STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3257

)

ANGELO CICIRETTI and SHAMROCK )

REALTY & ASSOCIATES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on August 12, 1991, in Ft. Myers, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

Legal Section - Suite N 308 Hurston Building North Tower

400 W. Robinson Street Orlando, Florida 32801-1772

For Respondent: Angelo Ciciretti

Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway

Cape Coral, Florida 33904 STATEMENT OF THE ISSUES

The issue in this case is whether the allegations of the Administrative Complaint is correct and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 20, 1991, Petitioner filed an Administrative Complaint alleging that the Respondent had violated sections of Chapter 475, Florida Statutes.

Respondent disputed the factual allegations and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings for further proceedings.

By Notice of Hearing dated June 13, 1991, the hearing was scheduled for August 22, 1991. The case was thereafter transferred to the undersigned.

At the hearing, Petitioner presented the testimony of Dennis O'key, Jerry

R. Stephenson and Pamela B. Atherly, and had exhibits numbered 1-7 admitted into evidence. Respondent presented the testimony of Dolores J. Stephenson and Helen Ciciretti.

A transcript of the hearing was filed. The Petitioner timely filed a proposed recommended order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Angelo Ciciretti is, and at all times material to this case was, a licensed real estate broker in the. State of Florida, licenses #0262612 and #0264641, for Auction World, U.S.A. Inc., 5245 Ramsey Way #9, Ft. Myers, Florida 33907 and Shamrock Realty & Associates, Inc., 1059 Northeast Pine Island Road, Cape Coral, Florida 33909.

   
   

2. Shamrock Realty & Associates, Inc. is, and at all times material to this case was, a corporation registered as a real estate broker in the State of Florida, license #0264446, 1059 Northeast Pine Island Road, Cape Coral, Florida 33909.

   
   

3. In 1989, Jerry R. Stephenson, a licensed real estate salesman employed by N. J. Prasser Realty, Inc., sold a parcel of land to Darryl and Pamela B. Atherly, who resided out of state, and intended to construct a residence on the property and move to Florida. A commission was paid on the sale of the property.

   
   

4. Mr. Stephenson also in 1989, and subsequent to the Atherly's purchase of the property, introduced the Atherly's to Dennis A. O'Key, a builder. Mr. Stephenson was still employed by N. J. Prasser Realty at the time of the introduction. Mr. O'Key and the Atherly's discussed the costs of building a home for the couple. The evidence fails to establish the existence of any agreement between Mr. O'Key and Mr. Stephenson related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house, and further fails to establish the existence of any like agreement between Mr. Stephenson and the Atherly's, although there is some evidence that the Atherly's, longtime friends of Mr. Stephenson, did suggest that Mr. Stephenson would be compensated for his assistance.

   
   

5. At some time subsequent to the Atherly's visit with Mr. O'Key, O'Key ceased building homes. Upon the next contact with the Atherly's, Mr. O'Key referred the couple to R. Fry Builders, Inc., another local home builder. The evidence fails to establish the existence of any agreement between Mr. O'Key, Mr. Fry or the Atherly's related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house.

   
   

6. On February 28, 1990, the Respondent applied to have Mr. Stephenson's license transferred to Two Sisters real Estate, Inc., where Respondent was employed. The licensure transfer became effective on March 8, 1990.

   
   

7. On or about April 10, 1990, the Atherly's entered into a contract with

   R. Fry Builders, Inc., for the construction of the Atherly home. The contract makes no provision for the payment of any commission or referral fees. The home was built and the Atherly's took occupancy of the structure. No commission or referral fees were paid by either Mr. Fry or the Atherly's.

8. On or about July 12, 1990, by certified letter, the Respondent contacted R. Fry Builders, Inc., and demanded payment of $4,077.50 as a referral real estate commission. The letter provided that a claim of lien would be filed if no response was received within ten days from the letter's date. The Respondent received no payment from R. Fry Builders, Inc.

   
   

9. On or about July 27, 1990, the Respondent placed a claim of lien on the Atherly's home. The lien was recorded in the Lee County, Florida official records book. The Respondent filed the lien for the purpose of collecting the referral commission from the Atherly's.

   
   

10. On or about April 9, 1991, the Respondent released the lien and filed the release of lien in the Lee County, Florida official records book. The lien was released after Mr. Stephenson discussed the matter with the Respondent and urged him to withdraw the lien. The Respondent collected no referral commission from the Atherly's.

    
    

11. The Respondent has filed no civil action to collect any fees or commissions due from any of the parties material to this case. There has been no judgement entered which would entitle the Respondent to have placed a lien on the Atherly's home.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

13. Petitioner has responsibility for disciplinary action taken against licensed real estate brokers. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has met the burden.

    
    

14. Section 475.25(1)(a), Florida Statutes, provides that the license of a Florida real estate broker may be disciplined by the Petitioner when the Respondent has violated any provision of Section 475.42, Florida Statutes. Section 475.42(1)(j) provides as follows:

    
    

    No broker or salesman shall place, or cause to be placed, upon the public records of any county, any...lien...which purports to affect title of, or encumber, any real property if the same is known to him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been authorized by the owner of the property, maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.

    However, nothing in this paragraph shall be construed to prohibit a broker or salesman from recording a judgement rendered by a court of this state.

15. In this case, the Respondent placed a lien on the Atherly's property for the purpose of collecting a commission or to coerce the payment of money to the broker or salesman. The Respondent filed no civil action against the parties involved in the transaction and has obtained no judgement which entitles him to the payment of any commission or other fees. The Respondent presented no defense to his action other than to continue the assertion that a referral commission was to have been paid by either the Atherly's or the builder of the Atherly's home. The evidence fails to establish that the Respondent was due any referral commission.

    
    

16. Petitioner further asserts that Respondent has been culpably negligent in a business transaction, and has therefore violated Section 475.25(1)(b), Florida States, which prohibits such activity. However, the evidence does not establish that the Respondent's inappropriate filing of the lien was a negligent act. The filing of the lien was intentional and clearly directed towards coercing payment of the referral commission to which the Respondent felt entitled.

    
    

17. Violation of disciplinary statutes is punishable by denial of a license renewal application, or by a license suspension for a period not to exceed ten years, or by revocation of the license, or through an administrative fine not to exceed $1,000 for each count or separate offense, or through issuance of a reprimand, or through any combination thereof. Section 475.25(1), Florida Statutes.

    
    

18. Guidelines for the imposition of disciplinary action are as stated in Chapter 21V-24, Florida Administrative Code. Except where otherwise provided, the minimum penalty which may be imposed for each violation is a reprimand, or a fine up to $1,000 per count, or both. In this case, Respondent has violated Section 475.25(1)(a), Florida Statutes, through the improper recording of the lien, a violation of Section 475.42(1)(j). The recommended range of the penalty imposed for a violation of Section 475.25(1)(a) and 475.42(1)(j), Florida Statutes, is up to five years suspension or revocation. Rule 21V-24.601(3)(gg), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the license of Respondent Angelo Ciciretti for a period of one year and imposing a fine of $1,000 to be paid within thirty days of rendition of the Final Order in this case.

DONE and ENTERED this 18th day of October, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991.

APPENDIX CASE NO. 91-3257

The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation Hurston North Tower

400 W. Robinson Street

P.O. Box 1900

Orlando, Florida 32802

Jack McRay General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James H. Gillis, Esq.

Department of Professional Regulation Division of Real Estate

Legal Section - Suite N 308 Hurston Building North Tower

400 W. Robinson Street Orlando, Florida 32801-1772

Angelo Ciciretti

Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway

Cape Coral, Florida 33904

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. CASE NO. 0170672

9181124

ANGELO CICIRETTI and DOAH NO. 91-3257 SHAMROCK REALTY & ASSOCIATES INC.

Respondents.

/

FINAL ORDER

On December 3, 1991, the Florida Real Estate Commission heard this case to issue a Final Order.

Hearing Officer William F. Quattlebaum of the Division of Administrative Hearings presided over a formal hearing on August 12, 1991. On October 18, 1991, he issued a Recommended Order, a copy of which is attached here to as Exhibit A and made a part hereof.

Both the Petitioner and Respondents filed Exceptions to the Hearing Officer's Recommended Order. Copies of these Exceptions are attached hereto as Exhibits B and C, respectively, and made a part hereof.

After hearing argument of counsel and upon a complete review of the record, the Commission adopts the Petitioner's Exceptions and rejects the Respondents' Exceptions as not being relevant to the record or the violation.

The Commission adopts the Hearing Officer's Findings of Fact and rejects the Hearing Officer's Conclusions of Law in part, and for the reasons stated in the Petitioner's Exceptions. Upon a complete review of the record, the Commission increases the Recommended Penalty to revocation. The reasons for the increase of penalty are stated in the Petitioner's Exceptions, which are a part hereof.

Therefore, the Commission finds each Respondent guilty of culpable negligence for the improper recording of a lien to coerce the payment of money to the Respondents, in violation of ss.475.25(1)(b) and 475.42(1)(j), Florida Statutes, and thus in violation of s.475.25(1)(a), Florida Statutes.

The Florida Real Estate Commission therefore ORDERS that the certificates, licenses, permits and registrations of the Respondents be revoked.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 3rd day of December 1991 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Angelo Ciciretti, 812 East Cape Coral Parkway, Cape Coral, Florida 33904; to Hearing Officer William F. Quattlebaum, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and to James Gillis, Esquire, DPR, P. O. Box 1900, Orlando, Florida 32802, this 19th day of December 1991.

Darlene F. Keller

MB:JM:pep Director

Docket for Case No: 91-003257

Orders for Case No: 91-003257