STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

SIDNEY J. WHITE,

Respondent.

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) Case No. 06-3666PL

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RECOMMENDED ORDER

A formal hearing regarding this cause was held before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings on November 8, 2006, by video teleconference between Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: D. C. Lindamood, Esquire

Department of Business and Professional Regulation

400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a),

Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and

Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.

PRELIMINARY STATEMENT

On August 18, 2006, Petitioner filed a two-count Administrative Complaint against Respondent, alleging that Respondent violated the statutes and rule set forth above. Respondent disputed the allegations of material fact alleged in the Administrative Complaint and timely requested a formal hearing. This matter was referred to the Division of Administrative Hearings on September 19, 2006. During discovery, Petitioner submitted two letters, with attachments, in his defense. Respondent also responded to Petitioner's First Request for Admissions on October 3, 2006.

The formal hearing was scheduled for November 8, 2006, by video teleconference between Tallahassee and Orlando, Florida. Petitioner was present and ready to proceed. Respondent, who currently resides in Raleigh, North Carolina, did not appear and had not made arrangements to appear and testify by telephone.

Prior to the hearing, on October 30, 2006, Respondent spoke by telephone to Petitioner's counsel, indicating that Respondent would not attend the hearing on November 8, 2006.

At the hearing, Petitioner submitted two exhibits, Petitioner's First Request for Admissions to Respondent Sidney

J. White and Petitioner's Certification under Seal as to the license history of Respondent, which were admitted into evidence. Official Recognition of the above statutes and rule was taken.

A transcript of the hearing was taken, but not transcribed.

Petitioner submitted its proposed recommended order on November 27, 2006. Respondent has not submitted post-hearing submittals as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes.

2. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction.

3. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with

   Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232.

4. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004.

5. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker.

6. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive

   sales associate.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).

8. In the Administrative Complaint, Petitioner seeks to impose penalties against Respondent, including suspension or revocation of his license and/or the imposition of an administrative fine. Petitioner, therefore, has the burden of

   proving the allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance,

   Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Nair v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

9. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court defined "clear and convincing evidence" as

   follows:

   
   

   Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

   2d 797, 800 (Fla. 4th DCA 1983).

   
   

10. Petitioner satisfied its burden of proof as to Count I. Petitioner demonstrated by clear and convincing evidence that Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes, by acting as a broker or sales

    associate without being the holder of a valid and current broker or sales associate license.

11. Petitioner satisfied its burden of proof as to Count II. Petitioner demonstrated by clear and convincing evidence that Respondent violated Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code

    Rule 61J2-10.025 by publishing or causing to be published an advertisement for the sale of real properties and advertising himself to be a broker at a time that Respondent's license was inactive for failure to renew.

12. Subsection 475.25(1), Florida Statutes, sets forth a range of penalties when the licensee has acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license or when the licensee has advertised property or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.

13. Florida Administrative Code Rule 61J2-24.001(3)(w) sets forth suspension or revocation as guideline penalties for a violation of Subsection 475.25(1)(a), Florida Statutes.

14. Florida Administrative Code Rule 61J2-24.001(3)(d) sets forth a $1,000 fine and up to a one-year suspension as guideline penalties for violation of Subsection 475.25(1)(c), Florida Statutes.

15. Petitioner's proof, being clear and convincing, is therefore sufficient to justify the imposition of a penalty

    within the range of those provided for in the above-cited statutory authority.

16. Although Respondent submitted documents which he hoped would be considered as exculpating or mitigating in nature, nevertheless, Respondent did not appear at the formal hearing and the documents cannot be considered. Therefore, no mitigating circumstances have been shown or proven. See Fla. Admin. Code R. 61J2-24.001(4).

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50.

DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida.

S

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th of December, 2006.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2004), unless otherwise indicated.

COPIES FURNISHED:

D. C. Lindamood, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757

Sidney J. White

100 Northbrooke Drive, Penthouse 302 Raleigh, North Carolina 27609

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Nancy B. Hogan, Chairman Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32801

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: 06-003666PL

Orders for Case No: 06-003666PL