STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-3055

)

JOHN A. KITZMILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in St. Petersburg, Florida, on November 4, 1998. The following appearances were entered:

APPEARANCES

For Petitioner: Steven W. Johnson, Senior Attorney

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

For Respondent: John A. Kitzmiller, pro se

2613 59th Street, South

St. Petersburg, Florida 33707 STATEMENT OF THE ISSUE

Whether the Respondent operated as a salesperson without being the holder of a valid and current license as a real estate salesperson, in violation of Section 475.42(1)(a), Florida Statutes, and therefore in violation of Section 475.25(1)(e),

Florida Statutes.

PRELIMINARY STATEMENT

In the Administrative Complaint, filed May 20, 1998, the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, alleged that the Respondent violated a certain provision of Florida law. The Respondent disputed the charge and requested a Section 120.57(1), Florida Statutes, hearing. This matter was referred to the Division of Administrative Hearings on July 13, 1998, and it was set for hearing. This matter was transferred to the undersigned and a formal hearing was held on November 4, 1998.

At hearing, the Petitioner offered eight Exhibits which were received into evidence. Two persons, Joseph Sparra and Investigator Wayne Ramberac were called as witnesses by the Petitioner. The Respondent testified in his own behalf and offered four exhibits in evidence. The hearing was recorded, but not transcribed. The parties were given until November 16, 1998, in which to file proposed findings of fact and conclusions of law. Petitioner filed its proposals in November 16, 1998.

Respondent has not filed proposals as of the date of this order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the 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. The Respondent is and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0475436 in accordance with Chapter 475, Florida Statutes.

3. The last license was issued to Respondent as a salesperson c/o Dolphin Realty Referral Inc., 2525 Pasadena Avenue, Suite L., South Pasadena, Florida 33707.

4. On December 18, 1996, Respondent presented a written offer to listing agent Sharon Simms for property located at 3900 48th Avenue, South, St. Petersburg, Florida.

5. In connection therewith, Respondent, who was the building contractor for buyer Joseph S. Sparra, accepted a $2,000 deposit which was placed in the escrow account of Dolphin Realty Referral Inc., of which Thomas J. Hassel was qualifying broker. Hassel drafted the contract and qualified Joseph S. Sparra with Sigmund Financial for a first mortgage.

6. The Respondent was employed by Hassel as an independent contractor.

7. Thomas Hassel, the Respondent's employing broker, advised him that he was not sure Respondent's license was active, but the Respondent made no attempt to contact the Petitioner to ascertain his licensure status.

8. On January 24, 1997, the Respondent accompanied

   Joseph S. Sparra to the closing at Anclote Title Services, where the Respondent provided the escrow money and accepted a $5,780 commission check on behalf of Dolphin Realty Referral, Inc.

9. During the entire transaction, Respondent was not properly licensed with Dolphin Realty Referral, Inc., nor with any other real estate brokerage. Respondent's license was involuntarily placed on inactive status from January 1, 1996, through July 20, 1997, due to no employing broker.

10. Hassel later advised Respondent that his license was not transferred to the new corporation when the broker changed its name from Dolphin Realty of Pinellas County to Dolphin Realty Referrals, Inc.

11. The Respondent did not accept a share of the commission on the house in St. Petersburg, Florida.

12. Respondent did not participate as a real estate salesperson in any other transaction while his license was on inactive status.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Subsections 120.569, 120.57(1), and 120.60, Florida Statutes.

14. Revocation of license proceedings are penal in nature; State ex rel Vining v. Florida Real Estate Commission, 281 So. 2d

    487 (Fla. 1973) and must be construed strictly in favor of the

    one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate,

    592 So. 2d 1136 (Fla. 1st DCA 1992); Fleischman v. Department of Professional Regulation, 441 So. 2d 1121 (Fla. 3d DCA 1983).

15. The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing evidence the allegations in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. Subsections 475.25(1)(a) and (e), Florida Statutes (1997), as it pertains to the alleged facts in this matter read, in pertinent parts:

    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 . . . if it finds that the licensee. . . .

       
       

       1. Has violated any provision of Section 455.227(1) or 475.42.

          
          

          * * *

          
          

          (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. . . .

          
          

17. Subsection 475.42(1)(a), Florida Statutes, reads in pertinent part:

    1. Violations.--

       
       

       (a) No person shall operate as a . . . salesperson without being the holder of a valid and current active license therefor.

       
       

18. Relative to the above statutory prohibitions, the Commission's disciplinary guidelines are codified in Rules

    61J2-24.001(2) and (3), Florida Administrative Code. These rules provide that the Respondent may be fined up to $1,000 per count in addition to other disciplinary penalties.

19. The above rules also provide that when "aggravating or mitigating circumstances" can be demonstrated to the Commission by clear and convincing evidence, the Commission shall be entitled to deviate from the above guidelines in imposing discipline upon a licensee. These circumstances include, inter alia, the severity of the offense, the degree of harm to the consumer or public, and the number of counts in the Administrative Complaint.

20. The Petitioner presented clear and convincing testimony and evidence that the charge in the Administrative Complaint relating to Respondent occurred as alleged, and therefore the Respondent should be fond guilty of the charge.

21. The Respondent was responsible for maintaining his real estate salesperson's license in good standing, but nevertheless failed to do so while performing acts regulated by Chapter 475, Florida Statutes.

22. The Respondent does not deny being the holder of an

    inactive license at the time of the Sparra transaction. However, that transaction appears to be the only real estate activity the Respondent engaged in during the relevant time.

23. The Respondent works primarily in the construction field and maintained a license to facilitate his construction business.

24. Because the Respondent is a salesperson, he is charged with knowledge of Chapter 475, Florida Statutes, which controls the actions of real estate salespersons, brokers, appraisers, and schools. The Respondent is charged with knowledge of specific pertinent provisions which require him to be properly licensed

    
    

    before performing brokerage acts. Wallen v. Dept. of Pro. Regulation, 568 So. 2d 975 (Fla. 3rd DCA 1990).

25. The Petitioner's proof is clear and convincing, and is sufficient to justify the imposition of a penalty within the range of those provided for in the above-cited statutory authority. The Respondent clearly failed to live up to the standards expected of and required of licensed real estate professionals as stated above, because of his negligence in attending to his licensure status.

26. In mitigation, the Respondent only performed one transaction and did not accept a commission for his services, and the broker made the change in name without informing Respondent.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED as follows:

1. The Florida Real Estate Commission issue a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(a) and (e), Florida Statutes, as charged in the Administrative Complaint; and,

2. Impose an administrative fine of $500 and require Respondent to complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission.

DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998.

COPIES FURNISHED:

Steven W. Johnson, Senior Attorney Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802

John A. Kitzmiller, pro se 2613 59th Street, South

St. Petersburg, Florida 33707

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

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: 98-003055

Orders for Case No: 98-003055