The Issue At issue is whether Respondent committed the offense alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Mayra Guzman, is now and has been at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number 0582273, in association with Terranova Corporation, a broker corporation, located at 1200 Brickell Avenue, Suite 1500, Miami, Florida. In 1997, the Department provided Respondent with a renewal notice, which reminded her that her salesperson license was due to expire September 30, 1997. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the renewal notice, as well as the appropriate renewal fee, and the Department renewed her license. At the time Respondent submitted her application, she knew that successful completion of 14 hours of continuing education was a requirement for renewal of her real estate salesperson license. In or about May 1998, the Department conducted a routine office inspection of Terranova Corporation. At that time, the Department requested proof that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning October 1, 1995, and ending September 30, 1997, that would support the renewal of her license in September 1997. Respondent was unable to produce written proof (a report of completion) that she had successfully completed the continuing education requirement prior to renewal; however, she did produce a report from Gold Coast School of Real Estate which noted she started the 14-hour continuing education (correspondence) course on January 1, 1998, and successfully completed the course on January 28, 1998. At the time, Respondent explained her failure to have proof of course completion prior to renewing her license, as follows: . . . In August of 1997, in order to renew my Florida Real Estate License, I requested the 14-hour course and test from Gold Coast School of Real Estate. I filled out all of the paperwork and returned it to Gold Coast as required. In September 1997 I sent in the renewal fee to the State. After a while I realized I hadn't received any confirmation from Gold Coast, so I called them. They stated they couldn't locate my paperwork and I therefore needed to pay for another book and test. I did so and in January 1998 I received confirmation that I had passed. . . . Notwithstanding, on August 18, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of fraud, misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 1 At hearing, Respondent reiterated her prior explanation that she had offered for not having written proof of having successfully completed the continuing education course prior to renewal and that, consequently, she had retaken the course in January 1998. Additionally, Respondent offered proof of payment for the course on August 6, 1997 (Respondent's Exhibit 1), and the following explanation of course completion, prior to license renewal, which led her to believe her completion of the course was successful and would lead, in due course, to written acknowledgment of successful completion by the school: Q. Prior to submitting your signed renewal notice, in order to comply with the continuing education requirement, did you obtain the correspondence course for the 14 hours from Gold Coast? A. Yes. Q. Did the correspondence cost include a course book and a test booklet? A. Yes, it did. Q. At the end of each chapter in the course book, was there a progressive quiz? A. There was a quiz, yes. Q. Were the answers for the quiz provided at the end of the course book? A. Yes. Q. Did you take the progressive quiz after concluding each chapter? A. Yes, I did. Q. For the total book, about how many incorrect answers did you have? A. I don't remember, but there wasn't many. It was fairly easy. Q. Was the test for continuing education course an open book test? A. Yes, it was. Q. After completing the test, did you forward the test booklet to Gold Coast for grading? A. Yes, I did. Q. Based upon your performance on the progressive quiz after each chapter, do you have any reason to believe that you had not passed the test? A. Absolutely not. I had no doubt that I passed the course. Q. Did you think that you had successfully completed the course? A. Yes. Q. Did you then submit the license renewal notice to the Division of Real Estate? A. Yes, I did. Q. After you received your license, did you realize that you had not received a course report certificate from Gold Coast? A. Immediately I didn't think about it. After awhile, I though, "Shouldn't I have gotten something back from the school telling me this?" But at the time, I thought that the school also sent it directly to the State, notifying them that I had passed the school. But I always like to keep proof of things, so I called the school and I asked them to see if they could send me the completion and they -- that's when I learned that I -- they didn't have anything. So I did it again. Here, Respondent's explanation was plausible, and her demeanor not wanting of candor or sincerity. Consequently, Respondent's testimony is credited, and it is resolved that, at the time she submitted her renewal application, Respondent did not intend to mislead or deceive the Department, nor did she act with reckless disregard for the truth.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 12th day of February, 1999.
Findings Of Fact Adopted in subsentence in Finding of Fact 6. Adopted in subsentence in Finding of Fact 3 and 8. Adopted in subsentence in Finding of Fact 8. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as unnecessary and/or subordinate. Rejected as unnecessary and/or subordinate. Rejected as a recitation of testimony and/or unnecessary. Rejected as a recitation of testimony and/or unnecessary. COPIES FURNISHED: Ruby Seymour-Campbell, Esquire 5739 Pembroke Road Hollywood, Florida 33023 Michael Mathis, Esquire Office of Licensure and Certification Post Office Box 210 Jacksonville, Florida 32231 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller Acting General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) be dismissed as moot. DONE and ORDERED this 1st day of May 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of May 1987. APPENDIX TO RECOMMENDED ORDER FOR DOAH CASE #86-3671 The following my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 \ Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to have his general contractor’s license re-instated.
Findings Of Fact The Petitioner received a license as a general contractor in 1984. At all times material to this case, the Petitioner was required to renew his license every two years. For the Petitioner, the renewal was due on or before August 31 of even numbered years. For example, the Petitioner’s license due for renewal in 2000 was due August 31, 2000. There are two types of licenses pertinent to this case: active and inactive. The renewal fees associated with these licenses are different. An inactive licensee pays a smaller renewal fee. The Respondent is responsible for maintaining records, collecting the appropriate fees, and processing license renewals for licensees. If a contractor fails to pay the requisite renewal fees when they are due the license automatically goes into a “delinquent status.” This status continues until the licensee makes good on the past due renewal fees and submits a complete renewal application. If the licensee does not remit the appropriate fees and completed application before the next licensing renewal period expires (the next two year cycle), the license becomes “null.” In this case, the Petitioner held an inactive license during the 1998-2000 two year-period. On or before August 31, 2000, the Petitioner should have submitted a complete application and paid the renewal fees to keep his license in good status. The Petitioner did not submit a complete application and did not remit the appropriate fees for renewal on or before August 31, 2000. Consequently, on September 1, 2000, the Petitioner’s license went into the delinquent status noted above. To clear this status the Petitioner was required to renew his license by submitting a complete renewal application with the appropriate fees on or before August 31, 2002. The Petitioner did not do so. Therefore, on September 1, 2002, the Petitioner’s license became “null” as a matter of law. The “null” status cannot be changed by paying unpaid fees. Instead, a licensee may either apply for and seek a new license or seek to re-instate the license. To that end, the Petitioner filed a request for reinstatement on or about June 9, 2006. When the Respondent denied the Petitioner’s request for reinstatement, the instant case ensued. Prior to August 31, 2002, the Petitioner did not contact the Respondent to relate personal tragedies, did not cure the delinquent renewal status, and did not pay the fees necessary to renew his inactive license. The Petitioner’s request for a refund (dated May 18, 2005) of the untimely fees paid in September 2002 was not approved. The Respondent provided no explanation for why the untimely fees were not refunded to the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for reinstatement of his license. The Respondent should, however, refund the Petitioner’s untimely paid fees. S DONE AND ENTERED this 28th day of March, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 28th day of March, 2007. COPIES FURNISHED: Rodney Williams 513 Northwest 22nd Avenue Apartment 4 Fort Lauderdale, Florida 33311-7773 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Florida Real Estate Appraisal Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Iris Adames, is now and was at all times material hereto, a registered real estate appraiser in the State of Florida, having been issued license number RI0003454. On or about March 21, 1996, Respondent filed an application (dated March 8, 1996) with the Department for licensure as a registered real estate appraiser. Pertinent to this case, item 11 on the application required that Respondent answer yes or no to the following question: Have you ever 1) been convicted of a crime, 2) pled nolo contendere to any crime? (This question applies to any violation of any municipality, county, state, or nation, including traffic offenses --but not parking, speeding, inspection, or traffic signal violations-- regardless of whether you were placed on probation, had adjudication withheld, were paroled or were pardoned.) Respondent responded to the question by checking the box marked "N[o]." The application concluded with the applicant's signature immediately below the following affirmation: . . . I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. . . . Contrary to Respondent's response to item 11 on the application, the proof demonstrates that on October 23, 1995, Respondent pled nolo contendere to the crime of uttering a worthless check, a first degree misdemeanor, in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida, Case No. 94-23154-CF-A. The court entered an order withholding adjudication of guilt, placed Respondent on probation for a period of six months, and imposed a fine and costs totaling $105.65. On September 18, 1997, the Florida Department of Business and Professional Regulation, Division of Real Estate (Florida Real Estate Commission or FREC) issued an Administrative Complaint against Respondent, as a licensed real estate salesperson. That complaint alleged, in pertinent part, as follows: At the time Respondent made application for a real estate license, Respondent was asked to indicate whether or not [s]he had "ever been convicted of a crime, found guilty, or entered a plea or nolo contendere (no contest), even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation . . . without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned." Respondent checked the "No" box. (Licensure Application, at Question 9). Respondent swore and attested that all answers and information contained in h[er] application were true and correct. Respondent's signature was duly notarized. On or about October 23, 1995, Respondent entered a plea of nolo contendere to one count of writing a worthless check, a first degree misdemeanor (§ 832.05, Fla. Stat.) A true and correct copy of the Order of Judgment is attached hereto, incorporated herein and made a part hereof by reference as Administrative Complaint Exhibit 2. Further, in connection with this investigation, mail addressed from Petitioner to Respondent was returned by the U.S. Postal Service noting that Respondent has moved without any forwarding address. COUNT I Based upon the foregoing, Respondent is guilty of obtaining a license by means of fraud, misrepresentation, or concealment in violation of § 475.25(1)(m), Fla. Stat. COUNT II Based upon the foregoing, Respondent is guilty of failing to timely advise Petitioner of a change of mailing address in violation of Rule 61J2-10.037, Fla. Admin. Code and, therefore, in violation of § 475.25(1)(e), Fla. Stat. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any of or all of the above penalties as provided by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. In addition to the foregoing, Petitioner requests an award of costs as provided by § 455.227(3), Fla. Stat. Respondent did not formally respond to the Administrative Complaint and on February 18, 1998, the Florida Real Estate Commission held a hearing on Petitioner's Request for an Informal Hearing and Motion for Final Order. Respondent was served with a copy of the notice of hearing and failed to appear. By final order dated February 18, 1998, and filed March 9, 1998, the Florida Real Estate Commission resolved the case, as follows: Upon a complete review of the evidence presented by the Department of Business and Professional Regulation, Division of Real Estate, the Florida Real Estate Commission finds: That the Respondent was properly served with the Administrative Complaint and failed to request a hearing or otherwise respond to the service of Administrative Complaint. See s. 120.60(5), Florida Statutes, and Rules 28- 5.111 and 28-6.009, Florida Administrative Code. That there are no disputed issues of material fact and, therefore, the Petitioner's Motion for an Informal Hearing, pursuant to s. 120.57(2), Florida Statutes, is granted. That the Petitioner has established a prima facie case. That the facts and legal conclusions contained in the Administrative Complaint are adopted as true and that violations of Chapter 475, Florida Statutes, have occurred, as stated in the Administrative Complaint, a copy of which is attached hereto as Exhibit A and made a part hereof. Therefore, the Commission ORDERS that the license of Iris Amor Adames be revoked. This Order shall be effective on date of filing with the Clerk of the Department of Business and Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, at Suite 309 North Tower, 400 West Robinson Street, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal. In her response to Count I of the Administrative Complaint, and again at hearing, Respondent explained she entered the plea of nolo contendere to the worthless check charge based upon advice of her court-appointed counsel even though (in her opinion) she was innocent of the charge. As for her negative response to the question posed on the application, Respondent averred she understood the judge to have directed her attorney to have her records sealed, she assumed he had done as directed, and consequently gave what she understood was an appropriate response to the question on the application. See Section 943.059(4), Florida Statutes. Here, Respondent's explanation for her failure to disclose her plea on her application is credited, and it is resolved that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing the application. In so concluding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter (and the propriety of her response to the question on the application) was, given her unfamiliarity with such matters, reasonable. 1/ Count II of the Administrative Complaint sought to take disciplinary action against Respondent based on the Final order of the Florida Real Estate Commission (FREC) which had disciplined (revoked) Respondent's licensure as a real estate sales person. As heretofore noted, that final order was premised on Respondent's failure to respond to a two-count Administrative Complaint. Count I was predicated on the same issue raised by the Department in the instant case, and Count II was premised on Respondent's "fail[ure] to timely advise [FREC] of a change in her mailing address." Here, Respondent explained her failure to respond to the FREC complaint as follows: . . . when I called Tallahassee, they told me that you have 48 hours to respond, or get a lawyer. I say excuse me, I cannot just go and get a lawyer. Because, why? Because, now in 1998, since December 1997, I've been into a domestic violence case, and I almost -- Me and my daughter almost got killed. And, in the meantime, the father of my child took my car, took every means for me to make my living. I was almost fighting all the time. December, January, February, I was fighting eviction. I was fighting the court. And, all the problems. And, I have all the paperwork here. And, I cannot take more stress. Now, you ask me my life -- My life, and the life of my child is priority. I cannot just go, and hire a lawyer. I don't have the money. I don't have the means. You have to give me more time. And to say that I am sorry it's only 48 hours, you should had [sic] been in response to this before, and that's it. When she told me that, what else can I do? So, I said well, fine. One day I will go back, and try to reopen the case. There is nothing that I can do at this moment. (Transcript, pages 28-30.) With regard to her failure to keep FREC informed regarding her current address, Respondent explained: The reason I didn't keep changing my addresses is because my realtor appraiser license, the person who supervised my work, Gary Eilen, he's the father of my child, he's the person who I get the injunction for. That's why sometimes I just tried to disappear from his life. And, when -- That's one of the complaints that I don't keep moving with my addresses, but he [could] get it from the state [if she informed the state of her new address. Therefore, for safety reasons, she chose not to notify FREC of her new address]. (Transcript, page 39.) Respondent's testimony was candid and credible, and her domestic problems (at the time of the FREC proceeding) well- documented. See Respondent's Exhibit 4. Had Respondent the means and opportunity to contest the FREC complaint, the conclusion of that proceeding would, most likely, have mirrored the conclusions reached in this case. In sum, given the conclusion reached here that (by her response to the application at issue in this case) Respondent did not intend to mislead or deceive the Department, a de minimus penalty should be imposed as a consequence of the FREC Final Order, which was essentially entered by default and premised on the same issue (of non- disclosure) raised in this case (and resolved favorably to the Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent not guilty of violating of Subsection 475.624(12), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further RECOMMENDED that the final order find the Respondent guilty of violating Subsection 475.624(6), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive a reprimand. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 25th day of October, 1999.
The Issue The issue for consideration in this case is whether the Respondent's license as a real estate broker in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Commission was the state agency responsible for the regulation of the real estate profession and the licensing of real estate professionals in Florida. The Respondent, Gabor A. Banfi, was licensed as a real estate broker in this state and has held a real estate license since 1981. In April, 1990, a claimant sued Banfi Realty, Inc., located at 807 NE 8th Street, Delray Beach, and owned by the Respondent, for allegedly concealing defects in a property he had sold. The claimant secured Final Judgement against Banfi Realty in August, 1990, amended in September, 1990 as to amount only. In November, 1990, the claimant sued Respondent indiovidually. Before that suit was judicially resolved, in January, 1991, Respondent and the claimant entered into a stipulation whereby Respondent would pay a lesser amount than was called for in either the suit against him or in the judgement against his company. Thereafter, in May, 1991, the claimant also got a judgement against the Respondent, and, after Respondent had paid 3 monthly payments of $25.00 each called for under the terms of the stipulation, on August 1, 1991, the claimant notified the Commission of a possible recovery fund claim. She asserted that her diligent search and inquiry had failed to locate any assets of Mr. Banfi to satisfy the final judgement. By Final Order dated October 16, 1991, the Commission paid the claimant $866.25 as the amount due from Respondent, and, coincidentally therewith, suspended Respondent's license as a broker until such time as he reimbursed the fund in full the amount paid the claimant. The certificate of service on this Final Order reflects that a copy was sent by US Mail to the Respondent at his Banfi Realty, Inc. address, 807 NE 8th Street, Delray Beach, on October 21, 1991. The evidence shows, however, that in April, 1990, approximately 18 months prior to the entry of the Commissions Final Order suspending his license, Respondent closed Banfi Realty, Inc. and went to work with Prudential Florida Realty in July, 1990. At that time, Respondent signed a request to register the Prudential Florida Realty as his employer and, to the best of his knowledge, the management of that firm was to forward this form to the Commission. Respondent believed this was done. However, he received neither confirmation of the change nor notice it had been denied. This did not disturb him, however, since his understanding was that no acknowledgment was sent out. He had renewed his license in April, 1990, and was not due to again renew until April, 1992. Petitioner failed to present any evidence to indicate whether Respondent's change of address was ever received by the Commission. The documentation in his licensure file kept at the Commission reveals that in February, 1992, Geraldine Spinella, Vice President of the Prudential office where Respondent went to work, wrote to the Commission and enclosed what purported to be a copy of the form 400.5 sent in on or about July 2, 1990, reflecting The Prudential Florida Realty, 160 SE 6th Avenue, Delray Beach, as his new employer. No evidence in rebuttal was submitted by the Department. Respondent unequivocally denied having received any notice of the Fund payment from the Commission. It is noted that approximately 30 days after Respondent signed the form 400.5 in July, 1990, The Prudential Florida Realty changed its name to FMT Holding Ltd., t/a The Prudential Florida Realty, and a second form 400.5, reflecting Respondent's new business address was sent in. In February, 1992, Respondent learned from an associate that the then most recent Commission newsletter reflected the Final Order regarding the Fund pay out and his resultant license suspension. On February 12, 1992, Respondent sent in his check to reimburse the Fund in full for its pay out. The accompanying letter reflected Respondent's home address of 2001 SW 15th Avenue in Boynton Beach. Nonetheless, the Department's letter of acknowledgment dated February 26, 1992 was sent to the invalid Banfi Realty, Inc. address. At the same time he sent in his repayment, Respondent had Prudential send in another request for employee registration change, (Form 400.5), which included a copy of the prior form sent in previously. (See FOF #6, supra.) Thereafter, Respondent's license was reinstated and renewed for 2 years on April 1, 1992. Respondent admits that during the period his license was suspended, he continued to operate and do business as a broker. He claims not to have known of the suspension, however, and asserts in support of his claim that he had been elected President of the Delray Beach Board of Realtors and consciously would have done nothing to jeopardize his ability to serve in that position or to jeopardize his ability to earn his living in the real estate profession. In late July, 1992, in response to an inquiry by Prudential, Respondent was advised that his address change had been entered on the Commission records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered concluding that Respondent had operated as a real estate broker in Florida without a valid and current active license therefor, but assessing no further penalty because of the mitigating circumstances shown to exist regarding notice to him of the existence of the suspension. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3326 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but noted that the service was made to Respondent's former address, a change from which had previously been noticed to the Commission. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Copies furnished: James H. Gillis, Esquire DPR - Division of Real Estate Suite N-308, Hurston Building 1400 W. Robinson Street Orlando, Florida 32801-1772 Gabor A. Banfi FMT Holding Company, Ltd. The Prudential Florida Realty 160 South 6th Avenue Delray Beach, Florida 33483 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Conclusions BRUCE ELLIOT ESQUINALDO, JR., ("Respondent"), and the DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION ("Department"), stipulate and agree to the following Stipulation and to the entry of a Final Order of the Florida Construction Industry Licensing Board ("Board"), incorporating this Stipulation and the agreement in this matter. STIPULATED FACTS 1. At all times material hereto, Respondent was a Certified Pool Contractor in the State of Florida, having been issued license number CP C050527. 2. Respondent was charged by Administrative Complaints filed by the Department and properly served upon Respondent with 21 violations of Chapters 455 and 489, Florida Statutes, and the rules enacted pursuant thereto. True and correct copies of the Administrative Complaints are attached hereto and incorporated by reference as composite Exhibit "A." 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED CONCLUSIONS OF LAW 1. Respondent, in his capacity as a licensed Contractor, admits that in such capacity he is subject to the provisions of Chapters 455 and 489, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts set forth in the Administrative Complaints, if proven, constitute violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED DISPOSITION 1. In order to facilitate this settlement, with regard to DBPR case number 97-14575/DOAH case number 9$8-3713/Jovellar, and DBPR case number 98-02110/DOAH case number 99-2655/Quadri, the Department agrees to withdraw its recommendation that a penalty be assessed against the Respondent consistent with the Administrative Law Judge’s Recommended Order, and the Respondent agrees to withdraw his Exceptions to the Recommended Order. 22 2. The following charges contained in the Administrative Complaints, attached hereto as composite Exhibit “A” shall be dismissed: DBPR case number 98-21934/Lopez Count III, and DBPR case number 99-05645/Rodriguez Count I and Count IT. 3. Respondent shall abide by Chapters 455 and 489 Florida Statutes, and the rules promulgated pursuant thereto. 4, Respondent shall pay Fifteen Thousand, Five dollars and Twenty Four cents ($15,005.24) to the Construction Industry Licensing Board. Of said payment, Six Thousand, Four Hundred Fifty dollars ($6,450.00) shall be allocated to the payment of a fine and Eight Thousand, Five Hundred Fifty Five dollars and Twenty Four cents ($8,555.24) shall be allocated to the payment of the Department's costs. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the Florida Construction Industry Licensing Board. Said payment shall be returned to the Department along with this Stipulation for presentation to the Board. The monies paid pending approval of this Stipulation by the Board shall be refunded to Respondent 4£ the Board rejects this Stipulation. 5. Respondent shall submit to the Executive Director of the Florida Construction Industry Licensing Board, proof of having satisfied the Final Judgments obtained by (1) Robert R. Bollard, in the amount of One Thousand, One Hundred Five dollars ($1,105.00), in DBPR case number 99-09009, and (2) Dennis Ryan in the amount of 23 Four Hundred Four dollars and Fifty Two cents ($404.52), in DBPR case number 99-00117. Respondent shall also submit proof to the Executive Director of the Florida Construction Industry Licensing Board, of having also made restitution to Karen and Joseph De Leonardo in the amount of One Hundred Sixty Nine dollars and Sixty cents ($169.60), in DBPR case number 99-08509. Such proof shall be provided within ninety (90) days of the filing of the Final Order in this matter. To assure payment of the Final Judgments and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days following the filing of the Final Order in this matter. If the ordered payments and proof of having made said payments are in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment, or proof of payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the Final Judgments and restitution in full, and proper submittal of proof of making such payments, the suspension imposed shall be lifted. 6. Respondent shall be on probation for three (3) years from the date of filing of the Board's Final Order in this matter. Respondent shall appear before the Probation Committee of the Board at such times as directed by the Executive Director, or as specified in the Final Order entered in this action. In connection with each probation appearance, Respondent shall answer questions under oath 4 24 and shall provide copies of all construction related monthly bank statements, financial statements reflecting a minimum net worth requirement as reflected in Rule 61 G4-15.005(3) (a), F.A.C., permit applications, contracts, and operations questionnaires since the entry of the Final Order in this matter if it is the first probation appearance or since the last probation appearance if it is other than the first probation appearance. In addition, the Respondent shall provide such other information and documentation as is requested by the Department, the Board or the Probation Committee. The Respondent shall forward said documentation to the Board in advance of the probation appearance. As a special condition of probation, the Respondent will, during the probation period, take corrective action and = obtain acknowledgements of satisfaction and/or proof from the applicable building departments, that the following projects and/or permits have been satisfactorily completed: DBPR case number 99-08509/DeLeonardo, DBPR case number 99~-08265/Pacheco, DBPR case number 99-10077/Toro, DBPR case number 99-00117/Ryan, and DBPR case number 99- 05645/Rodriguez. However, the Respondent shall not be required to meet any additional requirements for pool barriers imposed effective October 1, 2000, by Chapter 2000-143, Laws of Florida. Respondent shall initiate such corrective action prior to his first probation appearance. Further, the Respondent shall provide proof to the Board or the Probation Committee that documents the status of the corrective action taken in each of the projects identified above. 5 25 The Respondent shall forward such proof to the Board in advance of the probation appearance and such proof shall be in a form acceptable to the Probation Committee. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. The Respondent shall not rely on getting notice of said appearance from the Board or Department. Should Respondent violate any condition of this probation, it shall be considered a violation of Section 489.129(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, or if Respondent leaves the practice of contracting for thirty (30) days or more, the probation period shall be tolled, and shall resume running at the time Respondent reactivates the license and/or returns to the active practice of contracting, and Respondent shall serve the time remaining in the term of probation. To ensure successful completion of probation, the Respondent's licensure to practice contracting shall be suspended for the three (3) year period of probation, with the suspension stayed for the three (3) year period of probation. The time of the suspension and the stay shall run concurrently with the period of probation, except as provided otherwise in the Final Order. If the Respondent 6 26 successfully completes probation, the suspension shall terminate. If the Respondent fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the Respondent shall. remain in suspended status unless and until a further stay is granted by the Board. 7. It is expressly understood that this Stipulation is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs of the Stipulated Facts, Stipulated Conclusions of Law and Stipulated Disposition) shall have no force and effect unless a Final Order incorporating the terms of this Stipulation, is entered by the Board. 8. Should this Stipulation be rejected, no statement made in furtherance of this Stipulation by the Respondent may be used as direct evidence against the Respondent in any proceeding. 9. Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaints attached as composite Exhibit "A" herein. 10. Upon the Board's adoption of this Stipulation, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial review of or to otherwise challenge or 7 27 contest the validity of the Stipulation of Facts, Conclusions of Law, the Stipulated Disposition, and the Final Order of the Board incorporating said Stipulation, or any part thereoz. 11. Upon the Board's adoption of this Stipulation, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this disciplinary proceeding, and the Department waives the right to seek any additional fees or costs from the Respondent in connection with this disciplinary proceeding. 12. Upon the Board's adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f) and 489.129, Florida Statutes. 13. This Stipulation is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Stipulation. Should this Stipulation not be accepted by the Board, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. Further, if necessary, and in order to facilitate 28 consideration of this Stipulation, the Respondent waives the requirement that the cases referenced above be heard at Final Action by a quorum of the Florida Construction Industry Licensing Board. ASKaay of WA 2000. SIGNED this QUINALDC, JR. STATE OF FLORIDA COUNTY OF Leéors The Forsgoing instrument was acknowledged before me this ag day of te "4 2000, by BRUCE ELLIOT ESQUINALDO, JR. who is ho did take an oath. eae. 67-4Skh- O ; . hit, Shiney B Walker My Commission Expires: * Bak My Commission CC873206 “yma” Expires September 22, 2003 , 2000. DSP/ms ESQUINALDO 9/20/00 s-const.stp 29
