STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0771

)

JOAN R. MARINO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, percentby its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 5, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32801-1772

For Respondent: William M. Winkel, Esquire

2628 Forrest Hill Boulevard West Palm Beach, Florida 33406

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 475.42(1)(a), and (b), and 475.25(1)(a), (b), and (e), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 16, 1993, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), filed an Administrative Complaint against Respondent, Joan R. Marino (Marino), alleging that Marino violated Sections 475.42(1)(a) and (b) and 475.25(1)(a),(b), and (e), Florida Statutes. Marino requested an administrative hearing, and on February 7, 1994, the case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer.

At the final hearing, the Department presented the testimony of William Callan, Diane Duvall, Joseph Napolitano, and Hal Simkaitis. Petitioners' Exhibits 1-7 were admitted into evidence. Marino testified on her own behalf.

Respondent's Exhibits 1-3 were admitted into evidence. The parties stipulated to the facts contained in paragraphs 1, 2, 5, 6, 7, 10, 11, and 12 of the Administrative Complaint.

The parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on April 18, 1994. On April 21, 1994, the Department filed a motion for extension of time to file proposed recommended orders. The motion was granted, and the time for filing was extended to May 6, 1994. On May 4, 1994, Marino filed a motion for extension of time to file proposed recommended orders. The motion was granted, and the time for filing was extended to May 16, 1994. The parties timely filed their proposed recommended orders. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order. Respondent's Proposed Recommended Order did not contain findings of fact, but was more in the nature of argument.

FINDINGS OF FACT

1. Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate (Department), 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 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated thereto.

   
   

2. Respondent, Joan R. Marino (Marino), is now and was at all times material to this proceeding a licensed real estate broker in the State of Florida having been issued license number 0462547 in accordance with Chapter 475, Florida Statutes.

   
   

3. On or about 1985 Marino became licensed by the Department as a real estate salesperson. Since late 1985, Marino has continuously been employed to sell real estate by real estate broker, Hal Simkaitis, and Prestige Property Investments, Inc. (Prestige).

   
   

4. Some time in 1988 Marino became licensed by the Department as a real estate broker. Since September 30, 1989, Respondent has been employed by Prestige as a real estate broker-salesperson.

   
   

5. Unbeknownst to Marino, her license expired on September 30, 1989. It is not clear from the evidence presented the reason for the expiration of the license.

   
   

6. In December, 1991, Marino notified the Department of a change in her address by sending in Form 400.5. The form indicates that when a licensee is completing the form to notify the Department of a change of residence address that sections C and D2 are not required to be filled out. Those sections deal with information concerning the employer. Mr. Simkaitis correctly filled out the form for Marino and she signed it. However, the Department inadvertently put Marino's license on inactive status because section C was not completed.

   
   

7. At or about the same time that Marino was advising the Department of her change of address, she was notified by the Department that she needed to pay her fees and complete an additional 28 hours of continuing education. The Department's records indicate that the fees paid included the fees for biennium 1989-1990 and 1991-1992. Ms. Marino completed the additional continuing education requirement.

8. While with Prestige, Marino listed several of her own properties for sale. She owned a property located at 704-D Springdale Circle, Palm Springs, Florida, which she desired to sell; however she did not list the property with Prestige.

   
   

9. On January 6, 1993, Marino in her own capacity as seller, negotiated a sales contract entered into by Joseph and Terri Marie Napolitano (Buyers) for the property on Springdale Circle. The Buyers gave Marino a $500 earnest money deposit. The contract required the deposit to be held in escrow by Marino. She placed the money in her personal checking account.

   
   

10. The property was subject to the rules and regulations of the Springdale Homeowners Association, Inc. (Homeowner's Association). On February 20, 1993, the Buyers met with the Homeowner's Association's screening committee for a screening interview. During the meeting the Buyers were given a copy of the rules and regulations of the homeowner's association. Buyers had requested a copy of the rules and regulations from Marino but she had failed to provide them a copy. At the time of the interview, the Buyers owned three cats, one dog, and three vehicles. The rules allowed either one cat or one dog as a residential pet and only two vehicles per unit to be parked on the Springdale premises. Because the Buyers did not meet the homeowner's association's rules, the interview was terminated and a certificate of approval was not issued by the homeowner's association.

    
    

11. Within three weeks of the interview, the Buyers gave away three of the four pets, sold one of the vehicles and purchased another home in the Springdale development, where Marino's property was located.

    
    

12. The Buyers executed two releases of deposit receipt, one which would release the deposit to Marino and the other which would release the deposit to the Buyers. Marino felt the Buyers had breached the contract, did not accept either release, and kept the deposit.

    
    

13. On February 24, 1993, Albert J. Gamot, Jr., attorney on behalf of the buyers, made a demand upon Marino for the return of the $500 earnest money deposit.

    
    

14. Subsequent to February 24, 1993, the Buyers filed a complaint against Respondent in the civil division of Palm Beach County Court. Marino counterclaimed for lost rents and expenses incurred to ready the property for closing.

    
    

15. On June 18, 1993, Judge Jeffrey J. Colbath issued a Final Judgement for the Buyers in the sum of $500 plus court costs in the amount of $97.30.

    
    

16. In March, 1994, Marino paid the judgement.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57 (1), Florida Statutes.

    
    

18. The Department has the burden of proving by clear and convincing evidence all of the essential allegations against Marino. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

19. As they pertain to this proceeding, Sections 475.25(1), (b), and (e), 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 $1000 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 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 intented 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 provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

       
       

20. Section 475.42(1)(a), Florida Statutes provides:

    
    

    No person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor.

    
    

21. In Count I of the Administrative Complaint, the Department alleges that Marino is guilty of misrepresentation, false promises, false pretenses,

    dishonest dealing by trick, scheme, or device, cupable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes. The Department argues that Marino is guilty of culpable negligence because she failed to place the Buyers' deposit into an escrow account and she failed to pay the judgement obtained against her by the Buyers for nearly nine months.

    
    

22. The Department has failed to establish by clear and convincing evidence that Marino violated Section 475.25(1)(b), Florida Statutes. The fact that the deposit was not placed in an escrow account when Marino was not acting in the capacity as a broker but as the seller does not amount to culpable negligence. In Fleischman v. Department of Professional Regulation, 441 So.2d 1121, 1122 (Fla. 3rd DCA 1983), the court stated that under similar facts the respondent did not violate either Section 475.25(1)(d), Florida Statutes, for which the respondent was charged, or Section 475.25(1)(b), Florida Statutes, for which the respondent was not charged. Additionally the fact that Marino did not satisfy the judgement against her for almost nine months does not constitute culpable negligence.

    
    

23. In Count II of the Administrative Complaint, the Department alleges that Marino is guilty of having operated as a broker or salesperson without being the holder of a valid and current active license in violation of Section 475.42(1)(a), Florida Statutes, and therefore in violation of Section 475.25(1)(e), Florida Statutes.

    
    

24. The Department has established by clear and convincing evidence that Marino's license was expired from October 1, 1989, to December, 1991, and that during that period of time Marino operated as a broker/salesperson in the employ of Prestige. Accordingly, Marino violated Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes as alleged in Count II of the Administrative Complaint.

    
    

25. In Count III of the Administrative Complaint, the Department alleges that Marino is guilty of having operated as a broker while licensed as a salesperson in violation of Section 475.42(1)(b), Florida Statutes, and therefore in violation of Section 475.25(1)(a), Florida Statutes. Petitioner concedes in its proposed recommended order that it failed to meet its burden of proof with respect to the allegations in Count III.

    
    

26. Pursuant to Rule 61J2-24.001(3)(u), Florida Administrative Code, the maximum penalties for the violation of Section 475.42(1)(a), Florida Statutes, is up to 3 years suspension or revocation.

    
    

27. Pursuant to Rule 61J2-24.001(4), Florida Administrative Code, deviation from the prescribed penalty guidelines is permitted if aggravating or mitigating circumstances are demonstrated by clear and convincing evidence. Marino has demonstrated mitigating circumstances. Upon being notified by the Department that she had not completed the required number of continuing education hours and that she had not remitted her fees for the 1989-90 biennium, she completed the course work and paid the fees. She was unaware that her license had expired. The Department's file on Marino did not reveal that she had committed the same offense before and at the time of the hearing her license was valid, current and active.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts I and III of

the Administrative Complaint, finding the Respondent guilty of violating Section 475.42(1)(a), Florida Statutes, as alleged in Count II of the Administrative Complaint and imposing an administrative fine of $250.

DONE AND ENTERED this 15th day of June, 1994, 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 15th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-771

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact:

Petitioner's Proposed Findings of Fact

1. Paragraphs 1-2: Accepted.

2. Paragraphs 3-4: Accepted in substance.

3. Paragraph 5: Accepted.

4. Paragraphs 6-10: Accepted in substance.

5. Paragraphs 11-14: Accepted.

6. Paragraphs 15-19: Accepted in substance.

COPIES FURNISHED:

Theodore R. Gay Senior Attorney

Department of Business and Professional Regulation

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

William M. Winkel, Esquire 2628 Forrest Hill Blvd.

West Palm Beach, Florida 33406

Jack McRay

Acting General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Darlene F. Keller Division of Real Estate Divison Director

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.

Docket for Case No: 94-000771

Orders for Case No: 94-000771