Findings Of Fact Petitioner is a franchised truck dealer for three manufacturers, including Respondent. The parties entered into a three-year franchise agreement on September 17, 1986, which agreement took effect on September 15, 1986 (Dealer Agreement). Under the Dealer Agreement, Petitioner is assigned a 12-county area that includes Polk County, Florida. In March, 1987, John Drakesmith entered into negotiations with R. N. Heintzelman for the purchase of all of the stock of Petitioner. The negotiations culminated in the execution on July 8, 1988, of an Agreement for Purchase, Sale and Redemption of Stock in Heintzelman's Truck Center, Inc. (Stock Purchase Agreement). The transaction was closed on the same day, and Mr. Drakesmith, as the new owner of Petitioner, assumed the management of Petitioner's business at that time. The Dealer Agreement provides that, to the extent permitted by local law, Respondent may terminate the agreement prior to its expiration date in the event of "[a]ny change... in the ownership or active management of [Petitioner] from that indicated [as described above], without the prior written consent of [Respondent]." The Dealer Agreement provides that, to the extent permitted by local law, Respondent may terminate the agreement prior to its expiration date in the event of "[a]ny actual or attempted assignment of this Agreement or any right or obligation hereunder." Around the end of May, 1987, one of Respondent's regional sales managers learned of the negotiations between Mr. Drakesmith and Mr. Heintzelman. On June 24, 1987, J. L. Brown, Respondent's director of dealer relations, telephoned Mr. Drakesmith at his Ford truck dealership in Cleveland to discuss his impending purchase of the stock of Petitioner. Mr. Drakesmith confirmed that a sale was taking place. Mr. Brown indicated that he and some other representatives of Respondent were going to be in Cleveland and would like to meet Mr. Drakesmith. They tentatively agreed to meet on July 2, 1987. By letter dated June 24, 1987, Mr. Brown confirmed the conversation of the same day. The letter informed Mr. Drakesmith that the Dealer Agreement "is a personal service agreement which can not be transferred or assigned." Accompanying the letter was an application package for a Western Star franchise. On July 2, 1987, Mr. Brown, Dennis Trittin, Respondent's parts and service representative, Mr. Roland Smith, Respondent's regional sales manager for the region including Florida, and Richard Dean, Respondent's Great Lakes regional sales manager, met with Mr. Drakesmith at his Cleveland dealership. Respondent's representatives told Mr. Drakesmith that they were looking forward to his marketing their product more aggressively than Mr. Heintzelman had in the past. They discussed Mr. Drakesmith's possible interest in handling Western Star trucks in his Cleveland dealership. Mr. Brown left Mr. Drakesmith with another copy of the application package. Following the July 2 meeting, Mr. Drakesmith concluded that Respondent was very favorably disposed toward having him as a dealer, although he recognized that he had not yet been formally approved. By letter dated July 8, 1987, Mr. Brown confirmed their July 2 discussion of Mr. Drakesmith's "interest in representing the Western Star product line in Orlando and possibly Cleveland." He added that he was looking forward to receiving the completed documentation "in order to formally complete the application process for the Orlando Dealership." Mr. Drakesmith mailed the completed application, together with some but not all materials, to Respondent on July 13, 1987. The materials were mailed to Respondent at the address shown in the application as that to which the application should be mailed. Respondent had moved from that address over one year earlier. When the application package was returned to Petitioner a few days later as undeliverable, Mr. Drakesmith had it remailed promptly to Respondent's correct address. The remailed package was never received by Respondent or, if received, lost prior to its delivery to Mr. Brown, who never received it. Two or three weeks after the closing, Mr. Smith visited Mr. Drakesmith at Petitioner's dealership. At the time, Mr. Heintzelman and his former general manager, Harry Gates, were both gone. The purpose of the visit was for Mr. Smith and Mr. Drakesmith to get acquainted with each other. Sometime after his visit and before September 15, 1987, Mr. Smith told Mr. Brown by telephone that Mr. Drakesmith had taken over Petitioner and was operating the dealership. Between Mr. Smith's visit in late July and September 15, 1987, Mr. Drakesmith had one or two telephone conversations with Mr. Smith concerning pending orders for trucks that Petitioner had submitted and sales in general. At no time during the visit or telephone calls did Mr. Smith mention the receipt, nonreceipt, or approval of Mr. Drakesmith's application. In August, 1987, Respondent received an expression of interest from a third party for a dealership including the Polk County area. At the time, Respondent had no dealers in Florida except for a dealer in Jacksonville and Petitioner. By letter dated September 15, 1987, Mr. Brown gave Mr. Heintzelman, addressed at Petitioner's dealership, notice of the termination of the Dealer Agreement, effective 90 days from the date of the receipt of the letter. The grounds for the termination were that Petitioner had breached the Dealer Agreement by assigning or attempting to assign the agreement and changing its active management or selling or otherwise changing its ownership without Respondent's prior written consent. The letter also stated that Petitioner had violated Florida statutory law by changing its executive management or ownership or assigning the agreement without first giving Respondent written notice and without providing Respondent with the opportunity and information necessary to evaluate and, if appropriate, object to the new owner, manager, or assignee. Copies of the letter were provided to Mr. Drakesmith and the Florida Department of Highway Safety and Motor Vehicles (Department). Mr. Drakesmith telephoned Mr. Brown on or about September 17 to object to the termination. Mr. Brown explained that he had felt that Mr. Drakesmith had lost interest in the Western Star franchise because he had not bothered to submit his application. When Mr. Drakesmith replied that he had sent it in, Mr. Brown said that he had not received it and suggested that Mr. Drakesmith resubmit it. On September 22, Mr. Drakesmith resubmitted the application materials that he had mailed on July 13 and remailed a few days later. After additional materials were requested and provided, Mr. Brown offered Petitioner a new dealer agreement with the same territory as in the Dealer Agreement, except that Polk County would be replaced by two less profitable counties. By letter dated September 22, 1987, the Department informed Petitioner of its receipt of a copy of the September 15 letter and informed Petitioner of its right to protest the proposed cancellation. The letter called Petitioner's attention to Section 320.641(3), Florida Statutes, which was cited in full. The letter also contained a copy of Sections 320.60-320.70, Florida Statutes. The letter informed Petitioner that it had 90 days from the date of the September 15 letter within which to file with the Department a "verified (notarized) complaint" for a determination of an unfair cancellation of the Dealer Agreement. By letter dated October 23, 1987, Petitioner notified the Department of its protest of the intended cancellation. The letter was signed by Mr. Drakesmith as president of Petitioner. The letter bore only the signature of Mr. Drakesmith, which was not notarized. The letter did not contain any information beneath Mr. Drakesmith's signature and title. As a result of a conversation between Henry C. Noxtine of the Department and Mr. Drakesmith, Mr. Drakesmith learned that his October 23 letter did not meet the verification requirement. Lacking the original letter, Mr. Drakesmith had an employee of Petitioner, Eileen C. Mercer, retype the letter and add in the lower right-hand corner of the second page the notation, "Signed before me this Oct. 29, 1987." She then signed beneath the notation and added her notary's stamp showing that her commission expires August 28, 1990. The record does not reflect whether Ms. Mercer applied her notary's seal to the letter. However, at no time did Ms. Mercer require Mr. Drakesmith to swear or affirm that the information in the October 23 letter was true and correct. Following the above-described additions, the letter was promptly resubmitted to the Department. By letter dated November 24, 1987, the Department transmitted the file to the Division of Administrative Hearings on the sole issue of the propriety of the cancellation of Dealer Agreement. The Department's transmittal letter, a copy of which was sent to and received by Mr. Drakesmith, noted that the Department had received a "verified" complaint from Petitioner. Mr. Drakesmith personally performs the duties of a general manager at Petitioner's dealership. Mr. Drakesmith is of good moral character. At no time has Respondent filed a verified complaint for a determination of Mr. Drakesmith's moral character.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the complaint of Petitioner for lack of subject-matter jurisdiction. ENTERED this 15th day of July, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of July, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-5308 Treatment Accorded Petitioner's Findings 1-2. Adopted in substance. Adopted, except that the last sentence is rejected as contrary to the evidence. Adopted, except that the Stock Purchase Agreement was signed on July 8, 1987, and by other parties as well. Adopted in substance. Rejected as irrelevant and legal argument. 7-9. Adopted. 10-11. Adopted in substance. 12-13. Adopted. Adopted, except that reliance is irrelevant. Adopted in substance. 16,18. Adopted. 17. Rejected as irrelevant. Treatment Accorded Respondent's Findings 1,3,4. Adopted. 2. Rejected as irrelevant. Adopted in substance. Rejected as irrelevant. Adopted. 8,14,16. Rejected as irrelevant. 15. Adopted in substance. 17,18. Adopted. 19-21. Rejected as irrelevant. 22-23. Adopted. Adopted in substance. However, the materials that Mr. Drakesmith sent to Respondent and when he sent them is irrelevant. Rejected as recitation of testimony and cumulative. Adopted, except that second sentence is rejected as irrelevant. Rejected as irrelevant. 28,29. Adopted in substance. 30-32. Rejected as irrelevant. Adopted. Adopted in substance. 35-37. Rejected as irrelevant. Adopted, except that last 17 words are rejected as irrelevant. Adopted, except that the cause offered for the Issuance of the termination notice is against the greater weight of the evidence. 40-44. Adopted. Rejected as irrelevant. Adopted in substance. Rejected as unclear. Adopted, except that the last 16 words are rejected as legal argument. 49-51. Adopted in substance. 52-57. Rejected as irrelevant. COPIES FURNISHED: Joseph E. Foster, Esquire Akerman, Senterfitt & Eidson Post Office Box 231 Orlando, Florida 32802 Dean Bunch, Esquire Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechlser, P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 Enoch John Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Is Respondent guilty of operating as a real estate 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 thereby in violation of Section 475.25(1)(e), Florida Statutes?
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of Florida related to the practice of real estate. Authority for the conduct of Petitioner's duties is found in Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and associated rules. At present, Respondent holds a license as a real estate salesperson, license no. SL0631299, issued by Petitioner. From January 3, 1997, until February 13, 1998, Respondent was employed as an active salesperson in association with Marita Ann Dorr, Inc. (the Dorr firm), a broker corporation trading as Home Town Property Management. During that time Marita Dorr served as Respondent's employing broker. The Dorr firm was located at 109 West Lakeview Street, Lady Lake, Florida 32159. Respondent's duties during the time she was affiliated with the Dorr firm was that of an independent contractor real estate salesperson engaged in the sale of real estate at Sandlewood Condominiums, in Wildwood, Florida. In that time period, Respondent was also acting as the manager of Sandlewood Condominiums, which involved bookkeeping, supervision of maintenance, and serving as a receptionist. On February 13, 1998, Ms. Dorr informed Respondent that Respondent was terminated as a real estate salesperson affiliated with the Dorr firm. On that same date Ms. Dorr executed a form 400.5 which reflected the request for change of status in Respondent's license, noting that Respondent was terminated from employment with the Dorr firm. That form was received by Petitioner on February 13, 1998. In addition, Ms. Dorr wrote to Respondent on February 13, 1998, to enclose the executed form 400.5 noting the termination of Respondent's employment of the Dorr firm. On February 17, 1998, Respondent received the letter and a copy of the request for change of status of her license under form 400.5. From February 14, 1998, through March 22, 1998, Respondent did not have a current active license to practice real estate as a salesperson because Respondent was not associated with a real estate broker. Mr. Michael D. Remmel was interested in possibly purchasing a condominium unit at the Sandlewood Condominiums and had a conversation with Respondent concerning the possible purchase. His initial contact with Respondent predated her termination as a real estate salesperson affiliated with the Dorr firm. On February 17, 1998, after being told that she was terminated and receiving the letter from Ms. Dorr with the attached form 400.5, concerning the termination, Respondent again had contact with Mr. Remmel about the possible purchase of a condominium unit. Mr. Remmel initiated that purchase contract. On February 17, 1998, Mr. Remmel made an offer to purchase a unit in the Sandlewood Condominiums by executing a contract for sale and purchase as buyer. Respondent helped complete the contract form in its details by filling out the form, with the exception of Mr. Remmel's signature. The form noted that Home Town Property Management was the cooperating broker. A copy of the contract for sale and purchase is found as Petitioner's Exhibit No. 1. At the time that Respondent assisted Mr. Remmel in preparing the contract for sale and purchase, Respondent acknowledged to Mr. Remmel that she had been terminated as a salesperson and that her salesperson's real estate license was no longer active. Respondent told Mr. Remmel that she would have to call Ms. Dorr and find out if she could make the offer to the listing broker for the unit Mr. Remmel wished to purchase. Before writing the contract, Respondent spoke to Ms. Dorr. In the conversation Ms. Dorr commented on the fact that the form 400.5 had already been submitted to Petitioner and Respondent acknowledged receiving the copy of the form. Ms. Dorr reminded Respondent that Respondent should not be writing or soliciting real estate business. Respondent replied that she understood that but contended that Respondent was not soliciting the business. Respondent referred to the fact that Mr. Remmel was in the office and wanted to make an offer. Respondent asked Ms. Dorr if Ms. Dorr wanted Respondent to write up the contract and put Ms. Dorr's name on the bottom of it. Ms. Dorr responded "yes." Respondent asked what date to place. Ms. Dorr said to put "today's date." Notwithstanding Ms. Dorr's remarks Respondent recognized that she had not been rehired formally by Ms. Dorr and that, in the eyes of Petitioner, Respondent's real estate salesperson license was still inactive based upon the fact that Respondent did not have a named qualifying broker. Respondent acknowledges that she should have known better than to write the contract but that she wrote the contract because Ms. Dorr told her to. The property that Mr. Remmel made an offer on was listed with Myra Paxton, the broker for Paxton Realty. During the course of the transaction that took place between Respondent and Mr. Remmel concerning the property, Respondent called Ms. Paxton on February 17, 1998, and told Ms. Paxton that a copy of the contract was being faxed to Ms. Paxton. Respondent asked Ms. Paxton if Ms. Paxton wanted to write the contract or wanted Respondent to write it. Ms. Paxton reminded Respondent that Ms. Paxton was not Respondent's broker and could not tell Respondent what Respondent should do. Respondent then called Ms. Paxton again and told Ms. Paxton that "Marita," which name is inferred as a reference to Ms. Dorr, had told Respondent to write the contract under Ms. Dorr's authority and to bring it to Ms. Dorr. On February 17, 1998, Respondent faxed Ms. Paxton a copy of the contract for sale and purchase.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes, and issuing a letter of reprimand. DONE AND ENTERED this 10th day of November, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 10th day of November, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N-308 400 West Robinson Street Orlando, Florida 32801 Kevin Palley, Esquire Kevin Palley, P.A. Suite B-2 520 Southeast Fort King Street Ocala, Florida 34471 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact On September 23, 1980, Ms. Patricia Kroeger, ACLF Specialist, Department of Health and Rehabilitative Services, sent to the Petitioners, Mr. and Mrs. C. W. Price, a letter denying ACLF licensure to a home for the elderly owned and operated by the Prices in Plantation, Florida. The reason for the denial was the lack of multi-family zoning on the subject property which is necessary to lawfully operate an ACLF within the City of Plantation. The Petitioners were given 30 days by the Department to either cease operation of the facility or obtain a variance to the zoning code from the City of Plantation. Counsel for the Petitioners requested an administrative hearing on October 6, 1980, and a final hearing was held on February 13, 1981. The hearing was lawfully noticed for 10:00 A.M. on February 13, 1981. At the noticed hour, neither counsel for Petitioner nor the Petitioners were available and a call was placed to the law office of Ms. Marie Hotaling by counsel for the Department, Mr. Harold Braynon. The Hearing Officer was informed by Mr. Braynon that the Petitioners and their counsel were on the way to the hearing and would arrive shortly. At 11:00 A.M., with neither Petitioner nor their counsel present, the hearing was begun. The Department presented testimony and documentary evidence which established that the zoning on the Price's property for which ACLF licensure was sought would not permit the operation of a multiple resident facility such as an ACLF. At the close of Respondent's case, the Petitioners had not yet made an appearance and the hearing was adjourned. No subsequent communication has been received by the Hearing Officer from the Petitioners or their counsel concerning the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Petitioner's request for licensure of their home in Plantation, Florida as an Adult Congregate Living Facility, be denied for failure to comply with Rule 10A-5.04(6), Florida Administrative Code. DONE and ORDERED this 16th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1981. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 W. Broward Boulevard Fort Lauderdale, Florida 33301 Marie S. Hotaling, Esquire 1523 N. E. 4th Avenue Fort Lauderdale, Florida 33304
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2010.
The Issue Whether the Florida Fish and Wildlife Conservation Commission’s (“Respondent” or “FWC”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”), submitted a nonresponsive reply to FWC’s Invitation to Negotiate (“ITN”) No. 770-0235 is contrary to the Commission’s governing statutes, the agency’s rules or policies, or the solicitation specifications; and, if so, whether it was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the pre-hearing stipulation. ITN No. 770-0235 and Background FWC is a state agency that seeks office space to be occupied by personnel from six of FWC’s divisions. FWC currently leases office space from TCC, which expires in October 2019. On July 19, 2017, FWC issued ITN No. 770-0235, seeking vendors that could provide 53,000 square feet of office space for lease. FWC anticipates occupying the space by November 1, 2019. Between August 15, 2017, and November 2, 2017, FWC issued four addenda to the ITN, which contained amendments, modifications, and explanations to the ITN. There were no bidders that challenged the terms, conditions, or specifications contained in the ITN or its amendments. TCC and NLH were two of the potential lessors that submitted replies in response to the ITN. FWC seeks to lease either a building that already exists or a non-existing building to be constructed in the future. The ITN describes the proposals requested as follows: Competitive proposals may be submitted for consideration under this Invitation to Negotiate (ITN) for the lease of office space in either an existing building or a non- existing (build-to-suit/turnkey) building. NOTE: All buildings must comply with the Americans with Disabilities Act (ADA) as stated in Attachment A, Agency Specifications, Section 6.D., page 32. OPTION 1 - an ‘existing’ building: To be considered an ‘existing’ building, the facility offered must be enclosed with a roof system and exterior walls must be in place at the time of the submittal of the Reply. OPTION 2 - a ‘non-existing’ building: Offeror agrees to construct a building as a ‘build-to-suit’ (turnkey) for lease to FWC. Each applicant that submitted a proposal in response to the ITN was required to meet the specification in Attachment A of the ITN. The ITN provides as follows: FWC is seeking detailed and competitive proposals to provide built-out office facilities and related infrastructure for the occupancy by FWC. As relates to any space that is required to be built-out pursuant to this Invitation to Negotiate in accordance with this Invitation to Negotiate, see Attachment ‘A’ which includes the FWC Specifications detailing the build-out requirements. The specifications in Attachment A provided the basic requirements for the potential leased space such that proposals offering existing or non-existing building may be compared and evaluated together. The ITN included certain provisions to clarify the rights contemplated by the ITN, and included the following disclaimer: This ITN is an invitation to negotiate and is for discussion purposes only. It is not an offer, contract or agreement of any kind. Neither FWC nor the Offeror/Lessor shall have any legal rights or obligations whatsoever between them and neither shall take any action or fail to take any action in reliance upon any part of these discussions until the proposed transaction and a definitive written lease agreement is approved in writing by FWC. This ITN shall not be considered an offer to lease. The terms of any transaction, if consummated, shall not be final nor binding on either party until a Lease Agreement is executed by all parties. This ITN may be modified or withdrawn by FWC at any time. The ITN also included a provision expressly reserving FWC’s “right to negotiate with all responsive and responsible Offerors, serially or concurrently, to determine the best-suited solution.” The term “Offeror” was defined by the ITN to mean “the individual submitting a Reply to this Invitation to Negotiate, such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive lessors could be invited to negotiations. While TCC and NLH were two of the potential lessors that submitted replies in response to the ITN, the bidders submitted different proposals. TCC submitted a proposal for an existing building, and NLH submitted a proposal for a non- existing building. During an initial review of all replies, FWC determined TCC’s reply to be nonresponsive based on TCC’s response to ITN section IV.G (Tenant Improvements) and a statement titled “Additional Response” that TCC submitted with its reply. As a result, FWC did not evaluate or score TCC’s reply. After TCC’s reply was declared nonresponsive, there were no further negotiations with TCC regarding the ITN. NLH’s reply passed the initial responsiveness review and was then evaluated and scored by FWC. FWC ultimately issued an intended award of the contract to NLH after conducting negotiations. Tenant-Improvement Cap The ITN prohibited vendors from proposing conditional or contingent lease rates that included a tenant-improvement cap, or allowance. A tenant-improvement cap reflects the maximum amount the landlord is willing to spend to make improvements to leased space. Mr. Hakimi asserted that the tenant-improvement cap would be an incentive to FWC to enter a lease. However, the tenant-improvement cap would also place a limit on improvements. According to ITN section IV.E, any reply offering a lease rate with a tenant-improvement cap would be deemed nonresponsive: FULL SERVICE (GROSS) RENTAL RATE The Offeror shall provide FWC with a Full Service (gross) lease structure. Therefore, the lease rate must include base rent, taxes, all operating expenses (including, but not limited to, janitorial services and supplies, utilities, water, insurance, interior and exterior maintenance, recycling services, garbage disposal, pest control, security system installation and maintenance, and any amortization of required tenant improvements to the proposed space). There shall be no pass through of additional expenses . . . . Offerors must provide their best, firm lease rates. Lease rates that are contingent, involve a basic rate plus “cap” or “range” for such things as tenant improvements will be deemed nonresponsive. The ITN also provided, in section IV.G, that any current lessor must meet all ITN requirements, including those set forth in ITN Attachment A: TENANT IMPROVEMENTS The State requires a “turn-key” build-out by the Landlord. Therefore, Offeror shall assume all cost risks associated with delivery in accordance with the required specifications detailed in this ITN, including Attachment A (see pages 28-45). Additionally, replies for space which is currently under lease with, or occupancy by, the Florida Fish and Wildlife Conservation Commission does not exclude the Offeror from meeting the requirements specified in this ITN document. Offeror agrees to provide “turn-key” build-out/improvements in accordance with the specifications detailed in this ITN. (use an X to mark one of the following): YES or NO TCC responded “NO” to the statement “Offeror agrees to provide ‘turn-key’ build-out/improvements in accordance with the specifications detailed in this ITN.” Additional Response Not only did TCC include a barred tenant-improvement cap, but TCC also attached an addendum to its proposal, which provided the following: The reality is that as the current Landlord, it would be impossible to ask FFWCC to move out of its existing office space in order to meet the requested Agency Specifications in Attachment A. If this condition makes our response to the Invitation to Negotiate (ITN) “non-responsive”, we stand willing to continue further negotiations with FFWCC. There was no provision in the ITN for additional responses outside what was requested in the ITN. More importantly, the addendum indicated TCC could not comply with the ITN, unless certain conditions were met. Mr. Hakimi confirmed the effect of what was written in the addendum when he testified that TCC is unable to meet Attachment A’s specifications because it presently has a tenant in place (i.e., FWC) that prevents it from constructing the building improvements necessary to comply with ITN Attachment A. Proof of Ownership of Property The ITN also provided that to be responsive, each lessor was required to submit certain documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non- Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. This requirement applies to: The real property (land); The proposed building(s) (or structure(s); The proposed parking area(s). Control of parking includes the area(s) of ingress and egress to both the real property and the building(s). The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment K. TCC’s certification was executed by TCC president, Lyda Hakimi. However, TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property. The evidence offered at hearing of the property’s ownership contained in TCC’s reply was a deed showing DRA CRT Tallahassee Center, LLC to be the property owner. Respondent argued that although TCC owns DRA CRT Tallahassee Center, LLC, the two are different legal entities. Because these were two different legal entities, TCC was required to provide a copy of Attachment K to its response to be deemed responsive. Broker Commission The ITN required lessors to agree to execute a broker- commission agreement, which was attached to the ITN as Attachment J: Offeror understands FWC is utilizing the services of a Tenant Broker representative for this lease space requirement and the successful Offeror shall execute a Commission Agreement, in coordination with FWC’s Tenant Broker representative, within fifteen (15) business days of notification of Award. Offeror agrees and acknowledges that a Tenant Broker Commission Agreement is a requirement and the successful Offeror shall be required to execute a Commission Agreement as described above. (use an X to mark one of the following): YES or NO The ITN included a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 2.50 percent to 3.50 percent. TCC conditioned its reply by agreeing to pay a two-percent broker commission, which is inconsistent with the commission schedule. By offering a lower commission rate, TCC could save money. TCC would then have a competitive advantage over other bidders. TCC’S Bid was Nonresponsive Based upon the foregoing, TCC’s bid submission added a tenant-improvement cap, failed to comply with the broker commission rate, failed to provide supporting documents to demonstrate proof of property ownership, and added additional conditions regarding compliance with the ITN requirements. The information requested and terms of the ITN were required for TCC’s bid to be responsive. TCC did not file a challenge to the specifications or any of the requirements of the ITN. It is now too late for such a challenge. TCC’s inclusion of a tenant-improvement allowance limits the amount that would pay for improvements. The lower broker commission increases the profit advantage for TCC more than for other bidders, which would be an unfair advantage over other bidders. TCC’s failure to comply with the terms of the ITN and failure to provide the required attachment to show proof of ownership were not minor irregularities, which FWC could waive. Therefore, FWC properly determined that TCC’s bid submission was nonresponsive. Standing TCC submitted a bid proposal that did not conform to the requirements of the ITN and it seeks relief that includes setting aside FWC’s rejection of its proposal. Therefore, TCC has standing to bring this protest. If it is determined that TCC was nonresponsive, NLH has standing to the extent the procurement process could be deemed contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2018.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Frederick L. Roberts (Respondent) was a licensed Florida mortgage broker, holding license number MB 316324569. In November 1993, a friend of the Respondent, Alan Petzold, introduced Tami Aaronson to him. Ms. Aaronson owned property in Maryland and was interested in securing a mortgage on the Maryland property to provide funding for a Florida home for herself and her son, Jarrett. According to Ms. Aaronson, Mr. Petzold is the father of a minor son, Jarrett Aaronson. The Respondent believed that such was the case at the time he met the family. The Respondent met several times with Ms. Aaronson. The Respondent gave a “Flagship Mortgage Company” business car to Ms. Aaronson. The business card had the Respondent’s name printed on it. The Respondent had been briefly employed by Flagship Mortgage Company, but apparently was not so employed at the time he met Ms. Aaronson. Frederick L. Roberts (Respondent) received check number 0170, dated November 22, 1993, from Tami Aaronson as “Custodian for Jarrett Aaronson” in the amount of three thousand dollars. The notation on the check states that it is for “refinancing.” Ms. Aaronson believed the check was payment for services the Respondent would render in obtaining refinancing of the Maryland property. There was no written agreement between the Respondent and Ms. Aaronson, or between the Respondent and Mr. Petzold. The Respondent completed no written documentation related to the Aaronson transaction. The Respondent did not place the Aaronson deposit into a segregated escrow account. The Respondent did not record the Aaronson deposit into an escrow transaction journal. During the period he held the Aaronson funds, the Respondent worked on unrelated business, and traveled to China for about thirty days. The Respondent performed no work on behalf of Ms. Aaronson, Mr. Petzold, or Jarrett Aaronson. There is no evidence that the Respondent intended to perform any work on behalf of Aaronson/Petzold. The Respondent asserted that he asked for a three thousand dollar “deposit” as a means of discouraging the couple from asking for his assistance. The assertion is not credible. The Respondent asserts that the three thousand dollars he received from Ms. Aaronson was a deposit against travel expenses he would incur during his examination of the property in Maryland. The assertion is not supported by credible evidence. In the spring of 1994, the Respondent received a telephone call from Ms. Aaronson. The Respondent asserts that he believed Ms. Aaronson to have called him from a mental hospital. For whatever reason, at that time he determined that he no longer wanted to be involved in the Aaronson/Petzold situation. Shortly after receiving the Aaronson phone call in spring 1994, the Respondent also received a call from a Department of Banking and Finance investigator, apparently looking into a complaint received from Ms. Aaronson. The Respondent thereafter contacted Mr. Petzold and made arrangements to return the funds to him. According to a notarized statement dated May 9, 1994, the Respondent returned the three thousand dollars to Jarrett R. Aaronson and Alan C. Petzold. The Respondent testified that the money had been returned on May 8, 1994 to Mr. Petzold. The Respondent offered into evidence a document dated May 8, 1994, purporting to be a receipt received from Mr. Petzold for return of the funds. The signature is not notarized. The Respondent did not return the Aaronson deposit to Tami Aaronson. There is no evidence that Ms. Aaronson authorized the return of the three thousand dollars to Mr. Petzold. There is no evidence that Ms. Aaronson authorized the return of funds to Jarrett. Ms. Aaronson has not received any part of the three thousand dollars allegedly refunded. There is no evidence that the funds have been redeposited into the minor child’s custodial account. The Respondent asserts that he was not acting as a mortgage broker and was merely investigating the property to determine whether the Aaronson property could be used as a source of funds for the purchase of Florida property. The Respondent asserts that had a refinancing situation arisen, he would have referred Ms. Aaronson to another licensed person who would assist in the actual refinancing. The assertion is not supported by credible evidence. The Respondent asserts that in the spring of 1994 he had reason to believe that Ms. Aaronson had been hospitalized in a mental facility, and therefore he returned the funds to Mr. Petzold. The rationale for the failure to return the funds to the appropriate party is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order suspending the mortgage broker license held by Frederick L. Roberts until the following conditions are met: Payment to Tami Aaronson of $3,000 plus appropriate interest calculated from November 22, 1993. Payment of an administrative fine in the amount of $5,000. After compliance with the above conditions, the license suspension shall be lifted, and a two-year probationary period shall begin RECOMMENDED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of October, 1997. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Michael W. Carlson, Esquire Carlton Fields Ward Emmanuel Smith & Cutler, P.A. 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter in detail, unlawfully withdrew and transferred monies from an escrow account and is therefore guilty of fraud, dishonest dealing by trick, scheme or device, or breach of trust and conversion within the purview of Subsection 475.25(1)(b), Florida Statutes (1979) At the final hearing, Petitioner called Donald Lloyd, Respondent, Donald Reda and Kenneth Viviano as its witnesses. Petitioner offered Exhibits 1 through 7 which were received into evidence. Respondent called no witnesses and offered Respondent's Exhibits 1 through 4 which were received into evidenced.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda and the entire record complied herein, I hereby make the following relevant findings of fact. By its administrative complaint filed herein on July 29, 1981, Petitioner seeks to take disciplinary action against the Respondent as licensee and against his license as a real estate salesman. During times material herein, Respondent was a licensed real estate salesman and has been issued license No. 0188032. During times material herein, Century 21, Lloyds of Lauderdale, Inc., was a Florida licensed real estate corporate broker with its offices located at 3300 NE 33rd Street, Fort Lauderdale, Florida corporate entity was licensed under that name on October 12, 1979. The predecessor entity was known as Lloyds' of Lauderdale, Inc., and had its escrow account at Gulfstream Bank H.A., formerly known as Gulfstream American Bank and Trust Company H.A., formerly known as American National Bank and Trust Company of Fort Lauderdale, which account number was 005-1-00160-3. Upon obtaining the change of name, i.e. Century 21, Lloyds of Lauderdale, Inc., the successor entity maintained the same escrow account number at the same bank and continued using the checks on that account bearing its former name, Lloyds of Lauderdale, Inc. During times material herein, Respondent was a salesman associated with Century 21 and was an authorized signatory on the above-referred escrow account. Respondent was also a stockholder, officer and director of Century 21, Lloyds of Lauderdale, Inc. Respondent was also the owner of an unrelated business known as Brewer's Care Center, which in turn operated a motel located in Georgia. During times material, Respondent owned a one-third (1/3) interest in Century 21, Lloyds of Lauderdale, Inc. On February 3, 1981, Respondent issued a check, No. 79-228, drawn on the Century 21, Lloyds of Lauderdale, Inc., escrow account, payable to Brewer's Care Center in the amount of $11,903.12. Approximately fifteen days later, on February 18, 1981, Respondent issued another check, No. 79-223, drawn on the above-referenced escrow account payable to Brewer's Care Center in the amount of $2,500. On March 3, 1981 Respondent verbally authorized the Gulfstream Bank to withdraw $399.66 from the referenced escrow account to pay interest on loan No. 59-004-00-058-3866-4. Also, on March 18, 1981 Respondent verbally authorized the withdrawal of $799.32 to be applied against the same loan. Neither of the above-referenced checks or verbal loan authorizations were, in any wise, connected with any real estate transactions from which monies were held in escrow by the Respondent. The verbal withdrawals and checks, either authorized or drawn by the Respondent, reduced the escrow account by a sum of approximately $15,602.10 and depleted the account to such an extent that Century 21, Lloyds of Lauderdale, Inc. was unable to meet demands for the return of the escrow funds held in trust (See Petitioner's Composite Exhibit No. 1). Respondent took the position that the monies represented by the payments of the two checks made payable to Brewer's Care Center were repayments of loans and that he was unaware that the accounts which the checks were drawn against were, in fact, escrow accounts. In this regard, evidence reveals that the Respondent suffered a heart attack during November of 1980 and his health regressed to the degree that he was placed in the intensive care unit at a hospital in Cleveland, Ohio for an extended period of time. At the conclusion of the Petitioner's case in chief, Respondent's counsel filed an ore tenus motion to continue the subject hearing until the following day. The undersigned afforded Respondent's counsel an opportunity to submit, for the record, his basis for the continuance. However, that motion was denied based on the numerous continuances which had been previously granted by the undersigned to Respondent's counsel (See Order dated November 16, 1982 - Copy attached).
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was licensed as a real estate sales associate, holding Florida license number 3035990. In late spring of 2005, the Respondent was contacted by Arnold Macabugao, a California resident who was interested in acquiring a home in Orlando, Florida, for himself and his wife. The Respondent was aware of a house for sale at 14213 Sports Club Way, Orlando, Florida 32837, which she apparently thought would be suitable for the Macabugaos' purchase. The owner of the house was Jack Girton. Mr. Girton did not reside in the property at any time material to this dispute. The Girton house was inhabited by a woman identified as Kim Capiello. Ms. Capiello was an acquaintance of Mr. Girton's. Ms. Capiello had no ownership interest in the property. All documents related to the purchase of the property by the Macabugaos identified Mr. Girton as the owner. During negotiations on the property, the Respondent provided all documents to Ms. Capiello. It is reasonable to conclude that Ms. Capiello transmitted the documents to Mr. Girton. There is no evidence that the Respondent dealt directly with Mr. Girton at any time during the sales process. The weight of the evidence establishes that the Respondent negotiated the Macabugaos' purchase of the Girton property through Ms. Capiello. At some point in the negotiations, the Respondent received a document titled "SIDE AGREEMENT TO PURCHASE CONTRACT" from Ms. Capiello. The document, which required payment of $10,000 directly to Ms. Capiello by the Macabugaos, in relevant part, provided as follows: This side agreement is between Buyers named above and Kim Capiello wherein the buyers agree to give $10,000 to Kim Capiello for services rendered in the search and purchase of the above named property. This agreement is contingent upon the buyers securing a loan, its lender determining a firm closing date and last but not the least, actual closing and funding of the above named property. The amount will be paid as follows: $5,000 to be paid at the time the Purchase contract is signed by all parties for the above property and contingent upon the buyers securing a loan and its lender determining a firm closing date. $5,000 to be paid the day after the closing under the condition being that the above property has been vacated and in move in condition. Kim Capiello further agrees that this side agreement is between her and the buyers only and has nothing to do with the actual purchase agreement entered into by the buyers and Jack Girton. (Emphasis in original) The Respondent facilitated the payment of the $10,000 by the Macabugaos to Ms. Capiello pursuant to the side agreement. The Respondent transmitted the document to the Macabugaos, who signed it. A signature purportedly of Ms. Capiello is also on the document. The Respondent instructed the Macabugaos on how to make the payments. She collected the funds from them. The Respondent used her personal checking account as a transfer mechanism for one of the $5,000 payments. The side agreement does not identify the date of execution, but Mr. Macabugao testified that he signed the side agreement after the sales contract had been signed. The executed sales contract between the Macabugaos and Mr. Girton was dated June 7, 2005. Mr. Macabugao testified that he had no communication with Ms. Capiello. The evidence fails to establish the Macabugaos' rationale for agreeing to make the payments to Ms. Capiello, other than the fact that the Respondent transmitted the document to the Macabugaos and instructed them on how to make the payments. None of the sales documents suggested that Ms. Capiello held licensure in Florida as a real estate professional. Based upon a review of the Petitioner's licensure files, the Petitioner's investigator testified that Ms. Capiello was not licensed in Florida as a real estate professional in any capacity. There was no credible evidence to the contrary, and the investigator's testimony has been credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding Eleanor Borling Dioneda guilty of violating Subsection 455.227(1)(j), Florida Statutes (2005); imposing a two-year license suspension followed by a two-year probationary period; imposing a fine of $5,000; and requiring completion of a remedial professional education course to be determined by the Petitioner. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of August, 2008. COPIES FURNISHED: Jason W. Holtz, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Eric W. Ludwig, Esquire 250 North Orange Avenue, Suite 1250 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
