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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 09-0654PL

30)

31ANDREY BARHATKOV, )

34)

35Respondent. )

37)

38RECOMMENDED ORDER

40Pursuant to notice, the Division of Administrative

47Hearings, by its duly-designated Administrative Law Judge,

54Jeff B. Clark, held a formal administrative hearing in this case

65on April 2, 2009, in Winter Haven, Florida.

73APPEARANCES

74For Petitioner: Patrick J. Cunningham, Esquire

80Department of Business and

84Professional Regulation

86400 West Robinson Street

90Hurston Building, Suite N801

94Orlando, Florida 32801

97For Respondent: No appearance

101STATEMENT OF THE ISSUES

105Whether Respondent, Andrey Barhatkov, committed the

111violations alleged in the Administrative Complaint, and, if so,

120what discipline should be imposed.

125PRELIMINARY STATEMENT

127On December 13, 2006, Petitioner, Department of Business

135and Professional Regulation, Division of Real Estate, filed an

144Administrative Complaint against Respondent, Andrey Barhatkov,

150alleging him to be "guilty of aiding, assisting, procuring,

159employing, or advising any unlicensed person or entity to

168practice a profession contrary to Chapter 455, 475 or the rules

179of the Petitioner in violation of Section 455.227(1)(j) and

188475.42(1)(a), Florida Statutes." On January 10, 2007,

195Petitioner received Respondent's Petition for Formal Hearing

202disputing allegations contained in the Administrative Complaint.

209On February 9, 2009, the Division of Administrative

217Hearings received a request for formal proceedings from

225Petitioner. On that same day, an Initial Order was forwarded to

236both parties requesting mutually convenient dates for the final

245hearing. Based on the response of the parties, on February 16,

2562009, the case was scheduled for final hearing on April 2, 2009,

268in Winter Haven, Florida.

272The case proceeded, as scheduled, on April 2, 2009.

281Respondent was not present. Petitioner presented two witnesses,

289April Durias and Carol Cramer Laoudis, and offered five

298exhibits, which were received into evidence as Petitioner's

306Exhibits 1 through 5.

310The Transcript of Proceedings was filed with the Division

319of Administrative Hearings on June 2, 2009. Petitioner timely

328filed its Proposed Recommended Order.

333All statutory references are to Florida Statutes (2005),

341unless otherwise noted.

344FINDINGS OF FACT

347Based on the oral and documentary evidence presented at the

357final hearing, the following Findings of Facts are made:

3661. Petitioner is a state government licensing and

374regulatory agency charged with the responsibility and duty to

383prosecute Administrative Complaints pursuant to the laws of the

392State of Florida, in particular, Section 20.165 and

400Chapters 120, 455, and 475, Florida Statutes, and the rules

410promulgated pursuant thereto.

4132. Respondent is, and was at all times material hereto, a

424licensed Florida real estate sales associate issued License

432No. 660647 in accordance with Chapter 475, Florida Statutes.

4413. The last license issued to Respondent was as a sales

452associate with All American Realty, Inc., 227 North John Young

462Parkway, Kissimmee, Florida 34741.

4664. On or about July 5, 2005, Respondent prepared a

476residential sale and purchase contract on behalf of a buyer and

487faxed the contract to Jerome Fortson, who is not a licensed

498Florida real estate sales associate, broker associate, or

506broker, for Mr. Fortson to present to the buyer and obtain the

518buyer's signature.

5205. Having obtained the buyer's signature, Mr. Fortson

528later appeared on behalf of the buyer at the closing.

538Respondent was not present at the closing.

5456. Respondent admitted that he had Mr. Fortson show the

555real estate property to the buyer, that he had an arrangement

566with Mr. Fortson to show properties for him, and that

576Mr. Fortson was to report back to him for follow-up. Respondent

587acknowledged that Mr. Fortson was a mortgage broker and that

597they had an informal business referral agreement wherein

605Mr. Fortson would arrange financing for buyers that he had shown

616properties.

6177. In the course of this activity, Mr. Fortson, who

627represented himself as a sales representative for the buyer,

636contacted the listing agent for information regarding the

644property and showed the property. Respondent never met the

653buyer.

6548. The real estate agent representing the seller was not

664aware of Respondent's involvement in the transaction until he

673requested his share of the commission.

679CONCLUSIONS OF LAW

6829. The Division of Administrative Hearings has

689jurisdiction over the parties and the subject matter herein.

698§§ 120.57(1) and 455.225(5), Fla. Stat. (2008).

70510. The burden of proof in this proceeding is on

715Petitioner. Florida Department of Transportation v. J.W.C.

722Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

734Department of Health and Rehabilitative Services , 348 So. 2d 349

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

755by clear and convincing evidence. Ferris v. Turlington , 510

764So. 2d 292 (Fla. 1987).

76911. Subsection 475.25(1), Florida Statutes, authorizes the

776Florida Real Estate Commission to take disciplinary action

784against the license of any real estate sales associate if the

795licensee commits certain specified acts. Listed among the

803prohibited acts are those listed in Subsection 455.227(1)(j),

811Florida Statutes, which reads as follows:

817Aiding, assisting, procuring, employing, or

822advising any unlicensed person or entity to

829practice a profession contrary to this

835chapter, the chapter regulating the

840profession, or the rules of the department

847or the board.

85012. Petitioner has proved by clear and convincing evidence

859the allegations of Count I, a violation of Subsections

868455.227(1)(j) and 475.25(1), Florida Statutes, in that

875Respondent is guilty of the prohibited acts in Subsection

884455.227(1)(j), Florida Statutes.

88713. Subsection 475.25(1), Florida Statutes, sets forth the

895penalties for violation of Subsection 455.227(1)(j), Florida

902Statutes, and reads, in pertinent part:

908The commission . . . may place a licensee,

917registrant, or permittee on probation; may

923suspend a license, registration, or permit

929for a period not exceeding 10 years; may

937revoke a license, registration, or permit;

943may impose an administrative fine not to

950exceed $1,000 for each count or separate

958offense; and may issue a reprimand, and any

966or all of the foregoing . . . .

97514. Florida Administrative Code Rule 61J2-24.001(4)(a)

981reads as follows:

984(a) When either the Petitioner or

990Respondent is able to demonstrate

995aggravating or mitigating circumstances

999. . . to a Division of Administrative

1007Hearings hearing officer in a Section

1013120.57(1), F.S., hearing by clear and

1019convincing evidence, the . . . hearing

1026officer shall be entitled to deviate from

1033the above guidelines in imposing or

1039recommending discipline, respectively, upon

1043a licensee. . . .

1048No evidence of aggravation or mitigation was presented.

105615. "The statutes regulating the activities of real estate

1065brokers in their business were designed for the protection of

1075the public and the safeguarding of persons who deposit their

1085money and place their trust in the hands of real estate

1096brokers." Shelton v. Florida Real Estate Commission , 121 So. 2d

1106711 (Fla. 2d DCA 1960). The fiduciary relationship between

1115customer and broker, inviting and usually receiving a high

1124degree of trust and confidence, is a proper subject of

1134reasonable regulation. The purpose of the statute is to protect

1144the public by permitting only those who possess special

1153qualifications of aptitude, ability, and integrity to engage in

1162the business. Horne v. Florida Real Estate Commission ,

1170163 So. 2d 515 (Fla. 1st DCA 1964). Section 475.25, Florida

1181Statutes, "requires nothing more of a real estate dealer or

1191broker then an honest, open and fair relationship with his

1201client, such as normally expected of a businessman of sound

1211integrity." Rivard v. McCoy , 212 So. 2d 672 (Fla. 1st DCA

12221968).

1223RECOMMENDATION

1224Based on the foregoing Findings of Fact and Conclusions of

1234Law, it is hereby

1238RECOMMENDED that Petitioner, Department of Business and

1245Professional Regulation, Division of Real Estate, enter a final

1254order finding that: (1) Respondent, Andrey Barhatkov, violated

1262Subsections 455.227(1)(j) and 475.42(1)(e), Florida Statutes;

1268(2) Respondent's license as a real estate salesperson be

1277suspended for one year, followed by one year of probation;

1287(3) Respondent be fined $2,000; (4) Respondent be required to

1298attend such remedial ethics and educational courses as are

1307determined appropriate by Petitioner; and (5) Respondent be

1315required to pay the costs of the investigation and prosecution

1325of this case.

1328DONE AND ENTERED this 25th day of June, 2009, in

1338Tallahassee, Leon County, Florida.

1342S

1343JEFF B. CLARK

1346Administrative Law Judge

1349Division of Administrative Hearings

1353The DeSoto Building

13561230 Apalachee Parkway

1359Tallahassee, Florida 32399-3060

1362(850) 488-9675

1364Fax Filing (850) 921-6847

1368www.doah.state.fl.us

1369Filed with the Clerk of the

1375Division of Administrative Hearings

1379this 25th day of June, 2009.

1385COPIES FURNISHED :

1388Thomas W. O'Bryant, Jr., Director

1393Division on Real Estate

1397Department of Business and

1401Professional Regulation

1403400 West Robinson Street

1407Hurston Building, Suite N802

1411Orlando, Florida 32801

1414Ned Luczynski, General Counsel

1418Department of Business and

1422Professional Regulation

14241940 North Monroe Street

1428Tallahassee, Florida 32399-0792

1431Andrey Barhatkov

1433408 Pinewood Drive

1436Davenport, Florida 33896

1439Patrick J. Cunningham, Esquire

1443Department of Business and

1447Professional Regulation

1449400 West Robinson Street

1453Hurston Building, Suite N801

1457Orlando, Florida 32801

1460NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1466All parties have the right to submit written exceptions within

147615 days from the date of this Recommended Order. Any exceptions

1487to this Recommended Order should be filed with the agency that

1498will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/26/2009
Proceedings: (Agency) Final Order filed.
PDF:
Date: 10/14/2009
Proceedings: Agency Final Order
PDF:
Date: 07/20/2009
Proceedings: Letter to Judge Clark from A. Barhatkov regarding case issues filed.
PDF:
Date: 06/25/2009
Proceedings: Recommended Order
PDF:
Date: 06/25/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/25/2009
Proceedings: Recommended Order (hearing held April 2, 2009). CASE CLOSED.
PDF:
Date: 06/09/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 06/02/2009
Proceedings: Transcript filed.
Date: 04/02/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/31/2009
Proceedings: Notice of Appearance and Substitute of Counsel (filed by P. Cunningham) filed.
PDF:
Date: 03/27/2009
Proceedings: Petitioner`s Notice of Service of Petitioner`s Exhibits filed.
PDF:
Date: 03/27/2009
Proceedings: Amended Unilateral Response to Prehearing Order filed.
PDF:
Date: 03/26/2009
Proceedings: Notice of Transfer.
PDF:
Date: 03/25/2009
Proceedings: Unilateral Response to Prehearing Order filed.
PDF:
Date: 03/20/2009
Proceedings: Notice of Appearance and Substitute of Counsel (filed by J. Holtz) filed.
PDF:
Date: 03/10/2009
Proceedings: Order Granting Withdrawal of Counsel.
PDF:
Date: 02/23/2009
Proceedings: Motion to Withdraw as Counsel filed.
PDF:
Date: 02/16/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/16/2009
Proceedings: Notice of Hearing (hearing set for April 2, 2009; 9:00 a.m.; Winter Haven, FL).
PDF:
Date: 02/13/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 02/09/2009
Proceedings: Initial Order.
PDF:
Date: 02/09/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/09/2009
Proceedings: Petition for Formal Hearing filed.
PDF:
Date: 02/09/2009
Proceedings: Agency referral filed.

Case Information

Judge:
JEFF B. CLARK
Date Filed:
02/09/2009
Date Assignment:
03/25/2009
Last Docket Entry:
10/26/2009
Location:
Winter Haven, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):