93-003362 Division Of Real Estate vs. Katherine Tyson, A/K/A Katherine Karrington, A/K/A Katherine Nalls Status: Closed Recommended Order on Monday, December 27, 1993.

Summary: Respondent stipulated to facts of administrative complaint. Guilty of violations of 475.25(1) and 475.42(1).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3362

)

KATHERINE TYSON, a/k/a KATHERINE )

KARRINGTON, a/k/a KATHERINE )

NALLS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division

of Administrative Hearings by its duly designated Hearing Officer, Susan B.

Kirkland, on November 3, 1993, in Miami, Florida. The following appearances

were entered:

APPEARANCES

For Petitioner: Theodore R. Gay, Senior Attorney

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue, Suite N-607

Miami, Florida 33128

For Respondent: Katherine Tyson, Pro Se

6709 Ficus Drive

Miramar, Florida 32023

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.25(1)(b), (d) and (e) and

475.42(1)(a) and (d), Florida Statutes, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On May 21, 1993, Petitioner filed a five-count dministrative Complaint,

seeking to discipline Respondent for violation of Sections 475.25(1)(b), (d)

and (e) and 475.42(1)(a) and (d), Florida Statutes. By Election of Rights dated

June 18, 1993, Respondent requested an administrative hearing. The matter was

transferred to the Division of Administrative Hearings on June 21, 1993 for

formal proceedings.

At the beginning of the formal hearing Respondent requested a continuance

so that she might get an attorney. Respondent admitted that she had had notice

of the hearing since late September, 1993 and that she had not attempted to

contact an attorney until the morning of the hearing. The request for

continuance was denied.

Respondent admitted that she was responsible for the actions alleged in the

Administrative Complaint and did not desire Petitioner to prove the allegations

through witnesses or exhibits. Whereupon, Respondent and counsel for Petitioner

stipulated to paragraphs 1-7 of the Administrative Complaint. No witnesses

testified and no exhibits were entered into evidence.

The transcript was filed on December 3, 1993. Petitioner filed a Proposed

Recommended Order on December 13, 1993. Respondent did not file proposed

findings of fact or conclusions of law. Petitioner's proposed findings of fact

are ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state government licensing and regulatory agency

charged with the responsibility and duty to prosecute Administrative Complaints

pursuant to the laws of the State of Florida, in particular Section 20.30,

Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules

promulgated pursuant thereto.

2. Respondent Katherine Tyson is now and was at all times material hereto

a licensed real estate salesperson in the State of Florida, having been issued

license number 0312196 in accordance with Chapter 475, Florida Statutes.

3. The last license issued was as a salesperson, with a mailing address of

1411 N.W. 40th Street, Miami, Florida 33142.

4. During the period from approximately March 1992 through approximately

March 1993, the Respondent and Denis Michel, acting in concert with one another

in their own names and/or under the business name of Katherine Karrington &

Associates, Inc., operated as, and represented themselves as, real estate

brokers and/or mortgage brokers. Operating and representing themselves in this

manner, the Respondent and Michel solicited persons to entrust them with funds

to be used in connection with proposed real estate and/or mortgage loan

transactions, as follows:

Name of Person Amount of Funds

Entrusted

Raymonvil $ 1,828

Eline 3,550

Pierre-Louis 5,500

Roberts 2,600

Blot 2,750

Francois 2,546

$18,774 TOTAL

5. Through and including the date of the filing of the Administrative

Complaint, none of the proposed transactions for which the above funds were

entrusted has been completed, and none of the funds have been returned despite

numerous demands therefor.

6. At all times material hereto, neither the Respondent, nor Denis Michel,

nor Katherine Karrington & Associates, Inc. was licensed as a real estate broker

or mortgage broker or lender pursuant to Chapters 475 or 494, Florida Statutes,

except that the Respondent became licensed as a mortgage broker on or about

February 10, 1993, approximately two months after the last of the aforementioned

entrustments of funds had occurred.

7. At various times material hereto, the Respondent was registered with

the Petitioner as being the employee of licensed real estate brokers Atlas

Realty & Investments, Inc., 11626 N.E. 2nd Avenue, Miami, Florida 33161-6104

(hereinafter, "Atlas") or Murray Realties of Hollywood, Inc., 2843 Hollywood

Boulevard, Hollywood, Florida 33020-4226 (hereinafter, "Murray"). However, in

connection with the proposed transactions referred to hereinabove in paragraph

4, neither the Respondent nor Denis Michel:

(a) disclosed the existence of the transactions

to Atlas or Murray;

(b) represented themselves as acting on behalf

of Atlas or Murray; and

(c) delivered or paid over any of the entrusted

funds to Atlas or Murray.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding.

9. Petitioner has the burden of establishing the violations alleged in the

Administrative Complaint against the Respondent by clear and convincing

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

10. Count I of the complaint charges Respondent with a violation of

Subsection 475.25(1)(b), Florida Statutes which provides that the Florida Real

Estate Commission may discipline a licensee who:

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

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

futherance 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. . . .

11. Respondent violated Subsection 475.25 (1)(b), Florida Statutes, by

acting in concert with others by misrepresenting themselves as real estate

brokers and/or mortgage brokers in order to solicit persons to entrust them with

funds in connection with proposed real estate and/or mortgage transactions.

12. Count II of the Administrative Complaint charges Respondent with a

violation of Subsection 475.25(1)(d), Florida Statutes, which provides in

pertinent part that the Real Estate Commission may discipline a licensee who:

Has failed to account or to 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 . . . which

has come into his hands and which is not his

property or which he is not in law or equity

entitled to retain.

13. Respondent violated Subsection 475.25(1)(d), Florida Statutes by

failing to return upon demand funds which were entrusted with Respondent for

proposed real estate and/or mortgage transactions which were never completed.

14. Count III of the Administrative Complaint charges Respondent with a

violation of Rule 21V-14.009 (now 61J2-14.009), Florida Administrative Code and

violation of Subsection 475.25(1)(e), Florida Statutes, which provides that the

Real Estate Commission may discipline a licensee who has violated rules issued

pursuant to Chapter 475. Rule 61J2-14.009 provides:

Every salesperson who receives any deposit,

as defined above, shall immediately at the

first opportunity deliver the same to the

broker or employer.

Respondent violated Rule 61J2-14.009 by failing to deliver or pay over entrusted

funds to Atlas or Murray; thus, she violated Subsection 475.25(1)(e), Florida

Statutes.

15. Count IV of the Administrative Complaint charged Respondent of

violating Subsection 475.42(1)(a), Florida Statutes and therefore violating

Subsection 475.25(1)(e). Subsection 475.42(1)(a) provides:

No person shall operate as a broker or

salesperson without being the holder of a

valid and current active license therefor.

Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e) by operating as a

broker without being the holder of a valid and current active broker's license.

16. Count V of the Administrative Complaint charged Respondent with

violating Subsection 475.42(1)(d), Florida Statutes, and Subsection

475.25(1)(e). Subsection 475.42(1)(d) provides in pertinent part:

No salesperson shall collect any money in

connection with any real estate brokerge

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 . . .

Respondent violated Subsections 475.42(1)(d) and 475.25(1)(e) by not disclosing

the existence of the transactions at issue to either Atlas or Murray and by

failing to receive the entrusted funds in the name of her employer.

17. Rule 61J2-24.001, Florida Administrative Code, sets forth the

recommended range of penalty for enumerated violations. For violations of

Subsection 475.25(1)(b), the range is up to five years suspension or revocation.

For violations of Subsection 475.25(1)(d), the range is up to five years

suspension. The range for a violation of Subsection 475.25(1)(e) is up to eight

years suspension or revocation. For a violation of Subsection 475.42(1)(a), the

penalty range is up to three years suspension to revocation. A violation of

Subsection 475.42(1)(d) may result in a penalty of up to three years suspension.

In addition, the maximum administrative fine for each violation is $1,000.

18. The Respondent is guilty of the violations in all five counts of the

Administrative Complaint, six members of the public were harmed by her conduct,

in that they lost a total of $18,774.00, and at least one of the violations

dealt with fraud and concealment. These circumstances fall with in the

aggravating circumstances enumerated in Rule 61J2-24.001(4), Florida

Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Real Estate Commission issue a final order in

this matter finding Respondent guilty of violations of Subsections

475.25(1)(b),(d),and (e) and 475.42(1)(a) and (d), Florida Statutes, imposing a

$5,000 administrative fine, and revoking Respondent's license.

DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon

County, Florida.

___________________________

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative

Hearings this 27th day of

December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3362

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),

the following rulings are made on Petitioner's proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1 - Adopted.

2. Paragraph 2 - Adopted.

3. Paragraph 3 - Adopted.

4. Paragraph 4 - Adopted.

5. Paragraph 5 - Adopted.

6. Paragraph 6 - Adopted.

7. Paragraph 7 - Adopted.

8. Paragraph 8 - Adopted.

COPIES FURNISHED:

Ms. Katherine Tyson

6709 Ficus Drive

Miramar, Florida 32023

Theodore R. Gay, Esquire

Senior Attorney

Department of Business and

Professional Regulation

401 Northwest 2nd Avenue

Suite N-607

Miami, Florida 33128

Jack McRay

Acting General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Darlene F. Keller

Division Director

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.