11-004528PL Department Of Business And Professional Regulation, Florida Real Estate Commission vs. Monique H. Morgan Status: Closed Recommended Order on Friday, January 20, 2012.

Summary: "Licensed real estate broker guilty of aiding an unlicensed entity to act as a broker and of failing to make available broker records requested by a Dept investigator; penalty recommended: $2000 fine; one year license suspension, and 2 years of probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 11-4528PL

)

MONIQUE H. MORGAN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1 /

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

October 27, 2011, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Susan Leigh Matchett, Esquire

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Joseph W. Gibson, Jr., Esquire

Joseph W. Gibson, P.A.

19 West Flagler Street, Suite 620

Miami, Florida 33130

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint in the manner specified therein and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about June 21, 2011, Petitioner issued a three-count

Administrative Complaint against Respondent. Count One alleges

that "Respondent violated [s]ection 475.25(1)(e), Florida

Statutes, by violating [r]ule 61J2-10.038, F.A.C., when she

failed to notify [Petitioner] in writing within 10 days of

changing her [mailing and license] addresses." Count Two

alleges that "Respondent violated [s]ection 475.5015, Florida

Statutes, [and thereby section 475.25(1)(e)], by failing to

make . . . requested records [concerning the aborted purchase

and sale of real property in Lauderhill, Florida, owned by Jason

and Jennifer Van Buskirk] available to [the requesting]

Department investigator." Count Three alleges that "Respondent

violated [s]ection 455.227(1)(j), and thereby [section]

475.25(1)(e), Florida Statutes," by "aiding [an] unlicensed

company[,] Bright Star Realty Investments Inc.[,] in broker

activities"; "preparing a sale and purchase contract as the

broker of Bright Star"; and "accepting deposits from [a]

[buyer] . . . on behalf of Bright Star." Petitioner

subsequently referred the matter to DOAH for a "formal

proceeding pursuant § 120.569 and § 120.57(1), Florida

Statutes."

On September 12, 2011, Petitioner filed a Motion to Amend

Administrative Complaint, seeking to amend the Administrative

Complaint by correcting the license number of the license

allegedly held by Respondent. The motion was granted by Order

issued September 22, 2011.

As noted above, the hearing in the instant case was held on

October 27, 2011. Petitioner presented the testimony of two

witnesses: Jennifer Van Buskirk and Felix Mizioznikov. It also

offered 11 exhibits (Petitioner's Exhibits 1 through 11), all of

which were received into evidence. Respondent presented no

evidence in her defense.

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced, on the record, that the

deadline for the filing of proposed recommended orders would be

ten days from the date of the filing of the hearing transcript

with DOAH.

The hearing Transcript (consisting of one volume) was filed

with DOAH on December 19, 2011. On December 20, 2011, the

undersigned issued a Notice of Filing Transcript, in which he

advised the parties that proposed recommended orders had to be

filed with DOAH no later than December 29, 2011. On

December 21, 2011, Petitioner filed a motion requesting that the

deadline for the filing of proposed recommended orders be

extended to January 6, 2012. The deadline was extended, as

requested by Petitioner, by Order issued December 21, 2011. On

January 5, 2012, Respondent filed an opposed motion seeking a

further extension, until January 16, 2012, of the proposed

recommended order filing deadline. By Order issued January 6,

2012, the deadline was extended a second time, but only until

January 9, 2012.

Petitioner's Proposed Recommended Order was timely filed on

January 9, 2012, and it was considered by the undersigned prior

to his making the findings of fact, conclusions of law, and

recommendation set forth in this Recommended Order.

Respondent's Proposed Recommended Order, on the other hand, was

filed on January 19, 2012, ten days after the expiration of the

proposed recommended order filing deadline established by the

January 6, 2012, Order. At the time it was filed, the

undersigned had already completed the findings of fact,

conclusions of law, and recommendation sections of this

Recommended Order. Having subsequently read Respondent's

Proposed Recommended Order, the undersigned finds that he would

have made the very same findings of fact, conclusions of law,

and recommendation even if this Proposed Recommended Order had

been timely filed.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Respondent is now, and has been at all times material

to the instant case, a Florida-licensed real estate broker,

holding license number BK-475943.

2. At no time during the time Respondent has held this

license has any disciplinary action been taken against her.

3. Respondent was at all times material to the instant

case, the sole officer and director of Bright Star Realty and

Investments, Inc. (Bright Star), a Florida corporation.

4. At no time material to the instant case was Bright Star

a Florida-registered brokerage corporation. 2 /

5. In October 2008, Milton Gibbons entered into a contract

(Purchase Contract) to purchase from Jason and Jennifer Van

Buskirk property located at 8510 Northwest 46th Street,

Lauderhill, Florida (Purchase Transaction). The Purchase

Contract was drawn on a pre-printed "'As Is' Contract for Sale

and Purchase" form approved by the Florida Association of

Realtors and The Florida Bar.

6. Respondent, acting on behalf of her unlicensed

brokerage corporation, Bright Star, represented to Mr. Gibbons

in the Purchase Transaction. Bright Star was listed in the

Purchase Contract as a "[c]ooperating [b]roker" and the "only

broker[] entitled to compensation in connection with this

Contract." No other broker, including a listing broker, was

mentioned in the Purchase Contract, notwithstanding that

AmeriStar Properties of South Florida, Inc., had listed the

property pursuant to an "Exclusive Right of Sale Agreement" it

had with the Van Buskirks which was still in effect at the time

Mr. Gibbons and the Van Buskirks entered into the Purchase

Contract.

7. Under the terms of the Purchase Contract, Mr. Gibbons

was required to make a deposit totaling $9,600.00 to be "held in

escrow by Bright Star," which was designated in the Purchase

Contract as the "Escrow Agent."

8. The Purchase Transaction never closed, and a dispute

arose concerning the appropriate distribution of the $9,600.00

that had been deposited by Mr. Gibbons and was being held in

escrow in accordance with the Purchase Contract.

9. Pursuant to section 475.25(1)(d)1., Florida Statutes,

and Florida Administrative Code Rule 61J2-10.032, Respondent, on

behalf of the "Escrow Agent," Bright Star, notified Petitioner

of the dispute in writing, using a form developed for that

purpose. On the completed form that Respondent submitted, which

was signed by her and dated May 11, 2009, she indicated that she

was the "broker" and Bright Star was the "brokerage firm"

involved in the real estate transaction in question; that her

address was "520 NW 165 St. Rd. Suite 112, Miami Fl 33169"; and

that the "amount in dispute" was $9,600.00.

10. The Van Buskirks subsequently filed a complaint

against Respondent with Petitioner.

11. The complaint was investigated by one of Petitioner's

investigators, Felix Mizioznikov. His investigation began in

September 2009, and concluded in August 2010.

12. On or about May 3, 2010, Mr. Mizioznikov sent to

Respondent, by certified United States Mail, two packages

containing the complaint and other materials. One package was

sent to what Petitioner's computerized records reflected was

Respondent's "license location"--12865 West Dixie Highway, #201,

North Miami, Florida 33161. The other package was sent to what

those same records reflected was Respondent's "mailing

address"--520 Northwest 165th Street, #112, Miami, Florida

33159. Both packages were returned to Mr. Mizioznikov by the

United States Postal Service. The returned package that had

been sent to the 12865 West Dixie Highway address was stamped

"MOVED LEFT NO ADDRESS." The returned package that had been

sent to the 520 Northwest 165th Street address was stamped

"UNCLAIMED."

13. In June 2010, Mr. Mizioznikov visited both the 12865

West Dixie Highway address (where, he discovered, a law firm was

located) and the 520 Northwest 165th Street address. There was

no indication that Respondent had a business presence at either

location.

14. On June 21, 2010, Mr. Mizioznikov sent to Respondent's

attorney, Joseph Gibson, Esquire, by facsimile transmission, an

Office Inspection & Escrow/Trust Account Audit Form (signed by

Mr. Mizioznikov), requesting that Respondent, within five days

"provide [her] Broker business records and monthly

reconciliation escrow statements for dates 5-2008-Current."

Mr. Mizioznikov later contacted Respondent herself and requested

her to produce these records. As of the date of the hearing,

Respondent had not produced the requested records.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

16. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action against

Florida-licensed real estate brokers based upon any of the

grounds enumerated in section 475.25(1), 3 / including "[having]

violated any provision of s. 455.227(1)" (as described in

section 475.25(1)(a)), and "[having] violated any of the

provisions of [chapter 475] or any lawful order or rule made or

issued under the provisions of [chapter 475] or chapter 455" (as

described in section 475.25(1)(e)).

17. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

not exceeding ten years; imposition of an administrative fine

not to exceed $5,000.00 for each count or separate offense;

issuance of a reprimand; and placement of the licensee on

probation. § 475.25(1). In addition, the Commission "may

assess costs related to the investigation and prosecution of the

case excluding costs associated with an attorney's time."

§ 455.227(3)(a).

18. The Commission may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pursuant to

sections 120.569 and 120.57. See § 120.60(5).

19. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

See Hollis v. Dep't of Bus. & Prof'l Reg. , 982 So. 2d 1237, 1239

(Fla. 5th DCA 2008); and §§ 120.569(1) and 120.57(1).

20. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct alleged in the charging

instrument. Proof greater than a mere preponderance of the

evidence must be presented. Clear and convincing evidence is

required. See Dep't of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996);

Walker v. Fla. Dep't of Bus. & Prof'l Reg. , 705 So. 2d 652, 655

(Fla. 5th DCA 1998)("The Department had the burden of proving

fraud, misrepresentation or concealment by clear and convincing

evidence, in order to justify revocation of Walker's license.");

and § 120.57(1)(j) ("Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

21. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

967 (Fla. 1995)("The evidence [in order to be clear and

convincing] must be sufficient to convince the trier of fact

without hesitancy."). "Although this standard of proof may be

met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Electric

Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st

DCA 1991).

22. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Trevisani

v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746-747 (Fla. 3d DCA 2000)("Marcelin first contends

that the administrative law judge found that he had committed

three violations which were not alleged in the administrative

complaint. This point is well taken. . . . We strike these

violations because they are outside the administrative

complaint."); Dep't of Rev. v. Vanjaria Enters. , 675 So. 2d 252,

254 (Fla. 5th DCA 1996)("[T]the issue must be treated as though

it had been raised in the pleadings because the parties tried

the issue by consent."); and Delk v. Dep't of Prof'l Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must

legally fall within the statute or rule claimed [in the

administrative complaint] to have been violated.").

23. If there is any reasonable doubt concerning the proper

interpretation of the statute or rule alleged in the charging

instrument to have been violated, that doubt must be resolved in

favor of the licensee. See Djokic v. Dep't of Bus. & Prof'l

Reg., Div. of Real Estate , 875 So. 2d 693, 695 (Fla. 4th DCA

2004); Elmariah v. Dep't of Prof'l Reg., Bd. of Med. , 574 So. 2d

164, 165 (Fla. 1st DCA 1990); and Lester v. Dep't of Prof'l &

Occupational Regs. , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

24. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

consult Petitioner's "penalty guidelines," which impose

restrictions and limitations on the exercise of Petitioner's

disciplinary authority. See Parrot Heads, Inc. v. Dep't of Bus.

& Prof'l Reg. , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

administrative agency is bound by its own rules . . . creat[ing]

guidelines for disciplinary penalties.").; and Buffa v.

Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

must comply with its own rules.").

25. The Commission's "disciplinary guidelines" are set

forth in Florida Administrative Code Rule 61J2-24.001. At all

times material to the instant case prior to July 21, 2010, when

rule 61J2-24.001 was most recently amended, it provided, in

pertinent part, as follows:

(1) Pursuant to Section 455.2273, F.S., the

Commission sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapter 455 or

475, F.S. The purpose of the disciplinary

guidelines is to give notice to licensees of

the range of penalties which normally will

be imposed for each count during a formal or

an informal hearing. For purposes of this

rule, the order of penalties, ranging from

lowest to highest, is: reprimand, fine,

probation, suspension, and revocation or

denial. Pursuant to Section 475.25(1),

F.S., combinations of these penalties are

permissible by law. Nothing in this rule

shall preclude any discipline imposed upon a

licensee pursuant to a stipulation or

settlement agreement, nor shall the range of

penalties set forth in this rule preclude

the Probable Cause Panel from issuing a

letter of guidance.

(2) As provided in Section 475.25(1), F.S.,

the Commission may, in addition to other

disciplinary penalties, place a licensee on

probation. The placement of the licensee on

probation shall be for such a period of time

and subject to such conditions as the

Commission may specify. Standard

probationary conditions may include, but are

not limited to, requiring the licensee: to

attend pre-licensure courses; to

satisfactorily complete a pre-licensure

course; to attend post-licensure courses; to

satisfactorily complete a post-licensure

course; to attend continuing education

courses; to submit to and successfully

complete the state-administered examination;

to be subject to periodic inspections and

interviews by a DBPR investigator; . . . .

(3) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to subsection (4). The

verbal identification of offenses is

descriptive only; the full language of each

statutory provision cited must be consulted

in order to determine the conduct included.

* * *

(f) VIOLATION[:] Section 475.25(1)(e),

F.S.- Violated any rule or order or

provision under Chapters 475 and 455,

F.S.[ 4 / ]

RECOMMENDED RANGE OF PENALTY: The usual

action of the Commission shall be to impose

a penalty from an 8 year suspension to

revocation and an administrative fine of

$1,000.

* * *

(4)(a) When either the Petitioner or

Respondent is able to demonstrate

aggravating or mitigating

circumstances . . . to a Division of

Administrative Hearings [administrative law

judge] in a Section 120.57(1), F.S., hearing

by clear and convincing evidence, the . . .

[administrative law judge] shall be entitled

to deviate from the above guidelines

in . . . recommending discipline . . . upon

a licensee. . . .

(b) Aggravating or mitigating circumstances

may include, but are not limited to, the

following:

1. The degree of harm to the consumer or

public.

2. The number of counts in the

Administrative Complaint.

3. The disciplinary history of the

licensee.

4. The status of the licensee at the time

the offense was committed.

5. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

6. Violation of the provision of Chapter

475, F.S., wherein a letter of guidance as

provided in Section 455.225(3), F.S.,

previously has been issued to the licensee.

The current version of rule 61J2-24.001, which took effect

July 21, 2010, is identical to its immediate predecessor in all

material respects except that it provides that, for a "first

violation" of section 475.25(1)(e), the "penalty range" is a "$250 to $1,000 administrative f ine and suspension to revocation,"

and, for a "second and subsequen t violations," the "penalty range"

is a "$1,000 to $5,000 administr ative fine and suspension to

revocation."

26. The Administrative Complaint issued in the instant

case contains three counts. Count One alleges that "Respondent

violated [s]ection 475.25(1)(e), Florida Statutes, by violating

[r]ule 61J2-10.038, F.A.C., when she failed to notify

[Petitioner] in writing within 10 days of changing her [mailing

and license] addresses." Count Two alleges that "Respondent

violated [s]ection 475.5015, Florida Statutes, [and thereby

section 475.25(1)(e)] by failing to make . . . requested records

available to [the requesting] Department investigator." Count

Three alleges that "Respondent violated [s]ection 455.227(1)(j),

and thereby [section] 475.25(1)(e), Florida Statutes," by

"aiding [an] unlicensed company[,] Bright Star Realty

Investments Inc.[,] in broker activities"; "preparing a sale and

purchase contract as the broker of Bright Star"; and "accepting

deposits from [a] [buyer] . . . on behalf of Bright Star."

27. At all times material to the instant case, section

475.25(1)(e) has authorized the Commission to take disciplinary

action against a Florida-licensed real estate broker who "[h]as

violated any of the provisions of this chapter or any . . . rule

made or issued under the provisions of this chapter or chapter

455."

28. Among the statutory and rule provisions, violation of

which subjects a Florida-licensed real estate broker to

disciplinary action pursuant to section 475.25(1)(e), are

sections 455.227(1)(j) and 475.5015, Florida Statutes, and

Florida Administrative Code Rule 61J2-10.038, which have, at all

times material to the instant case, provided as follows:

Section 455.227(1)(j)

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

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.[ 5 / ]

Section 475.5015

Each broker shall keep and make available to

the department such books, accounts, and

records as will enable the department to

determine whether such broker is in

compliance with the provisions of this

chapter. Each broker shall preserve at

least one legible copy of all books,

accounts, and records pertaining to her or

his real estate brokerage business for at

least 5 years from the date of receipt of

any money, fund, deposit, check, or draft

entrusted to the broker or, in the event no

funds are entrusted to the broker, for at

least 5 years from the date of execution by

any party of any listing agreement, offer to

purchase, rental property management

agreement, rental or lease agreement, or any

other written or verbal agreement which

engages the services of the broker. If any

brokerage record has been the subject of or

has served as evidence for litigation,

relevant books, accounts, and records must

be retained for at least 2 years after the

conclusion of the civil action or the

conclusion of any appellate proceeding,

whichever is later, but in no case less than

a total of 5 years as set above. Disclosure

documents required under ss. 475.2755 and

475.278 shall be retained by the real estate

licensee in all transactions that result in

a written contract to purchase and sell real

property.

Florida Administrative Code Rule 61J2-10.038

(1) Pursuant to Section 455.275(1), Florida

Statutes,[ 6 ] / the Commission defines "current

mailing address" as the current residential

address which is used by a licensee or

permit holder to receive mail through the

United States Postal Service.

(2) Each licensee and permit holder is

required to notify the BPR in writing of the

current mailing address and any change in

the current mailing address within 10 days

after the change.

29. Because of their penal nature, the foregoing statutory

and rule provisions must be strictly construed, with any

reasonable doubts as to their meaning being resolved in favor of

the licensee. See Camejo v. Dep't of Bus. & Prof'l Reg. , 812

So. 2d 583, 583-84 (Fla. 3d DCA 2002)("'Statutes such as those

at issue authorizing the imposition of discipline upon licensed

contractors are in the nature of penal statutes, which should be

strictly construed.'"); Munch v. Dep't of Prof'l Reg. , 592 So.

2d 1136, 1143 (Fla. 1st DCA 1992)("It is clear that [s]ection

475.25(1)(b) is penal in nature. As such, it must be construed

strictly, in favor of the one against whom the penalty would be

imposed."); and McClung v. Crim. Just. Stds. & Training Comm'n ,

458 So. 2d 887, 888 (Fla. 5th DCA 1984) ("[W]here a statute

provides for revocation of a license the grounds must be

strictly construed because the statute is penal in nature. No

conduct is to be regarded as included within a penal statute

that is not reasonably proscribed by it; if there are any

ambiguities included, they must be construed in favor of the

licensee.").

30. Evaluating Petitioner's evidentiary presentation at

hearing in light of the foregoing, the undersigned finds that

Petitioner failed to meet its burden of proving Respondent's

guilt of the violation of Florida Administrative Code Rule 61J2-

10.038 (and, derivatively, section 475.25(1)(e)) alleged in

Count One of the Administrative Complaint, in that the record

evidence does not clearly and convincingly establish that, at

any material time, the mailing address that Petitioner had on

record for Respondent was not Respondent's actual mailing

address. 7 /

31. The record evidence, however, clearly and convincingly

establishes that Respondent violated section 475.015 (and,

derivatively, section 475.25(1)(e)) by failing to make available

to Petitioner records concerning the Purchase Transaction (which

were among "the Broker business records and monthly

reconciliation escrow statements" Mr. Mizioznikov had requested

her to produce during his investigation), 8 / as alleged in Count

Two of the Administrative Complaint, and that she also violated

section 455.227(1)(j), (and, derivatively, section

475.25(1)(e) 9 / ) by aiding Bright Star, an "unlicensed . . .

entity," to act as a broker in connection with the Purchase

Transaction, as alleged in Count Three of the Administrative

Complaint.

32. Having considered the facts of the instant case in

light of the pertinent and applicable provisions of Florida

Administrative Code Rule 61J2-24.001 set forth above, it is the

view of the undersigned that, as punishment for having committed

the violations alleged in Counts Two and Three of the

Administrative Complaint, Respondent should be fined a total of

$2,000.00, her license should be suspended for a period of one

year, and she should be placed on probation for a period of two

years, commencing immediately, with the condition, among others,

that she make available to Petitioner upon request, within five

business days, the records (referred to above) that

Mr. Mizioznikov had requested of her as part of his

investigation, as well as any other "books, accounts, and

records" described in section 475.5015.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Commission issue a Final Order (1)

dismissing Count One of the Administrative Complaint; and (2)

finding Respondent guilty of Counts Two and Three of the

Administrative Complaint and disciplining her therefor as

described above.

DONE AND ENTERED this 20th day of January, 2012, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of January, 2012.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to that version of Florida

Statutes in effect at the time of the occurrence of the

particular event or action being discussed.

2/ Section 475.15, Florida Statutes, requires any corporation

that "acts as a broker" to register with the Florida Real Estate

Commission. See Meteor Motors, Inc. v. Thompson Halbach and

Assocs. , 914 So. 2d 479, 482 (Fla. 4th DCA 2005).

3/ "Broker," as that term is used in section 475.25(1) and

elsewhere in chapter 475, part I, is defined in section 475.01

as follows:

"Broker" means a person who, for another,

and for a compensation or valuable

consideration directly or indirectly paid or

promised, expressly or impliedly, or with an

intent to collect or receive a compensation

or valuable consideration therefor,

appraises, auctions, sells, exchanges, buys,

rents, or offers, attempts or agrees to

appraise, auction, or negotiate the sale,

exchange, purchase, or rental of business

enterprises or business opportunities or any

real property or any interest in or

concerning the same, including mineral

rights or leases, or who advertises or holds

out to the public by any oral or printed

solicitation or representation that she or

he is engaged in the business of appraising,

auctioning, buying, selling, exchanging,

leasing, or renting business enterprises or

business opportunities or real property of

others or interests therein, including

mineral rights, or who takes any part in the

procuring of sellers, purchasers, lessors,

or lessees of business enterprises or

business opportunities or the real property

of another, or leases, or interest therein,

including mineral rights, or who directs or

assists in the procuring of prospects or in

the negotiation or closing of any

transaction which does, or is calculated to,

result in a sale, exchange, or leasing

thereof, and who receives, expects, or is

promised any compensation or valuable

consideration, directly or indirectly

therefor; and all persons who advertise

rental property information or lists. A

broker renders a professional service and is

a professional within the meaning of s.

95.11(4)(a). Where the term "appraise" or

"appraising" appears in the definition of

the term "broker," it specifically excludes

those appraisal services which must be

performed only by a state-licensed or state-

certified appraiser, and those appraisal

services which may be performed by a

registered trainee appraiser as defined in

part II. The term "broker" also includes

any person who is a general partner,

officer, or director of a partnership or

corporation which acts as a broker. The

term "broker" also includes any person or

entity who undertakes to list or sell one or

more timeshare periods per year in one or

more timeshare plans on behalf of any number

of persons, except as provided in ss.

475.011 and 721.20.

4/ In this rule provision, which has the effect of law and is

not subject to invalidation in this section 120.57 substantial

interest proceeding, the Commission has interpreted section

475.25(1)(e) as including, within its reach, violations of

section 455. The undersigned must accept this interpretation,

notwithstanding that he may disagree with the Commission's

interpretation. See State v. Jenkins , 469 So. 2d 733, 734 (Fla.

1985)("We note that agency rules and regulations, duly

promulgated under the authority of law, have the effect of

law."); City of Palm Bay v. Dep't of Transp. , 588 So. 2d 624,

628 (Fla. 1st DCA 1991)("The same principle applies to duly

promulgated agency rules, which will be treated as presumptively

valid until invalidated in a section 120.56 rule challenge.");

and Graham v. Swift , 480 So. 2d 124, 125 (Fla. 3d DCA 1985)("[A]

valid rule or regulation of an administrative agency has the

force and effect of law.").

5/ An "unlicensed . . . entity," as that term is used in section

455.227(1)(j) includes a corporation not registered with the

Commission pursuant to section 475.15. Cf. Fla. Bd. of Massage

v. Thrall , 164 So. 2d 20, 22 (Fla. 3d DCA 1964)("Section 480.02,

Fla. Stat., F.S.A., specifically provides that it is unlawful

for any person to engage in the practice of massage without a

certificate of registration issued pursuant to the provisions of

Chapter 480. This section also provides that it shall be

unlawful for any person to practice any branch of massage as

defined by law without first being a registered masseur or

masseuse under the provisions of Chapter 480. The reference is

specifically to a registered individual and when the terminology

of § 480.11 (the basis of Count 3, which prohibits the

employing, allowing or permitting any unlicensed person to

perform any work in [the registrant's] establishment or massage

school) is so considered, we must conclude that the legislature

intended the term 'licensed person' to be the equivalent of

'registered person.'").

6/ Section 455.275(1) has, at all times material to the instant

case, provided as follows:

Each licensee of the department is solely

responsible for notifying the department in

writing of the licensee's current mailing

address and place of practice, as defined by

rule of the board or the department when

there is no board. A licensee's failure to

notify the department of a change of address

constitutes a violation of this section, and

the licensee may be disciplined by the board

or the department when there is no board.

As can be seen, section 455.275(1) addresses both a licensee's

"mailing address" and

"place of practice." Respondent, however,

was charged with violating, not section 455.275(1), but rather

Florida Administrative Code Rule 61J2-10.038, which requires a

licensee to give notification of a change in "mailing address,"

not of a change in "place of practice" (or, as Petitioner

alternatively refers to it as, "license location" or "license

address").

7/ That the complaint package Mr. Mizioznikov mailed to

Respondent at 520 Northwest 165th Street, #112, Miami, Florida

33159 on or about May 3, 2010, was returned unclaimed and that

his visit to that address the following month revealed that (in

Mr. Mizioznikov's words) "there was no business there" do not,

individually or collectively, establish, by any standard of

proof, much less clear and convincing evidence, that this 520

Northwest 165th Street address was not Respondent's actual

address when these events occurred.

8/ As of the time of the hearing, Petitioner had yet to make

these records available to Petitioner, thus making this a

continuing violation.

9/ Violations of section 455.227(1)(j) are also disciplinable

the only subsection of section 475.25 that Respondent is alleged

to have violated in Count Three of the Administrative Complaint.

COPIES FURNISHED :

Susan Leigh Matchett, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Joseph W. Gibson, Jr., Esquire

Joseph W. Gibson, P.A.

19 West Flagler Street, Suite 620

Miami, Florida 33130

Juana Watkins, Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.