The Issue Whether Respondent violated Section 475.25(1)(d)1, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent, Manuel Angel Huerta (Huerta), was a real estate broker licensed by the Petitioner, the Department of Business and Professional Regulation, Division of Real Estate. He was the broker/officer for M A Huerta & Company, a broker corporation located in Miami, Florida. M A Huerta & Company had listed a house for sale on Granda Boulevard, Coral Gables, Florida. The house was offered through multiple listing, and the advertised commission was three percent of the selling price. Pedro Garay (Garay), a real estate broker with another company, showed the house to Andrew Labbie, a prospective buyer. Mr. Labbie indicated that he would make an offer for the house through his attorney. Garay was to pick up the offer when it was put together. Garay called Huerta to schedule a meeting with the sellers, but Huerta told him that he did not want Garay to present the offer to the sellers. Huerta called Garay the day after the offer was presented to the sellers and told Garay that the house was being withdrawn from the market. The house was later sold to Mr. Labbie on November 8, 1993. Garay learned of the sale and called Huerta, who stated that the sale had been between the sellers and buyer and that he had not been involved in the transaction. Huerta said that his office had received a real estate commission in the mail for $16,000 and that he was surprised that the commission had been sent to him. Garay demanded part of the commission. Garay was a member of the Miami Board of Realtors, which had a procedure to arbitrate disputes among realtors. Garay requested that the dispute over the commission be arbitrated. Garay and Huerta participated in the arbitration and were represented by counsel at the arbitration. On April 18, 1994, the Award of Arbitrators was entered, awarding $16,000 to Garay. The award was to be paid within 30 days. Garay demanded that Huerta pay the $16,000, but Huerta refused. Garay retained counsel and went to circuit court to enforce the arbitration. On January 17, 1996, a final judgement was entered enforcing the arbitration award and awarding $16,800 to Garay. After the final judgement was entered, Huerta still did not pay Garay. Counsel for Garay attempted to collect the judgment. In October, 1996, Garay filed a complaint with Petitioner based on Huerta's failure to pay the commission. Petitioner assigned one of its investigators, Kenneth Rehm, to investigate the complaint. Mr. Rehm interviewed Huerta, who stated that he was not going to pay Garay because Garay did not deserve it and he did not care if the court had ordered him to pay. Apparently Huerta changed his mind about paying because on February 10, 1998, Garay and Huerta entered into a Stipulation Regarding Execution. Huerta agreed to pay the judgment amount with interest in monthly installments of $1,056.72 for 24 months beginning February 17, 1998. Huerta began making payments in February 1998 and continued to do so through December 1998. Huerta sent Garay a check for the January 1999 payment, but the check was returned for insufficient funds. As of the date of the final hearing no further payments had been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manuel Angel Huerta violated Section 475.25(1)(d)1, Florida Statutes, imposing an administrative fine of $500, placing Respondent on probation for two years, and suspending Respondent's license during the probation period until such time Respondent pays Pedro Garay the portion of the judgment still outstanding. DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of June, 1999. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Geoffrey Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Robert Flavell, Esquire First Union Financial Center 200 South Biscayne Boulevard Suite 4600 Miami, Florida 33131-2310
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
