STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1373

)

JOHN J. PICCIONE and GOLD ) COAST SCHOOL OF REAL ESTATE, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case on August 6, 1984, in Ocala, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Fred Langford, Staff Attorney

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondents: John J. Piccione, pro se

1515 East Silver Springs Boulevard Suite 105-WG

Ocala, Florida 32670

The issue is whether Respondents' various real estate school permits should be revoked or otherwise disciplined because John J. Piccione's license as a real estate broker is under suspension.

The Petitioner called no witnesses, but introduced two exhibits which were admitted into evidence. The Respondents presented the testimony of John J. Piccione and had one exhibit admitted into evidence. The parties had an opportunity to file proposed findings of fact and conclusions of law, but Petitioner waived its right to submit a Proposed Recommended Order.

Respondents filed a Proposed Order which has been considered

herein. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years.

   
   

2. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc.

   
   

3. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

   
   

5. In the present case, DPR is seeking the revocation of or imposition of other authorized penalties against the permits of Respondents, John J. Piccione and Gold Coast School of Real Estate, Inc., to operate a real estate school, to be a chief administrator of such a school, and to be an instructor in such a school based on the suspension of Piccione's real estate broker's license and based on allegations that Respondents no longer possess the qualifications for practice to operate a real estate school.

   
   

6. The evidence conclusively showed that the permit to operate the real estate school is held by Mary Piccione, not Respondent John J. Piccione. Further, DPR offered no proof that John J. Piccione is the chief administrator of Respondent Gold Coast School of Real Estate, Inc. In fact the only evidence in this regard indicated that Mary Piccione is the chief administrator. Therefore, as to the allegations regarding the permit to operate and the permit as chief administrator, DPR failed to carry its burden of proof.

7. John Piccione is an instructor at Gold Coast School of Real Estate, Inc. As applicable to his instructor's permit, Section 475.451, Florida Statutes, provides in pertinent part:

   
   

   1. Each person, school, or institution, except approved and accredited colleges or universities in this state, which offers or conducts any course of study in real estate practice, teaches any course prescribed by the commission as a condition precedent to licensure or renewal of licensure as a broker or salesman, or teaches any courses designed or represented to enable or assist applicants for licensure as brokers or salesmen to pass examinations for such licensure conducted by the department shall, before commencing or continuing further to offer or conduct such course or courses, obtain a permit from the department and abide by the regulations imposed upon such person, school or institution by this chapter and rules of the commission adopted pursuant to this chapter.

   2. An applicant for a permit to operate

      a real estate school, to be a chief admini- strator of such a school, or to be an instructor in such a school shall meet the qualifications for practice set forth in Section 475.17(1) and the following minimal requirements:

      (c) "School instructor" is defined as that individual who actively instructs in the classroom. He shall, before commencing to instruct, certify his competency by passing an instructor's written examination administered by the department. Every second year, each instructor shall recertify

      his competency by presenting to the commission evidence of his successfully completing a minimum of 15 classroom hours of instruction in real estate subjects or instructional techniques, as prescribed by the commission.

      (7) Any person holding a school instructor permit on October 1, 1983, is exempt from the instructor examination requirements of paragraph (2)(c) as long as he continuously holds such a permit and complies with all other requirements of this chapter.

8. Further, Section 475.17(1), which is made a part of Section 475.451 be reference, states:

   
   

   1. (a) 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 a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor 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, 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, 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 appears to the commission that the interest of the public and investors will not likely

      be endangered by the granting of registration.

      (b) No application may be approved if the applicant has acted or attempted to act, or has held himself out as entitled to act during the period of 1 year next prior to the filing of the application, as a real estate broker or salesman in the state in violation of this chapter. This paragraph shall be deemed to bar any person from licensure who last performed any of the acts or services described in Section 475.01(3), unless exempt pursuant to Section 475.011, during a period of 1 year next preceding the filing of the application, or during the pendency of the

      application, and until a valid current license has been duly issued to him, regardless of whether the performance of the act or service was done for compensation or valuable consideration.

      
      

9. Finally, Respondents are charged with violating Rule 21V- 18.07(2), Florida Administrative Code, and thereby violating Section 475.25(1)(e), Florida Statutes. Rule 21V-18.07(2) provides that a permit shall be suspended when:

   
   

   (2) The holder of a permit has had his license as a real estate broker or salesman suspended.

   
   

   Section 475.25(1)(e) provides for revocation, suspension, fine and/or reprimand if the licensee or permittee:

   
   

   (e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

   
   

10. It is concluded that Respondent Gold Coast School of Real Estate, Inc., has not violated Section 475.25(1)(e) and Rule 21V-18.07(2). It has not had its license suspended or violated a rule or provision covered by Chapter 475.

    
    

11. As to Respondent Piccione however, it is undisputed that his license as a real estate broker is under suspension. While there is no provision of Florida Statutes which requires that a school instructor be a licensed real estate broker, the rule is quite clear that suspension of a broker's license shall form the basis for suspension of an instructor's permit. However, a careful reading of Section 475.451 with Section 475.17 makes it clear that both sections relate to applicants for a permit and the qualifications necessary for the issuance of a permit.

    
    

12. Here, Piccione has held his instructor's permit for a number of years and he is not an applicant. The burden is on the Petitioner to establish grounds for disciplining the Respondent's permit as a school instructor. This burden has not been met. While Rule 21V-18.07(2) appears to mandate suspension of the permit, a careful reading of the statutes reveals no statutory basis for such a suspension except as the result of a suspension

by a licensing agency of another state, territory or county. (Section 475.25 (1)(g), F.S.). Piccione has essentially been charged with violating a rule as the sole basis for the action. Here the terms of the statutes must prevail. It is therefore concluded that Petitioner has failed to prove that Piccione's permit should be suspended.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED.

DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1984.

COPIES FURNISHED:

Fred Langford Staff Attorney

Department of Professional Regulation

Real Estate

P. O. Box 1900 Orlando, Florida 32802

John J. Piccione

1515 E. Silver Springs Boulevard Suite 105-WG

Ocala, Florida 32670

Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

Docket for Case No: 84-001373

Orders for Case No: 84-001373