STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANCE B. MASTELLONE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2449

)

STATE OF FLORIDA, BOARD OF )

REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on March 18, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: Stephen J. Avrach, Esquire

801 Arthur Godfrey Road Miami Beach, Florida 33140

For Respondent: S. Ralph Fetner, Jr., Esquire

State of Florida Board of Real Estate

2009 Apalachee Parkway

Tallahassee, Florida 32301

By Request for Hearing dated November 2, 1979, Constance B. Mastellone ("Petitioner") requested a formal hearing in accordance with the provisions of Sections 120.57 and 120.60, Florida Statutes. Petitioner asserted in her Request for Hearing that ". . .there is a disputed issue of material fact as to qualification for license as a Real Estate salesperson as set forth in the applicable statutes. Thereafter, by letter dated December 10, 1979, the Board of Real Estate ("Respondent") requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause.

Final hearing was scheduled for March 18, 1980, by Amended Notice of Hearing dated January 31, 1980.

At the final hearing, Petitioner testified in her own behalf, and called Edwin T. Drescher, Rene Binns, Joseph Gort, Harold Culmer, Dustin Gold, Fay Lewis, Baszil Bruce, and Lela B. Reed as her witnesses. Petitioner offered no exhibits for inclusion in the record. Respondent called no witnesses, but offered Respondent's Exhibit No. 1, which was received into evidence.

FINDINGS OF FACT

1. By Joint Prehearing Stipulation filed in this cause on March 7, 1980, counsel for Petitioner and Respondent stipulated, among other things, that:

   1. Petitioner seeks relief from an Order of the Board of Real Estate dated 16th day of October, 1979, denying the granting of a real estate salesman's license to the Applicant- Petitioner pursuant to 475.17 Florida Statutes [sic].

      
      

      Respondent seeks to uphold said Order pursuant to Section 475.17 Florida Statutes.

      
      

   2. Petitioner seeks to show rehabilitation and qualification because of lapse of time and subsequent good conduct and reputation and that the interest of the public and investors will not [sic] likely be endangered by the granting of registration.

      
      

      Respondent seeks to show that change has not taken place and that the Petitioner is not qualified.

      
      

      (e) The Counsel for the parties hereto stipulate that Constance B. Mastellone a/k/a Connie B. Martin was a registrant of the Florida Real Estate Commission and that said registration was revoked and that she subsequently appealed to the Board of Real Estate for registration and that said registration was denied in the Order dated the 16th day of October, 1979.

      
      

2. In addition, counsel for the respective parties stipulated into the record in this proceeding a certified copy of a Final Judgment dated January 4, 1977 in Case No. 74-36190, in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, wherein Diane Zeppo was the Plaintiff and Petitioner, who was at that time a registered Florida real estate broker, was the defendant. In entering a judgment against Petitioner in the amount of

   $4,000 for compensatory damages and $6,000 for punitive damages, the Circuit Court found that Petitioner, in her capacity as a real estate broker:

   
   

   . . .represented to the plaintiff that she would get the highest and best price that she could for [plaintiff's] property and to expedite such a sale, the plaintiff executed a deed to said property with a blank grantee, and delivered it to the defendant for the sole purpose of implementing and expediting a subsequent sale to be agreed upon, that instead of attempting to obtain the highest and best price for the plaintiff, the defendant, in derogation of her duties and responsibilities as a Real Estate Broker, intentionally deceived the plaintiff into believing that the highest price available was

   $26,500.00 when in fact the defendant had contracted for a sale of said property for a

   sale price of $33,000.00, that the defendant in breach of the trust and confidence reposed in her by the plaintiff and in breach of the

   trust agreement whereby the blank grantee deed,

   Plaintiff's Exhibit 17, was delivered to her in trust, did voluntarily insert therein her own name and used said deed in an attempt to transfer the title to said property from her client, the plaintiff, to herself, the broker, and in conjunction with so doing, the defendant did cause the plaintiff's tenants to vacate the property and did thereby interrupt the rental income which the plaintiff was receiving from said property in the amount of

   $275.00 per month, which was last received by her for the month of April, 1974; that the plaintiff has received no rental income from said property from said date to the present, caused solely and only by reason of the fraudulent, willful, and intentionally wrongful actions of the defendant-broker, CONSTANCE B. MASTELLONE, that the deed wherein DIANE ZEPPO is the named grantor, CONNIE B. MARTIN is the named, wrongfully inserted grantee dated the 2nd Day of April, 1974, whereby the above described property was purportedly transferred as recorded in Official Records Book 5756 Page 1504 is void and of no effect, and the plaintiff was entitled to continue to receive said rental income and would so have received said rental income, but for the wrongful actions of the defendant. . .

   
   

3. It appears from the record in this proceeding that Petitioner was initially licensed as a real estate salesperson in the State of Florida in 1969 or 1970. At some time thereafter, which date does not appear in this record, she was apparently registered as a real estate broker. Subsequently, in December, 1978, Petitioner received a notice from the Florida Real Estate Commission that her real estate broker's license had been revoked. Revocation proceedings before the Florida Real Estate Commission had apparently been ongoing since 1974. No part of the record before the Florida Real Estate Commission leading to the revocation of Petitioner's real estate broker's license was made a part of the record in the instant proceeding. In fact, it is impossible to tell from the record in this case either the factual or legal basis for the Florida Real Estate Commission's revocation of Petitioner's real estate broker's license. Despite the recitations contained in the Final Judgment against Petitioner in Zeppo v. Mastellone, a portion of which is quoted above, no factual testimony was elicited in this proceeding that in any way connected the facts at issue in that case with the revocation of Petitioner's real estate broker's license.

   
   

4. Each of the witnesses called by Petitioner uniformly testified as to their high estimate of her reputation for honesty and trustworthiness and to her knowledge of the real estate profession. However, none of these witnesses, whose acquaintance with Petitioner varied from periods of one to ten years, indicated that they had any knowledge of the fact's leading to the revocation of

   Petitioner's real estate broker's license, or to the facts giving rise to entry of the final judgment in Zeppo v. Mastellone. Additionally, these witnesses' acquaintanceships with Petitioner relate primarily to that period of time predating the revocation of her real estate broker's licenses, and those few witnesses having any contact with her subsequent to the revocation of her license indicated that that contact was either minimal, or was in the context of social rather than business matters.

   
   

5. In her own direct testimony, Petitioner did not address herself to the facts giving rise to the revocation of her broker's license, nor did she attempt to explain the factual situation involved in Zeppo v. Mastellone. Although Petitioner indicated that she felt that she had rehabilitated herself sufficiently to be licensed as a real estate salesperson, she gave no testimony as to any affirmative steps taken by her since the revocation of her license as evidence of that rehabilitation.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. Section 475.17(1), Florida Statutes, provides as follows:

   
   

   An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. An applicant for an active broker's license or salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his 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, 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, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this

   chapter had the applicant then been registered, 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 shall appear to the board that the interest of the public and investors will not likely be endangered by the granting of registration. [Emphasis added].

8. Where a party to an administrative proceeding seeks affirmative relief from an agency, the petitioning party, such as Petitioner in this case, bears the burden of proving by a preponderance of the evidence entitlement to the requested relief. See Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (3rd DCA Fla. 1976).

   
   

9. As indicated above, once a registrant's license to engage in the real estate profession has been revoked in this state, reregistration may not be granted unless the applicant for registration affirmatively demonstrates that the interests of the public and investors will not be endangered thereby, due to the passage of time, good conduct and reputation or "other reason deemed sufficient." In effect, an applicant for reregistration must show "rehabilitation" from the conduct which resulted in revocation. In this case, it is impossible from the record to determine the nature of the offenses which led to the revocation of Petitioner's broker's license, a result which is the harshest penalty available in an administrative disciplinary procedure. In addition, the only evidence in this proceeding concerning "lapse of time" since revocation of Petitioner's broker's license is Petitioner's own direct testimony that she received notice of that revocation in December, 1978, and the stipulation of the parties that the Board of Real Estate denied Petitioner's request for a real estate salesman's license by order dated October 6, 1979. Thus, it is readily apparent that Petitioner's license had been revoked for a period of less than one year when she reapplied for licensure.

   
   

10. In light of the facts that it is impossible to tell the nature and severity of the facts leading to the revocation of Petitioner's broker's license, little more than one year has passed since that revocation, and that the only evidence contained in this record of Petitioner's conduct in an actual real estate transaction is the Final Judgment indicating fraudulent conduct by Petitioner in the course of handling the sale of a parcel of property listed with her, Petitioner has failed to demonstrate her entitlement to relicensure as a real estate salesperson.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Board of Real Estate, denying the relief requested by Petitioner.

DONE and ENTERED this 22nd day of April, 1980, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1980.

COPIES FURNISHED:

Stephen J. Avrach, Esquire 801 Arthur Godfrey Road Miami Beach, Florida 33140

S. Ralph Fetner, Jr., Esquire State of Florida

Department of Professional Regulation

Legal Services Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 79-002449

Orders for Case No: 79-002449