 with check numb er 75115202.

21. On or about October 27, 2011, Respondent paid the

Pasquets $5 , 000.00 with check number 0734873625.

22. At the hearing, Mardy had not made a payment since

October 2011.

23. The Pasquets have spent thousands of dollars on legal

fees tr ying to get their rental monies back from Respondent .

Respondent owes them approximately $15,000 .00 . The Pasquets

were forced to withdraw unbudgeted funds from their business in

order to pay for the six - month lease for Millpond , which has

been a financia l hardship for the Pasquets .

24. Jonathan Plat t ( " Investigator Platt " ) is employed by

the Division as a Lead Investigator . In vestigator Platt has

worked for the Division for approximately 22 years .

25. In vesti gator Platt was assigned the complaint

r egarding the Pasquets' missing rental funds. He i nterviewed

Respondent and requested Respondent's corporation bank records

as part of his investigation .

26. Mardy failed to deliver the bank records to

Investigator Platt. Respondent also failed to maint ain an

escrow account or accounting of rent deposited into the

corporation Ó s bank account ending in 6863 with PNC Bank.

27. Investigator Platt completed his investigation by

obtaining Mardy's requested records directly from PNC Bank with

an inv estigativ e subpoena duces tecum. Afterwards, the Division

issued an Administrative Complaint against Mardy in which it

charged violations of sections 475.25 (1)(b), 475.42(1)(i),

475.25(1)( d)1 , 475.25(1)(e), Florida Statutes (2010) ; and

Florida Administrative Code Rules 61J2 - 14.012(1) and 61J2 -

14.010(1).

28. Respondent challenged the Administrative Complaint and

requested a hearing. No dispute exists that the request for

hearing was timely filed.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings h as

jurisdiction over the subject matter of this proceeding and t he

parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (2012) .

30. In a proceeding, such as this one where the Division

seeks to discipline Respondent Ó s license and/ or to impose an

administrative fine , the Division has the burden of proving the

allegations charged in the Administrative Complaint against the

Respondent by clear and convincing evidence. Dep Ó t of Banking

and Fin. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla.

1987)); Nair v. Dep ' t of Bus. & Prof Ó l Reg. , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

31. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

Ð workable definition of clear and convincing evidence Ñ and found

that of necessity such a definition would need to contain Ð both

qualitative and quantitative standards. Ñ The co urt held that:

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 explicit and the

witnesses must be lacking confu sion as to

the facts in issue. The evidence must be of

such 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. Id.

32. The Amended Admin istrative Complaint dated

February 29, 2013, charges Respondent with five counts. At

hearing, the Division dismissed Count 2.

33. Respondent is alleged to have violated the following

provision s of section 475.25(1 ) :

475.25 Discipline. Ï

(1) The commission 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 lic ense, registration, 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, o r territory . . . .

* * *

(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 the 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 p ortion 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.

However, if the licensee, in good faith,

entertains doubt as to what person is

entitled to the accounting and delivery of

the escrowed property, or if conflicting

demands have been made upon the licensee for

the escrowed property, which property she or

he still maintains in her or his escrow or

trust account, the licensee shall promptly

notify the commission of such doubts or

conflicting demands and shall promptly:

(e) Has 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.

34. Re spondent is also charged with violating rules 61J2 -

14.012(1) and 61J2 - 14.010 (1) .

35. Rule 61J2 - 14.012(1) provides in pertinent part:

(1) A broker who receives a deposit as

previously defined shall preserve and make

available to the BPR, or its auth orized

representative, all deposit slips and

statements of account rendered by the

depository in which said deposit is placed,

together with all agreements between the

parties to the transaction. In addition, the

broker shall keep an accurate account of

ea ch deposit transaction and each separate

bank account wherein such funds have been

deposited. All such books and accounts shall

be subject to inspection by the DBPR or its

authorized representatives at all reasonable

times during regular business hours.

36. Rule 61J2 - 14.010(1) provides in pertinent part:

( 1) Every broker who receives from sales

associates, principals, prospects, or other

persons interested in any real estate

transaction, any deposit, fund, money,

check, draft, personal property, or item of

value shall immediately place the same in a

bank, savings and loan association, trust

company, credit union or title company

having trust powers, in an insured escrow or

trust account. The broker must be a

signatory on all escrow accounts. If the

broke rage entity has more than one broker

licensee, then one broker licensee may be

designated as the signatory. If the deposit

is in securities, intended by the depositor

to be converted into cash, the conversion

shall be made at the earliest practical

time, a nd the proceeds shall be immediately

deposited in said account.

37. In this case, the Division proved by clear and

convincing evidence that Respondent collected $33,365.00 in rent

monies from the Pasquets but failed to remit the rent payment to

the Mill pond o wner because Respondent chose to use the monies

without the Pasquets Ó authorization. By acting dishonestly ,

Respondent violated section 475. 25(1)(b) as alleged in Count 1

of the Amended Administrative Complaint.

38. Furthermore, the evidence is cl ear and convincing and

demonstrates that Respondent received and accepted the Pasquets Ó

rental funds by wire into her business account ending in 6863

and failed to deliver the funds when the Pasquets requested the

monies be transferred to the Millpond o wne r in violation of

section 475.25(1)(d)1 as alleged in Count 3 of the

Administrative Complaint.

39. The record also clearly demonstrates that Respondent

failed to maintain an accounting for real estate funds that were

deposited. And, at the hearing two y ears after the incident,

Respondent was still unable to provide any explanation about any

accounting of the funds. Hence, the Division demonstrated Mardy

failed to keep an accurate account of rent delivered for the

lease of the rental property in violat io n of rule 61J2 - 14.012 (1)

and section 475.25(1)(e) as alleged in Count 4 of the

Administrative Complaint.

40. Additionally, when Respondent had the monies wired to

her account , she placed the PasquetsÓ rental monies into a non -

escrow account. Mardy admit ted at the hearing that she has

never held an escrow account . B y failing to put the Pasquets Ó

rent al monies into an insured escrow account , Respondent

violated rule 61J2 - 14.010(1) and section 475.25(1)(e) as alleged

in Count 5 of the Amended Administrativ e Complaint.

41. As to penalty, rule 61J2 - 24.001 sets forth

disciplinary guidelines applicable in this proceeding . The

penalty for RespondentÓs violation of section 475.25(1) (b)

ranges from a 30 - day suspension to revocation and an

administrative fine b etween $1,000.00 to $2,500.00 pursuant to

rule 61J12 - 24.001(3)(c).

42. The penalty for RespondentÓs violation of section

475.25(1) (d)1 ranges from suspension to revocation and an

administrative fine between $250.00 to $1,000.00 pursuant to

rule 61J2 - 24.00 1(3)(e).

43. The p enalty for RespondentÓs violations of rules 61J2 -

14.012(1) and 61J2 - 14.010(1), which violate section 475.25(1)(e)

ranges from suspension to revocation and a n administrative fine

between $250 .00 to $1000.00 pursuant to rule 61J2 - 24.001(3 )(f).

44 . Mardy was dishonest and stole the Pasquets Ó $33,365 .00

when she took the rental monies they wired her and us ed the

funds without their permission , instead of providing the money

to the Millpond o wner as directed to pay for the rental

residence. In its Proposed Recommended Order, the Division

correctly points out that Respondent's actions showed little

regard for the duties she promised to uphold as a licensee in

the State of Florida . The Division also detailed the following

harm caused to the Pasquets by Respondent after she used their

rental monies : the Pasquets had to raise the rental monies a

second time to rent Millpond and were only able to rent it for

six months instead of the planned year at the discounted amount ;

the Pasquets had to pay thousands of dollars for an attorney ;

and Respondent did not r epay the Pasquets what was owed after

she agreed to do so. The Di vision characterizes RespondentÓ s

harmful actions as Ð aggravating factors for which revocation

would be t he most appropriate di scipline.Ñ The undersigned

considers the penalty of revocation appropriate under the

circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Profes sional Regulation, Division of Real Estate , enter a final

order :

1. F ind ing Guirlande Mardy violated Counts 1, 3, 4, and 5

of the Amended Administrative Complaint ; and

2. Imposing revocation of Guirlande Mardy's license

identified herein.

DON E AND E NTERED this 30 th day of April 20 1 3 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 30 th day of April , 20 1 3 .

COPIES FURNISHED :

Christina Ann Arzillo, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Guirlande Mardy

14541 Draft Horse Lane

Wellington, Florida 33414

Juana Watkins, Director

Division of Real Estate

400 W Robinson Street, N801

Orlando, Florida 32801

Darla Furs t, Chair

Real Estate Commission

D epartment of Business

and Professional Regulation

400 W Robinson Street, N801

Orlando, Florida 32801

J. Layne Smith, General Counsel

D epartment of Business

and Professional Regulation

Northwood Centre

1940 North Mo nroe Street

Tallahassee, Florida 32399 - 0792

NO TICE 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 w ith the agency that

will issue the Final Order in this case.