STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP CAPRIO, )

)

Petitioner, )

)

vs. ) Case No. 97-1904

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, FLORIDA ) REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on August 21, 1997, by video teleconference, at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louis B. Stoskopf, Esquire

2809 Bird Road, Suite 269

Miami Florida 33133

For Respondent: Manuel E. Oliver

Assistant Attorney General

400 West Robinson Street, Suite 107 South Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified for licensure as a real estate salesperson.

PRELIMINARY STATEMENT

On April 3, 1997, the Florida Real Estate Commission

(Commission) issued an order advising Petitioner that, "[b]ased on [his] answer to Question #13 of the licensing application, the Commission ha[d] DENIED [his] application for licensure" as a real estate salesperson. The order further advised Petitioner that he had the right to "request a formal hearing to present evidence that [he is] qualified for licensure as a real estate salesperson." By letter dated April 15, 1997, Petitioner requested such a hearing. On April 21, 1997, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the hearing was held on August 21, 1997.1 At the hearing, Petitioner testified on his own behalf and presented the testimony of four other witnesses: Jeffrey Kaufman, Ferdinand Montes, George Frix, and Teresa Caprio. In addition, he offered one exhibit into evidence (Petitioner's Exhibit 1), which was received by the undersigned. The Commission presented no testimonial evidence. Its evidentiary presentation was limited to cross-examining Petitioner's witnesses and offering two exhibits (Respondent's Exhibits

1 and 2) into evidence. Both of the Commission's exhibits were admitted into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that the deadline for the filing of proposed recommended orders was 20 days from the

date of the undersigned’s receipt of the transcript of the hearing. The undersigned received the hearing transcript on September 5, 1997. On September 23, 1997, the Commission filed a proposed recommended order, which the undersigned has carefully considered. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Petitioner is fifty-two years of age.

   
   

2. He became licensed as a real estate salesperson in the State of Florida in 1981, after returning to the state (where he was born and raised) from New Jersey.

3. The following year he obtained a license that allowed him to operate as a real estate broker in Florida.

4. In or about 1984, Petitioner formed Landmark Realty, Inc. (Landmark), which operated in Broward County, Florida, as a Century 21 franchise.

5. On or about June 29, 1989, in DPR Case Nos. 0163964 and 0164128, the Department of Professional Regulation, Division of Real Estate, issued an Administrative Complaint against Petitioner and Landmark containing the following allegations:

   1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters

      120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

      
      

   2. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0344112 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker c/o Landmark Realty, Inc., 1860 N. Pine Island Road, Plantation, Florida 33322.

      
      

   3. Respondent Landmark Realty, Inc., is now and was at all times material hereto a corporation licensed as a real estate broker in the State of Florida having been issued license number 0239155 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 1860 N. Pine Island Road, Plantation, Florida 33322.

      COUNT I

      
      

   4. The Department of Professional Regulation conducted a routine office inspection/escrow account audit of Respondents' escrow accounts between June 15, 1989 and June 16, 1989.

      
      

   5. Respondents' escrow account number 55322000377 is held at First Union National Bank of Florida.

      
      

   6. Respondents' escrow account number 55322000377 had a balance of $1,368.36 on June 16, 1989. The pending sales files revealed that the escrow monies balance should have been $65,250 on June 16, 1989. The escrow account had a shortage of

      $63,881.64. . . .

      
      

   7. Respondent Caprio claims he transferred

      $80,700 from Respondents' escrow account number 55322000377 to the Keys & Keys trust account number 0304301543 on the advice of counsel. . . .

      
      

   8. Kathy Clements, Operations Officer for County National Bank of South Florida furnished a written letter that the Keys & Keys trust account number 0304301543, had a

      current balance of $101,901.43 on June 20, 1989. . . .

      
      

   9. The Respondents failed to furnish any validated documents detailing the dates and amounts of deposits into the aforementioned Keys & Keys trust account from the aforementioned Respondents' escrow account.

      
      

   10. The Respondents' escrow account number 55322000377 is a commercial money market investment account with the interest going to Landmark Realty, Inc., without the consent or prior knowledge of all parties. . . .

       
       

   11. The Respondents failed to timely notify the Florida Real Estate Commission of conflicting demands on the earnest money deposit on the contract, dated July 17, 1988, between David B. Perry, as seller, and Earle

       A. and Yvonne M. Levy, as buyers. The buyers entrusted an earnest money deposit of $1,000 with the Respondents on or about July 17, 1988, and an additional earnest money deposit of $20,000 was entrusted to the Respondents on or about August 22, 1988. The Respondents received a demand letter f[rom] the buyers on December 13, 1988 and a demand letter from the seller's attorney on February 21, 1989. . . .

       
       

   12. On or about April 19, 1989, the Respondents received or should have received a total earnest money deposit of $4,000 from Perry Silver, as buyer, and Charles Hennessey, as seller. The audit revealed no proof that the additional deposit of $2,000 as required by the contract dated April 19, 1989 was received by the Respondents. . . .

       
       

   13. The Respondents failed to timely notify the Florida Real Estate Commission of conflicting demands on the earnest money deposit on the contract, dated May 31, 1989, between C. McCanes and J. Steele, as sellers, and Jacqueline W. Mayers, as buyer. The buyer entrusted an earnest money deposit of

       $1,000 with the Respondents on or about May 31, 1989. The additional deposit of

       $4,000 as called for in the contract was never received by the Respondents. On

       June 1, 1989, the buyers made a demand on the earnest money deposit and on June 6, 1989 the seller made a demand for the earnest money deposit. . . .

       
       

   14. The Respondents, on or about May 16, 1989, did unlawfully disburse check number 0963 from the Respondents' escrow account number 55322000377 to the Respondents' operating account to cover office expenses.

       
       

       The Administrative Complaint further alleged that, "[b]ased upon the foregoing," Petitioner and Landmark were guilty of "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes"; "having failed to account and deliver a deposit in violation of Subsection 475.25(1)(d), Florida Statutes"; "having failed to maintain trust funds in [their] real estate brokerage escrow bank account or some other proper depository until disbursement thereof was properly authorized in violation of Subsection 475.25(1)(k), Florida Statutes"; and "having failed to notify the Florida Real Estate Commission upon receiving conflicting demands or having a good faith doubt as to who is entitled to an earnest money deposit according to Rule 21V-10.032, Florida Administrative Code and therefore in violation of Subsection 475.25(1)(e), Florida Statutes."

6. Petitioner had never before had a complaint filed against him.

7. On December 21, 1989, the Florida Real Estate Commission

   issued a Final Order in DPR Case Nos. 0163964 and 0164128 finding Petitioner guilty of the violations alleged in the Administrative Complaint and revoking his license, notwithstanding his unblemished disciplinary record. The Final Order read, in pertinent part, as follows:

   On December 5, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. On or about June 29, 1989, an Administrative Complaint was filed against Respondents. The Respondents admitted the allegations of fact. . . . The Respondents were properly served with the Notice of Hearing, appeared and presented matters in mitigation.

   
   

   Based upon the allegations of fact and upon the information provided to the Commission at its meeting of December 5, 1989, the Commission finds the Respondents guilty of violating s.475.25(1)(b), 475.25(1)(d),

   475.25(1)(e), and 475(1)(k), Florida Statutes, and Rule 21V-10.032, Florida Administrative Code, as charged in the Administrative Complaint.

   
   

   Therefore, the Commission ORDERS that the license of Respondent Philip Caprio be revoked. The Commission further ORDERS that Respondent Landmark Realty Inc. be reprimanded and that said Respondent pay an administrative fine of $1000.00 within 30 days of the date of this Order.

   
   

8. Petitioner did not appeal the Final Order.

   
   

9. Following the issuance of the Final Order, reimbursement was made to the victims of the violations of which Petitioner and Landmark had been found guilty.

10. The loss of Petitioner's real estate license has adversely affected his ability to make a living and support his

    family.

    
    

11. Petitioner is married to Teresa Caprio. He and Teresa have a twenty-five year old disabled daughter, who requires assistance in performing the normal activities of daily living. Before the revocation of Petitioner's license, the Caprios' daughter lived at home with them. Teresa was able to stay at home and care full-time for her daughter. After Petitioner's license was revoked, however, she no longer was able to do so, inasmuch as she needed to work outside the home to supplement the family income. The Caprios therefore had to place their daughter in a group home.

    
    

12. Although Petitioner has not been able to earn nearly as much as he did when he had his real estate license, he has been gainfully employed since the revocation of his license.

13. From 1989 to 1995, he worked for Potamkin Toyota (Potamkin), an automobile dealership. He started as a salesman at Potamkin. After approximately six months at the dealership, he was promoted to customer relations manager/weekend sales manager. He left the employ of Potamkin in 1995, following a change in management at the dealership.

14. Petitioner is now, and has been since July of 1995, employed by Central Florida Investments, Inc., d/b/a Westgate Miami Beach (Westgate), a seller of timeshare plans. He

    currently is a salaried employee occupying the position of finance manager, a position to which he was promoted after his first six months with the company. He will be unable to advance further in the company if he does not obtain a Florida real estate license.

15. In his position as finance manager, Petitioner takes deposits made by purchasers and prospective purchasers2 and delivers them to Westgate's contract office, which is approximately 20 feet from his office.

16. Using hidden security cameras, Westgate management closely monitors the workplace activities of Petitioner and his coworkers.

17. Petitioner has performed his job duties in a manner that has impressed Westgate management. He has proven to be a

    
    

    competent, reliable, responsible, honest, and trustworthy employee.3

18. Petitioner is involved in community activities.

    
    

19. He and his wife volunteer their time to operate the Rainbow Foundation, a non-profit organization that they formed two years ago to promote the growth of residential facilities for the developmentally disabled in the South Florida area.

20. It appears that since the revocation of his real estate license, Petitioner has rehabilitated himself and that therefore it is not likely that his relicensure would endanger the public.

    CONCLUSIONS OF LAW

    
    

21. Petitioner is seeking to be licensed as a real estate salesperson.

22. The Department of Business and Professional (Department) is the state agency responsible for licensing real estate salespersons in the State Florida. Section 475.181, Florida Statutes.

23. Pursuant to Section 475.181(1), Florida Statutes, the Department must "license any applicant whom the [Florida Real Estate C]ommission certifies to be qualified to practice as

    a . . . [real estate] salesperson."

    
    

24. Section 475.17, Florida Statutes, prescribes the qualifications that an applicant for licensure must possess. Subsection (1)(a) of Section 475.17, Florida Statutes, provides as follows:

    An applicant for licensure who is a natural person must be at least 18 years of age; hold

    
    

    a high school diploma or its equivalent; be honest, truthful, trustworthy, and of good character;4 and have a good reputation for fair dealing. An applicant for an active broker's license or a salesperson's license must 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 [C]ommission that the interest of the public and investors will not likely be endangered by the granting of registration

25. In the instant case, the Commission has preliminarily determined that Petitioner is not "qualified to practice as a

    . . . [real estate] salesperson" because his real estate license was previously revoked by the Commission.

26. The revocation of Petitioner's license in 1989 was not permanent, and therefore relicensure is possible. See Turner v. Department of Professional Regulation, 591 So. 2d 1136, 1137 (Fla. 4th DCA 1992); Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1378 (Fla. 1st DCA 1991); Jordan v. Department of Professional Regulation, 522 So. 2d 450, 452-53 (Fla. 1st DCA 1988); Holmes v. Department of Professional Regulation, Board of Nursing, 504 So. 2d 1338, 1340 (Fla. 1st DCA 1987); Wood v. Department of Professional Regulation, Board of Dentistry, 490 So. 2d 1079, 1081 (Fla. 1st DCA 1986); Section 475.25(3), Florida Statutes (1989)("The [D]epartment [of Professional Regulation] shall reissue the

    license of a licensee against whom disciplinary action was taken upon certification by the [C]ommission that the licensee has complied with all of the terms and conditions of the final order imposing discipline.").

27. Effective October 1, 1992, the following provision was added to Section 455.227, Florida Statutes:

    In the event the board, or the department when there is no board, determines that revocation of a license is the appropriate penalty, the revocation shall be permanent. However, the board may establish, by rule, requirements for reapplication by applicants whose licenses have been permanently revoked. Such requirements may include, but shall not be limited to, satisfying current requirements for an initial license.

    This provision is now found in subsection (5) of Section 455.227, Florida Statutes. On February 13, 1996, the Commission's Rule 61J2-24.005, Florida Administrative Code, became effective. It provides as follows:

    (1) Pursuant to s. 455.227(5), F.S., revocation of a license is permanent except for the following violation:

    
    

    (a) 61J2-3.015 -- filing an application for renewal of a license when the individual had not complied with the provisions of 61J2-

    3.009 or 61J2-3.020, whichever is applicable.

    
    

    (2) An individual whose license has been revoked for the above listed violation may not apply for a salesperson's license for a period of five (5) years after the date of filing of the final order revoking the license. The applicant must meet all the requirements for initial licensure as a salesperson, including examination, as required in ss. 475.17 and 475.175, F.S. The Commission may refuse to certify the

    applicant pursuant to ss. 475.17, 475.181 or and 475.25(1), F.S.

    
    

    Neither Section 455.227(5), Florida Statutes, nor the Commission's Rule 61J2-24.005, Florida Administrative Code, however, were in effect in 1989 when the Commission revoked Petitioner's real estate license, and they cannot be applied retroactively to make the revocation of Petitioner's license permanent and bar him from seeking relicensure. See Middlebrooks v. Department of State, Division of Licensing, 565 So. 2d 727, 728-29 (Fla. 1st DCA 1990); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990); Lewis v. Criminal Justice Standards and Training Commission, 462 So. 2d 528, 529 (Fla. 1st DCA 1985).

28. At the Section 120.57(1) hearing that was held in the instant case, the burden was on Petitioner to establish by a preponderance of the evidence that "because of lapse of time [since the violations that led to the revocation of his license] and [his] subsequent good conduct and reputation, or other reason deemed sufficient, . . . the interest of the public and investors will not likely be endangered by the granting of [his application for licensure as a salesperson]." See Pershing Industries, Inc., v. Department of Banking and Finance, 591 So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v. Department of Environmental Regulation,

    582 So. 2d 652, 654 (Fla. 1st DCA 1991); Department of Transportation v. J.W.C., Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981); Department of Health and Rehabilitative Services v. Career

    Service Commission, 289 So. 2d 412, 414-15 (Fla. 4th DCA 1974).

    
    

29. Petitioner has met his burden of proof.

    
    

30. By having presented at the Section 120.57(1) hearing held in this case unrefuted evidence of his good post-revocation conduct and reputation, he has established his rehabilitation and the absence of a likelihood that his relicensure (more than seven and a half years following the revocation of his license) would result in harm to any member of the public.

31. In view of the foregoing, the Commission should not decline to certify Petitioner as qualified to practice as a salesperson based upon the previous revocation of his license. See Aquino v. Department of Professional Regulation, 430 So. 2d 598 (Fla. 4th DCA 1983).5

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order finding that Petitioner is qualified to practice as a real estate salesperson.

DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997.

ENDNOTES

1 The hearing was originally scheduled for June 30, 1997, but was continued, at the Commission's request, due to the illness of its counsel.

2 Deposits are made by credit card, check, and cash. According to company policy, when a deposit is made by check, the check must be made out to Westgate.

3 Although in his early discussions with management, Petitioner did not mention that his real estate license had been revoked, at no time did he provide management with any false or misleading information concerning the matter, and he ultimately did advise management of the revocation.

4 "Good character" is "not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A person demonstrates a lack of "good character" when he engages in "acts and conduct which would cause a reasonable [person] to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).

5 The undersigned finds unpersuasive the argument advanced by the

Commission in its proposed recommended order that "the facts in Aquino are totally different from those in the instant case." As in Aquino, "[a]ll of the evidence [in the instant case] point[s] toward rehabilitation." During the period of his rehabilitation, Petitioner, like the applicant in Aquino, has "handled other people's money on a day-to-day basis . . . in a responsible and honest manner" and has developed "a reputation for fair and honest dealings."

COPIES FURNISHED:

Louis B. Stoskopf, Esquire 2809 Bird Road, Suite 269

Miami Florida 33133

Manuel E. Oliver

Assistant Attorney General

400 West Robinson Street, Suite 107 South Orlando, Florida 32801

Henry M. Solares, Division Director Division of Real Estate

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

Lynda L. Goodgame, General Counsel

Department of Business and 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 within 15 days from the date of 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: 97-001904

Orders for Case No: 97-001904