vs. ) Case No. 99-5118
ENRIQUE C. SALDANA, )
Respondent. )
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on July 28, 2000, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Ghunise L. Coaxum, Esquire
Tanya E. Davis, Esquire Department of Business and
For Respondent: Enrique C. Saldana, pro se
Respondent denied "the allegations of fact contained in the Administrative Complaint" and requested a hearing pursuant to Section 120.57(1), Florida Statutes, on the matter. On December 6, 1999, the case was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.
As noted above, the hearing was held on July 28, 2000. 1/ Four witnesses testified at the hearing: Maria Velilla, Zenon Rodriguez, Nicholas Chillemi, and Respondent. In addition to the testimony of these four witnesses, seven exhibits (Petitioner's Exhibits 1, 2, 3, 5, 10, and 12, and Respondent's Exhibit 1) were offered and received into evidence.
During the direct examination of Mr. Rodriguez, counsel for the Department announced that it was not going to pursue the
allegations made in paragraphs 3 and 4 and in Count IV of the Administrative Complaint.
At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a deadline (20 days from the date of the undersigned's receipt of the transcript of the hearing) for the filing of proposed recommended orders. The hearing Transcript (consisting of one volume) was filed on September 14, 2000. The Department filed its proposed recommended order on October 4, 2000. This post- hearing submittal has been carefully considered by the undersigned. To date, Respondent has not filed any post-hearing submittal.
Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Respondent is a Florida-licensed real estate salesperson. He holds license number 0186760.
Respondent passed the salesperson examination on November 6, 1995.
From November 13, 1995, through February 26, 1997, Respondent was an active salesperson in association with Nicholas Chillemi, an individual broker trading as ReMax 100 (ReMax) and located at 10205 Southern Boulevard in Royal Palm Beach, Florida.
From February 27, 1997, through June 24, 1998, Respondent was an active salesperson in association with Bowen Realty, Inc., a broker corporation trading as Bowen Realty and located in Jupiter, Florida.
From June 25, 1998, through September 30, 1999, Respondent was an active salesperson in association with Forum Realty, Inc., a broker corporation trading as Realty Executives of the Palm Beaches and located in Lake Worth, Florida.
On October 1, 1999, Respondent's salesperson license became involuntary inactive (which is its current status) due to non-renewal.
At no time material to the instant case did Respondent hold a real estate broker license
At all times material to the instant case, Javier and Maria Velilla owned residential property located at 1290 McDermott Lane in Royal Palm Beach, Florida (McDermott Lane Property).
Respondent and Ms. Velilla have known each other for 16 or 17 years. They first met in Chicago, Illinois.
Some time prior to September 1, 1996, not very long after he had moved from Chicago to Florida and had begun working as a real estate salesperson for Mr. Chillemi, Respondent returned to Chicago and visited Ms. Velilla. During his visit, Respondent agreed, as a representative of ReMax, 2/ to help the Velillas find a tenant for the McDermott Lane Property.
Through the efforts of Respondent, a tenant was ultimately found for the property. The tenant was Belinda Vosatka.
On or about August 28, 1996, the Velillas (as lessors) and Ms. Vosatka (as lessee) entered into a Residential Lease for Single Family Home and Duplex (McDermott Lane Property Lease). The McDermott Lane Property Lease covered the one-year period from September 1, 1996, to August 31, 1997, and required Ms. Vosatka to make a security deposit of $850.00 and lease payments of $850.00 a month. Paragraph VI of the McDermott Lane Property Lease provided as follows:
NOTICES. Henry Saldana is Landlord's Agent. All notices to Landlord and all Lease Payments must be sent to Landlord's Agent at 10205 Southern BLVD, R.P.B., Fl 33411 unless Landlord gives Tenant written notice of a change. Landlord's Agent may perform inspections on behalf of Landlord. All notices to Landlord shall be given by certified mail, return receipt requested, or by hand delivery to Landlord or Landlord's Agent.
Any notice to Tenant shall be given by certified mail, return receipt requested, or delivered to Tenant at the Premises. If Tenant is absent from the Premises, a notice to Tenant may be given by leaving a copy of the notice at the Premises.
The Velillas agreed to pay Respondent $50.00 a month for acting as their "agent" under the McDermott Lane Property Lease ("Agent" Fee Arrangement). Respondent entered into this agreement with the Velillas in his individual capacity, not as a ReMax salesperson on behalf of Mr. Chillemi. (As Respondent was
aware at the time he entered into the "Agent" Fee Arrangement, collecting lease payments from tenants and providing related property management functions were not among the services that ReMax provided its clients.)
Respondent made Mr. Chillemi aware of the McDermott Lane Property Lease, but at no time did he inform Mr. Chillemi about the "Agent" Fee Arrangement, much less share with Mr. Chillemi the $50.00 payments he received from the Velillas for acting as their "agent."
On September 1, 1996, Respondent received from Mr. Chillemi a $425.00 commission for his role in the leasing of the McDermott Lane Property.
For approximately the first half of the lease period, the Velillas received from Respondent, within five days of the beginning of each month, money orders in the amount of the monthly lease payments Ms. Vosatka was required to make under the McDermott Lane Property Lease, and the Velillas, in turn, paid Respondent (by check payable to Respondent) $50.00 a month in accordance with the "Agent" Fee Arrangement." Thereafter, however, to the dissatisfaction of the Velillas, the money orders began arriving later in the month. Upon looking into the matter, Ms. Velilla discovered that, pursuant to Respondent's instructions (which he had given without the Velillas' express authorization), Ms. Vosatka had been making her monthly lease payments by sending Respondent personal checks payable to
Respondent. Displeased with this arrangement, Ms. Velilla had Respondent draft the following Amendment to Lease, which she and her husband (as lessors) and Ms Vosatka (as lessee) signed:
It is mutually agreed and understood by the parties [who] entered into a leasing agreement on August 26, 1996 for the property located at 1290 McDermott Ln. Royal Palm Beach, Fl 33411 and herein referred to as, Javier & Maria Victoria Velilla, as the Landlord, and Belinda Vosatka, as the Tenant, that the rent for the above named property shall be due and payable by way of Cashier's Check or Money Order and to the name of the above mentioned Landlord on the same dates as agreed on the original lease.
In consideration to the rent being paid by Cashier's Check or Money Order, the Landlord agrees to allow Four D[o]ll[a]rs ($4.00) allowance to the Tenant for expenses incurred for issuance of the payment.
Therefore, the actual rent due by the Tenant shall be in the amount of $846 per month.
The rest of the terms of the lease stand as originally agreed.
Ms. Vosatka paid her rent for two or three months following the execution of this Amendment to Lease with cashier's checks payable to the Velillas.
She then stopped making payments.
When Ms. Velilla contacted Respondent and inquired about the situation, Respondent told her that Ms. Vosatka had health problems and was not able to work.
After not receiving any lease payments for approximately three months, the Velillas, at the urging of a
friend, traveled to Florida to inspect the McDermott Lane Property.
Upon arriving at the property, they found that Ms. Vosatka had vacated the premises, leaving it in deplorable condition.
CONCLUSIONS OF LAW
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. 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 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation.
Section 475.25(1), Florida Statutes.
Section 475.25(1)(a), Florida Statutes, authorizes the Commission to take disciplinary action against a licensed salesperson who "[h]as violated any provision of . . . s. 475.42," Florida Statutes.
Section 475.42, Florida Statutes, provides, in pertinent part, as follows:
Violations.-- . . .
(b) No person licensed as a salesperson shall operate as a broker or operate as a salesperson for any person not registered as her or his employer. . . .
(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; . . .
"Broker," as that term is used in Section 475.42, Florida Statutes, and elsewhere in Chapter 475, Florida Statutes, is defined in Section 475.01(1)(a), 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 she or 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 assistant 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.
"Salesperson," as that term is used in Section 475.42, Florida Statutes, and elsewhere in Chapter 475, Florida Statutes, is defined in Section 475.01(1)(j), 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).
"[T]he statutory definition of real estate broker or sales[person] is confined to one who directly procures a purchaser[,] [seller, lessor, or lessee] not [one] whose services incidentally result in a real estate brokerage transaction." Harris v. Schickedanz Bros.-Riviera LTD, 746 So. 2d 1152, 1154 (Fla. 4th DCA 1999).
A salesperson may be found guilty of violating Section 475.42(1)(b) and (d), Florida Statutes, even if that person is misinformed concerning his or her licensure status or is
otherwise unaware of the illegality of his or her actions. See Wallen v. Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990)("Because he is a broker, Wallen is charged with knowledge of chapter 475, which controls the actions of real estate brokers, salesmen, schools, and appraisers, and the specific pertinent provisions thereof which require him to take prompt action to account or deliver those funds he is not entitled by law to retain."); Department of Business and Professional Regulation, Division of Real Estate v. Gordon, 1998 WL 866464 (Fla. DOAH 1998)("Respondent's apparent lack of knowledge regarding the need for licensure to operate as a rental agent [did] not excus[e] the violation given the expectation that Respondent should know and abide by the law."); see also Division of Professional Regulation, Board of Cosmetology v. Allied Corporation, 1992 WL 880612 (Fla. DOAH 1992)("Respondent, acting by and through its president, Ms.
Gladys Sheer, permitted an unlicensed person to practice a cosmetology specialty in violation of Section 477.029(1)(c), Florida Statutes. [Such a violation was committed notwithstanding that] Ms. Gladys Sheer was mistaken in her assumption that [the unlicensed person] had an active license.").
Section 475.25(1)(b), Florida Statutes, authorizes the Commission to take disciplinary action against a 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 her or 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." A licensee may be disciplined pursuant to Section 475.25(1)(b), Florida Statutes, "not only for dishonest conduct in transactions in which his only interest is as a [salesperson], but also for such conduct in his own personal business affairs." LaRossa v. Department of Professional Regulation, 474 So. 2d 322, 323 (Fla. 3d DCA 1985). Whether the business transaction is one in which the licensee acts in his capacity as a salesperson or one in which he acts on his own behalf, there must be wrongful intent or scienter on the part of the licensee for there to be a violation of Section 475.25(1)(b),
Florida Statutes. See Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143-44 (Fla. 1st DCA 1992); and Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985).
Section 475.75(1)(k), Florida Statutes, authorizes the Commission to take disciplinary action against a licensee who "has failed, if a salesperson, to immediately place with her or his registered employer any money, fund, deposit, check, or draft entrusted to her or him by any person dealing with her or him as agent of the registered employer."
"No revocation [or] suspension . . . of any [salesperson's] license is lawful unless, prior to the entry of a final order, the [Department] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.
The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint.
Sections 120.569(1) and 120.57, Florida Statutes.
At the hearing, the Department bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the administrative
complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's guilt 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); Pou v.
Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' 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).
In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the agency's administrative complaint or other charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by the Department, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint issued in the instant case (as amended at the final hearing) alleges that, in connection with the McDermott Lane Property Lease, Respondent, while licensed only as a salesperson and not as a broker, violated Section 475.42(1)(d), Florida Statutes, and therefore also Section 475.25(1)(a), Florida Statutes (Count I); Section 475.25(1)(k), Florida Statutes (Count II); Section 475.42(1)(b), Florida Statutes, and therefore also Section 475.25(1)(a), Florida Statutes (Count III); and Section 475.25(1)(b), Florida Statutes (Count IV), by "collect[ing] the security deposit and monthly rents in his own name--and not in the name of his broker employer"; "fail[ing] to make a full and proper accounting and delivery to the owner/landlord of all monies received from tenants regarding the above described lease"; and "fail[ing] to advise his broker employer of th[is] transaction."
The Department failed to present clear and convincing evidence that Respondent committed any of these alleged violations.
The record evidence reveals that, for compensation, Respondent helped the Velillas procure a tenant for the McDermott Lane Property (procurement services) and, following the execution of the McDermott Lane Property Lease, collected rental payments from the tenant that he remitted to the Velillas (collection services).
In performing the procurement services for the Velillas, Respondent acted within the scope of his employment as a licensed salesperson representing his employer/registered broker, Mr. Chillemi, whom he made aware of the McDermott Lane Property Lease and the role he played in its consummation (for which he received a commission). There is no indication that Respondent did anything, in connection with the performance of these services, that would constitute a violation of the provisions of Chapter 475, Florida Statutes, referenced in the Administrative Complaint (as amended at the final hearing).
In performing the collection services for the Velillas, Respondent acted, not as a ReMax employee under the direction, control, or management of Mr. Chillemi, but in his individual capacity. Although Respondent did not have a broker's license, he did not need one to engage in such activity. One who merely collects rent for another and performs related property management services (for compensation) is not a "broker," as defined in Chapter 475, Florida Statutes (which, as noted above, to the extent that its meaning is unclear, must be strictly construed in favor of Respondent). See Harris v. Schickedanz Bros.-Riviera LTD, 746 So. 2d 1152, 1154 (Fla. 4th DCA 1999)(services not "specifically enumerated" in the definition of "broker" and "salesman" (now "salesperson") found in Section 475.01, Florida Statutes, held not to constitute "real estate sales or brokerage services"); contrast with Harrison v. J. H.
Marshall & Associates, Inc., 271 A.2d 404, 405 (D.C. Cir. 1970)(held that the "collecting [of] rent for another for the use of real estate and for valuable consideration" was an activity "clearly defined by the [Real Estate and Business Brokers' License] Act as a broker's activity requiring a license by one engaging in such" activity where the Act's definition of "real estate broker" included the following language: "'real estate broker' means any person . . . who, for another and for . . . valuable consideration . . . collects or offers or attempts or agrees to collect rent . . . for the use of real estate." 3/ ). Inasmuch as he was lawfully operating in his capacity as an individual and not as a licensed salesperson working for Mr.
Chillemi, Respondent did not need Mr. Chillemi's "express consent" to collect monies in his (Respondent's) own name, nor did he need to place with Mr. Chillemi any monies he collected. Respondent did have an obligation, in accordance with the agreement he had entered into with the Velillas (heretofore referred to as the "'Agent' Fee Arrangement"), to deliver to them the rent money he collected from Ms. Vosatka. It appears, however, contrary to the allegation made in the Administrative Complaint (as amended at the final hearing), that Respondent carried out this contractual responsibility and that he did not misappropriate any monies rightfully belonging to the Velillas, nor otherwise engage in conduct, in connection with the "Agent" Fee Arrangement, constituting "fraud, misrepresentation,
concealment, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust."
Because its allegations of wrongdoing are not supported by clear and convincing evidence, the Administrative Complaint (as amended at the final hearing) must be dismissed in its entirety.
RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint (as amended at the final hearing) in its entirety.
STUART M. LERNER
1/ The hearing was originally scheduled for April 14, 2000, but was continued at Petitioner's request.
2/ Respondent told Ms. Velilla that he was "representing ReMax."
3/ The definition of "broker" in Section 475.01, Florida Statutes, does not contain comparable language.
Enrique C. Saldana 7560 Gilmour Court
Ghunise L. Coaxum, Esquire Tanya E. Davis, Esquire Department of Business and
Herbert S. Fecker, Division Director Division of Real Estate
Barbara D. Auger, General Counsel Department of Business and
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.
