STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES,

Petitioner,

1. DOCKET NO. CC 94287

   DOAH CASE NO. 94-5081

   
   

   ROBERTA. CICCO, JR.,

   
   

   Respondent.

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   FINAL ORDER

   
   

   Department of Business and Professional Regulation ("Department") hereby enters this Final Order after consideration of the formal hearing held by the Division of Administrative Hearings pursuant to Section 120. 57(1), Florida Statutes, on June 5, 1996, in Largo. Florida. Upon consideration of the Hearing Officer's Recommended Order, the Petitioner's Exceptions filed thereto, and after review of the complete record, and having been otherwise fully advised in the premises, the Department makes the following findings and conclusions:

   
   

   RULINGS ON PETITIONER'S EXCEPTIONS TO THE FINDINGS OF FACT

   
   

   1. Petitioner's Exception to paragraph 29 of the Findings of Fact of the Recommended Order is accepted as supported by the substantial competent evidence of the record. Petitioner's Exhibit #12 to the deposition, Invoice Number 090993, specifically states that Respondent worked 319 hours and that Mr. Cicco, Sr., worked 110. The Department should not reject findings of fact entered by the Hearing Officer unless the Department finds there is no competent, substantial evidence to support those findings of fact. McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). The Hearing

      Officer s finding of fact is not supported by competent, substantial evidence of the record.

      
      

   2. Petitioner's Exception to paragraph 6 of the Findings of Fact of the Recommended Order is accepted as supported by the substantial competent evidence of the record. Respondent testified that his services were not considered clerical, but were professional in nature (transcript p 71, line 6-10). The Hearing Officer's finding of fact is not supported by competent, substantial evidence of the record. The correct finding should be that Respondent's services at all times were professional in nature. With the exception of the professional nature of the services rendered, the remainder of the Hearing Officer's findings of fact in paragraph 6, are supported by competent, substantial evidence.

      
      

   3. Petitioner's Exception to paragraphs 17 and 18 of the Findings of Fact of the Recommended Order is accepted as supported by the substantial competent evidence of the record. The Hearing Officer's finding is clarified to include that the Respondent had "control of the account funds." The remainder of the Hearing Officer's findings of fact in paragraphs 17 and 18, are supported by competent, substantial evidence.

      
      

   4. Petitioner's Exception to paragraph 37 of the Findings of Fact of the Recommended Order is accepted as supported by the substantial competent evidence of the record. The resolution of a factual conflict is solely within the province of the Hearing Officer and it is not a proper matter for the Department to reweigh the evidence. Gershanik v. DBPR, 458 So. 2d 302 (Fla. 3rd DCA 1984), Goss v. District School Board of St. John's County, 601 So. 2d 1232 (Fla. 5th DCA 1992). Fraud and mismanagement were not factual issues in this action, were not fraud and mismanagement charged by the Division in the Notice to Show Cause, nor raised by the Division at the hearing. Therefore, a finding by the Hearing Officer on the issue of fraud and mismanagement should be stricken as irrelevant and immaterial to the issues in this cause. The Department should not reject findings of fact entered by the Hearing Officer unless the Department finds there is no competent, substantial evidence to support those findings of fact. The Hearing Officer's finding of fact is not supported! by competent, substantial evidence of the record.

FINDINGS OF FACT

1. The Department adopts, and incorporates by reference the Division's findings of fact, paragraphs 6, 17, 18, 29, and

   37 as amended, and consistent with the exceptions adopted herein as supported by competent, substantial evidence.

   
   

2. The Hearing Officer's Recommended Findings of Fact, as amended by the Division's exceptions are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Department's findings in this cause.

   
   

3. There is competent, substantial evidence to support the Department's findings, as amended, herein.

RULINGS ON PETITIONER'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

In addition to the Hearing Officer's Conclusions of Law, the Petitioner has offered as exceptions, additional conclusions of law.

1. Petitioner's Exception 1 to the Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. The cardinal rule of statutory construction is that courts will give the statute its plain and ordinary meaning. Smith v. Crawford, 645 So. 2d 513, rehearing denied (Fla. 1st DCA 1994). If language of statute is clear and unambiguous, courts should endeavor to implement legislative intent. See, State v. Mozo, 655 So. 2d. 1115, rehearing denied (Fla. 1995) and Zuckerman v, Alter, 615 So. 2d 661 (Fla. 1993). The statute recites that "any of the following practices" would rise to the level of community association management necessitating licensure. Hence, given the clear meaning of those terms and applying the legislative intent, any "one" act would rise to the level of community association management.

   
   

2. Exception 2 to the Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Licensure of a community association manager is personal in nature, and limited to individuals. Business organizations are not licensed. Nor are there exemptions to the licensure act. However, "a person providing community association management activities incidental to another job or profession need not be licensed if otherwise authorized to perform such other job or profession pursuant to other state law or court order." Rule 61 B-55 002(3), Florida Administrative Code. A certified public accountant is the only example given by the rule.

   
   

3. Exception 3 to the Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. The rules further state that any person who "assists" the board in performing the enumerated activities must be licensed. Rule 61 B-55 002(4), Florida Administrative Code.

   
   

4. Exception 4 to Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Respondent indicated that his position as Chief Financial Officer was professional in nature yet he was not a certified public accountant. Respondent

   testified, and the Hearing Officer found, that Respondent had extensive education and professional experience in the area of financial matters, including the completion of tax documents on behalf of the association.

   
   

5. Exception 5 to Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Respondent cannot hide behind the corporate shield for statutory violations. Where a corporation could not, under statute, be licensed as insurance agent, and corporation is dependent upon the agency of an individual required to be licensed, and individual is a corporate officer, liability could extend to the individual because responsibility with respect to the business transaction is placed upon the individual licensee. Patrick v. Associated Insurance Underwriters, Inc., 160 So. 2d 721 (Fla. 2d DCA 1964).

   
   

6. Exception 6 to Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. A corporate officer may be individually liable for torts committed even while acting as representative of corporate entity. Roth v. Nautical Engineering Corp., 654 So. 2d 978, rehearing denied (Fla. 4th DCA 1995).

   
   

7. Exception 7 to Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Respondent's preparation of these financial documents falls within one of the criteria enumerated in the statute as given rise to community association management. Section 468.431 (2), Florida Statutes. Even if Respondent had argued that he only assisted the association in the preparation of these tax filings, such activity falls within in the purview of licensure.

   
   

8. Exception 8 to Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Respondent's signature on the endorsement card which required only one signature infers control of the Association's bank account. "Control of account funds" is also a primary criteria for licensing community association managers. The Division requires all applicants for licensure to obtain a background check. Associations rely on the licensing process to provide background checks on the persons contracted by the Association to have "control" over their accounts. Hence, the purpose of licensing community association managers is to protect the members of the Association, as well

   as to lend credibility to those practicing pursuant to their license. To discount the implications of the endorsement card, and the authority of "control" the endorsement card grants to Respondent, is to discount and reject the legislative purpose of the community association management licensing act.

   
   

9. Exception to paragraph 55 (Petitioner's exception #9) of the Conclusions of Law of the Recommended Order is accepted as supported by law, and the substantial competent evidence of the record. Petitioner has proved that Respondent "prepared or assisted the association in the preparation of financial and other information returns," and had "control of account funds," thereby necessitating Respondent's licensure as a community association manager pursuant to Section 468.432(1), Florida Statutes, which states in pertinent part:

A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this part.

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57, and Chapter 468, Part VIII, Florida Statutes.

   
   

2. The Department adopts, and incorporates by reference the Division's exceptions to the Conclusions of Law, as supported by law, and competent, substantial evidence.

   
   

3. The Hearing Officer's Recommended Conclusions of Law, as amended by the Division's exceptions are approved and adopted and are incorporated herein by reference as the Department's Conclusions of Law in this cause.

   
   

4. The findings of fact set forth above establish that Respondent has violated Section 468.432, Florida Statutes, as charged in the Notice to Show Cause.

   
   

5. There is competent, substantial evidence to support the Department's conclusions of law, as amended, herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the Notice to Show Cause be dismissed.

In light of the Department's consideration and adoption of the Division's exceptions to the Hearing Officer's findings of fact and conclusions of law, set forth herein, the Department hereby determines that pursuant to Chapter 468, Part VIII, Florida Statutes, the disposition recommended by the Hearing Officer is inappropriate and not substantiated by fact or law.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 468.432(1), Florida Statutes, of the Notice to Show Cause, and pursuant to Section 468.436, Florida Statutes, imposes the following penalty:

Respondent shall CEASE AND DESIST from any further community association management until such time as he is properly licensed pursuant to Section 468.432(1), Florida Statutes.

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Department of Business and Professional Regulation, and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within 30 days of the date of this Final Order is filed.

DONE and ORDERED this 10th day of October 1996.

ROBERT H. ELLZEY, JR., Director

(SEAL) Division of Florida Land Sales, Condominiums, and Mobile Homes

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1030

COPIES FURNISHED:

Robert A. Cicco, Jr. 9190 Oakburst Road Suite 2A

Seminole, Florida 34646

Theresa M. Bender Senior Attorney

Office of the General Counsel

Department of Business and Professional Regulation

Sharon Malloy

Bureau of Condominiums

Department of Business and Professional Regulation

Division of Professions Community Association Management

Docket for Case No: 94-005081

Orders for Case No: 94-005081