vs.
Case No. 16-5873
Respondent.
J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.60, 120.569, and 120.57(1), Florida Statutes (2016),1/ on February 9, 2017, by video teleconference with sites in Tallahassee and Orlando, Florida.
Daniel Villazon, P.A. Suite 535
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
On January 21, 2016, Petitioner, Ambey Singh (“Petitioner”), submitted an application to Respondent, the Florida Real Estate Commission (the “Commission”), for a license as a real estate sales associate.
On August 16, 2016, the Commission issued a Notice of Intent to Deny informing Petitioner that it was denying her application.2/ The Commission determined that Petitioner was not qualified to be issued a sales associate license because the Commission had previously revoked her real estate broker’s license in 2002.
On September 28, 2016, Petitioner requested an administrative hearing challenging the Department’s Notice of Intent to Deny. On October 16, 2016, the Commission referred the matter to the Division of Administrative Hearings (“DOAH”) and requested assignment to an Administrative Law Judge to conduct a chapter 120 evidentiary hearing.
The final hearing was held on February 9, 2017.3/ Petitioner testified on her own behalf and presented the testimony of Mahavir
Ashok, Peter Lumseyfai, and Ashta Nankissoor. Petitioner did not offer any exhibits. The Commission did not present any witnesses. The Commission’s Exhibits 1 and 2 were admitted into evidence without objection.
A one-volume Transcript of the final hearing was filed with DOAH on March 14, 2017. At the close of the hearing, the parties were advised of a ten-day timeframe following DOAH’s receipt of the hearing transcript to file post-hearing submittals. Through Petitioner’s unopposed Motion for Extension of Time, the parties agreed to a deadline for filing post-hearing submissions more than ten days after the filing of the hearing transcript thereby waiving the 30-day time period for filing the Recommended Order.4/ Both parties filed Proposed Recommended Orders which were duly considered in preparing this Recommended Order.
The Commission is the state agency charged with licensing real estate sales associates in Florida. See
§ 475.161, Fla. Stat.
On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license.
On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002.
At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000.
Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule
61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked.
Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement.
At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked.
Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license.
Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers
funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license.
Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients.
Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves.
Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately
$8 million since she began working for the charity over 20 years ago).
No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002.
At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure.
Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person.
Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002.
Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.60, 120.569, and 120.57(1).
The Florida Legislature created the Commission within the Department of Business and Professional Regulation (the “Department”). The Department shall license any applicant whom the Commission certifies to be qualified to practice as a broker or sales associate. See §§ 475.181, 475.161, and 475.02(1),
Fla. Stat.
The Commission shall certify for licensure any applicant who satisfies the requirements of sections 475.17, 475.175, and 475.180. However, the Commission may refuse to certify for licensure any applicant who is subject to discipline under section 475.25. See § 475.181(2), Fla. Stat.
Petitioner challenges the Commission’s denial of her application for a sales associate license. Petitioner, as the party asserting the affirmative, carries the ultimate burden of persuasion in this administrative proceeding. Dep't of Child. & Fams. v. Davis Fam. Day Care Home, 160 So. 3d 854, 857 (Fla.
2015); Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d
932, 934 (Fla. 1996)(“The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.”)(Osborne Stern & Co. II); Dep’t of Transp. v.
J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
In an application denial proceeding, however, the agency has the burden to prove the specific acts or violations which it alleges are grounds for denial. See M.H. v. Dep't of Child. & Fams., 977 So. 2d 755, 761 (Fla. 2d DCA 2008)(“Without
question, an applicant for a license has the initial burden of demonstrating his or her fitness to be licensed. . . . But if the licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant's lack of fitness to be licensed.” citing Osborne Stern & Co. II, 670 So. 2d at 934; see also
Comprehensive Med. Access, Inc. v. Off. of Ins. Reg., 983 So. 2d 45, 46 (Fla. 1st DCA 2008)(While the applicant continuously has the burden of persuasion to prove entitlement to be licensed, “the agency denying the license has the burden to produce evidence to support a denial.”).
The burden of proof in a license application proceeding is governed by the preponderance of the evidence standard. Osborne Stern & Co. II, 670 So. 2d at 934-935; see also
§ 120.57(1)(j), Fla. Stat.
The Commission cites to sections 475.25(1)(s) and 455.227(1)(f) as the legal basis for its denial of Petitioner’s application. Section 475.25 states, in pertinent part:
The commission may deny an application for licensure . . . may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $5,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:
Has violated any provision of s. 455.227(1) . . .
* * *
(s) Has had a registration suspended, revoked, or otherwise acted against in any jurisdiction.
Section 455.227(1) states, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(f) Having a license or the authority to practice the regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.
Section 455.227(2) sets forth disciplinary actions the Commission may take and states:
When the [Commission][6/] . . . finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or to certify with restrictions, an application for a license.
Suspension or permanent revocation of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
Corrective action.
Based on the facts found in this matter, the Commission met its burden of producing sufficient evidence to support its authority to deny Petitioner’s application. The Commission denied Petitioner’s application based on its finding that the Commission had previously revoked Petitioner’s real estate
broker’s license. The parties do not dispute that Petitioner had “a license or the authority to practice” real estate permanently revoked by the Commission in 2002. Accordingly, under the clear direction of both section 475.25(1)(s) and sections 455.227(1)(f) and (2)(a), the Commission is authorized to deny Petitioner’s application for licensure as a real estate sales associate.
Notwithstanding the provisions of sections 475.25 and 455.227, Petitioner asserts that, before the Commission denies her application, it must first determine whether she is “qualified” to practice as a sales associate in accordance with section 475.17. For support, Petitioner cites section 475.181(1) which states that the Department “shall license any applicant whom the [C]ommission certifies, pursuant to subsection (2), to be qualified to practice as a broker or sales associate.” Section
475.17 prescribes the “qualifications for practice” as a sales associate and states:
An applicant for licensure who is a natural person must be at least 18 years of age; hold a high school diploma or its equivalent; be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for an active . . . sales associate’s license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence.
Section 475.17(1)(a) further states that:
If . . . the applicant’s registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter . . . the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration. (Emphasis added).
The gist of Petitioner’s argument is that, prior to denying Petitioner’s application, section 475.17(1)(a) requires the Commission to determine whether Petitioner is “qualified” for a sales associate license. Therefore, even though Petitioner was initially “deemed not to be qualified” (because her broker’s license had been revoked), the Commission must consider that “because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the [C]ommission that the interest of the public will not likely be endangered.” Consequently, because the Commission did not review the factors outlined in section 475.17(1)(a), it acted improperly.
Taking her argument one step further, Petitioner asserts that the evidence shows that a significant amount of time has lapsed since her broker’s license was revoked (15 years ago),
and witness testimony attests to her good conduct and reputation since the revocation. Based on these facts, at this time, the Commission should find Petitioner “qualified” to practice as a real estate sales associate and grant her application for licensure.
As a matter of law, however, the undersigned concludes that the Commission is not required to consider the factors described in section 475.17(1)(a) before denying Petitioner’s application. Statutory interpretation begins with an analysis of whether a statute’s language is clear and unambiguous. “When construing a statute, the court must first look to the plain meaning of the words used by the Legislature.” Brandy's Prods. v.
Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Beverages &
Tobacco, 188 So. 3d 130, 132 (Fla. 1st DCA 2016) citing Verizon Bus. Purchasing, LLC v. Dep't of Revenue, 164 So. 3d 806, 809
(Fla. 1st DCA 2015); see also W. Fla. Reg'l Med. Ctr., Inc. v. See 79 So. 3d 1, 9 (Fla. 2012). “When a statute is clear, a court may not look behind the statute's plain language or resort to rules of statutory construction to determine legislative intent. . . . The Legislature is assumed to know the meaning of the words used in a statute and to have expressed its intent through the use of the words.” Dep't of Highway Safety & Motor
Vehicles v. Peacock, 185 So. 3d 632, 633 (Fla. 1st DCA 2016),
citing State, Dep't of Revenue v. Lockheed Martin Corp., 905 So.
2d 1017, 1020 (Fla. 1st DCA 2005).
In applying the plain language of the applicable statutes to the facts found in this matter, the undersigned concludes neither section 475.25 nor section 455.227 require the Commission to refer to section 475.17 prior to denying Petitioner’s application on account of her previously revoked real estate license. Similarly, neither section requires the Commission to consider Petitioner’s qualifications, good character, good conduct, or reputation before making its decision. Applying the clear intent of sections 475.25 and
455.227 (as stated above), the Commission’s authority to deny Petitioner’s application based solely on a finding that Petitioner’s real estate broker’s license was previously revoked is unambiguous and straightforward.
Further, section 475.17 (unlike section 455.227) does not appear to apply to applicants whose real estate licenses were
previously revoked by the Commission. Section 455.227(2)(a) states that the Commission (Board) may refuse to certify an application for a license from any person it finds has violated 455.227(1). Section 455.227(1)(f) specifically includes a person whose license to practice “the regulated profession [was] revoked
. . . by the licensing authority of any jurisdiction, including its agencies or subdivisions . . . ” (Emphasis added). Through
this language, section 455.227 specifically authorizes the Commission to refuse to certify Petitioner solely based on the fact that it previously revoked her real estate broker’s license. Section 475.25(1)(s) even more clearly states that the Commission “may deny an application for licensure . . . if it finds that the
. . . applicant . . . has had a registration suspended, revoked, or otherwise acted against in any jurisdiction.” No language in either section 455.227 or section 475.25 requires the Commission to consider the applicant’s good character or reputation prior to denial based to a previously revoked license.
Section 475.17, on the other hand, appears to pertain to situations where the applicant’s license to practice a “regulated profession” other than real estate has been revoked. Section 475.17(1)(a) addresses applications where the applicant’s license to practice “any regulated profession” has been revoked because of conduct “which would have warranted a like result” or “which would have been grounds for revoking” under chapter 475. Based on this language, the undersigned concludes that the Florida Legislature intended section 475.17 to apply to applications in addition to those specially addressed by sections
455.227 and 475.25. See e.g., State v. Mark Marks, P.A., 698 So.
2d 533, 541 (Fla. 1997)(The Florida Legislature’s use of “different terms in different portions of the same statute is strong evidence that different meanings were intended.").
Finally, contrary to Petitioner’s implication in its Proposed Recommended Order, section 475.181 does not establish that the Florida Legislature requires the Department or the Commission to review whether an applicant is “qualified to practice as a broker or sales associate” when considering whether to deny a license based on a previously revoked real estate license. Section 475.181(2) specifically states that “the [C]ommission may refuse to certify any applicant . . . who is subject to discipline under s. 475.25.” As explained above, Petitioner is subject to discipline under section 475.25(1)(a) (which incorporates section 455.227(1)(f)) and section 475.25(1)(s) based on the 2002 revocation of her broker’s license.7/ Accordingly, under the plain and unambiguous statutory language, sections 475.25 and 455.227 give the Commission full authority to refuse to certify Petitioner for licensure as a sales associate based on its revocation of her real estate broker’s license in 2002.
Nevertheless, despite the fact that section 475.17(1)(a) does not apply to the Commission’s decision, nothing prevents the Commission from examining Petitioner’s character and conduct before making its ultimate decision whether to deny her application for a sales associate license. Neither section 455.227(1)(f) nor section 475.25(1)(s) require the Commission to deny Petitioner’s application because it previously revoked her
broker’s license. Instead, both sections allow the Commission to consider a range of penalties that it “may” impose on Petitioner.8/ While one of these options is denial, the Commission, in its discretion, may also elect to grant Petitioner’s application, then place her on probation or other conditions. See section 475.25(1)(“The commission may deny an application for licensure . . . [and] may place a licensee, registrant, or permittee on probation. . . .”)(Emphasis added).; and sections 455.227(2)(a) and (f)(“The [Commission] may enter an order imposing one or more of the following penalties . . .
Refusal to certify, or to certify with restrictions, an application for license. . . . Placement of the licensee on probation for a period of time and subject to such conditions of the [Commission].”)(Emphasis added).
Based on careful consideration of the competent substantial evidence in the record, the undersigned finds that Petitioner demonstrated, by a preponderance of the evidence, that the interest of the public will not likely be endangered if the Commission grants her a sales associate license. Petitioner credibly testified that she fully acknowledges the seriousness of her error in 2000 as a real estate broker. She also accepts responsibility for her actions. In addition, Petitioner presented persuasive evidence and testimony establishing her good character and conduct over the past 15 years. She has been
entrusted with fiduciary responsibility over a significant amount of funds and, by all accounts, has been found honest and trustworthy.
Furthermore, granting Petitioner’s application will not place her in the same situation that led to her prior violation. A sales associate works under the direction and oversight of a broker. Therefore, certifying Petitioner for licensure as a real estate sales associate will not expose the public to the misconduct that led to Petitioner’s license revocation in 2002.
Finally, the undersigned notes that, when the Commission formulated its decision, it did not assess, evaluate, or investigate Petitioner’s current character or reputation. Neither did the Commission have the benefit of Petitioner’s mitigating and supporting testimony presented at the final administrative hearing. In light of the competent substantial evidence in the record, the undersigned concludes that, if granted a sales associate’s license, Petitioner will not present a danger to the public. Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the undersigned recommends the Commission exercise its discretion under sections 475.25(1) and 455.227(2) and grant Petitioner’s application and place her on probation for a period of time (or other conditions it deems appropriate).
In sum, the Department met its burden of proving the specific grounds and legal basis to deny Petitioner’s application for licensure as a real estate sales associate. Therefore, the Commission is authorized to deny Petitioner’s application for a sale associate license. However, Petitioner also demonstrated, by a preponderance of the evidence, that she meets the “qualifications for practice” as a sales associate should the Commission decide to impose a different penalty (i.e., probation)
as authorized under sections 475.25(1) and 455.227(2)(f).
Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate.
Leon County, Florida.
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). . . . 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.
[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 sales associate renders a professional service and is a professional within the meaning of
s. 95.11(4)(a).
6/ See section 455.01(1) which states: “‘Board’ means any board or commission, or other statutorily created entity to the extent such entity is authorized to exercise regulatory or rulemaking functions, within the department, including the Florida Real Estate Commission . . .”
7/ In addition, the Commission’s Final Order revoking Petitioner’s broker’s license in 2002 was based on Petitioner’s violations of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), and 475.25(1)(b).
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed)
Daniel Villazon, Esquire Daniel Villazon, P.A. Suite 535
Claude “Chip” Boring, III, Chair Real Estate Commission Department of Business and
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.
