STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1569

)

LUIS A. BEROIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 1, 1992, in Miami, Florida.

APPEARANCES

FOR PETITIONER: Theodore R. Gay, Senior Attorney

Department of Professional Regulation Division of Real Estate

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

FOR RESPONDENT: Luis A. Berois, pro se

1465 N.E. 123d St., Apt. 315

North Miami, Florida 33161 STATEMENT OF THE ISSUE

The ultimate issue for determination at the formal hearing was whether Respondent committed the offenses set forth in the Administrative Complaint and if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner filed a two-count administrative complaint against Respondent on January 30, 1992. The complaint alleged that Respondent violated Sections 475.25(1)(b) and 475.42(1)(b), Florida Statutes, by misrepresenting himself as an agent of Coldwell Banker and by operating on behalf of a person not his registered employer. Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on March 9, 1992.

The matter was assigned to Hearing Officer Michael M. Parrish on March 11, 1992. A formal hearing was scheduled for May 1, 1992, pursuant to a Notice of Hearing issued on April 8, 1992. The matter was transferred to the undersigned on April 24, 1992.

At the formal hearing, Petitioner presented the testimony of Mr. Ralph Dwake, Broker for Classic Real Estate, Inc., Mr. H. Lee Smith, Manager for the Coldwell Banker Fort Lauderdale Southeast Office, and Mr. Robert E. Stanley, President of Coldwell Banker Southeast operations. Petitioner submitted five exhibits for admission in evidence. Petitioner's Exhibits 1-5 were admitted in evidence without objection. Respondent testified in his own behalf and submitted nine exhibits for admission in evidence. Respondent's Exhibits 1-9 were admitted in evidence without objection. The parties also entered into a factual stipulation identified as Joint Exhibit 1. The parties' exhibits are identified in the transcript of the formal hearing.

A transcript of the formal hearing was requested by Petitioner and filed with the undersigned on May 6, 1992. Petitioner and Respondent timely filed their proposed findings of fact and conclusions of law on May 14, 1992. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed real estate salesman in the State of Florida. Respondent's license number is 0453731. Respondent was last issued a license as a salesman in care of Prestige Realty, Inc. 3, 10454 Taft Street, Pembroke Pines, Florida 33026. From May 23, 1989, through December 11, 1991, Respondent was licensed as a real estate salesman with Carr Realty, Inc.

   
   

2. On September 19, 1991, Respondent represented himself as a real estate salesperson employed by the Coldwell Banker Fort Lauderdale Southeast Office. Respondent entered the office of Classic Real Estate, Inc., Miami, Florida ("Classic") and represented to Ralph Dwake ("Dwake"), the officer broker, that Respondent worked for Coldwell Banker. Respondent presented a Coldwell Banker business card with Respondent's name on it.

   
   

3. Respondent obtained a key from Dwake to show a property listed by Classic to prospective buyers or tenants. Respondent requested the key to a residential property listed by Classic and located at 2450 N.E. 135th Street, Apartment 610. Respondent left his Coldwell Banker business card with Dwake.

   
   

4. When Respondent did not return with the key by 3:00 or 4:00 p.m., Dwake telephoned the number listed on the Coldwell Banker business card. Dwake was informed that Respondent did not work for Coldwell Banker. Mr. H. Lee Smith, Manager for the Coldwell Banker Fort Lauderdale Southeast Office ("Smith"), telephoned Dwake later on September 19, 1991, and informed him that Respondent did not work for Coldwell Banker. Dwake reported the incident to Petitioner. Respondent eventually returned the key to Dwake on the same day he had obtained it from Dwake.

   
   

5. Respondent had been employed with Coldwell Banker until sometime in December, 1988. At that time, Respondent's employment with Coldwell Banker was terminated, and Respondent's license was no longer listed with Coldwell Banker as broker.

   
   

6. Smith issued an internal memorandum to Coldwell Banker regional managers on August 22, 1991, advising them that Respondent had been entering Coldwell Banker offices without authority, using Coldwell Banker facilities, and falsely representing himself as being affiliated with Coldwell Banker. The memorandum instructed Coldwell Banker managers not to admit Respondent into their offices and that Coldwell Banker records reflected that Respondent had not

   been employed by Coldwell Banker since December, 1988. Smith also spoke to Respondent by telephone sometime between August 22, 1991, and September 19, 1991, and advised Respondent that he was not employed by Coldwell Banker and that Respondent was not to represent to third parties that he was so employed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

8. The burden of proof is on Petitioner to prove the allegations in the administrative complaint by clear and convincing evidence. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Section 475.25(1)(b), Florida Statutes, in relevant part authorizes the imposition of prescribed penalties against Respondent if Respondent:

   
   

   Has been guilty of . . . misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device

   . . . or breach of trust in any business transaction in this state . . . [or] has violated a duty imposed upon him by law or by the terms of a listing contract, written or oral . . . .

   
   

10. Petitioner showed by clear and convincing evidence that Respondent violated Section 475.25(1)(b), Florida Statutes. On September 19, 1991, Respondent misrepresented to Mr. Ralph Dwake ("Dwake") that Respondent was a real estate salesman for Coldwell Banker. However, Respondent had not been employed by Coldwell Banker since December, 1988. Respondent obtained a key to a private residence under false pretence for personal gain and with actual knowledge that the representations made to Dwake were false. In doing so, Respondent also violated Section 475.42(1)(b), Florida Statutes, by operating for Coldwell Banker who was not registered as Respondent's employer at the time.

    
    

11. Disciplinary guidelines prescribed in Florida Administrative Code Rule 21V-24.001 are to be imposed based upon a single count violation of each statutory provision. A combination of violations may result in a higher penalty than that for a single, isolated violation. Rule 21V-24.001(1). The maximum penalties for violation of Section 475.25(1)(b), Florida Statutes, are: suspension or revocation of Respondent's license for up to 5 years. The maximum penalty for violation of Section 475.42(1)(b) is three years' suspension or revocation of Respondent's license.

    
    

12. When mitigating circumstances are demonstrated, deviation from prescribed disciplinary guidelines is permitted. Such circumstances include without limitation: (a) the severity of the offense; (b) the degree of harm to the consumer or public; (c) the number of counts in the administrative complaint; (d) the number of times the offenses previously have been committed by the licensee; (e) the disciplinary history of the licensee; (f) the status of the licensee at the time the offense was committed; (g) the degree of financial hardship incurred by the licensee as a result of the imposition of a fine or suspension of a license; and (h) whether a letter of guidance has previously been issued to the licensee. Florida Administrative Code Rule 21V-24.001(4)(b).

13. No evidence was presented concerning items 9(e), (g), and (h) in the preceding paragraph. The severity of the offense is great whenever the offense involves the misuse of funds. No evidence was presented which showed that Respondent misused funds of his employer or a consumer or that Respondent has been found guilty of any previous offenses.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty

of violating Sections 475.25(1)(b) and 475.42(1)(b), Florida Statutes, issuing a written reprimand against Respondent, placing Respondent on probation for one year, and imposing a $1,000.00 fine against Respondent to be paid within 30 days of the date that the final order is entered. It is further recommended that the terms of probation require Respondent to complete 45 hours of post-licensure education for sales persons in addition to any other post-licensure education otherwise required for Respondent to maintain his license on an active and current basis. Evidence of completion of any terms of probation shall be provided to the Florida Department of Professional Regulation, Division of Real Estate, Legal Section, Hurston Building - North Tower, Suite N-308, 400 West Robinson Street, P.O. Box 1900, Orlando, Florida 32802-1900 (the "Division of Real Estate"). Such evidence shall be in a form satisfactory to the Division of Real Estate.

DONE and ENTERED this 1st day of June 1992, in Tallahassee, Florida.

DANIEL MANRY

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 1st day of June 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Rejected as preliminary

2-4 Accepted in Finding 1

1. Accepted in Findings 2-3

2. Accepted in Finding 4

7-9 Accepted in Finding

Respondent submitted proposed findings of fact. Respondent's proposed findings of fact failed to comply with the requirements of Florida Administrative Code Rule 22I-6.031(3) and the requirements of the order entered by the undersigned at the conclusion of the formal hearing. In addition to Respondent's failure to support his proposed findings of fact with "citations to the record" in violation of Rule 22I-6.031(3), Respondent failed to number each paragraph in the his proposed findings of fact in violation of the order of the undersigned entered on the record at the conclusion of the formal hearing.

Therefore, it has been not been noted below which proposed findings of fact have been accepted, the paragraph number(s) in the Recommended Order where they have been accepted, if any, those proposed findings of fact which have been rejected, and the reason for their rejection have also been noted.

Copies Furnished To:

Ted Gay, Esquire Department of Professional

Regulation

401 N.W. 2nd Avenue Suite N-607

Miami, Florida 33128

Luis A. Berois, pro se

1465 N.E. 123d Street, Apt. 315 North Miami, Florida 33161

Darlene F. Keller, Division Director Department of Professional Regulation 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 10 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.

Docket for Case No: 92-001569

Orders for Case No: 92-001569