STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5787

)

RENATO CASTRO VENCI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on March 6, 1997, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea D. Perkins, Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32802-1900 For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

   him?

2. If so, what disciplinary action should be taken against

   
   

   PRELIMINARY STATEMENT

   
   

   On March 24, 1995, the Department of Business and

   
   

   Professional Regulation (Department) issued an Administrative Complaint alleging that Respondent was guilty of having had engaged in “dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of [Section] 475.25(1)(b), Fla.

   Stat.”(Count I) and having had “operated as a [real estate] salesperson without being the holder of a valid and current license as a salesperson in violation of [Section] 475.42(1)(a), Fla. Stat. and therefore in violation of [Section] 475.25(1)(e), Fla. Stat.“ (Count II). Respondent denied the allegations of wrongdoing made in the Administrative Complaint and requested a Section 120.57(1) hearing on these allegations. On December 10, 1996, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.1

   The hearing was scheduled for March 6, 1997. The Department and Respondent were provided with written notice of the hearing in accordance with Section 120.569(2)(b), Florida Statutes.2

   The Department appeared at the hearing, which was held as scheduled on March 6, 1997, through one of its Senior Attorneys, Andrea Perkins. Respondent did not make an appearance at the

   hearing, either in person or through counsel or a qualified representative.

   At the hearing, the Department presented the testimony of four witnesses: Roger Herman; Dorothy McCullough; Janet Pearson; and Frank Eckert. It also offered into evidence four exhibits (Petitioner’s Exhibits 7, 8, 9 and 14). All four exhibits were received by the undersigned.

   At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that proposed recommended orders had to be filed no later than 20 days from the date of the undersigned’s receipt of the transcript of the hearing. The undersigned received the hearing transcript on March 21, 1997. On Monday, April 14, 1997, the Department filed its proposed recommended order, which the undersigned has carefully considered. To date, Respondent has not filed any

   post-hearing submittal.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is now, and has been since September 23, 1991, a Florida-licensed real estate salesperson (holding license number 0579778).

   2. On September 30, 1993, his license became "involuntary inactive."

   3. His license was reactivated effective November 22, 1994, and remained active through September 30, 1995.

   4. Respondent's license is currently in "involuntary inactive" status.

   5. In January of 1994, Respondent was hired to (and thereafter did work) as a real estate salesperson for 4% Realty, Inc. (4%).

   6. The decision to hire Respondent was made by Frank Eckert, 4%'s broker.

   7. At no time did Respondent advise Eckert that he (Respondent) did not have an active real estate salesperson's license.

   8. On January 26, 1997, and January 27, 1997, Respondent provided $500.00 to 4% (in the form of two checks made out to 4%, one, dated January 26, 1994, in the amount $300.00 and the other, dated January 27, 1994, in the amount of $200.00). The $500.00 represented a deposit made by Respondent in connection with a proposed real estate transaction involving Respondent (as the buyer) and Mark Solowitz (as the seller).

   9. By letter dated March 3, 1994, Respondent notified Solowitz that, as of January 26, 1994, there was “on deposit in 4% Realty, Inc., Escrow account a total sum of $500.”

   10. The real estate transaction between Respondent and Solowitz was never finalized.

   11. After the transaction failed to close, Eckert returned Respondent’s $500.00 deposit to Respondent.

   12. On or about October 12, 1994, Respondent applied and

       interviewed for a salesperson position in the Weston office of Prudential Florida Realty (Prudential).

   13. The interview was conducted by Dorothy McCullough, the branch manager of Prudential's Weston office.

   14. Respondent made certain statements during the interview with which McCullough was "not comfortable."

   15. At the conclusion of the interview, McCullough told Respondent that she would "get back to him" and "let him know" of her decision.

   16. At no time did McCullough hire Respondent or authorize him to use Prudential's forms or stationary or to act as an agent for Prudential.

   17. On or about October 13, 1994, Respondent submitted to First Atlantic Realty (First Atlantic), on behalf of prospective tenants, an offer to lease property (located at 3350 Ivy Way in Miramar) listed by First Atlantic. Respondent purported to be acting as a representative of Prudential.

   18. When McCullough discovered what Respondent had done, she telephoned him to make sure that he understood that he had not been, nor would he be, hired by her to work for Prudential.

   19. Subsequently, First Atlantic's broker, Roger Herman, learned that the prospective tenants on whose behalf Respondent had submitted the offer had already moved into the rental property notwithstanding that their offer (which was "extremely weak") had not been accepted.3

   20. Herman thereupon went to the rental property "to find out what was going on." He attempted to communicate with the prospective tenants, but was unsuccessful because they spoke ”very little English."

   21. He then telephoned the police.

       
       

   22. Upon arriving on the scene, the police spoke with the prospective tenants and persuaded them to vacate the premises.

   23. On or about October 24, 1994, Respondent submitted to First Atlantic, on behalf of the same prospective tenants, another offer to lease the property at 3350 Ivy Way. On this occasion, however, Respondent was acting as a salesperson in the employ of 4%.

   24. Herman responded to this second offer by contacting the Department by telephone and discussing the situation with a Department representative. During the discussion, Herman was advised by the Department representative that Respondent did not possess an active salesperson's license.

   25. Herman then telephoned Eckert and informed him of Respondent's licensure status.

   26. After speaking with Herman, Eckert telephoned the Department and received confirmation that Respondent did not have an active salesperson's license.

   27. Eckert then contacted Respondent and advised him that his employment with 4% was terminated.

       CONCLUSIONS OF LAW

       
       

   28. The Florida Real Estate Commission (Commission) is statutorily empowered to take disciplinary action against Florida-licensed real estate salespersons based upon any of the grounds enumerated in Section 475.25(1), Florida Statutes.

   29. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension (for a period not exceeding ten years); imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 475.25(1), Fla. Stat.

   30. Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); McKinney v. Castor, 667 So.2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Fla.

       Stat.("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute").

   31. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   32. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So.2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

   33. In determining whether Section 475.25(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one “must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as

       included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee.” Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

   34. The Administrative Complaint issued in the instant case alleges that Respondent engaged in activities in January of 1994 (in connection with a proposed real estate transaction with Mark Solowitz) and in October of 1994 (in connection with the proposed lease of property located at 3350 Ivy Way in Miramar) that constituted violations of Section 475.25(1)(b), Florida Statutes (Count I) and Section 475.42(1)(a), Florida Statutes, and therefore also Section 475.25(1)(e), Florida Statutes (Count II).

   35. Subsection (1)(b) of Section 475.25, Florida Statutes, authorizes the Commission to discipline a Florida-licensed salesperson who "[h]as 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 intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public." There must be wrongful intent or scienter for there to be a violation of subsection (1)(b) of Section 475.25, Florida Statutes. See Morris v. Department of Professional Regulation, 474 So.2d 1985 (Fla. 5th DCA 1985).

   36. Subsection (1)(e) of Section 475.25, Florida Statutes, authorizes the Commission to discipline a Florida-licensed salesperson who "[h]as violated any of the provisions of this chapter [Chapter 475, Florida Statutes]."

   37. Among the "provisions of this chapter" is subsection (1)(a) of Section 475.42, Florida Statutes, which provides that "[n]o person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor."

   38. A "broker," as that term is used in Chapter 475, Florida Statutes, is defined in subsection (1)(c) of Section 475.01, Florida Statutes, as follows:

       "Broker" means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions,

       sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. A broker renders a professional service and is a professional within the meaning of s. 95.11(4)(a). Where the term "appraise" or "appraising" appears in the definition of the term "broker," it specifically excludes those appraisal services which must be performed only by a state-licensed or state-certified appraiser, and those appraisal services which may be performed by a registered appraiser as defined in part II. The term "broker" also includes any person who is a general partner, officer, or director of a partnership or corporation which acts as a broker. The term "broker" also includes any person or entity who undertakes to list or sell one or more timeshare periods per year in one or more timeshare plans on behalf of any number of persons, except as provided in ss. 475.011 and 721.20.

   39. A "salesperson," as that term is used in Chapter 475, Florida Statutes, is defined in subsection (1)(d) of Section 475.01, Florida Statutes, as follows:

       "Salesperson" means a person who performs any act specified in the definition of "broker," but who performs such act under the direction, control, or management of another person. A salesperson renders a professional service and is a professional within the meaning of s. 95.11(4)(a).

       
       

   40. Pursuant to subsection (3) of Section 475.182, Florida Statutes, "[a]ny license which is not renewed at the end of the license period prescribed by the [D]epartment shall automatically revert to involuntarily inactive status."

   41. In the instant case, clear and convincing record evidence establishes that, in October of 1994, in connection with rental property listed by First Atlantic (which was located at 3350 Ivy Way in Miramar), Respondent knowingly acted as a real estate salesperson (by submitting to First Atlantic, on behalf of prospective tenants, offers to lease the property) with apparent, but not actual, authority from the Department (in the form of an active salesperson's license) to engage in such activity. In doing so, he violated Section 475.25(1)(b), Florida Statutes, (as alleged in Count I of the Administrative Complaint) and Section 475.42(1)(a), Florida Statutes, and therefore also Section 475.25(1)(e), Florida Statutes (as alleged in Count II of the Administrative Complaint).4

   42. There is not, however, clear and convincing record evidence to establish that Respondent acted in violation of any the foregoing statutory provisions in connection with the January, 1994, proposed real estate transaction (which was never finalized) with Mark Solowitz. See Department of Business and Professional Regulation, Division of Real Estate, v. Oliver, DOAH Case No. 95-1276 (DOAH August 14, 1996)(Recommended Order)("[a]n individual is entitled to buy and sell real property in his or her own behalf without the need for a real estate license"). Accordingly, to the extent that the Administrative Complaint alleges otherwise, it should be dismissed.

   43. In determining the particular disciplinary action the Department should take against Respondent for having committed the violations described in Conclusion of Law 41 of this Recommended Order, it is necessary to consult Rule Chapter 61J2- 24, Florida Administrative Code, which contains the Commission's "disciplinary guidelines." Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(state agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

   44. Rule 61J2-24.001, Florida Administrative Code, provides, in part, as follow:

       1. Pursuant to s. 455.2273, Florida Statutes, the Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapters 455 or 475, Florida Statutes. The purpose of the

          disciplinary guidelines is to give notice to licensees of the range of penalties which normally will be imposed for each count during a formal or an informal hearing. For purposes of this rule, the order of penalties, ranging from lowest to highest, is: reprimand, fine, probation, suspension, and revocation or denial. Pursuant to s.

          475.25(1), Florida Statutes, combinations of these penalties are permissible by law.

          Nothing in this rule shall preclude any discipline imposed upon a licensee pursuant to a stipulation or settlement agreement, nor shall the range of penalties set forth in this rule preclude the Probable Cause Panel from issuing a letter of guidance.

       2. As provided in s. 475.25(1), Florida Statutes, the Commission may, in addition to other disciplinary penalties, place a licensee on probation. The placement of the licensee on probation shall be for such a period of time and subject to such conditions as the Commission may specify. Standard probationary conditions may include, but are not limited to, requiring the licensee: to attend pre-licensure courses; to satisfactorily complete a pre-licensure course; to attend post-licensure courses; to satisfactorily complete a post-licensure course; to attend continuing education courses; to submit to and successfully complete the state-administered examination; to be subject to periodic inspections and interviews by a DPR investigator; if a broker, to place the license on a broker- salesperson status; or, if a broker, to file escrow account status reports with the Commission or with a DPR investigator at such intervals as may be prescribed.

       3. Except as stated otherwise, the

          minimum penalty for all listed sections is a reprimand and/or a fine up to $1,000.00 per count. . . . The maximum penalties are as listed:

          VIOLATIONS RECOMMENDED RANGE OF PENALTY

          
          

          * * *

          (c) 475.25(1)(b)(Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust)- Up to 5 years suspension or revocation.

          * * *

          (f) 475.25(1)(e)(Violated any rule or order or provision under Chapters 475 and 455, F.S.)- Up to 8 years suspension or revocation.

          * * *

          (u) 475.42(1)(a)(Practice without a valid and current license)- Up to 3 years suspension to revocation.

          * * *

          (4)(a) When either the Petitioner or Respondent is able to demonstrate aggravating or mitigating circumstances to the Commission in a s. 120.57(2), Florida Statutes, hearing or to a Division of Administrative Hearings hearing officer in a s. 120.57(1), Florida Statutes, hearing by clear and convincing evidence, the Commission or hearing officer shall be entitled to deviate from the above guidelines in imposing or recommending discipline, respectively, upon a licensee.

          . . .

          (b) Aggravating or mitigating circumstances may include, but are not limited to, the following:

          1. The severity of the offense.

          2. The degree of harm to the consumer or public.

          3. The number of counts in the Administrative Complaint.

          4. The number of times the offenses previously have been committed by the licensee.

          5. The disciplinary history of the licensee.

          6. The status of the licensee at the time the offense was committed.

          7. The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license.

          8. Violation of the provision of Chapter 475, Florida Statutes, where in a letter of guidance as provided in s. 455.225(3), Florida Statutes, previously has been issued to the licensee.

          
          

   45. In its proposed recommended order, the Department requests that the undersigned recommend that "Respondent's license be revoked."5 Having considered the facts of the instant case in light of the provisions of Rule 61J2-24.001 set forth above, the undersigned finds that the Department's proposed penalty, the revocation of Respondent's license, is the appropriate penalty for the Commission to impose upon Respondent for the violations described in Conclusion of Law 41 of this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission issue a final order finding Respondent guilty of the violations described in Conclusion of Law 41 of this Recommended Order and revoking his real estate salesperson's license for having committed said violations.

DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April 1997.

ENDNOTES

1 There is no explanation in the record for the delay in referring Respondent’s hearing request to the Division of Administrative Hearings.

2 Such notice was in the form of a Notice of Hearing and Amended Notice of Hearing mailed on January 24, 1997, and February 20, 1997, respectively.

3 The keys to the property were kept in a "lock box." Respondent has conceded (in his response to the Department's Request for Admissions) that he knew the combination to the "lock box;" however, the evidence is insufficient to establish that he played any role in the prospective tenants' unauthorized occupation of the rental property.

4 Licensees, such as Respondent, are charged with knowledge of the requirements (as well as the prohibitions) of the licensing laws to which they are subject. See Florida Board of Pharmacy v. Levin, 190 So.2d 768, 770 (Fla. 1966); Wallen v. Department of Professional Regulation, Division of Real Estate, 568 So.2d 975 (Fla. 3d DCA 1990).

5 The Department is not seeking the imposition of a fine in addition to license revocation.

COPIES FURNISHED:

Andrea D. Perkins, Senior Attorney Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street, N-308 Post Office Box 1900

Orlando, Florida 32802-1900

Renato Castro Venci

250 Palm Circle West, Apartment Number 201 Pembroke Pines, Florida 33025

Henry M. Solares, Division Director Department of Business and

Professional Regulation Division of Real Estate

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.

1 There is no explanation in the record for the delay in referring Respondent’s hearing request to the Division of Administrative Hearings.

2 Such notice was in the form of a Notice of Hearing and Amended Notice of Hearing mailed on January 24, 1997, and February 20, 1997, respectively.

3 The keys to the property were kept in a "lock box." Respondent has conceded (in his response to the Department's Request for Admissions) that he knew the combination to the "lock box;" however, the evidence is insufficient to establish that he played any role in the prospective tenants' unauthorized occupation of the rental property.

4 Licensees, such as Respondent are charged with knowledge of the requirements (as well as the prohibitions) of the licensing laws to which they are subject. See Florida Board of Pharmacy v. Levin, 190 So.2d 768, 770 (Fla. 1966); Wallen v. Department of Professional Regulation, Division of Real Estate, 568 So.2d 975 (Fla. 3d DCA 1990).

5 The Department is not seeking the imposition of a fine in addition to license revocation.

Docket for Case No: 96-005787

Orders for Case No: 96-005787