STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 99-0958

)

DONALD L. BRADY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 12, 1999, in West Palm Beach, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

400 West Robinson Street, Suite N308 Orlando, Florida 32802-1900

For Respondent: Donald L. Brady, pro se

2918 29th Court

Jupiter, Florida 33477 STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged in the Administrative Complaint dated January 26, 1999, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated January 26, 1999, the Department of Business and Professional Regulation ("Department") charged that Donald L. Brady violated Section 475.42(1)(a), Florida Statutes, by operating as a real estate salesperson without holding a valid and current license and was, therefore, guilty of violating Section 475.25(1)(e), Florida Statutes.

Mr. Brady timely requested a formal administrative hearing, 1/ and the Commission transmitted this case to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was conducted on August 12, 1999.

At the hearing, the Department presented the testimony of Jonathan Platt, an Investigative Specialist employed by the Department, and David S. Taylor. Petitioner's Exhibits 1 and 2 were offered and received into evidence; Petitioner's Exhibit 1 was received subject to the limitation on the use of hearsay evidence set forth in Section 120.57(1)(c), Florida Statutes.

Mr. Brady testified in his own behalf and presented the testimony of Darleen Bothe and Donald Brown. Respondent's Exhibits 2 and 3 were offered and received into evidence.

A transcript of the proceedings was filed with the Division of Administrative Hearings, and the Department timely filed its proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints against persons holding licenses as real estate brokers and salespersons. Section 455.225, Florida Statutes.

   The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for imposing discipline on those holding real estate broker or salesperson licenses. Sections 475.02 and 475.25, Florida Statutes.

2. On or about July 11, 1996, John and Darleen Bothe, as buyers, and John Zucarelli, as seller, entered into a contract to purchase and sell real property located in Rolling Hills, Florida.

3. Donald L. Brady was the real estate salesperson who represented Mr. and Mrs. Bothe in the transaction, and David Taylor represented Mr. Zucarelli.

4. Mr. Brady represented in the Contract for Sale and Purchase executed July 11, 1996, and in addenda thereto, that, for purposes of the transaction, he was the real estate licensee and Westar International was the brokerage firm with which he was associated.

5. Although the real estate transaction closed, neither Westar International nor Mr. Brady received any commission on the transaction. The commission that was to have been paid to Westar International was placed into an escrow account by the closing agent when Mr. Brady was unable to present the license of his supervising broker at the closing.

6. At the time of the transaction, Mr. Brady's supervising broker, David A. Brady, was not licensed as a real estate broker because he had failed to renew his license. Mr. Brady was not aware at the time that his broker was not licensed.

7. At the time of the transaction, Donald L. Brady had a valid and current license as a real estate salesperson, license number 0537988, which was effective from April 1, 1995, through March 31, 1997. 2/

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

9. Because the Department included in its Administrative Complaint the penalties of license revocation or suspension or imposition of an administrative fine among the possible penalties which could be imposed were Mr. Brady found guilty of the charge against him, the Department has the burden of proving Mr. Brady guilty of this charge by clear and convincing evidence. See

   Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996); see also Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Section 475.25(1), Florida Statutes (1995), gives the Florida Real Estate Commission the authority to impose discipline on a real estate licensee "if it finds that the licensee, . . .

    (a) Has violated any provision of s. 455.227(1) or of s. 475.42."

    
    

11. The Department charged Mr. Brady with violating Section 455.42(1)(a), Florida Statutes (1995), which provides that "[n]o person shall operate as a broker or salesperson without being the holder of a valid and current active license therefor."

12. Based on the findings of fact herein, the Department has not met its burden of proving by any quantum of evidence that Mr. Brady violated Section 475.42(1)(a), and the proof also fails to establish a violation of Section 475.25(1)(a).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Donald L. Brady did not violate Section 475.42(1)(a), Florida Statutes (1995), and dismissing the Administrative Complaint.

DONE AND ENTERED this 14th day of October, 1999, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1999.

ENDNOTES

1/ In the Administrative Complaint dated January 26, 1999, the Department also charged David A. Brady with violating

Section 475.42(1)(a), Florida Statutes, and, therefore, Section 475.25(1)(e), Florida Statutes, and with violating

Section 475.25(1)(b), Florida Statutes. David A. Brady did not request an administrative hearing.

2/ The only evidence on which the Department based its proposed finding of fact that "[d]uring the time of the transaction, the license of Respondent Donald Brady, was invalid due to no employing broker," is the statement to that effect contained in a document that purports to be a "Certification" by the Director of the Division of Real Estate. In that document, the Director states that, "ACCORDING TO THE FILES AND RECORDS MAINTAINED BY THE RECORDS SECTION WHICH ARE WITHIN MY CUSTODY AND CONTROL," he

certifies "that from January 1, 1996 through September 15, 1996 DONALD LEWIS BRADY was not in compliance to operate in an active status due to no employing broker."

The "Certification" itself is hearsay evidence unsupported by any other evidence in the record. Contrary to the statement of the Department in paragraph 15 of its Proposed Recommended Order, this document is not Mr. Brady's "certified licensure record." See Sections 90.803(8) and 90.902(4), Florida Statutes. The statement of the Director regarding the status of Mr. Brady's license from January 1, 1996, through September 15, 1996, is also hearsay, and, moreover, the statement merely recites the Director's legal conclusion regarding the status of Mr. Brady's

license during the time specified rather than facts derived from Mr. Brady's licensure record and supported by copies of documents contained in that record and attached to the "Certification."

On the other hand, both the testimony of the Department's investigator, Jonathan Platt, and a copy of Mr. Brady's license in effect at the time, which was received into evidence without objection, establish that Mr. Brady's real estate salesperson license was valid and active at the time of the transaction.

COPIES FURNISHED:

Ghunise Coaxum, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street, Suite N308 Post Office Box 1900

Orlando, Florida 32802-1900

Donald L. Brady 2918 29th Court

Jupiter, Florida 33477

Herbert S. Fecker, Division Director Division of Real Estate

Department of Business and Professional Regulation

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

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 99-000958

Orders for Case No: 99-000958