Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to $156.75 under the fee arrangement between Respondent and Mr. Moncello. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY 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 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802 Petitioner's Proposed Findings of Fact 1-15 Accepted in substance Respondents' Proposed Findings of Fact Respondent did not submit proposed findings of fact COPIES FURNISHED: Ms. Mary K. Conner, pro se 522 Orange Drive, #16 Altamonte Springs, Florida 32701 James H. Gillis, Esquire Senior Attorney Florid Department of Business and Professional Regulation Division of Real Estate Legal Section-Suite N308 400 W. Robinson Street, North Tower Orlando, Florida 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0729
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty to administer Chapter 517, Florida Statutes, which is known as the Florida Securities and Investor Protection Act. On August 15, 1997 and September 9, 1997, Petitioner conducted an audit of the branch office of Merit Capital Associates, Inc., located in Boca Raton, Florida, and known as the H. K. Laurence Branch (the branch office). The branch office was an office of supervisory jurisdiction that required the presence of a branch manager. On April 28, 1997, Merit Capital executed a form entitled "Branch Registration Form" that registered the branch office with Petitioner and designated Respondent as the branch manager. Respondent accepted that designation on April 29, 1997. On April 30, 1997, the form was filed with Petitioner. In August and September 1997, Petitioner conducted an examination of the branch office. Michael Ward, whose job title is Senior Financial Investigator, was in charge of the examination. Annette Beresford, whose job title is Financial Specialist, assisted Mr. Ward. Both Mr. Ward and Ms. Beresford are full-time employees of Petitioner with appropriate training and experience. Respondent failed to properly register with the National Association of Securities Dealers (NASD) to act as a branch manager. Respondent was required by NASD rules to register as a principal because he had supervisory responsibilities. His only registration was as a salesperson. NASD Conduct Rule 3010, a rule adopted by NASD, sets forth standards for the supervision of branch offices. Pursuant to Rule 3E-600.013, Florida Administrative Code, Respondent, as the designated branch manager, was required to comply with the minimum supervisory standards set forth in NASD Conduct Rule 3010. Respondent did not meet those minimum supervisory standards while serving as the manager of the branch office. The following establish Respondent’s failure to supervise. Respondent did not provide NASD manuals to the registered representatives (salespersons) at the branch, he did not maintain Merit Capital's supervisory manuals at the branch, and he did not require that salespersons comply with Merit Capital's written policies and procedures. Respondent failed to maintain NASD and Florida registrations of salespersons at his branch. During the period April 29 through July 9, 1997, representatives of Merit Capital under Respondent's supervision at the branch office sold to members of the public shares of stock in a company known as Certified Diabetic Services, Inc., and shares of stock in a company known as Arcoplate Corporation. Respondent had supervisory responsibility for these transactions involving the sale of these two stocks. At the times pertinent to this proceeding, the stock of Certified Diabetic Services, Inc., and the stock of Arcoplate Corporation were not registered as required by Section 517.07(1), Florida Statutes, and they were not exempt from registration. Respondent should not have permitted the salespersons under his supervisory jurisdiction to sell unregistered stock During the period March 11 through July 9, 1997, Respondent was personally responsible for three transactions involving the sale of stock in Certified Diabetic Services, Inc., at a time when the stock was not registered as required by Section 517.07(1), Florida Statutes, and was not exempt from registration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to supervise the branch office and of selling unregistered securities. The final order should revoke Respondent’s registration under Section 517.12, Florida Statutes, and order him to cease and desist violations of Chapter 517, and the rules promulgated thereunder. The final order should also impose an Administrative Fine against Respondent in the amount of $5,000 for the failure to supervise. The final order should also impose an Administrative Fine against Respondent in the amount of $1,500 for the three transactions involving the sale of shares of unregistered stock. DONE AND ORDERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of January, 2002.
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
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).
The Issue An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company. Feliu cashed the check and made the disbursements to Luis Rodriguez. He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance, $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.
Recommendation Based on the evidence presented and discussed above, it is hereby, RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand. DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. & 3. Adopted in paragraph 1. Adopted in paragraph 2. & 6. Adopted in paragraph 3. Adopted in paragraphs 5 and 6. Rejected as contrary to the weight of evidence. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence. Respondent's Proposed Findings Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 8. Rejected as immaterial. Adopted in substance in paragraph 4. Rejected as contrary to the law (see paragraph 13). - 14. Rejected as unnecessary. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Rafael S. Feliu 2260 Whispering Maple Drive Orlando, Florida 32837 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner's application for licensure as a real estate salesperson should be granted even though, in 2003, NASD imposed discipline against Petitioner pursuant to a settlement agreement wherein Petitioner neither admitted nor denied allegations that he had been involved in improper trading activities.
Findings Of Fact Respondent Florida Real Estate Commission ("FREC") is the agency responsible for licensing real estate brokers and salespersons in the State of Florida. In September 2005, Petitioner Michael Silverstein ("Silverstein") applied for licensure as a real estate sales associate. In his application, Silverstein disclosed that in 2003, NASD——a private-sector securities regulator——had imposed discipline against him, pursuant to a settlement agreement known formally as a Letter of Acceptance, Waiver and Consent ("AWC"), for allegedly having engaged in improper trading activities. The disciplinary matter had arisen out of certain bids that Silverstein had made to buy shares, for his own account, in Chromatic Color Sciences International, Inc. ("CCSI"), a company whose fortunes (and stock price), Silverstein had believed, were due to rise. The bids in question——of which there were 29——had taken place over a two-month period between December 31, 1999, and February 29, 2000. At that time, Silverstein and a partner had owned a brokerage firm called Your Discount Broker, Inc. ("YDB"). Each of the 29 bids had been placed within 30 seconds or so of the close of the trading day on which the bid was made. Each bid had exceeded the day's previous highest bid for CCSI, by an amount ranging from about three cents to 20 cents per share. NASD had alleged that the bids were not bona fide offers to purchase (five had resulted in a consummated sale) but rather artifices made in furtherance of a "manipulative, deceptive, and/or fraudulent" scheme undertaken to artificially inflate the value (on paper, at least) of Silverstein's investment in CCSI.1 NASD had accused Silverstein, his partner, and YDB of violating NASD Conduct Rules 2110 and 2120.2 Ultimately, in June 2003, Silverstein and the two other respondents had entered into the aforementioned AWC, wherein, "without admitting or denying the allegations, and solely for the purposes of [the then-pending] proceeding and any other proceeding [that might later be] brought by or on behalf of NASD, or to which NASD [might be] a party," they had agreed to the imposition of specified penalties. The stipulated sanctions against Silverstein were a fine of $75,000, which he had paid, and a "suspension from association with any member firm for a period of two months," which Silverstein had served, as agreed, from July 7, 2003, through September 6, 2003. After Silverstein had served his suspension, NASD had reinstated his registrations, allowing Silverstein once again to engage in securities transactions under NASD's oversight. Later, the New York Stock Exchange ("NYSE") had granted Silverstein a license. As of the final hearing in this case, Silverstein still held his securities licenses, although he was not then active in the industry. Placing a bid near the close of the trading day was not, of itself, a violation of any NASD rule.3 Likewise, merely offering to pay more for a particular company's shares than any other investor previously had offered on a given day was not a disciplinable act under any NASD rule. Silverstein's conduct in relation to the 29 bids for which NASD disciplined him was wrongful, therefore, only if undertaken with bad intent. At hearing in this case, Silverstein denied any intent to manipulate the value of CCSI's shares. The only evidence opposing Silverstein's testimony is the AWC, which is, to be sure, some proof of wrongdoing, because Silverstein agreed therein to be punished. On the other hand, in entering into the AWC, Silverstein was not required expressly to admit wrongdoing, and he did not do so. Further, the undersigned credits Silverstein's unrebutted testimony that he agreed to accept punishment, not because he believed he was guilty of violating NASD rules, but because, at the time, YDB was being acquired by another company, and the deal could not be completed until the NASD matter had been resolved. In addition, there was no evidence about the volume of trading that typically occurred, during the relevant time period, within minutes or seconds of the trading day's close. The undersigned therefore cannot make any rational determination, based on the evidence in the record, as to whether Silverstein's 29 last-minute bids were highly unusual (and hence especially suspicious), relatively routine, or something in-between. There was, as well, no evidence concerning either the volume of trading that was then occurring in connection with CCSI shares, or the prices at which that company's shares were trading during the relevant period, making it impossible for the undersigned reasonably to draw any inferences from the dollar-amounts of Silverstein's bids. In short, there is no persuasive circumstantial evidence (besides the AWC itself) from which the undersigned might infer that Silverstein acted with fraudulent or dishonest intent when he made the 29 bids. At bottom, the evidence in the instant record is simply insufficient to persuade the undersigned that Silverstein's conduct in relation to the 29 bids for which NASD disciplined him was, in fact, manipulative, deceptive, or fraudulent. The undersigned is convinced, however, that, apart from the AWC, Silverstein's past (so far as the evidence shows) is spotless. He has maintained a reputation in his community for truth and honesty, which NASD's disciplinary action failed to sully. Silverstein's conduct after February 29, 2000 (when he stopped making last-minute bids) has been good, even exemplary. Indeed, FREC itself concedes (and the undersigned finds) that Silverstein "is a well-respected member of his community." Resp. Prop. Rec. Order at 4. In view of Silverstein's good conduct and reputation; the facts that NASD and the NYSE presently consider him fit to work in the securities industry; and the fact the that last allegedly improper bid was placed more than six years ago, the undersigned determines as a matter of ultimate fact that granting Silverstein a license to work as a real estate sales associate will not likely endanger the public generally or investors specifically.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FREC enter a final order granting Silverstein's application for licensure as a real estate sales associate. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of June, 2006.
