09-000654PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Andrey Barhatkov Status: Closed Recommended Order on Thursday, June 25, 2009.

Summary: Respondent allowed an unlicensed third party to perform duties exclusively reserved for a licensed realtor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-0654PL

)

ANDREY BARHATKOV, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on April 2, 2009, in Winter Haven, Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building, Suite N801

Orlando, Florida 32801

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent, Andrey Barhatkov, committed the

violations alleged in the Administrative Complaint, and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On December 13, 2006, Petitioner, Department of Business

and Professional Regulation, Division of Real Estate, filed an

Administrative Complaint against Respondent, Andrey Barhatkov,

alleging him to be "guilty of aiding, assisting, procuring,

employing, or advising any unlicensed person or entity to

practice a profession contrary to Chapter 455, 475 or the rules

of the Petitioner in violation of Section 455.227(1)(j) and

475.42(1)(a), Florida Statutes." On January 10, 2007,

Petitioner received Respondent's Petition for Formal Hearing

disputing allegations contained in the Administrative Complaint.

On February 9, 2009, the Division of Administrative

Hearings received a request for formal proceedings from

Petitioner. On that same day, an Initial Order was forwarded to

both parties requesting mutually convenient dates for the final

hearing. Based on the response of the parties, on February 16,

2009, the case was scheduled for final hearing on April 2, 2009,

in Winter Haven, Florida.

The case proceeded, as scheduled, on April 2, 2009.

Respondent was not present. Petitioner presented two witnesses,

April Durias and Carol Cramer Laoudis, and offered five

exhibits, which were received into evidence as Petitioner's

Exhibits 1 through 5.

The Transcript of Proceedings was filed with the Division

of Administrative Hearings on June 2, 2009. Petitioner timely

filed its Proposed Recommended Order.

All statutory references are to Florida Statutes (2005),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Facts are made:

1. Petitioner is a state government licensing and

regulatory agency charged with the responsibility and duty to

prosecute Administrative Complaints pursuant to the laws of the

State of Florida, in particular, Section 20.165 and

Chapters 120, 455, and 475, Florida Statutes, and the rules

promulgated pursuant thereto.

2. Respondent is, and was at all times material hereto, a

licensed Florida real estate sales associate issued License

No. 660647 in accordance with Chapter 475, Florida Statutes.

3. The last license issued to Respondent was as a sales

associate with All American Realty, Inc., 227 North John Young

Parkway, Kissimmee, Florida 34741.

4. On or about July 5, 2005, Respondent prepared a

residential sale and purchase contract on behalf of a buyer and

faxed the contract to Jerome Fortson, who is not a licensed

Florida real estate sales associate, broker associate, or

broker, for Mr. Fortson to present to the buyer and obtain the

buyer's signature.

5. Having obtained the buyer's signature, Mr. Fortson

later appeared on behalf of the buyer at the closing.

Respondent was not present at the closing.

6. Respondent admitted that he had Mr. Fortson show the

real estate property to the buyer, that he had an arrangement

with Mr. Fortson to show properties for him, and that

Mr. Fortson was to report back to him for follow-up. Respondent

acknowledged that Mr. Fortson was a mortgage broker and that

they had an informal business referral agreement wherein

Mr. Fortson would arrange financing for buyers that he had shown

properties.

7. In the course of this activity, Mr. Fortson, who

represented himself as a sales representative for the buyer,

contacted the listing agent for information regarding the

property and showed the property. Respondent never met the

buyer.

8. The real estate agent representing the seller was not

aware of Respondent's involvement in the transaction until he

requested his share of the commission.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter herein.

§§ 120.57(1) and 455.225(5), Fla. Stat. (2008).

10. The burden of proof in this proceeding is on

Petitioner. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). Petitioner is required to meet its burden

by clear and convincing evidence. Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

11. Subsection 475.25(1), Florida Statutes, authorizes the

Florida Real Estate Commission to take disciplinary action

against the license of any real estate sales associate if the

licensee commits certain specified acts. Listed among the

prohibited acts are those listed in Subsection 455.227(1)(j),

Florida Statutes, which reads as follows:

Aiding, assisting, procuring, employing, or

advising any unlicensed person or entity to

practice a profession contrary to this

chapter, the chapter regulating the

profession, or the rules of the department

or the board.

12. Petitioner has proved by clear and convincing evidence

the allegations of Count I, a violation of Subsections

455.227(1)(j) and 475.25(1), Florida Statutes, in that

Respondent is guilty of the prohibited acts in Subsection

455.227(1)(j), Florida Statutes.

13. Subsection 475.25(1), Florida Statutes, sets forth the

penalties for violation of Subsection 455.227(1)(j), Florida

Statutes, and reads, in pertinent part:

The commission . . . may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impose an administrative fine not to

exceed $1,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing . . . .

14. Florida Administrative Code Rule 61J2-24.001(4)(a)

reads as follows:

(a) When either the Petitioner or

Respondent is able to demonstrate

aggravating or mitigating circumstances

. . . to a Division of Administrative

Hearings hearing officer in a Section

120.57(1), F.S., hearing by clear and

convincing evidence, the . . . hearing

officer shall be entitled to deviate from

the above guidelines in imposing or

recommending discipline, respectively, upon

a licensee. . . .

No evidence of aggravation or mitigation was presented.

15. "The statutes regulating the activities of real estate

brokers in their business were designed for the protection of

the public and the safeguarding of persons who deposit their

money and place their trust in the hands of real estate

brokers." Shelton v. Florida Real Estate Commission , 121 So. 2d

711 (Fla. 2d DCA 1960). The fiduciary relationship between

customer and broker, inviting and usually receiving a high

degree of trust and confidence, is a proper subject of

reasonable regulation. The purpose of the statute is to protect

the public by permitting only those who possess special

qualifications of aptitude, ability, and integrity to engage in

the business. Horne v. Florida Real Estate Commission ,

163 So. 2d 515 (Fla. 1st DCA 1964). Section 475.25, Florida

Statutes, "requires nothing more of a real estate dealer or

broker then an honest, open and fair relationship with his

client, such as normally expected of a businessman of sound

integrity." Rivard v. McCoy , 212 So. 2d 672 (Fla. 1st DCA

1968).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Real Estate, enter a final

order finding that: (1) Respondent, Andrey Barhatkov, violated

Subsections 455.227(1)(j) and 475.42(1)(e), Florida Statutes;

(2) Respondent's license as a real estate salesperson be

suspended for one year, followed by one year of probation;

(3) Respondent be fined $2,000; (4) Respondent be required to

attend such remedial ethics and educational courses as are

determined appropriate by Petitioner; and (5) Respondent be

required to pay the costs of the investigation and prosecution

of this case.

DONE AND ENTERED this 25th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 2009.

COPIES FURNISHED :

Thomas W. O'Bryant, Jr., Director

Division on Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building, Suite N802

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Andrey Barhatkov

408 Pinewood Drive

Davenport, Florida 33896

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building, Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.