96-005919 Division Of Real Estate vs. Serafina A. Martell; Sera Martell Realty, Inc.; And Elizabeth O. D. Johnson Status: Closed Recommended Order on Friday, March 20, 1998.

Summary: Licensed salesperson guilty of controlling a brokerage corporation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 96-5919

)

SERAFINA A. MARTELL; SERA MARTELL )

REALTY, INC.; and ELIZABETH O. D. ) 1

JOHNSON, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 6, 1998, at Fort Lauderdale, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondents: 2 James H. Gillis, Esquire

Gillis & Wilsen

1415 East Robinson Street, Suite B

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent Serafina Martell (Ms. Martell), a

licensed real estate salesperson, and Respondent Sera Martell

Realty, Inc. (Martell Realty), a corporation licensed as a real

estate broker, committed the offenses alleged in the

Administrative Complaint and the penalties, if any, that should

be imposed.

PRELIMINARY STATEMENT

Martell Realty has, at all times pertinent to this

proceeding, been solely owned by Ms. Martell. Between August 12,

1991, and August 8, 1994, Elizabeth O. D. Johnson was the

qualifying broker for Martell Realty. At all times pertinent to

this proceeding, Ms. Martell was licensed as a real estate sales

person, but she has never been licensed as a real estate broker.

On November 19, 1996, Petitioner filed an administrative

complaint naming Martell Realty, Ms. Martell, and Ms. Johnson as

the Respondents pertaining to the time Ms. Johnson served as the

qualifying broker for Martell Realty. The administrative

complaint contained six counts. The gravamen of the complaint

was that Ms. Martell was operating Martell Realty without a

broker's license and that Ms. Johnson was merely a figurehead.

After alleging certain facts pertaining to the operation and

control of the corporation, the administrative complaint charged

the respective Respondents as follows 3 :

Count I charged Ms. Martell with operating as a broker

without a current, valid, and active broker's license in

violation of Section 475.42(1)(a), Florida Statutes, and

therefore in violation of Section 475.25(1)(a), Florida Statutes.

Count II charged Martell Realty with aiding, assisting, or

employing a salesperson to operate as a broker in the practice of

real estate in violation of Section 455.227(1)(j), Florida

Statutes, and therefore in violation of Section 475.25(1)(a),

Florida Statutes.

Count III charged Ms. Johnson with culpable negligence in

failing to exercise due direction, control, and management of a

real estate brokerage office in violation of Section

475.25(1)(b), Florida Statutes.

Count IV charged Ms. Martell with aiding, assisting, or

conspiring with another to violate the duties imposed by Section

475.42(1), Florida Statutes, in violation of Section

475.25(1)(b), Florida Statutes.

Count V charged Martell Realty with aiding, assisting, or

conspiring with another to violate the duties imposed by Section

475.42(1), Florida Statutes, in violation of Section

475.25(1)(b), Florida Statutes.

Count VI charged Ms. Johnson with aiding, assisting, or

conspiring with another to violate the duties imposed by Section

475.42(1), Florida Statutes, in violation of Section

475.25(1)(b), Florida Statutes.

Counts III and VI of the Administrative Complaint were

resolved by stipulation between Petitioner and Ms. Johnson prior

to the formal hearing. Consequently, those two counts were not

at issue at the formal hearing.

At the formal hearing, Petitioner presented the testimony of

five witnesses and presented four exhibits, three of which were

accepted into evidence. Respondent presented the testimony of

thirteen witnesses and presented 29 exhibits, 28 of which were

accepted into evidence.

A transcript of the proceedings has been filed. The

Petitioner and Respondent filed proposed recommended orders,

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida charged

with the responsibility and duty to regulate the practice of real

estate in Florida pursuant to Chapters 455 and 475, Florida

Statutes, and Chapter 61J2, Florida Administrative Code.

2. At all times pertinent to this proceeding, Ms. Martell

was licensed as a real estate salesperson in the State of

Florida, having been issued license number 0126087. Ms. Martell

has never been licensed as a real estate broker.

3. At all times pertinent to this proceeding, Ms. Martell's

license was placed with Martell Realty, 110 North Ocean

Boulevard, Pompano Beach, Florida, which is the only office

Martell Realty has had during its corporate existence.

4. At all times pertinent to this proceeding, Martell

Realty was a corporation that was duly organized and existing

under the laws of the State of Florida. Ms. Martell has been the

sole stockholder of Martell Realty since its incorporation in

1989.

5. Martell Realty was initially registered as a real estate

brokerage corporation in the State of Florida on August 12, 1991.

Since that date of registration, Martell Realty has been the

holder of license number CQ0258296. 4

6. At no time pertinent to this proceeding was Ms. Martell

an officer or director of Martell Realty. 5

7. Although Martell Realty was named after Ms. Martell,

there was no evidence that Ms. Martell held herself out to the

public as a real estate broker.

8. Ms. Johnson was the qualifying broker for Martell Realty

and the vice-president of the corporation from August 12, 1991,

until August 8, 1994. Ms. Johnson resigned her positions with

Martell Realty on August 8, 1994. The allegations of the

Administrative Complaint are limited to the period between

August 12, 1991, and August 8, 1994.

9. At the time of its initial registration Nina Cianciolo,

Ms. Martell's sister, was listed as the president, the secretary,

and as a director of Martell Realty. Ms. Cianciolo was not

licensed by Petitioner. As of February 22, 1993, Ms. Cianciolo

was no longer a corporate officer.

10. Also at the time of its initial registration,

Anna D'Amico, who also served as the company bookkeeper, was

designated the treasurer of Martell Realty. Ms. D'Amico died

prior to the formal hearing, but the record does not reflect her

date of death.

11. Martell Realty was an active real estate brokerage

company at all times pertinent to this proceeding and was an

active real estate brokerage company at the time of the formal

hearing. 6

12. At all times pertinent to this proceeding, Ms. Johnson

held broker licenses 0262427 and 0271696. Ms. Johnson testified

her employment status with Martell Realty was as an independent

contractor and that she was paid approximately $150.00 per month

to serve as its qualifying broker.

13. Ms. Johnson described her responsibility as being

limited to supervising the escrow account, including making

deposits, withdrawals, and monthly reconciliation of the escrow

account. The evidence established that she performed those

responsibilities and that there were no deficiencies pertaining

to the escrow account.

14. Ms. Johnson went to work at the Martell Realty office

on a daily basis unless she was ill or out of town. She

routinely called on days she was not at the office. Although she

did not have a private office, she had a desk and telephone that

were reserved for her use.

15. Ms. Johnson testified that she acted in the best

interest of the company as a designated broker at all times. She

testified that she contacted legal counsel on one occasion when

there was a difference of opinion between herself and Ms. Martell

and sought legal advice concerning the types of brokerage

transaction that would best serve Martell Realty, even though

Ms. Martell might be opposed.

16. In addition to being responsible for the escrow

account, during her tenure as qualifying broker for Martell

Realty, Ms. Johnson did the following on one or more occasions:

a. Made application and served as Martell

Realty's designated realtor for the North

Broward Association of Realtors and attended

some of the orientation program of that

association.

b. Verified and acknowledged with the

Pompano Beach - North Broward Board of

Realtors new listings that had been brought

into Martell Realty for listing with the

Multiple Listing Service.

c. Brought new listings into the office of

Martell Realty.

d. Sold real property through Martell

Realty.

e. Reviewed commission agreements

generated by listings shared by office

associates and disputes generated by such

arrangements.

17. While Respondents established that Ms. Johnson's

activities with Martell Realty were not strictly limited to

matters pertaining to the escrow account, Petitioner established

by clear and convincing evidence that Ms. Johnson was not in

control of the corporate affairs of Martell Realty.

18. Martell Realty did not conduct regular meetings of the

board of directors. From 1991 until her resignation in 1994,

Ms. Johnson was a member of the board of directors of Martell

Realty. During that time, there were no meetings of the board of

directors.

19. The designated officers of the corporation did not

conduct the affairs of the corporation during Ms. Johnson's

tenure as the qualifying broker.

20. At all times pertinent to this proceeding, Ms. Martell

conducted the affairs of Martell Realty, except those pertaining

to the escrow account. She served as the office manager of

Martell Realty and was in charge of the daily operations of the

corporation.

21. Ms. Martell hired and fired personnel, including

salespersons, who were hired as independent contractors.

Although Ms. Johnson periodically gave advice to sales associates

and wrote occasional memos to sales associates, the evidence

established that Ms. Martell, not Ms. Johnson, supervised the

sales associates of the corporation. Ms. Martell conducted sales

meetings, collected escrow deposits from other salespersons,

attended closings, and supervised all advertising.

22. On April 1, 1993, Martell Realty filed suit against

Diane Consenzi for a real estate brokerage commission. This case

was filed in the Circuit Court for the Fifteenth Judicial

Circuit, where it was assigned Case Number CL 93-2879 AE. The

case was styled Sera Martell Realty, Inc. vs. Diane Consenzi,

a/k/a Diane Sadallah Consenzi . Protracted litigation followed.

23. Martell Realty was represented by counsel throughout

this litigation. Ms. Martell was present during all court

appearances on behalf of Martell Realty and hired the counsel

that represented Martell Realty. 7 Ms. Martell was in control of

the litigation on behalf of Martell Realty. Ms. Johnson, the

qualifying broker, knew very little about this litigation and did

not participate in making decisions pertaining to the litigation.

There was no evidence that the board of directors or any

authorized corporate officer participated in this litigation on

behalf of Martell Realty.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

25. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondents.

See Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans

Packing Co. v. Department of Agriculture and Consumer Services ,

550 So. 2d 112 (Fla. 1st DCA 1989).

26. Section 475.001, Florida Statutes, sets forth the

purpose of Part I of Chapter 475, Florida Statutes, as follows:

The Legislature finds that a significant

number of real property transactions are

facilitated by real estate brokers and

salesperson and that it is necessary to

assure the minimal competence of real estate

practitioners in order to protect the public

from potential economic loss; therefore, the

Legislature deems it necessary in the

interest of the public welfare to regulate

real estate brokers, salespersons, and

schools in this state.

27. Chapter 455 and Part I of Chapter 475, Florida

Statutes, along with the rules adopted by Petitioner, contain

comprehensive regulations of the practice of real estate in the

State of Florida. It is apparent that the Legislature intended

for there to be a distinction between brokers and salespersons.

Section 475.42(1)(a), Florida Statutes, prohibits any person to

operate as a broker without being the holder of a valid and

current active broker's license. Section 475.42(1)(b), Florida

Statutes, prohibits any person licensed as a salesperson to

operate as a broker.

28. Section 475.01, Florida Statutes, provides, in

pertinent part, as follows:

(1) As used in this part:

(a) "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. . . . 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. . . .

* * *

(k) "Salesperson" means a person who

performs any act specified in the definition

of "broker," but who performs such act under

the direction, control, or management of

another person. . . .

* * *

(2) The terms "employ," "employment,"

"employer," and "employee," when used in this

chapter and in rules adopted pursuant thereto

to describe the relationship between a broker

and a salesperson, include an independent

contractor relationship when such

relationship is intended by and established

between a broker and a salesperson. The

existence of such relationship shall not

relieve either the broker or the salesperson

of her or his duties, obligations, or

responsibilities under this chapter.

(3) Wherever the word "operate" or

"operating" as a broker, broker-salesperson,

or salesperson appears in this chapter; in

any order, rule, or regulation of the

commission; in any pleading, indictment, or

information under this chapter; in any court

action or proceeding; or in any order or

judgment of a court, it shall be deemed to

mean the commission of one or more acts

described in this chapter as constituting or

defining a broker, broker-salesperson, or

salesperson, not including, however, any of

the exceptions stated therein. A single such

act is sufficient to bring a person within

the meaning of this chapter, and each act, if

prohibited herein, constitutes a separate

offense.

29. Section 475.25(1), Florida Statutes, provides, in

pertinent part, as follows:

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal thereof; 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, if it finds that the

licensee, registrant, permittee, or

applicant:

(a) Has violated any provision of s.

455.227(1) or of s. 475.42.

(b) Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest dealing

by trick, scheme, or device, culpable

negligence, or breach of trust in any

business transaction in this state or any

other state, nation, or territory; has

violated a duty imposed upon her or him by

law or by the terms of a listing contract,

written, oral, express, or implied, in a real

estate transaction; has aided, assisted, or

conspired with any other person engaged in

any such misconduct and in furtherance

thereof; or has formed an intent, design, or

scheme to engage in any such misconduct and

committed an overt act in furtherance of such

intent, design, or scheme. It is immaterial

to the guilt of the licensee that the victim

or intended victim of the misconduct has

sustained no damage or loss; that the damage

or loss has been settled and paid after

discovery of the misconduct; or that such

victim or intended victim was a customer or a

person in confidential relation with the

licensee or was an identified member of the

general public.

30. Ms. Johnson, as the qualifying broker employed by

Martell Realty, had responsibilities imposed by statute and rule.

As is made clear by the provisions of Section 475.01(2), Florida

Statutes, those responsibilities were not limited to the

employment contract between the broker and the employing entity.

The evidence is clear and convincing that the salespersons of

Martell Realty did not work under the direction, control, or

management of Ms. Johnson. Ms. Johnson abdicated those

responsibilities to Ms. Martell.

31. Martell Realty is recognized by the laws of Florida as

a corporate entity separate and distinct from Ms. Martell.

Because the corporation had a named qualifying broker and named

directors and officers, Martell Realty satisfied the criteria for

licensure as a brokerage corporation.

32. No statute or rule prohibits a salesperson from owning

a real estate brokerage company. Consequently, the fact that a

licensed salesperson was the sole owner of the corporation did

not disqualify Martell Realty from such licensure.

33. Pertinent statutes and rules do, however, prohibit a

salesperson from acting as a broker. When one looks behind the

corporate facade of Martell Realty, it is discerned, by clear and

convincing evidence, that the corporate affairs of Martell Realty

were controlled by Ms. Martell and not by Ms. Johnson, any other

qualifying broker, the board of directors, or the corporate

officers. By controlling Martell Realty, Ms. Martell operated as

a real estate broker, thereby exceeding the scope of her

licensure as a real estate salesperson.

34. A distinction should be drawn to cases where a

salesperson acts as office manager of a real estate brokerage

corporation and the instant case. Where the salesperson is the

office manager only, he or she is answerable to officers or

directors of the corporation. In this case, Ms. Martell was the

sole stockholder of the corporation and, with the exception of

the escrow account, exercised complete control over the

corporation.

35. Petitioner established by clear and convincing evidence

that Ms. Martell, by controlling Martell Realty, acted as a

broker without being licensed, and that Martell Realty permitted

its affairs to be conducted by a salesperson. Consequently, it

is concluded that Petitioner established the violations alleged

in Count I and Count II of the Administrative Complaint.

36. Section 455.227(1)(j), Florida Statutes, provides that

the following constitute grounds for which disciplinary action

may be imposed:

(j) Aiding, assisting, procuring,

employing, or advising any unlicensed person

or entity to practice a profession contrary

to this part, the chapter regulating the

profession, or the rules of the department or

the board.

37. The violations alleged by Petitioner against

Ms. Martell and Martell Realty in Counts IV and V are subsumed by

the violations of Counts I and II. Consequently, it is concluded

that Counts IV, and V should be dismissed.

38. Counts III and VI of the Administrative Complaint,

pertaining to Ms. Johnson, should be dismissed because they have

been resolved by stipulation.

39. Rule 61J2-24.001, Florida Administrative Code, contains

disciplinary guidelines pertinent to this proceeding. For a

violation of Section 475.42(1)(a), Florida Statutes, the

guideline penalty ranges from 3 years' suspension to revocation.

No period of suspension is recommended because Martell Realty had

a named qualifying broker; there was no evidence in this

proceeding that Ms. Martell or Martell Realty has been previously

disciplined; and there was no evidence that any member of the

public has been harmed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner find Ms. Martell guilty of

Count I, and Martell Realty guilty of Count II. It is further

RECOMMENDED that, for those violations, Ms. Martell and Martell

Realty each be reprimanded and fined in the amount of $1,000.00.

It is further RECOMMENDED that the final order require that

Ms. Martell divest herself of control of the affairs of Martell

Realty within thirty days of the entry of the Final Order. It is

further RECOMMENDED that all other counts be dismissed.

DONE AND ENTERED this 20th day of March, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March, 1998.

ENDNOTES

1/ The counts pertaining to Ms. Johnson have been settled.

Consequently, those two counts should be dismissed. Ms. Johnson

appeared at the formal hearing as a witness, pursuant to

subpoena, and she was accompanied by her counsel of record,

Daniel B. Oates, Esquire. Ms. Johnson did not participate in the

formal hearing as a party.

2/ Mr. Gillis represented Serafina Martell and Sera Martell

Realty, Inc.

3/ The discussion pertaining to the Administrative Complaint is

intended to be a summary only. Any question about the

Administrative Complaint should be resolved by reading that

pleading in its entirety.

4/ There was no allegation that Martell Realty should have

registered as a real estate brokerage corporation prior to

August 12, 1991.

5/ Rule 61J2-5.016, Florida Administrative Code, pertains to

corporations registered as real estate brokers and provides, in

part, that no salesperson or broker-salesperson may be registered

as an officer or director of a brokerage corporation.

6/ Between August 8, 1994, and March 20, 1995, there was no

qualifying broker for Martell Realty. The corporate registration

of Martell Realty was administratively cancelled during that

period.

From March 20, 1995, through October 26, 1995, Mary Belotto was

the qualifying broker of Martell Realty. Ms. Belotto also was

designated the vice-president of Martell Realty during this

period and Sherri Williams, who was not licensed by Petitioner,

was designated the president, secretary, and treasurer. Between

October 27, 1995, and March 6, 1996, there was no qualifying

broker for Martell Realty. The corporate registration of Martell

Realty was administratively cancelled during that period.

From March 7, 1996, through October 8, 1996, Mary Belotto again

served as the qualifying broker for Martell Realty. Once again,

Ms. Belotto was designated the vice-president of Martell Realty

during this period and Sherrill Ann Williams, who was not

licensed by Petitioner, was designated the president, secretary,

and treasurer.

On October 8, 1996, Ms. Belotto resigned her positions with

Martell Realty, and William Adams became the qualifying broker

and vice-president for Martell Realty. Mr. Adams continued to

serve in those capacities at the time of the formal hearing.

7/ Martell Realty prevailed in the litigation against

Ms. Consenzi, and thereafter moved for attorney's fees and costs.

During the proceeding for fees and costs, Philip Warren, Esquire,

the attorney who represented Martell Realty, testified that Anna

D'Amico, an officer and director of Martell Realty, had consented

to his representing Martell Realty in the litigation. Mr. Warren

did not testify at the formal hearing. Ms. D'Amico died prior to

the formal hearing. The transcript of the proceedings for

attorney's fees was Petitioner's Exhibit 1. Mr. Warren's

testimony in the proceedings for attorney's fees and costs as to

what Ms. D'Amico told him is hearsay. Even if this testimony was

accepted as establishing that Ms. D'Amico agreed to the

litigation, it is clear that Ms. Martell hired and fired the

lawyers involved in representing Martell Realty and that she was

the person who controlled the litigation on behalf of Martell

Realty. Whether Ms. D'Amico rubber-stamped Mr. Martell's

decision is not considered dispositive of any issue.

COPIES FURNISHED:

Geoffrey T. Kirk, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

James H. Gillis, Esquire

Gillis & Wilsen

1415 East Robinson Street, Suite B

Orlando, Florida 32801

Henry M. Solares, Director

Department of Business and

Professional Regulation

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

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.

1 The counts pertaining to Ms. Johnson have been settled. Consequently,

those two counts should be dismissed. Ms. Johnson appeared at the formal

hearing as a witness, pursuant to subpoena, and she was accompanied by her

counsel of record, Daniel B. Oates, Esquire. Ms. Johnson did not participate

in the formal hearing as a party.

2 Mr. Gillis represented Serafina Martell and Sera Martell Realty, Inc.

Because of the settlement, Ms. Johnson appeared as a witness, but not as a

respondent.

3 The discussion pertaining to the administrative complaint is intended to be

a summary only. Any question about the administrative complaint should be

resolved by reading that pleading in its entirety.

4 There was no allegation that Martell Realty should have registered as a

real estate brokerage corporation prior to August 12 1991.

5 Rule 61J2-5.016, Florida Administrative Code, pertains to corporations

registered as real estate brokers and provides, in part that no salesperson or

broker-salesperson may be registered as an officer, director of a brokerage

corporation.

6 Between August 8, 1994, and March 20, 1995, there was no

qualifying broker for Martell Realty. The corporate registration

of Martell Realty was administratively cancelled during that

period.

From March 20, 1995, through October 26, 1995, Mary

Belotto was the qualifying broker of Martell Realty. Ms. Belotto

also was designated the vice-president of Martell Realty during

this period and Sherri Williams, who was not licensed by

Petitioner, was designated the president, secretary, and

treasurer Between October 27, 1995, and March 6, 1996, there was

no qualifying broker for Martell Realty. The corporate

registration of Martell Realty was administratively cancelled

during that period.

From March 7, 1996, through October 8, 1996, Mary Belotto again served as

the qualifying broker for Martell Realty. Once again, Ms. Belotto was

designated the vice-president of Martell Realty during this period and

Sherrill Ann Williams, who was not licensed by Petitioner, was designated the

president, secretary, and treasurer.

On October 8, 1996, Ms. Belotto resigned her positions with Martell Realty,

and William Adams became the qualifying broker and vice-president for Martell

Realty. Mr. Adams continued to serve in those capacities at the time of the

formal hearing.

7 Martell Realty prevailed in the litigation against Ms. Consenzi, and

thereafter moved for attorney's fees and costs. During the proceeding for

fees and costs, Philip Warren, Esquire, the attorney who represented Martell

Realty, testified that Anna D'Amico, an officer and director of Martell

Realty, had consented to his representing Martell Realty in the litigation.

Mr. Warren did not testify at the formal hearing. Ms. D'Amico died prior to

the formal hearing. The transcript of the proceedings for attorney's fees was

Petitioner's Exhibit 1. Mr. Warren's testimony in the proceedings for

attorney's fees and costs as to what Ms. D'Amico told him is hearsay. Even if

this testimony was accepted as establishing that Ms. D'Amico agreed to the

litigation, it is clear that Ms. Martell hired and fired the lawyers involved

in representing Martell Realty and that she was the person who controlled the

litigation on behalf of Martell Realty.