STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 92-3896

)

ANDREA S. CAROLLO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on January 21, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson Street -N308 Post Office Box 1900

Orlando, Florida 32802 1900

For Respondent: Jacob I. Reiber, Equire

LINSKY & REIBER

Post Office Box 7055

Wesley Chapel, Florida 33543 STATEMENT OF THE ISSUES

Whether Respondent's real estate license should be disciplined based on the allegations that he was culpably negligent or committed a breach of trust in a business transaction and/or aided and abetted the unlicensed practice of real estate by employing unlicensed persons in violation of Subsections 475.25(1)(b) and (e) and Subsection 455.228(1), Florida Statutes (Supp. 1992).

PRELIMINARY STATEMENT

By its Administrative Complaint filed February 21, 1992, Petitioner, Department of Professional Regulation, Division of Real Estate, alleged that Respondent, Andrea S. Carollo, violated Subsections 475.25(1)(a) and (e) and Subsection 455.228(1), Florida Statutes. Respondent disputed the charges and requested a formal hearing pursuant to Chapter 120, Florida Statutes. On August 12, 1992, the matter was initially set for hearing for October 29, 1992 but was

continued based on a joint stipulation from the parties. Thereafter, the matter was rescheduled for hearing for January 21, 1993 and was heard as scheduled.

At hearing, Petitioner presented the testimony of Julia C. and David Beardsley, Joe Creech, Frank Kinsinger and Al Shevy. Respondent testified on his behalf. Petitioner's Exhibits 1-13 were received in evidence.

The parties submitted proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules and regulations promulgated pursuant thereto.

   
   

2. Respondent, Andrea S. Carollo, was, at all times material hereto, a licensed real estate broker having been issued license number 0229337. The last licensed issued was as a broker c/o Florida Leisure Realty, Inc. t/a ERA, 27427 SR 54, Wesley Chapel, Zephyrhills, Florida 33543.

   
   

3. Randy Locke and Geoffrey Bickerdike are not and have not been licensed, during times material, in any capacity with the Florida Construction Industry Licensing Board or the Florida Real Estate Commission.

   
   

4. During July 1990, the Beardsleys entered into a contract to purchase realty situated at 220 Debbie Lane, Lutz, Florida. Additionally, the Beardsleys executed an addendum providing for the replacement of the roof.

   
   

5. Negotiations for the contract and sale and the contract with its addendum were prepared by Respondent's licensed real estate salesman, Frank Kinsinger, an employee of Florida Leisure. The subject property was owned by Respondent's relatives, the Barettas, (aunt and uncle) who resided in Illinois.

   
   

6. In anticipation of the sale of their rental property, the Barettas requested that Respondent obtain proposals to repair the roof. Pursuant to their request, Respondent obtained several proposals including proposals from Sun Roofing of Tampa, Hardy Roofing & Construction, Imperial Roofing Contractors, Inc. and Geoffrey Bickerdike.

   
   

7. The proposals from all of the companies, with the exception of Bickerdike, all claimed that they were licensed roofing contractors.

   
   

8. Respondent was acquainted with Bickerdike who represented himself in the past as a licensed contractor. Respondent was unaware that Bickerdike was not licensed by the Florida Construction Industry Licensing Board or the local board (Pasco County).

   
   

9. Of the proposals received from the various contractors, the Barettas selected Bickerdike's proposal to repair the roof since his proposal also included additional work that the home needed.

10. During the period when the Respondent accepted the proposals and the Beardsleys entered into the contract, the Barettas replaced the roof and undertook certain FHA repairs that were required.

    
    

11. After execution of the contract, Bickerdike subcontracted with Randy Locke (Locke) a subcontractor to replace the roof. A permit was not pulled for the removal and replacement of the roof.

    
    

12. Respondent was unaware that Bickerdike had subcontracted the roofing job and the other repairs to Locke and that a permit had not been pulled for the repairs. The roofing repairs were completed prior to closing and the inspection was approved by the FHA as required by the contract and other lending requirements.

    
    

13. Following a period of approximately two months from completion of the roof replacement and closing on September 11, 1991, no water leakage was observed in the house by the Beardsleys when they subsequently visited the home.

    
    

14. At closing, the Barettas paid for and provided the Beardsleys with an ERA home warranty. The Barettas likewise reimbursed Florida Leisure the sum of

    $1,930.00 for roof repairs which had been advanced by Florida Leisure on behalf of the Barettas.

    
    

15. Approximately two months after the closing, the Beardsleys experienced water leaks from the roof of their home.

    
    

16. The Beardsleys called Florida Leisure to complain of the leaks. Initially, agents and employees of Florida Leisure contacted Bickerdike such that he could return to the house and correct the leaks. Bickerdike, in fact, made several attempts to correct the roof leaks and after further calls, Florida Leisure furnished the Beardsleys Bickerdike's beeper number which they used to directly contact Bickerdike. Respondent did not hear from the Beardsleys and considered the problem to have been resolved.

    
    

17. On August 8, 1991, the Beardsleys contacted the Pasco County Building Department to report the leakage problem. On August 11, 1991, Joe Creech, a Pasco County Building Construction Inspector, inspected the roof and reported the roof replacement by Bickerdike and Locke as being unworkmanlike. Creech concluded that the roof needed to be torn off and corrected. Creech also determined that neither Bickerdike or Locke had a roofing contractors license and that no permit had been pulled for the job.

    
    

18. On October 29, 1991, Respondent, after being advised of the problem, obtained a proposal from RFP Roofing Company, Inc. to replace the roof.

    
    

19. During November 1991, Creech first met with Respondent to discuss the Beardsley's roof problem. At that meeting, Respondent advised Creech that he had been unaware until then that Bickerdike was unlicensed.

    
    

20. On November 19, 1991, Al Shevy, an inspector and investigator with Petitioner, first met with Respondent in connection with the Beardsley complaint filed on October 8, 1991. At that meeting, Respondent advised Shevy that he thought that Bickerdike was responsible for the roofing problems experienced by the Beardsleys and that Bickerdike never advised him that he had gotten someone else to do the roof replacement.

21. Respondent's proposal from RFP Roofing Company, Inc., predates his meeting with Creech and Shevy. Respondent contracted with RFP Roofing Company to have the roof replaced and other repairs done related to interior water damage and drywall for a cost of approximately $5,000.00.

    
    

22. Respondent corrected, at his expense, the roof leak problems as soon as he realized that Bickerdike would not or could not correct the problems.

    
    

23. The Beardsleys, although provided with an ERA home warranty, never reported their roof problems to the home warranty claims division for repairs.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

    
    

25. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

26. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

27. Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent committed the violations set forth in the Administrative Complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner failed to establish that Respondent was culpably negligent or engaged in any breach of trust or other misconduct as alleged. Likewise, Petitioner failed to establish that Respondent aided or abetted any unlicensed activity by employing unlicensed persons in violation of Subsection 455.228(1), Florida Statutes and Subsection 475.25(1)(e), Florida Statutes, as alleged. Here, the evidence revealed that Respondent engaged a contractor that he thought was licensed to replace the roof. The engagement occurred prior to the Beardsleys' agreement to purchase. After the repairs were made and the Beardsleys experienced problems, Respondent attempted to correct them and, in fact, considered that the matter was resolved. Upon discovering that the problems still existed, Respondent engaged a competent contractor to perform the needed repairs at his expense.

RECOMMENDATION

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

Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety.

DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact: Paragraph 3, rejected, not probative and unnecessary.

Paragraph 6, rejected, unnecessary.

Paragraph 8, rejected, irrelevant and unnecessary.

Paragraph 10, adopted as modified, Paragraph 5, Recommended Order. Paragraph 13, rejected, not probative.

Paragraph 15 first sentence, rejected, irrelevant.

Paragraph 17, adopted as modified, Paragraphs 15 and 16, Recommended Order. Paragraph 18, adopted as modified, Paragraph 23, Recommended Order. Last sentence, rejected as being irrelevant.

Paragraph 20, adopted as modified, Paragraph 16, Recommended Order. Paragraph 22, adopted as modified, Paragraphs 20-22, Recommended Order. Paragraphs 25 and 26, rejected, not probative.

Paragraph 27, rejected, speculative.

Paragraph 35, adopted as modified, Paragraphs 17 and 21, Recommended Order. Paragraph 36(sic) second 35 and 36, rejected, irrelevant and not probative. Paragraph 39, adopted as modified, Paragraph 17, Recommended Order.

Paragraph 40, rejected, irrelevant. Paragraph 41, rejected, irrelevant.

Paragraphs 45-49, adopted as modified, Paragraph 7, Recommended Order. Paragraph 50, rejected, not probative.

Paragraph 51-54, rejected, not probative.

Rulings on Respondent's Proposed Findings of Fact:

Paragraph 5, adopted as modified, Paragraph 17, Recommended Order. Paragraph 11, adopted as modified, Paragraphs 12 and 13, Recommended Order. Paragraph 15, adopted as modified, Paragraph 16, Recommended Order.

Paragraph 24, rejected, not probative. Paragraph 27, rejected, unnecessary.

COPIES FURNISHED:

Janine B. Myrick, Esquire Senior Attorney

DPR - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Jacob I. Reiber, Esquire LINSKY & REIBER

Post Office Box 7055

Wesley Chapel, Florida 33543

Darlene F. Keller, Executive Director Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399 0792

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 10 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.

Docket for Case No: 92-003896

Orders for Case No: 92-003896