The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Donald Matthew Green (Respondent) was licensed by the State of Florida as a real estate salesperson, having been issued license number 0371748. Respondent's licensure record indicates that his last association was with Island Properties of Miami Beach, Inc. (Island Properties), a broker corporation, located at 1999 East 150th Street, Suite 103, North Miami Beach, Florida. Respondent renewed his real estate salesperson license, which was to expire on March 31, 1997. The renewal notice stated, among other things, the following: IMPORTANT: BY SUBMITTING THE APPORPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the renewal fee, and by submitting the renewal fee, Respondent was stating that he had complied with all renewal requirements. Petitioner renewed Respondent's real estate salesperson license. Respondent knew that one of the requirements for renewal of his license was successful completion of continuing education coursework. In past renewal periods of his license, Respondent completed his continuing education coursework at Gold Coast School of Real Estate. Both parties believe that continuing education for licensees began in or around 1992. On May 29, 1999, an inspector for Petitioner visited Island Properties. One of the purposes for the inspector's visit was to review the continuing education requirements for salespersons employed by Island Properties. The inspector requested Respondent to produce proof that he successfully completed the 14-hour continuing education requirement for the period from April 1, 1995, through March 31, 1997. Respondent was unable to produce any information showing that he had completed the continuing education. The investigator provided Respondent with additional time to produce proof of completing the continuing education requirement. Respondent was again unable to produce the requested information. Respondent contacted each school in the southern region of Florida, which offered continuing education in real estate. However, none of the schools retained records on individuals taking continuing education coursework beyond a three-year period; therefore, no school had records covering the renewal period in question. Respondent filed a complaint against himself for being unable to produce proof of successful completion of continuing education coursework for the renewal period from 1995 through 1997. Respondent did produce proof of successfully completing the 14-hour continuing education requirement for the 1993 through 1995 renewal period, having begun the continuing education in December 1992 and completed it in February 1993. Respondent also produced proof of successfully completing the 14-hour continuing education requirement for the current renewal period, which is the 1996 through 1998 renewal period, having begun and completed the continuing education in March 1998. Having failed to locate proof evidencing that he successfully completed the continuing education requirement for the renewal period from 1995 through 1997, Respondent was desirous of complying with the requirement. Respondent began and successfully completed a 14-hour continuing education course in September 1999. Respondent has persuaded the undersigned that, even though he was unable to produce written proof, he did successfully complete the 14-hour continuing education requirement for the renewal period from 1995 through 1997, prior to submitting his renewal form for licensure renewal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order against Donald Matthew Green and therein: Dismissing Count I. Finding Donald Matthew Green guilty of Count II. Imposing an administrative fine of $1,000, payable within six months of the date of the final order. Placing Donald Matthew Green on probation for one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 24th day of March, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of March, 2000. COPIES FURNISHED: Laura McCarthy, Esquire Florida Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Donald Matthew Green 700 95th Street Surfside, Florida 33154 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 32399-0792
The Issue The issue in this proceeding is whether Petitioner's loss of a real estate broker's license by a stipulated disciplinary suspension in 1983 is a proper bar to his mortgage broker application as principal broker for Center State Mortgage Company.
Findings Of Fact Terry E Christensen ("Christensen") was first licensed as a mortgage solicitor in 1983, under Chapter 494, Florida Statutes. In 1984, he obtained his mortgage broker's license. The licenses were renewed in 1984 and 1985. His employer was Cenflorida Mortgage Corporation in Altamonte Springs, Florida, where he served as principal broker and vice president. (Testimony of Christensen, Petitioner's Exhibit #1.) Christensen left Cenflorida Mortgage Corporation in April 1986, and started his own company, Center State Mortgage Corporation in Longwood, Florida. He immediately filed his application with the Department of Banking and Finance ("Department") for registration as principal mortgage broker with the new company. That application was denied by letter dated May 13, 1986, for violations of Section 494.05(1)(h) and (k), Florida Statutes. The letter provides, in pertinent part: The application is denied by the determi- nation of the Division of Finance that Section 494.05(1)(h) and (k is [sic] being violated. Section 494.05(1)(h) of the Mortgage Brokerage Act states that conduct of an applicant would be cause for denial of a license. Section 494.05(1)(k) states that a licensee may be denied a license if they currently have a real estate broker or salesman license under suspension. In your particular case, our records indicate that your real estate license has been suspended for a five year period, starting June 21, 1983. (Testimony of Christensen, Petitioner's Exhibits #1 and #2.) On June 29, 1983, the Florida Real Estate Commission suspended Christensen's real estate broker's license for a period of five years. Christensen first told the Department about his real estate broker's license suspension when he applied for license as a mortgage solicitor in 1983. (Testimony of Christensen.) Subsection 494.05(1)(k), Florida Statutes, was added to the statutes effective October 1, 1985. (Chapter 85-271, Laws of Florida.) Around the same time the new law took effect, the Department commenced revocation proceedings against Christensen. By its notice docketed on September 27, 1985, and its amended notice dated March 4, 1986, the Department informed Christensen that it intended to suspend or revoke his mortgage broker's license under Chapter 494 on the basis of his prior activities as a real estate broker. Those prior activities were the subject of a civil consent judgement against Christensen and his realty company and resulted in the stipulated suspension of his real estate broker's license addressed above. The Department's administrative proceeding #85-28-DOF was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 86-0328. (Petitioner's Exhibits #3 and #4.) The parties stipulated to the facts, and on June 10, 1986, DOAH Hearing Officer, J. Lawrence Johnston, issued his Recommended Order recommending dismissal of the complaint. The Recommended Order provides: * * * 3. In this case, Petitioner, Department of Banking and Finance (Department), has not established in the evidentiary record or anywhere else in the official record of this case that the real estate broker license of Respondent, Terry E. Christensen (Christensen), was suspended based on fraud, misrepresentation, or deceit. As seen in the Procedural Background, Christensen sufficiently generally placed in issue whether suspension of his real estate broker's license was based on fraud, misrepresentation, or deceit. The Department did not succeed in pre-hearing procedures to specifically eliminate the issue. The facts stipulated by the parties are not sufficient to prove that the suspension of Christensen's real estate broker license was based on fraud, misrepresentation, or deceit. Although a copy of the Administrative Complaint in the Florida Real Estate commission case was referred to in the copy of the Florida Real Estate Commission Stipulation that was filed in this case, it was not attached to the Stipulation or otherwise made part of the evidentiary or official record in this case. This Hearing Officer is therefore given no choice but to conclude that the Department has not proven its case. * * * (Petitioner's Exhibit #5.) The Department adopted the Recommended Order in its entirety and dismissed the case. (Petitioner's Exhibit #7.) From 1983 until mid-1986, Christensen processed approximately five hundred mortgage loan applications with an approximate value of $50,000,000.00. To his knowledge, no complaints have ever been made to the Department regarding Christensen's activities as a mortgage solicitor or broker. (Testimony of Christensen, Petitioner's Exhibit #6.)
Recommendation Based on the foregoing, it is recommended that a Final Order be issued granting the mortgage broker's license to Terry Christensen. DONE and ORDERED this 7th day of November, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 \ Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2498 The following constitute my specific rulings on the proposed findings of facts submitted by the parties. PETITIONER'S FINDINGS OF FACT 1-3. Adopted in Paragraph #1. 4-5. Adopted in Paragraph #5. Rejected as irrelevant. Adopted in Paragraph #3. 8-12. Adopted in Paragraph #4. 13. Rejected as unnecessary. 14-15. Adopted in Paragraph #4. 16-18. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT 1. Adopted in Paragraph #1. 2-4. Adopted in Paragraph #4. 5. Rejected as unnecessary. 6-8. Adopted in Paragraph #4. 9. Rejected as immaterial. 10-11. Adopted in Paragraph #2. 12-16. Rejected as immaterial. 17. Adopted, as to the first sentence, in paragraphs #3 and #4; otherwise, rejected as immaterial. COPIES FURNISHED: Gorham Rutter, Jr., Esquire Suite D 338 North Magnolia Avenue Orlando, Florida 32801 Robert Good, Esquire Suite 501 400 West Robinson Street Orlando, Florida 32801 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301 Charles Stutts, Esquire General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Anita Ruth Green, is now and has been since November 17, 1986, a licensed real estate salesperson in the State of Florida, having been issued license number 0484830. On or about October 7, 1994, respondent signed and submitted to the Department an application (“renewal notice”) to renew her real estate license. Such application contained the following affirmation: AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227, Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that those statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. Respondent’s application was approved and her license was renewed for the October 1, 1994, to September 30, 1996, licensure period. At the time respondent submitted her application, she knew that successful completion of 14 hours of continuing education for real estate salespersons was a requirement for license renewal. Respondent was likewise aware of her responsibility to retain proof of her compliance with the continuing education requirements for at least 2 years following the end of the renewal period for which the education was claimed. By letter of June 6, 1995, the Department advised respondent that her license number had been selected to audit for compliance with continuing education requirements at the time of her most recent license renewal, and requested that she furnish proof of compliance within 21 days. Such proof was not forthcoming, and by letter of July 24, 1995, the Department reminded respondent of such failing and accorded her 10 days to submit evidence of the satisfactory completion of 14 hours of continuing education necessary to support the renewal of her license for the October 1, 1994, to September 30, 1996, licensure period. To date, no documentation has been submitted to substantiate respondent’s compliance with such requirement. At hearing, respondent acknowledged the lack of any documentation to support her affirmation of having met the continuing education requirement for license renewal; however, she averred she did successfully complete 14 hours of continuing education through a correspondence course in or about September 1994, but apparently inadvertently disposed of her certificate of completion when disposing of unneeded paperwork in preparation for a move. She could not, however, recall the name of the real estate school, the course she completed, the date of completion (although she did observe it was “probably” within 30 days of the renewal date) or her score (although she did observe it was “not less than 79 percent”). Moreover, although ostensibly paying for such course by check, respondent failed to produce any such documentation at hearing. In explanation for such failing, respondent stated she did not retain checks or other banking documents “that far back,” and decided not to secure a copy from her bank because it was “too expensive.” The actual cost or expense for that service was not, however, articulated at hearing. Having considered the proof, it must be concluded that respondent’s contention, absent any corroborative support, that she successfully completed the continuing education requirement before renewal is not compelling. In so concluding, it is observed that when the Department first requested documentation from respondent only nine months had elapsed since she ostensibly took the course. Certainly, respondent, who was articulate and displayed above-average intelligence at hearing, would have recalled at that time, had she taken a course, the name of the real estate school, the course she completed, or her score. Moreover, after such nominal lapse of time, it is most unlikely she would have disposed of not only her checks for the relevant time period, but also other banking documents, including her check registry. In sum, respondent’s failure to produce a certificate of completion or other credible proof of having satisfied the continuing education requirement compels the conclusion that she did not satisfy her continuing education requirement prior to renewal and that her affirmation of compliance was false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of having violated Section 475.25(l)(m), Florida Statutes, and revoking respondent’s license, subject to the opportunity to reapply for licensure five years after the date of filing of the final order in this case. DONE AND ENTERED this 6th day of January, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ms. Anita Ruth Green Pace 321 Sandtree Drive Palm Beach Gardens, Florida 33410 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Gerardo Quintero, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067268. Respondent also applied for a certificate of authority for his business, Q Plumbing Services Corp. (hereinafter referred to as “QPSC”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to QPSC, QB 42825. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for QPSC, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Gerardo Quintero violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 13th day of December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to have his general contractor’s license re-instated.
Findings Of Fact The Petitioner received a license as a general contractor in 1984. At all times material to this case, the Petitioner was required to renew his license every two years. For the Petitioner, the renewal was due on or before August 31 of even numbered years. For example, the Petitioner’s license due for renewal in 2000 was due August 31, 2000. There are two types of licenses pertinent to this case: active and inactive. The renewal fees associated with these licenses are different. An inactive licensee pays a smaller renewal fee. The Respondent is responsible for maintaining records, collecting the appropriate fees, and processing license renewals for licensees. If a contractor fails to pay the requisite renewal fees when they are due the license automatically goes into a “delinquent status.” This status continues until the licensee makes good on the past due renewal fees and submits a complete renewal application. If the licensee does not remit the appropriate fees and completed application before the next licensing renewal period expires (the next two year cycle), the license becomes “null.” In this case, the Petitioner held an inactive license during the 1998-2000 two year-period. On or before August 31, 2000, the Petitioner should have submitted a complete application and paid the renewal fees to keep his license in good status. The Petitioner did not submit a complete application and did not remit the appropriate fees for renewal on or before August 31, 2000. Consequently, on September 1, 2000, the Petitioner’s license went into the delinquent status noted above. To clear this status the Petitioner was required to renew his license by submitting a complete renewal application with the appropriate fees on or before August 31, 2002. The Petitioner did not do so. Therefore, on September 1, 2002, the Petitioner’s license became “null” as a matter of law. The “null” status cannot be changed by paying unpaid fees. Instead, a licensee may either apply for and seek a new license or seek to re-instate the license. To that end, the Petitioner filed a request for reinstatement on or about June 9, 2006. When the Respondent denied the Petitioner’s request for reinstatement, the instant case ensued. Prior to August 31, 2002, the Petitioner did not contact the Respondent to relate personal tragedies, did not cure the delinquent renewal status, and did not pay the fees necessary to renew his inactive license. The Petitioner’s request for a refund (dated May 18, 2005) of the untimely fees paid in September 2002 was not approved. The Respondent provided no explanation for why the untimely fees were not refunded to the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for reinstatement of his license. The Respondent should, however, refund the Petitioner’s untimely paid fees. S DONE AND ENTERED this 28th day of March, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2007. COPIES FURNISHED: Rodney Williams 513 Northwest 22nd Avenue Apartment 4 Fort Lauderdale, Florida 33311-7773 Deborah Bartholow Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue is whether Respondent committed the offense alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Mayra Guzman, is now and has been at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number 0582273, in association with Terranova Corporation, a broker corporation, located at 1200 Brickell Avenue, Suite 1500, Miami, Florida. In 1997, the Department provided Respondent with a renewal notice, which reminded her that her salesperson license was due to expire September 30, 1997. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the renewal notice, as well as the appropriate renewal fee, and the Department renewed her license. At the time Respondent submitted her application, she knew that successful completion of 14 hours of continuing education was a requirement for renewal of her real estate salesperson license. In or about May 1998, the Department conducted a routine office inspection of Terranova Corporation. At that time, the Department requested proof that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning October 1, 1995, and ending September 30, 1997, that would support the renewal of her license in September 1997. Respondent was unable to produce written proof (a report of completion) that she had successfully completed the continuing education requirement prior to renewal; however, she did produce a report from Gold Coast School of Real Estate which noted she started the 14-hour continuing education (correspondence) course on January 1, 1998, and successfully completed the course on January 28, 1998. At the time, Respondent explained her failure to have proof of course completion prior to renewing her license, as follows: . . . In August of 1997, in order to renew my Florida Real Estate License, I requested the 14-hour course and test from Gold Coast School of Real Estate. I filled out all of the paperwork and returned it to Gold Coast as required. In September 1997 I sent in the renewal fee to the State. After a while I realized I hadn't received any confirmation from Gold Coast, so I called them. They stated they couldn't locate my paperwork and I therefore needed to pay for another book and test. I did so and in January 1998 I received confirmation that I had passed. . . . Notwithstanding, on August 18, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of fraud, misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 1 At hearing, Respondent reiterated her prior explanation that she had offered for not having written proof of having successfully completed the continuing education course prior to renewal and that, consequently, she had retaken the course in January 1998. Additionally, Respondent offered proof of payment for the course on August 6, 1997 (Respondent's Exhibit 1), and the following explanation of course completion, prior to license renewal, which led her to believe her completion of the course was successful and would lead, in due course, to written acknowledgment of successful completion by the school: Q. Prior to submitting your signed renewal notice, in order to comply with the continuing education requirement, did you obtain the correspondence course for the 14 hours from Gold Coast? A. Yes. Q. Did the correspondence cost include a course book and a test booklet? A. Yes, it did. Q. At the end of each chapter in the course book, was there a progressive quiz? A. There was a quiz, yes. Q. Were the answers for the quiz provided at the end of the course book? A. Yes. Q. Did you take the progressive quiz after concluding each chapter? A. Yes, I did. Q. For the total book, about how many incorrect answers did you have? A. I don't remember, but there wasn't many. It was fairly easy. Q. Was the test for continuing education course an open book test? A. Yes, it was. Q. After completing the test, did you forward the test booklet to Gold Coast for grading? A. Yes, I did. Q. Based upon your performance on the progressive quiz after each chapter, do you have any reason to believe that you had not passed the test? A. Absolutely not. I had no doubt that I passed the course. Q. Did you think that you had successfully completed the course? A. Yes. Q. Did you then submit the license renewal notice to the Division of Real Estate? A. Yes, I did. Q. After you received your license, did you realize that you had not received a course report certificate from Gold Coast? A. Immediately I didn't think about it. After awhile, I though, "Shouldn't I have gotten something back from the school telling me this?" But at the time, I thought that the school also sent it directly to the State, notifying them that I had passed the school. But I always like to keep proof of things, so I called the school and I asked them to see if they could send me the completion and they -- that's when I learned that I -- they didn't have anything. So I did it again. Here, Respondent's explanation was plausible, and her demeanor not wanting of candor or sincerity. Consequently, Respondent's testimony is credited, and it is resolved that, at the time she submitted her renewal application, Respondent did not intend to mislead or deceive the Department, nor did she act with reckless disregard for the truth.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999.
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Blackwood is an apartment building with five units located at 4115 Riverside Drive, Coral Springs, Florida 33065- 5929. The Division issued Blackwood a license, numbered 16-16900-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Blackwood's license] is December 1, 2000." On June 5, 2000, and again on October 6, 2000, Division employee Cynthia Pieri conducted routine inspections of Blackwood. Each time, she found the apartments to be open and operating. Additionally, on both occasions Ms. Pieri took note that Blackwood's 1999-2000 license was not on display or available at the premises. On a Lodging Inspection Report that she prepared on June 5, 2000, 2/ Ms. Pieri checked box number 38 indicating a violation in connection with the following item: "Current license, displayed, available upon request." In the comments section of the form she wrote: "#38 1999-2000 DBPR license is not posted." Ms. Pieri left blank the spaces provided for informing the establishment of the date when its license would expire in a line that read: "REMINDER: Your license expires / / ." Petitioner's Exhibit 2. 3/ Kenneth Charles Buck, a Division employee, explained that ordinarily licensees such as Blackwood are sent a renewal notice. Regardless whether a licensee receives a notice, however, it is responsible for paying the required fee, which may be remitted either to the local office or to the Division's headquarters in Tallahassee. Transcript of Final Hearing ("T-") Sometimes, a licensee will pay the field inspector; field inspectors are authorized to accept license fees and issue receipts. T-14. Mr. Buck testified that the documents he could access on his computer indicated that Blackwood had failed to pay a license fee for the 1999-2000 period. T-13. Mr. Buck stated further that he had spoken with Blackwood's owner "on occasion" and had informed her that the license fee was due. T-14.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Blackwood Rentals. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. 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 24th day of January, 2001.
The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated January 26, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints against persons holding licenses as real estate brokers and salespersons. Section 455.225, Florida Statutes. The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for imposing discipline on those holding real estate broker or salesperson licenses. Sections 475.02 and 475.25, Florida Statutes. On or about July 11, 1996, John and Darleen Bothe, as buyers, and John Zucarelli, as seller, entered into a contract to purchase and sell real property located in Rolling Hills, Florida. Donald L. Brady was the real estate salesperson who represented Mr. and Mrs. Bothe in the transaction, and David Taylor represented Mr. Zucarelli. Mr. Brady represented in the Contract for Sale and Purchase executed July 11, 1996, and in addenda thereto, that, for purposes of the transaction, he was the real estate licensee and Westar International was the brokerage firm with which he was associated. Although the real estate transaction closed, neither Westar International nor Mr. Brady received any commission on the transaction. The commission that was to have been paid to Westar International was placed into an escrow account by the closing agent when Mr. Brady was unable to present the license of his supervising broker at the closing. At the time of the transaction, Mr. Brady's supervising broker, David A. Brady, was not licensed as a real estate broker because he had failed to renew his license. Mr. Brady was not aware at the time that his broker was not licensed. At the time of the transaction, Donald L. Brady had a valid and current license as a real estate salesperson, license number 0537988, which was effective from April 1, 1995, through March 31, 1997. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Donald L. Brady did not violate Section 475.42(1)(a), Florida Statutes (1995), and dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 14th day of October, 1999.
The Issue Whether or not the, Respondent, Buenaventura Lakes Country Club, Inc., may be issued Division of Beverage, license number 7-COP-59-2, for use at 301 Buenaventura Boulevard, Kissimmee, Florida.
Findings Of Fact The Petitioner and Respondent stipulated and agreed to the underlying facts which they deemed to have necessary application in considering the question of the propriety of the Respondent issuing the Division of Beverage, license number 7-COP-59-2 to the Petitioner for use at 301 Buenaventura Boulevard, Kissimmee, Florida. Notwithstanding the lack of dispute in facts surrounding this issue, the Respondent and Petitioner have requested the undersigned to examine those facts and to offer conclusions of law on the dispute. In the course of the presentation, it was agreed that Mr. Norman J. Smith, attorney for the Petitioner, would be allowed to set forth the factual stipulation for the record. Mr. Smith indicated that the official description of the license was, Division of Beverage, license number 7-COP-59-2. It was stated that the Petitioner is now a qualified motel and restaurant as set forth in Florida Statute, 561.20, which describes those establishments which would qualify for a "special" beverage license. It was further indicated that when the license in question was issued originally it was not issued to such a qualified hotel, motel or restaurant as set forth in Florida Statute, 561.20, which established the requirements for issuance of a "special" beverage license, and that when the subject license was transferred to the present location, that the motel and restaurant, at the present location, was not such a qualified hotel, motel or restaurant in accordance with Florida Statute, 561.20, which established those requirements for issuance of a "special" beverage license. However, as of October 21, 1975, and as of the application date for license transfer, filed by the Petitioner, by improvements and physical changes to the edifice, (location where the license currently is housed), would meet the definitional requirements of Florida Statute, 561.20, which sets forth the qualifications for "special" beverage licenses to be issued to a hotel, motel or restaurant. This qualification referred to as of October 21, 1975, and as of the date of application, applies to the section on hotels/motels and restaurants. That is to say the establishment would qualify under the standards for a hotel/motel or under the standards for a restaurant. It was further established that the application which was filed by the Petitioner was duly filed with the Division of Beverage upon form, DBR-704L, which is the application for the transfer of an alcoholic beverage license in this type request. Mr. Smith stated that the Petitioner understood that the letter of August 21, 1975, from the Director of the Division of Beverage, addressed to the Petitioner, stated the only basis for denying the application which had been filed by the Petitioner, and Mr. Hatch, attorney for the Respondent, agreed that there were no other grounds for disapproving the license application other than the one established in the letter from Mr. C. A. Nuzum, Director of the Division of Beverage. It was more specifically developed that the language which was relied upon to deny the application was that language set forth in Florida Statute, 561.20(2)(a)(3), "... However, any license heretofore issued to any such hotel, motel, motor court, or restaurant or hereafter issued to any such hotel, motel, or motor court [including a condominium accommodation] under the general law shall not be moved to a new location, such license being valid only on the premises of such hotel, motel, motor court, or restaurant." Mr. Hatch, in behalf of the Respondent, agreed to the accuracy of the depiction of the stipulation as stated for the record by Mr. Smith. The parties through their respective attorneys then offered oral argument on the law as it relates to the Petitioner's request for issuance of a license at the aforementioned location. Additionally, Mr. Bishop, a licensing supervisor with the Division of Beverage, was called to testify concerning his interpretation of the operation of Florida Statute, 561 as it pertains to license applications, moves, and transfers. One further item was offered in the way of a stipulation, and that is an agreement on the part of Mr. Smith, for the Petitioner, to allow examination of two memoranda offered by the Respondent as part of its argument. Mr. Smith indicated that he had a copy of the memoranda and that he had no objection to the use of that memoranda in the way of argument in behalf of the Respondent. Upon that representation the undersigned was provided with a copy of the Respondent's memoranda and has considered the same in addressing the legal issue.
Recommendation It is recommended that the application for transfer as filed by the Respondent, Buenaventura Lakes Country Club, Inc., to transfer Division of Beverage, license number 7-COP-59-2 from its present location to 301 Buenaventura Boulevard, Kissimmee, Florida, be granted. DONE and ENTERED this 20th day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Norman J. Smith, Esquire Brinson and Smith, P. A. Post Office Drawer 1549 Kissimmee, Florida 32741 William A. Hatch, Esquire Department of Business Regulation Division of Beverage 725 Bronough Street Johns Building Tallahassee, Florida 32304
