96-005107 Division Of Real Estate vs. Tam N. Shigley Status: Closed Recommended Order on Tuesday, March 11, 1997.

Summary: Salesperson took buyers' deposit, did not put in escrow account, cashed check and "lost" the money. License revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5107

)

TAM N. SHIGLEY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Susan B.

Kirkland, held a formal hearing in this case on January 31, 1997,

in West Palm Beach, Florida, by video teleconference.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Senior Attorney

Legal Section - Suite North 308

400 West Robinson Street

Hurston Building, North Tower

Orlando, Florida 32801-1772

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.25(1)(b),(e),(k),

and Section 475.42(1)(b), Florida Statutes, and Rule 61J-14.009,

Florida Administrative Code, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On February 24, 1995, the Department of Business and

Professional Regulation, Division of Real Estate (Department),

filed an administrative complaint against Respondent, Tam N.

Shigley (Shigley), alleging that she violated Sections

475.25(1)(b),(e),(k), and Section 475.42(1)(b), Florida Statutes,

and Rule 61J2-14.009, Florida Administrative Code. Shigley

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings on October 31, 1996,

for assignment to an Administrative Law Judge.

At the final hearing, Shigley failed to appear. Respondent

called two witnesses and entered 11 exhibits in evidence.

The transcript was filed on February 20, 1997. At the final

hearing counsel for Petitioner stated Petitioner would file

proposed recommended order within ten days of the filing of the

transcript. The parties did not file proposed recommended

orders.

FINDINGS OF FACTS

1. Respondent, Tam N. Shigley (Shigley) was provided notice

of the final hearing in this case by Notice of Hearing by Video

dated December 6, 1996. The final hearing was scheduled to

commenced at 9:00 a.m. on January 31, 1997. The Administrative

Law Judge and counsel for Petitioner waited until 9:15 a.m. to

commence the hearing, but Shigley did not appear. Shigley did

not advise either the Division of Administrative Hearings or the

Petitioner that she would not be appearing at the final hearing.

2. Shigley is now and was at all times material to this

proceeding a licensed Florida real estate salesperson, issued

license number 0465639.

3. On March 27, 1994, Shigley was employed by First

Nationwide Mortgage. She negotiated a contract between Bich Hue

and Minh Huynh (hereinafter Buyers) and Lois A. Hopwood

(hereinafter Seller) for the purchase of a house located in

Sunrise, Florida. Shigley was listed as the contract escrow

agent on the contract.

4. Shigley received a check for $5,500 from the Buyers as a

deposit to be held in escrow until the closing. Shigley cashed

the check and did not deposit the proceeds of the check in an

escrow account.

5. Shigley’s employer was unaware th at Shigley had accepted

the check, had cashed the check, and had not deposited the check

in the escrow account.

6. At the closing of the real estate transaction, Shigley

did not have the $5,500 which she had received from the Buyers

and stated that she had lost the money.

7. On May 23, 1994, Shigley entered into an agreement with

the seller in which she agreed to pay the Seller the $5,500

within six months and that if she did not repay the money within

the specified time that the Seller would report Shigley’s actions

to the Real Estate Board.

8. Shigley did not repay the money to the Seller.

9. Michael Millard filed a complaint with the Broward

County Sheriff’s Department in March, 1995, alleging that Shigley

had absconded with $1350 which he had given her as a deposit on a

lease.

10. On March 14, 1995, Harvey Kosberg filed a complaint

with the Department of Business and Professional alleging that

Shigley, while registered as a salesperson with Rainbow Realty

had acted as a broker and took and kept money in her name.

11. The Department undertook to investigate the allegations

of Mr. Kosberg and was unable to locate Shigley. She did not

have a telephone listing, and the post office did not have a

forwarding address for her.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

13. Petitioner has alleged that Respondent violated

Sections 475.25(1)(b),(e),(k) and Section 475.42(1)(b), Florida

Statutes, and Rule 61J2-14.009, Florida Administrative Code.

Petitioner is seeking the revocation of Respondent’s license as a

real estate salesperson. Petitioner has the burden to establish

by clear and convincing evidence the allegations set forth in the

administrative complaint. Ferris v. Turlington , 510 So.2d 292

(Fla. 1987).

14. Sections 475.25(1)(b),(e),(k), Florida Statutes,

provide:

(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 license, registration, or permit;

may impose an administrative fine not to

exceed $1,000 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 or

misrepresentation, concealment, false

promises, false pretenses, dishonest dealing

by trick or 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 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.

* * * *

(e) Has violated any of the provision s of

this chapter or any lawful order or rule made

or issued under the provision of this chapter

or chapter 455.

* * * *

(k) . . .[H]as failed, if a salesperson, to

immediately place with his registered

employer any money, fund, deposit, check, or

draft entrusted to him by any person dealing

with him as an agent of his registered

employer. . . .

15. The Department has established by clear and convincing

evidence that Shigley violated Sections 475.25(1)(b),(e), (k),

Florida Statutes, by accepting, cashing, and not depositing the

check from Bich Hue and Minh Huynh in an escrow account. Further

Shigley failed to give the money to the Seller or to return the

funds to the Buyers.

16. Section 475.42(1)(b), Florida Statutes, provides:

No person licensed as a salesperson shall

operate as a broker or operate as a

salesperson for any person not registered as

his employer.

17. The Department has established by clear and convincing

evidence that Shigley violated Section 475.42(1)(b), Florida

Statutes by acting as a broker in the transaction involving the

Huynhs and Ms. Hopwood by negotiating a contract for sale and

purchase of property and collecting a deposit as escrow agent.

18. Rule 61J2-14.009, Florida Administrative Code provides:

Every salesperson who receives any deposit,

as defined above, shall deliver the same to

the broker or employer no later than the end

of the next business day following receipt of

the item to be deposited. Saturday, Sundays

and legal holidays shall not be construed as

business days. Receipt by a salesperson or

any other representative of the brokerage

firm constitutes receipt by the broker for

purposes of 61J2-14.008(1)(d), Florida

Administrative Code.

19. The Department has established by clear and convincing

evidence that Tam Shigley violated Rule 61J2-14.009, Florida

Administrative Code by failing to deliver the check from the

Huynhs to a broker or her employer.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered finding that Tam

N. Shigley violated Sections 475.25(1)(b),(e),(k), and

475.42(1)(b), Florida Statutes, and Rule 61J2-14.009, Florida

Administrative Code and revoking her license as a real estate

salesperson.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

11 th day of March, 1997.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 1997.

COPIES FURNISHED:

Geoffrey T. Kirk, Senior Attorney

Department of Business and Professional

Regulation/Division of Real Estate

400 West Robinson Street, Suite N-308

Orlando, Florida 32801-1772

Tam N. Shigley

5834 Autumn Ridge Road

Lake Worth, Florida 33463

Henry M. Solares, Division Director

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Northwood Centre

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 recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.