STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 95-0334

) GLORIA CORSORO AND ORANGE ) MANAGEMENT CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on May 19, 1995, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Daniel Villazon

Senior Attorney

Department of Business and Professional Regulation

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

For Respondent: Michael F. Berry

MICHAEL F. BERRY, P.A.

2145-15th Avenue

Vero Beach, Florida 32960 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent committed the violations alleged in the administrative complaint dated November 18, 1994; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on November 18, 1994, when the Department of Business and Professional Regulation, Division of Real Estate (Department) filed an administrative complaint against the Respondents, Gloria Corsoro and Orange Management Corp. Ms. Corsoro is the licensed and qualifying broker for the Respondent corporation.

The administrative complaint alleged that the Respondent, Corsoro, was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or

breach of trust in any business transaction. More specifically, the Department alleged Respondent Corsoro had affixed signatures to a warranty deed resulting in her arrest for forgery and uttering a forged instrument. Further, the Department alleged that Ms. Corsoro had pled nolo contendere to the use of a notary in violation of Florida law.

Count II of the administrative complaint alleged that the Respondent had placed, or caused to be placed, a deed on the public record knowing it to be false or not executed in the form entitling it to be recorded in violation of Section 475.42(1)(j), Florida Statutes. This allegation stemmed from the facts associated with the same warranty deed.

Finally, count III of the administrative complaint alleged that the Respondent had been convicted or found guilty of a crime which directly related to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing in violation of Section 475.25(1)(f), Florida Statutes. This count also related to the same factual scenario involving the one warranty deed.

The Respondent timely filed an election of rights as to all counts, disputed the allegations of fact, and requested a formal hearing. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on January 27, 1995.

At the hearing conducted on May 19, 1995, the Petitioner presented the testimony of the following witnesses: Jonathan Platt, an investigator employed by the Department; and Nicholas Burczyk, a handwriting expert with twenty years of forensic examination experience. The Department's exhibits numbered 1 through 6 were admitted into evidence.

The Respondent testified in her own behalf and submitted the late-filed deposition testimony of two witnesses residing in California: Leon Leavitt and Marie Copley. Such depositions were filed on June 19, 1995, and the parties were afforded ten days from that date to file proposed recommended orders.

Specific rulings on the proposed findings of fact filed in this cause are included in the appendix at the conclusion of this order. A transcript of the proceeding has not been filed.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Gloria Corsoro, has been a licensed real estate broker. She is the qualifying broker for the company known as Orange Management Corp.

   
   

2. The Department is the state agency charged with the responsibility of regulating real estate licensees in the State of Florida.

   
   

3. On or about July 20, 1994, the Respondent, Gloria Corsoro, entered a plea of nolo contendere to the crime of unlawful use of a notary. As a result, the Respondent was adjudicated guilty, placed on probation for a period of six months, and required to make payments and serve community service as directed by the court order.

   
   

4. The plea and conviction stemmed from Respondent's conduct in connection with a warranty deed (the deed) which was recorded in the public record for Indian River County, Florida, on October 12, 1993.

5. The deed conveyed a condominium unit from Leon R. Leavitt to the G. Corsoro Family Trust.

   
   

6. The deed, notarized on October 1, 1989, purportedly bore the signatures of Leon R. Leavitt, the grantor; Mamie Cellura, a witness; Marie Copley, a witness; and Joseph Cellura, the notary before whom the document was executed.

   
   

7. In fact, the document was not signed by Marie Copley or Leon R. Leavitt.

   
   

8. At the time of the hearing, Mamie Cellura and Joseph Cellura were deceased. They were the parents of Marie Copley and her sister, the Respondent.

   
   

9. At the time the deed was executed, Respondent signed Mr. Leavitt's name under a power of attorney he had reportedly given to her.

   
   

10. Respondent further claims that Mamie Cellura signed for herself as a witness, signed for Marie Copley as a witness, and signed her husband's name with him (he had Parkinson's disease) as the notary.

    
    

11. All this was completed, according to Respondent, Marie Copley, and Leon R. Leavitt, with everyone's full consent and knowledge.

    
    

12. Marie Copley and Leon R. Leavitt were not present when the document was executed. Since they claim Respondent was authorized to execute the document, they are not concerned as to who signed the document but believe Mamie Cellura and Respondent signed as represented by Respondent.

    
    

13. According to Nicholas Burczyk, the Respondent signed the document for all signatories on the instrument.

    
    

14. Even by Respondent's account, the named parties did not execute the deed as presented on the face of the document.

    
    

15. Respondent was originally charged with uttering a forged instrument and forgery. She chose to enter the plea as to the misdemeanor charge of unlawful use of a notary because she was "financially unable to pay to go to trial."

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

17. Section 475.25(1), Florida Statutes, provides, in part:

    
    

    1. The commission may . . . suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant, permittee, or applicant:

       * * *

       (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to

       the activities of a licensed broker, salesman, or appraiser certified pursuant to s. 475.501, or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the

       state shall be admissible as prima facie evidence of such guilt.

       
       

18. The Department bears the burden of proof to establish by clear and convincing evidence that the Respondent committed the violations alleged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. In this case, the Department has met that burden to establish Respondent participated in the improper execution of a warranty deed, pled nolo contendere to a crime related to that incident, and has been found guilty of such misdemeanor.

    
    

20. Assuming Respondent's scenario of the events, which identified her mother as a co-participant, to be accurate, the execution of the warranty deed was fraught with error. Respondent put forth no logical explanation, other than personal convenience, for why the deed was executed as it was. Since it was not recorded until several years later, time was not of the essence.

    
    

21. Further, that her sister and Mr. Leavitt did not object to the signing of their names does not excuse the blatant disregard for the protocol inherent in the execution of such documents. Nor does it excuse Respondent from allowing the misuse of a notary.

    
    

22. In the instant case, the Department has proven by clear and convincing evidence that the Respondent, Gloria Corsoro, violated Section 475.25(1)(f), Florida Statutes.

    
    

23. Rule 61J2-24.001, Florida Administrative Code, sets for the guidelines for penalties which are applicable to this matter. Such rule provides that the minimum penalty for a violation of Section 475.(1)(f), Florida Statutes, is a reprimand and/or a fine of up to $1,000.00. The maximum penalty is up to seven years suspension or revocation.

    
    

24. As to the other counts of the administrative complaint, it is concluded that Respondent did not violate Sections 475.25(1)(a),(b), or (j), Florida Statutes. All acts complained of were committed with the knowledge, consent, and authority from the parties to the improper instrument. That the parties acted in concert to execute and record a deed improperly does not constitute violations of the provisions cited.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Department of Business and Professional Regulation, through the Florida Real Estate Commission enter a final order determining the Respondent, Gloria Corsoro violated Section 475.25(f), Florida Statutes, and imposing a reprimand together with an administrative fine in the amount of $1,000.00.

DONE AND RECOMMENDED this 10th day of July, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 10th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0334

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1, 2, 3, 5, and 6 are accepted.

2. Paragraph 4 is accepted as stated in findings of fact paragraphs 6 through 14 above; otherwise rejected as incomplete statement of fact.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted. Respondent's assessment of the charges against Respondent together with the argument has been considered in the preparation of the foregoing.

COPIES FURNISHED:

Darlene F. Keller Division Director

Department of Business and Professional Regulation Division of Real Estate

400 West Robinson Street, Suite N-308 Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Daniel Villazon Senior Attorney

Department of Business and Professional Regulation

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

Michael F. Berry MICHAEL F. BERRY, P.A.

2145-15th Avenue

Vero Beach, Florida 32960

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: 95-000334

Orders for Case No: 95-000334