STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) REGULATORY COUNCIL OF COMMUNITY ) ASSOCIATION OF MANAGERS, )

)

Petitioner, )

)

vs. ) Case No. 03-2462PL

)

CHRISTINA M. RESTAURI, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this cause on September 24, 2003, by video teleconference with the parties appearing from Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2022

and

Jennifer Westermann Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

For Respondent: Christina M. Restauri, pro se

4640 Northwest 30th Street Coconut Creek, Florida 33063

STATEMENT OF THE ISSUE

Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 16, 2002, the Petitioner, Department of Business and Professional Regulation (Petitioner or Department) entered an Administrative Complaint against the Respondent, Christina

1. Restauri. The eight-count complaint alleged various violations of law related to the Respondent's acts or omissions while employed by Regency Tower South Association, Inc.(the Association). The Respondent filed an Election of Rights that denied the material facts set forth in the Administrative Complaint and requested a formal hearing.

   The Petitioner forwarded the case to the Division of Administrative Hearings on July 7, 2003. Thereafter, the matter was scheduled for hearing for August 11, 2003. On July 22, 2003, the Respondent's counsel filed a Motion to Withdraw and the parties filed a Joint Motion for Continuance of Formal Hearing. Both motions were granted and the matter was rescheduled for September 24, 2003.

   At the hearing, the Petitioner announced it was dropping

   Count I of the Administrative Complaint. The Petitioner presented testimony from Marion Stevens and Raymond Sarik as to the remaining counts at issue. The Petitioner's Exhibits numbered 1-6 were admitted into evidence. The Respondent testified in her own behalf. The Respondent did not offer exhibits.

   The transcript of the proceeding was filed with the Division of Administrative Hearings on October 22, 2003. The parties were granted ten days' leave to file proposed recommended orders. The Petitioner filed a Proposed Recommended Order on October 31, 2003. This Recommended Order is being entered within 30 days of the filing of the transcript of the proceeding. All citations are to Florida Statutes (2003), unless otherwise indicated.

   FINDINGS OF FACT

   
   

   1. The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law.

   2. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553.

   3. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with

      the day-to-day management of the Association's business.

      
      

   4. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association.

   5. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year.

   6. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment.

   7. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security.

   8. On at least two occasions, the Respondent altered her

      withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding.

      Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount.

   9. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account.

   10. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding.

   11. In addition to the foregoing payroll discrepancies,

       the Respondent caused herself to be overpaid $125.00 for sick leave.

   12. On or about October 12, 2000, the Respondent took

       
       

       $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.569 and 120.57(1).

   14. The Petitioner bears the burden of proof in this case to establish by clear and convincing evidence the allegations against this Respondent. Ferris v. Turlington,

       510 So. 2d 292 (Fla. 1987). It has met that burden.

       
       

   15. Section 468.436(1)(b)(5),Florida Statutes (2002), provides:

       1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

          * * *

          
          

          (b)5. Committing acts of gross misconduct or gross negligence in connection with the profession.

          
          

   16. Florida Administrative Code, Rule 61-20.503(7), provides:

       Financial Matters. A licensee or registrant shall use funds received by him…on the account of any community association or its members only for the specific purpose for which the funds were remitted.

       
       

   17. Section 436(3), Florida Statutes (2002), provides:

       
       

       (3) When the department finds any community association manager guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       * * *

       
       

       1. Revocation or suspension of a license.

       2. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       3. Issuance of a reprimand.

       4. Placement of the community association manager on probation for a period of time and subject to such conditions as the department specifies.

       5. Restriction of the authorized scope of practice by the community association manager.

       
       

   18. In this case, the Department has established that the Respondent used or caused the Association's funds to be expended inappropriately in four distinct ways. First, the

       Respondent did not remit the monthly health insurance premium that was owed for her family coverage. Therefore the funds paid by the Association and not reimbursed by the Respondent were incorrectly spent.

   19. Second, the Respondent did not document the accuracy of the amounts withheld for federal taxes owed for Respondent's salary. Since the Respondent altered the withholding amount to zero, no funds were withheld. Without documentation to support this change, the Association cannot establish whether the amounts previously paid by the Respondent are sufficient. Whether the correct amount of withholding representing the employer's share was remitted is also unknown.

   20. Third, the Respondent accepted sick leave pay in excess of the amount for which she was entitled. The Respondent did not contest the accuracy of the overpayment of sick leave, but professed ignorance as to how the error occurred. The persuasive weight of the evidence supports the conclusion that the Respondent knew or should have recognized the sick leave payment was not authorized. Additionally, the Respondent should have promptly repaid the overpayment.

   21. And finally, the Respondent made an unauthorized loan from petty cash to another employee. Whether the

       Respondent ever repaid the loan is unknown. She did not claim repayment at the hearing.

   22. When considered in their totality, the acts listed above demonstrate gross misconduct in the performance of her duties. As such, it is concluded the Respondent violated Section 468.463(1), Florida Statutes (2002).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager.

DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida.

S

___________________________________

J. D. PARRISH 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003.

COPIES FURNISHED:

Julie Malone, Executive Director Regulatory Council of Community

Association of Managers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Christina Marie Restauri 4640 Northwest 30th Street

Coconut Creek, Florida 33063

Jennifer Westermann Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

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: 03-002462PL

Orders for Case No: 03-002462PL