STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-0856

)

RAFAEL S. FELIU, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 7, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Rafael S. Feliu (representing himself)

2260 Whispering Maple Drive Orlando, Florida 32837

STATEMENT OF THE ISSUES

An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Rafael Feliu responded to the complaint with an election of rights requesting a formal administrative hearing and the case was referred to the Division of Administrative Hearings.

At the hearing Petitioner presented the testimony of Angel Gonzalez, Luis Rodriguez, Charles Clayton III and Maureen Harvey. Petitioner's exhibits #1-4 were received in evidence without objection.

Respondent testified in his own behalf and cross-examined Petitioner's witnesses. Respondent's exhibits A-E were received in evidence without objection. Respondent also adopted as his testimony a 5-page written answer to the administrative complaint. That written testimony or answer is included with the transcript as part of the evidentiary record in this proceeding.

The transcript of hearing was filed on April 22, 1994 and thereafter both parties submitted proposed recommended orders. These proposals have been carefully considered and specific rulings on the parties' findings of fact are made in the attached appendix.

FINDINGS OF FACT

1. Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida.

   
   

2. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu.

   
   

3. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments.

   
   

4. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez.

   
   

5. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez.

   
   

6. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission.

   
   

7. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company.

   
   

8. Feliu cashed the check and made the disbursements to Luis Rodriguez.

   He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance,

   $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in the above- styled case pursuant to sections 120.57(1), F.S. and 455.225(5), F.S.

   
   

10. In a license discipline case such as this, the agency must prove the alleged violations with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The administrative complaint at issue alleges violations of section 475.25(1)(b) and (1)(e), F.S.; and section 475.42(1)(a) and (1)(d), F.S.

    
    

    These provide, in pertinent part, as follows:

    1. Discipline.-

       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, 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 . . . .

    . . .

    (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.

    
    

    1. Violations and penalties.-

       1. VIOLATIONS.-

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

    . . .

    (d) No salesperson shall collect any money in connection with any real estate brokerage 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; and no real estate salesperson, whether the holder of a valid and

    current license or not, shall commence or maintain any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as his employer at the time the salesperson performed

    the act or rendered the service for which the commission or compensation is due.

    
    

12. The evidence by the agency did not clearly and convincingly establish that Feliu committed fraud, misrepresentation, concealment or other activity proscribed by section 475.25(1)(b), F.S. There is an obvious conflict in the testimony of Feliu and his former employer, Angel Gonzalez, regarding Gonzalez' agreement with the deal made between Feliu and the buyer Rodriguez.

    Reluctantly, Gonzalez conceded that he saw the break-out provided by Feliu and moreover, he signed a letter, prepared by Feliu, describing to Luis Gonzalez the entire transaction and rebate agreement. No one was tricked or misled in that regard.

    
    

13. As a broker-salesperson, Feliu had no business getting the commission check issued in his own name and handling the disbursements, even if he was concerned that Gonzalez was breaking an agreement.

    
    

14. Section 475.01(1)(e) defines "broker-salesperson" as a person who is qualified to be issued a license as a broker, but who operates as a salesperson in the employ of another. "Employ" or "employment" includes an independent contractor relationship such as that established by the contract between Feliu and Gonzalez. See Section 475.01(2), F.S. Although Feliu was qualified for a broker's license, in his relationship with Gonzalez and Century 21 Nuestro he was a broker-salesperson, and was not legally entitled to receive and disburse the commission check. He, therefore, violated section 475.42(1)(d) and thereby violated section 475.25(1)(e), as well.

    
    

15. Rule 61J2-24.001, F.A.C. establishes the disciplinary guidelines for use by the Florida Real Estate Commission (FREC) in license discipline cases. The standard minimum penalty for the violations committed by the respondent is a reprimand and/or a fine of $1000.00 per count. There are a wide range of maximum penalties, but the severity does not warrant consideration of those in this case. There was no evidence of other prior violations by Respondent Feliu. There was no evidence that any member of the public was harmed. The minimum penalty is, therefore, recommended.

RECOMMENDATION

Based on the evidence presented and discussed above, it is hereby, RECOMMENDED:

That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand.

DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

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 18th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Rejected as unnecessary.

2. & 3. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. & 6. Adopted in paragraph 3.

1. Adopted in paragraphs 5 and 6.

2. Rejected as contrary to the weight of evidence.

3. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence.

Respondent's Proposed Findings

1. Adopted in substance in paragraph 4.

2. Adopted in paragraph 6.

3. Adopted in paragraph 8.

4. Rejected as immaterial.

5. Adopted in substance in paragraph 4.

6. Rejected as contrary to the law (see paragraph 13).

7. - 14. Rejected as unnecessary.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation

400 West Robinson Street Orlando, Florida 32802

Rafael S. Feliu

2260 Whispering Maple Drive Orlando, Florida 32837

Darlene F. Keller, Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 94-000856

Orders for Case No: 94-000856