97-001904 Philip Caprio vs. Florida Real Estate Commission Status: Closed Recommended Order on Friday, September 26, 1997.

Summary: Applicant who had rehabilitated himself since the revocation of his license was not disqualified for licensure due to prior revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP CAPRIO , )

)

Petitioner , )

)

vs. ) Case No. 97-1904

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, FLORIDA )

REAL ESTATE COMMISSION , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on August 21, 1997, by video teleconference, at sites

in Fort Lauderdale and Tallahassee, Florida, before Stuart M.

Lerner, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louis B. Stoskopf, Esquire

2809 Bird Road, Suite 269

Miami Florida 33133

For Respondent: Manuel E. Oliver

Assistant Attorney General

400 West Robinson Street, Suite 107 South

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified for licensure as a real

estate salesperson.

PRELIMINARY STATEMENT

On April 3, 1997, the Florida Real Estate Commission

(Commission) issued an order advising Petitioner that, "[b]ased

on [his] answer to Question #13 of the licensing application, the

Commission ha[d] DENIED [his] application for licensure" as a

real estate salesperson. The order further advised Petitioner

that he had the right to "request a formal hearing to present

evidence that [he is] qualified for licensure as a real estate

salesperson." By letter dated April 15, 1997, Petitioner

requested such a hearing. On April 21, 1997, the matter was

referred to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct the hearing

Petitioner had requested.

As noted above, the hearing was held on August 21, 1997. 1

At the hearing, Petitioner testified on his own behalf and

presented the testimony of four other witnesses: Jeffrey

Kaufman, Ferdinand Montes, George Frix, and Teresa Caprio. In

addition, he offered one exhibit into evidence (Petitioner's

Exhibit 1), which was received by the undersigned. The

Commission presented no testimonial evidence. Its evidentiary

presentation was limited to cross-examining Petitioner's

witnesses and offering two exhibits (Respondent's Exhibits

1 and 2) into evidence. Both of the Commission's exhibits were

admitted into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, announced that the deadline for

the filing of proposed recommended orders was 20 days from the

date of the undersigned’s receipt of the transcript of the

hearing. The undersigned received the hearing transcript on

September 5, 1997. On September 23, 1997, the Commission filed a

proposed recommended order, which the undersigned has carefully

considered. To date, Petitioner has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is fifty-two years of age.

2. He became licensed as a real estate salesperson in the

State of Florida in 1981, after returning to the state (where he

was born and raised) from New Jersey.

3. The following year he obtained a license that allowed

him to operate as a real estate broker in Florida.

4. In or about 1984, Petitioner formed Landmark Realty,

Inc. (Landmark), which operated in Broward County, Florida, as a

Century 21 franchise.

5. On or about June 29, 1989, in DPR Case Nos. 0163964 and

0164128, the Department of Professional Regulation, Division of

Real Estate, issued an Administrative Complaint against

Petitioner and Landmark containing the following allegations:

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 20.30, Florida Statutes , Chapters

120, 455 and 475, Florida Statutes , and the

rules promulgated pursuant thereto.

2. Respondent is now and was at all times

material hereto a licensed real estate broker

in the State of Florida having been issued

license number 0344112 in accordance with

Chapter 475, Florida Statutes . The last

license issued was as a broker c/o Landmark

Realty, Inc., 1860 N. Pine Island Road,

Plantation, Florida 33322.

3. Respondent Landmark Realty, Inc., is now

and was at all times material hereto a

corporation licensed as a real estate broker

in the State of Florida having been issued

license number 0239155 in accordance with

Chapter 475, Florida Statutes . The last

license issued was at the address of 1860 N.

Pine Island Road, Plantation, Florida 33322.

COUNT I

4. The Department of Professional Regulation

conducted a routine office inspection/escrow

account audit of Respondents' escrow accounts

between June 15, 1989 and June 16, 1989.

5. Respondents' escrow account number

55322000377 is held at First Union National

Bank of Florida.

6. Respondents' escrow account number

55322000377 had a balance of $1,368.36 on

June 16, 1989. The pending sales files

revealed that the escrow monies balance

should have been $65,250 on June 16, 1989.

The escrow account had a shortage of

$63,881.64. . . .

7. Respondent Caprio claims he transferred

$80,700 from Respondents' escrow account

number 55322000377 to the Keys & Keys trust

account number 0304301543 on the advice of

counsel. . . .

8. Kathy Clements, Operations Officer for

County National Bank of South Florida

furnished a written letter that the Keys &

Keys trust account number 0304301543, had a

current balance of $101,901.43 on June 20,

1989. . . .

9. The Respondents failed to furnish any

validated documents detailing the dates and

amounts of deposits into the aforementioned

Keys & Keys trust account from the

aforementioned Respondents' escrow account.

10. The Respondents' escrow account number

55322000377 is a commercial money market

investment account with the interest going to

Landmark Realty, Inc., without the consent or

prior knowledge of all parties. . . .

11. The Respondents failed to timely notify

the Florida Real Estate Commission of

conflicting demands on the earnest money

deposit on the contract, dated July 17, 1988,

between David B. Perry, as seller, and Earle

A. and Yvonne M. Levy, as buyers. The buyers

entrusted an earnest money deposit of $1,000

with the Respondents on or about July 17,

1988, and an additional earnest money deposit

of $20,000 was entrusted to the Respondents on

or about August 22, 1988. The Respondents

received a demand letter f[rom] the buyers on

December 13, 1988 and a demand letter from the

seller's attorney on February 21, 1989. . . .

12. On or about April 19, 1989, the

Respondents received or should have received

a total earnest money deposit of $4,000 from

Perry Silver, as buyer, and Charles

Hennessey, as seller. The audit revealed no

proof that the additional deposit of $2,000

as required by the contract dated April 19,

1989 was received by the Respondents. . . .

13. The Respondents failed to timely notify

the Florida Real Estate Commission of

conflicting demands on the earnest money

deposit on the contract, dated May 31, 1989,

between C. McCanes and J. Steele, as sellers,

and Jacqueline W. Mayers, as buyer. The

buyer entrusted an earnest money deposit of

$1,000 with the Respondents on or about

May 31, 1989. The additional deposit of

$4,000 as called for in the contract was

never received by the Respondents. On

June 1, 1989, the buyers made a demand on the

earnest money deposit and on June 6, 1989 the

seller made a demand for the earnest money

deposit. . . .

14. The Respondents, on or about May 16,

1989, did unlawfully disburse check number

0963 from the Respondents' escrow account

number 55322000377 to the Respondents'

operating account to cover office expenses.

The Administrative Complaint further alleged that, "[b]ased upon

the foregoing," Petitioner and Landmark were guilty of "fraud,

misrepresentation, concealment, false promises, false pretenses,

dishonest dealing by trick, scheme or device, culpable negligence

and breach of trust in a business transaction in violation of

Subsection 475.25(1)(b), Florida Statutes "; "having failed to

account and deliver a deposit in violation of Subsection

475.25(1)(d), Florida Statutes "; "having failed to maintain trust

funds in [their] real estate brokerage escrow bank account or

some other proper depository until disbursement thereof was

properly authorized in violation of Subsection 475.25(1)(k),

Florida Statutes "; and "having failed to notify the Florida Real

Estate Commission upon receiving conflicting demands or having a

good faith doubt as to who is entitled to an earnest money

deposit according to Rule 21V-10.032, Florida Administrative Code

and therefore in violation of Subsection 475.25(1)(e), Florida

Statutes ."

6. Petitioner had never before had a complaint filed

against him.

7. On December 21, 1989, the Florida Real Estate Commission

issued a Final Order in DPR Case Nos. 0163964 and 0164128 finding

Petitioner guilty of the violations alleged in the Administrative

Complaint and revoking his license, notwithstanding his

unblemished disciplinary record. The Final Order read, in

pertinent part, as follows:

On December 5, 1989, the Florida Real Estate

Commission heard this case to issue a Final

Order. On or about June 29, 1989, an

Administrative Complaint was filed against

Respondents. The Respondents admitted the

allegations of fact. . . . The Respondents

were properly served with the Notice of

Hearing, appeared and presented matters in

mitigation.

Based upon the allegations of fact and upon

the information provided to the Commission at

its meeting of December 5, 1989, the

Commission finds the Respondents guilty of

violating s.475.25(1)(b), 475.25(1)(d),

475.25(1)(e), and 475(1)(k), Florida

Statutes, and Rule 21V-10.032, Florida

Administrative Code, as charged in the

Administrative Complaint.

Therefore, the Commission ORDERS that the

license of Respondent Philip Caprio be

revoked. The Commission further ORDERS that

Respondent Landmark Realty Inc. be

reprimanded and that said Respondent pay an

administrative fine of $1000.00 within 30

days of the date of this Order.

8. Petitioner did not appeal the Final Order.

9. Following the issuance of the Final Order, reimbursement

was made to the victims of the violations of which Petitioner and

Landmark had been found guilty.

10. The loss of Petitioner's real estate license has

adversely affected his ability to make a living and support his

family.

11. Petitioner is married to Teresa Caprio. He and Teresa

have a twenty-five year old disabled daughter, who requires

assistance in performing the normal activities of daily living.

Before the revocation of Petitioner's license, the Caprios'

daughter lived at home with them. Teresa was able to stay at

home and care full-time for her daughter. After Petitioner's

license was revoked, however, she no longer was able to do so,

inasmuch as she needed to work outside the home to supplement the

family income. The Caprios therefore had to place their daughter

in a group home.

12. Although Petitioner has not been able to earn nearly as

much as he did when he had his real estate license, he has been

gainfully employed since the revocation of his license.

13. From 1989 to 1995, he worked for Potamkin Toyota

(Potamkin), an automobile dealership. He started as a salesman

at Potamkin. After approximately six months at the dealership,

he was promoted to customer relations manager/weekend sales

manager. He left the employ of Potamkin in 1995, following a

change in management at the dealership.

14. Petitioner is now, and has been since July of 1995,

employed by Central Florida Investments, Inc., d/b/a Westgate

Miami Beach (Westgate), a seller of timeshare plans. He

currently is a salaried employee occupying the position of

finance manager, a position to which he was promoted after his

first six months with the company. He will be unable to advance

further in the company if he does not obtain a Florida real

estate license.

15. In his position as finance manager, Petitioner takes

deposits made by purchasers and prospective purchasers 2 and

delivers them to Westgate's contract office, which is

approximately 20 feet from his office.

16. Using hidden security cameras, Westgate management

closely monitors the workplace activities of Petitioner and his

coworkers.

17. Petitioner has performed his job duties in a manner

that has impressed Westgate management. He has proven to be a

competent, reliable, responsible, honest, and trustworthy

employee. 3

18. Petitioner is involved in community activities.

19. He and his wife volunteer their time to operate the

Rainbow Foundation, a non-profit organization that they formed

two years ago to promote the growth of residential facilities for

the developmentally disabled in the South Florida area.

20. It appears that since the revocation of his real estate

license, Petitioner has rehabilitated himself and that therefore

it is not likely that his relicensure would endanger the public.

CONCLUSIONS OF LAW

21. Petitioner is seeking to be licensed as a real estate

salesperson.

22. The Department of Business and Professional

(Department) is the state agency responsible for licensing real

estate salespersons in the State Florida. Section 475.181,

Florida Statutes.

23. Pursuant to Section 475.181(1), Florida Statutes, the

Department must "license any applicant whom the [Florida Real

Estate C]ommission certifies to be qualified to practice as

a . . . [real estate] salesperson."

24. Section 475.17, Florida Statutes, prescribes the

qualifications that an applicant for licensure must possess.

Subsection (1)(a) of Section 475.17, Florida Statutes, provides

as follows:

An applicant for licensure who is a natural

person must be at least 18 years of age; hold

a high school diploma or its equivalent; be

honest, truthful, trustworthy, and of good 4

character; and have a good reputation for

fair dealing. An applicant for an active

broker's license or a salesperson's license

must be competent and qualified to make real

estate transactions and conduct negotiations

therefor with safety to investors and to

those with whom he may undertake a

relationship of trust and confidence. If the

applicant has been denied registration or a

license or has been disbarred, or his

registration or license to practice or

conduct any regulated profession, business,

or vocation has been revoked or suspended, by

this or any other state, any nation, or any

possession or district of the United States,

or any court or lawful agency thereof,

because of any conduct or practices which

would have warranted a like result under this

chapter, or if the applicant has been guilty

of conduct or practices in this state or

elsewhere which would have been grounds for

revoking or suspending his license under this

chapter had the applicant then been

registered, the applicant shall be deemed not

to be qualified unless, because of lapse of

time and subsequent good conduct and

reputation, or other reason deemed

sufficient, it appears to the [C]ommission

that the interest of the public and investors

will not likely be endangered by the granting

of registration

25. In the instant case, the Commission has preliminarily

determined that Petitioner is not "qualified to practice as a

. . . [real estate] salesperson" because his real estate license

was previously revoked by the Commission.

26. The revocation of Petitioner's license in 1989 was not

permanent, and therefore relicensure is possible. See Turner v.

Department of Professional Regulation , 591 So. 2d 1136, 1137

(Fla. 4th DCA 1992); Schiffman v. Department of Professional

Regulation, Board of Pharmacy , 581 So. 2d 1375, 1378 (Fla. 1st

DCA 1991); Jordan v. Department of Professional Regulation , 522

So. 2d 450, 452-53 (Fla. 1st DCA 1988); Holmes v. Department of

Professional Regulation, Board of Nursing , 504 So. 2d 1338, 1340

(Fla. 1st DCA 1987); Wood v. Department of Professional

Regulation, Board of Dentistry , 490 So. 2d 1079, 1081 (Fla. 1st

DCA 1986); Section 475.25(3), Florida Statutes (1989)("The

[D]epartment [of Professional Regulation] shall reissue the

license of a licensee against whom disciplinary action was taken

upon certification by the [C]ommission that the licensee has

complied with all of the terms and conditions of the final order

imposing discipline.").

27. Effective October 1, 1992, the following provision was

added to Section 455.227, Florida Statutes:

In the event the board, or the department

when there is no board, determines that

revocation of a license is the appropriate

penalty, the revocation shall be permanent.

However, the board may establish, by rule,

requirements for reapplication by applicants

whose licenses have been permanently revoked.

Such requirements may include, but shall not

be limited to, satisfying current

requirements for an initial license.

This provision is now found in subsection (5) of Section 455.227,

Florida Statutes. On February 13, 1996, the Commission's Rule

61J2-24.005, Florida Administrative Code, became effective. It

provides as follows:

(1) Pursuant to s. 455.227(5), F.S.,

revocation of a license is permanent except

for the following violation:

(a) 61J2-3.015 -- filing an application for

renewal of a license when the individual had

not complied with the provisions of 61J2-

3.009 or 61J2-3.020, whichever is applicable.

(2) An individual whose license has been

revoked for the above listed violation may

not apply for a salesperson's license for a

period of five (5) years after the date of

filing of the final order revoking the

license. The applicant must meet all the

requirements for initial licensure as a

salesperson, including examination, as

required in ss. 475.17 and 475.175, F.S. The

Commission may refuse to certify the

applicant pursuant to ss. 475.17, 475.181 or

and 475.25(1), F.S.

Neither Section 455.227(5), Florida Statutes, nor the

Commission's Rule 61J2-24.005, Florida Administrative Code,

however, were in effect in 1989 when the Commission revoked

Petitioner's real estate license, and they cannot be applied

retroactively to make the revocation of Petitioner's license

permanent and bar him from seeking relicensure. See Middlebrooks

v. Department of State, Division of Licensing , 565 So. 2d 727,

728-29 (Fla. 1st DCA 1990); Willner v. Department of Professional

Regulation, Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA

1990); Lewis v. Criminal Justice Standards and Training

Commission , 462 So. 2d 528, 529 (Fla. 1st DCA 1985).

28. At the Section 120.57(1) hearing that was held in the

instant case, the burden was on Petitioner to establish by a

preponderance of the evidence that "because of lapse of time

[since the violations that led to the revocation of his license]

and [his] subsequent good conduct and reputation, or other reason

deemed sufficient, . . . the interest of the public and investors

will not likely be endangered by the granting of [his application

for licensure as a salesperson]." See Pershing Industries, Inc.,

v. Department of Banking and Finance , 591 So. 2d 991, 994 (Fla.

1st DCA 1991); Cordes v. Department of Environmental Regulation ,

582 So. 2d 652, 654 (Fla. 1st DCA 1991); Department of

Transportation v. J.W.C., Co. , 396 So. 2d 778, 787 (Fla. 1st DCA

1981); Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 414-15 (Fla. 4th DCA 1974).

29. Petitioner has met his burden of proof.

30. By having presented at the Section 120.57(1) hearing

held in this case unrefuted evidence of his good post-revocation

conduct and reputation, he has established his rehabilitation and

the absence of a likelihood that his relicensure (more than seven

and a half years following the revocation of his license) would

result in harm to any member of the public.

31. In view of the foregoing, the Commission should not

decline to certify Petitioner as qualified to practice as a

salesperson based upon the previous revocation of his license.

See Aquino v. Department of Professional Regulation , 430 So. 2d

598 (Fla. 4th DCA 1983). 5

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission issue a final order finding

that Petitioner is qualified to practice as a real estate

salesperson.

DONE AND ENTERED this 26th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

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]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September, 1997.

ENDNOTES

1 The hearing was originally scheduled for June 30, 1997, but was

continued, at the Commission's request, due to the illness of its

counsel.

2 Deposits are made by credit card, check, and cash. According

to company policy, when a deposit is made by check, the check

must be made out to Westgate.

3 Although in his early discussions with management, Petitioner

did not mention that his real estate license had been revoked, at

no time did he provide management with any false or misleading

information concerning the matter, and he ultimately did advise

management of the revocation.

4 "Good character" is "not only the ability to distinguish

between right and wrong, but the character to observe the

difference; the observance of the rules of right conduct, and

conduct which indicates and establishes the qualities generally

acceptable to the populace for positions of trust and

confidence." Zemour, Inc. v. State Division of Beverage , 347 So.

2d 1102, 1105 (Fla. 1st DCA 1977). A person demonstrates a lack

of "good character" when he engages in "acts and conduct which

would cause a reasonable [person] to have substantial doubts

about an individual's honesty, fairness, and respect for the

rights of others and for the laws of the state and nation."

Florida Board of Bar Examiners Re: G.W.L. , 364 So. 2d 454, 458

(Fla. 1978).

5 The undersigned finds unpersuasive the argument advanced by the

Commission in its proposed recommended order that "the facts in

Aquino are totally different from those in the instant case." As

in Aquino , "[a]ll of the evidence [in the instant case] point[s]

toward rehabilitation." During the period of his rehabilitation,

Petitioner, like the applicant in Aquino , has "handled other

people's money on a day-to-day basis . . . in a responsible and

honest manner" and has developed "a reputation for fair and

honest dealings."

COPIES FURNISHED:

Louis B. Stoskopf, Esquire

2809 Bird Road, Suite 269

Miami Florida 33133

Manuel E. Oliver

Assistant Attorney General

400 West Robinson Street, Suite 107 South

Orlando, Florida 32801

Henry M. Solares, Division Director

Division of Real Estate

400 West Robinson Street

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.