STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-4049

)

ETHAN GORDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, and with the parties' agreement, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on February 10, 1998, by teleconference.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32801-1900

For Respondent: Ethan Gordon, pro se

1150 Euclid Avenue, No. 312 Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

At issue is whether Respondent committed the offense alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a one-count Administrative Complaint dated July 31, 1996, Petitioner charged that Respondent violated the provisions of Section 475.42(1)(a), Florida Statutes, and, therefore, Section 455.228(1), Florida Statutes. The gravamen of the charge is Petitioner's contention that, from August 1994 through November 1994, Respondent operated as a real estate broker or salesperson without being duly licensed.

Respondent filed an election of rights wherein he disputed the allegations of fact contained in the Administrative Complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, on August 28, 1997, Petitioner referred the matter to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing Respondent had requested.

At hearing, Petitioner called Mark Sclar and Fred Seli as witnesses, and Petitioner's Exhibit 1 was received into evidence. Respondent testified on his own behalf, but offered no further proof.

The transcript of the hearing was filed March 31, 1998, and the parties were accorded ten days from that date to file proposed recommended orders. Petitioner elected to file such a proposal, and it has been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility 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 pursuant thereto.

2. Respondent, Ethan Gordon, is not now, nor has he ever been, licensed as a real estate broker or salesperson in the State of Florida.

3. At some time prior to, and extending at least into November 1994, Respondent was employed by Mark Sclar, a licensed real estate broker, as a salesperson.1

4. During that period, Respondent, on one or more occasions, the frequency of which is not of record, offered the real property (apartments) of others for lease; procured lease agreements on such real property; and collected monies incidental to those lease agreements. When successful in renting a property, Respondent was accorded a commission by Mr. Sclar.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

6. Where, as here, the Department proposes to take punitive

   action against an individual, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "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." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation,

   458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of Subsection 475.42(1)(a), Florida Statutes, and therefore, Subsection 455.228(1), Florida Statutes, as alleged 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." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

7. Pertinent to this case, Section 455.228(1), Florida

   Statutes, authorizes the Department to impose an administrative penalty not to exceed $5,000 per incident, where it has been shown that a person, not licensed by the Department or the appropriate regulatory board, has violated any provision of Chapter 455 or any statute that relates to the practice of a profession regulated by the Department.

8. Among the professions regulated by the Department are real estate brokers and salespersons, under the provisions of Chapter 475, Part I, Florida Statutes. Notably, that chapter prohibits any person from operating "as a broker or salesperson without being the holder of a valid and current license." Section 475.42(1)(a), Florida Statutes.

9. In resolving whether Respondent operated as a "broker" or "salesperson" contrary to law, the following definitions should be considered:

   1. "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 therefore; and all persons who advertise rental property information or lists. . . .

   2. "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 . . .

      
      

      * * *

      
      

      (f) "Real property" or "real estate" means any interest or estate in land and any interest in business enterprises or business opportunities, including any assignment, leasehold, subleasehold, or mineral right; however, the term does not include any cemetery lot or right of burial in any cemetery; nor does the term include the renting of a mobile home lot or recreational vehicle lot in a mobile home park or travel park.

      Section 475.01, Florida Statutes.

      
      

10. Applying the foregoing provisions of law to the facts, as found, compels the conclusion that Respondent did operate as a salesperson without benefit of licensure and, consequently, violated the provisions of Section 455.228(1), Florida Statutes, as alleged in the Administrative Complaint.

11. Having resolved that Respondent committed a violation

    of subsection 475.42(1)(a), and, therefore, subsection 455.228(1), as alleged, it remains to determine the appropriate penalty to be imposed.

12. Normally, the first step in assessing an appropriate penalty is a consideration of an agency's disciplinary guidelines. Cf. Williams v. Department of Transportation,

531 So. 2d 994 (Fla. 1st DCA 1988) (Agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees). However, notwithstanding the provisions of Section 455.2273, Florida Statutes, the Department has failed to establish, by rule, any disciplinary guidelines for a violation of subsection 455.228(1). The Department also failed to offer any proof at hearing concerning similar violations and the penalty, if any, it has imposed under those circumstances. Consequently, the only guidance for the crafting of an appropriate penalty in this case is that afforded by Subsection 455.228(3)(a), Florida Statutes. That subsection provides that the unlicensed practice of a profession warrants "a fine of not less than $500 or more than $5,000." Here, there being no aggravating factors of record, and considering Respondent's apparent lack of knowledge regarding the need for licensure to operate as a rental agent, while not excusing the violation given the expectation that Respondent should know and abide by the law, the imposition of the minimum fine of $500 is appropriate.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of violating Section 475.42(1)(a), Florida Statutes, and, therefore, Section 455.228(1), Florida Statutes, and which imposes an administrative penalty of $500 for such violation.

DONE AND ENTERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998.

ENDNOTE

1/ According to Mr. Sclar, Respondent applied for a job earlier in 1994. At that time, Mr. Sclar avers that Respondent was unlicensed, but he agreed to sponsor Respondent at a real estate school (Gold Coast) and, if successful in passing the licensure examination, employ him as a salesperson. Respondent took the course at the school, but failed the licensure examination.

Notwithstanding his failure, Mr. Sclar averred that Respondent told him he had passed, and he accepted Respondent's statement without checking with the Florida Real Estate Commission.

Mr. Sclar then (November 1994) employed Respondent as a salesperson. Following Respondent's termination for matters unrelated to his lack of licensure, Mr. Sclar avers he first learned of Respondent's lack of licensure.

Although Respondent candidly admits that he leased apartments on behalf of Mr. Sclar, as found in paragraph 4 of the Findings of Fact, his version of other events surrounding his employment by Mr. Sclar varies from that of Mr. Sclar. According to Respondent, he was employed prior to attending the real estate course, and during that time he showed and rented apartments for Mr. Sclar, and was compensated on a commission basis. According to Respondent, he was previously in the property management business, as he currently is, and was unaware that renting property for others required licensure. Respondent avers that Mr. Sclar never told him licensure was required, and the only reason he took the real estate course and the examination was to engage in real estate sales. Respondent denies misleading Mr. Sclar regarding the results of his examination and avers that, following his

failure of the examination, Mr. Sclar advised him to keep renting apartments and when he successfully passed the examination, he could move into sales.

The testimony of Mr. Sclar and Respondent has been carefully considered, together with their respective motivations, if any, to digress from the truth, their apparent forthrightness, and their responsiveness or lack of responsiveness to questioning. Having so considered their testimony, it must be concluded that Respondent's testimony was most credible and Mr. Sclar's was not. Consequently, Respondent's version of the events has been accepted.

COPIES FURNISHED:

Christine M. Ryall, Esquire Daniel Villazon, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32801-1900

Ethan Gordon, pro se

1150 Euclid Avenue, No. 312 Miami Beach, Florida 33139

Ethan Gordon, pro se 711 Schira Drive

Ordell, New Jersey 07649

Henry M. Solares, Director Division of Real Estate Post Office Box 1900

Orlando, Florida 32801-1900

Lynda L. Goodgame, 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 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.

Docket for Case No: 97-004049

Orders for Case No: 97-004049