STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-1157PL

)

SYED HAQUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on April 16, 2009. The parties, attorney for Petitioner, witnesses, and court reporter participated by videoconference in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N801 Orlando, Florida 32801

For Respondent: Syed Haque, pro se

10100 Country Brook Road Boca Raton, Florida 33428

STATEMENT OF THE ISSUE

The issue is whether Respondent operated as a real estate broker or sales associate without a license, in violation of Section 475.42(1)(a), Florida Statutes, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 18, 2008, Petitioner alleged that Respondent operated as a real estate broker or sales associate in Florida without holding a valid license.

The Administrative Complaint alleges that Respondent negotiated a purchase and sale contract between Beryl George, as buyer, and St. Andrew Condominium of Boynton Beach, LLC, as seller, for a property located at 7808 Sonoma Springs Circle, Unit 1-205, Lake Worth, Florida, for $254,900. Respondent allegedly arranged for the buyer to purchase the property using Tina Mathews, a real estate broker or salesperson, as agent of record. At all material times, Respondent allegedly knew that Ms. Mathews would receive half of the commission paid to her employer, and Respondent agreed to receive one-third of the portion of the commission to be paid to Ms. Mathews. The Administrative Complaint alleges that, on November 14, 2005, at the closing of the above-described transaction, Respondent knew

or should have known that Ms. Mathews' employer received a check for $7617.

The Administrative Complaint alleges that Respondent negotiated a purchase and sale contract between Roland Nicholas and Laurie Felix Nicholas, as buyers, and St. Andrew Condominium of Boynton Beach, LLL, as seller, for a property located at 7912 Sonoma Springs Circle, Unit 14-107, Lake Worth, Florida, for

$282,400. At all material times, Respondent allegedly intended to bring together the buyers and seller so that he and

Ms. Mathews, as the agent of record, would receive compensation for the purchase and sale of this property. The Administrative Complaint alleges that, on November 14, 2005, at the closing of the above-described transaction, Respondent knew or should have known that Ms. Mathews' employer received a check for $8842.

The Administrative Complaint alleges that, on January 20, 2006, Respondent received a check from Ms. Mathews for $2676 as commission for the sale of the two above-described properties, in which Respondent had no interest. The Administrative Complaint alleges that Respondent subsequently cashed the check.

Count I of the Administrative Complaint alleges that Respondent is guilty of operating as a broker or sales associate without being the holder of a valid license, in violation of Section 475.42(1)(a), Florida Statutes, and, thus, Section

455.228, Florida Statutes. Petitioner requested a penalty authorized by law.

At the hearing, each party called one witness. Petitioner offered into evidence four exhibits: Petitioner Exhibits 1-3. Respondent offered into evidence one exhibit: Respondent Exhibit 1. All exhibits were admitted.

The court reporter filed the Transcript on June 9, 2009.

Petitioner filed its proposed recommended order on June 18, 2009. Respondent filed a statement on April 22, 2009.

FINDINGS OF FACT

1. Respondent has not been licensed as a real estate broker, broker sales-associate, or sales person in the state of Florida.

2. Respondent entered into an arrangement with Tina Mathews, who holds a valid broker or sales person's license, to find buyers in return for which she would split the commission with him. Although Respondent never showed the properties to prospective buyers, after finding them, he performed other, unspecified tasks to ensure that the deals closed and he would be paid.

3. Respondent's defense is that he did not know that what he was doing was illegal. In fact, this case arose by a complaint filed by Respondent against Ms. Mathews, who had paid him several times in the past for similar work in connection

   with other transactions. When Ms. Mathews declined to pay Respondent in connection with three other transactions described in the Administrative Complaint, Respondent contacted Petitioner, which, after an investigation, brought these charges against Respondent for two transactions, as identified in the Administrative Complaint, for which Ms. Mathews paid him.

4. In one letter (received June 12, 2007) from Mr. Haque to Petitioner, he acknowledges that he has "done 10 more deals with [Ms. Mathews] in the past for which she compensated me 1/3 of her commission. Enclosed are the HUDS for Ronald Nicolas and Beryl George . . .." These are the two transactions that are the subject of the Administrative Complaint, so there is no doubt that Respondent received compensation for his work on these two transactions.

5. It is difficult to determine exactly what Respondent did to "earn" his share of the commission, although clearly he found the buyers. Although Respondent claims to have substantial work on each of these transactions, he is vague about what he did, and the weight to be accorded this admission is limited due to Respondent's persistent misunderstanding of this case as some sort of vehicle by which he can obtain payment for his share of the commission for the three subsequent transactions about which he filed a complaint against

   Ms. Mathews.

6. The only remaining element of Petitioner's case against Respondent involves any ownership interest that Respondent may have had in the two properties identified in the Administrative Complaint. A summary of the investigator's interview with

   Ms. Mathews, who did not testify, states that she told the investigator that the deals that she did with Respondent were with properties that he owned. However, Respondent supplies the needed evidence as to this critical point when, in his post- hearing statement, he refers to this statement from the investigator and disputes it by stating: "The fact is, this is the only property in my complain [sic] I own with Ms. Mathews as agent of record." It is impossible to determine whether this admission applies to one of the two transactions that are the subject of the Administrative Complaint or one of the transactions for which he is, even now, seeking payment. At minimum, though, even if the statement applies to one of the two subject transactions, it applies to only one of them, and, by negative implication, Respondent concedes that he was not an owner of the other property.

7. On the basis of this record, Petitioner has proved all of the above-cited allegations of the Administrative Complaint in connection with both transactions that underlie Count I.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

9. Section 475.42(1)(a), Florida Statutes, prohibits any person from acting as a real estate broker or sales associate in Florida without a valid license. This statute warns that a violation of this law is a felony.

10. Section 475.01(3), Florida Statutes, provides that a person operates as a real estate broker or sales person if he commits one or more of the acts described in Chapter 475, Florida Statutes, as constituting or defining a broker, broker- sales associate, or sales associate. The statute states: "A single such act is sufficient to bring a person within the meaning of this chapter, and each act, if prohibited herein, constitutes a separate offense."

11. Section 475.01(1)(a), Florida Statutes, provides:

    
    

    "Broker" means a person who, for another, and for 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 therefore, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of . . . any real property or any interest in or concerning the same . . . ., 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 . . . real property of others of interests therein . . ., or who takes part in the procuring of sellers, purchasers, lessors, or lessees of . . . . the real property of another . . . ., 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 . . . .

    
    

12. Respondent's activity in procuring a buyer meets this definition, and, for at least one of the two subject properties, he was doing so in connection with the real property of another. His intent in obtaining compensation for these services is obvious and extends even to the post-hearing filing that he has submitted.

13. Although Respondent is not licensed, and thus does not have a property right at issue in the form of a license in this case, the nature of this case is penal, and Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company,

    Inc., 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner has met this standard of proof.

14. Section 455.228(1), Florida Statutes, authorizes the Department of Business and Professional Regulation to impose an administrative fine of not more than $5000 per incident for any violation of any statute regulating a profession. This provision also authorizes Petitioner to collect its attorney's fees and costs, if it must bring an administrative proceeding to obtain the relief that it seeks.

15. Respondent's post-hearing statement reveals Respondent's persistent ignorance of the basic law that prohibits the practice of the real estate profession without a license. Worse, he places the blame on everyone else but himself, suggesting that a recurrence of this unlicensed activity is likely. In some fashion, Respondent seems to believe that the outcome in this case should reflect the vast injustice that he believes he has suffered at the hands of Ms. Mathews--under a contract, if there was one, that was

    unenforceable in the first place under Section 475.41, Florida Statutes.

16. Under the circumstances, the maximum fine is necessary to ensure that Respondent directs his attention to this area of the law long enough to understand his responsibilities not to operate as a real estate broker or salesperson, except if he someday obtains a license. Given the penalty and the crucial

role that Respondent has played in his own successful prosecution, attorneys' fees and costs are inappropriate.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding Respondent guilty of operating as a broker or sales person without a license and imposing an administrative fine against him of

$5000.

DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 22nd day of June, 2009.

COPIES FURNISHED:

Thomas W. O'Bryant, Jr., Director Division of Real Estate

400 West Robinson Street, Suite 802 North Orlando, Florida 32801

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Patrick J. Cunningham, Esquire Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801 Orlando, Florida 32801

Syed Haque

10100 Country Brook Road Boca Raton, Florida 33428

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 09-001157PL

Orders for Case No: 09-001157PL