03-004208 Department Of Business And Professional Regulation vs. Noel T. Winter Status: Closed Recommended Order on Friday, April 30, 2004.

Summary: Respondent was guilty of acting as a broker where he offered for sale real property to which he did not have title.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4208

)

NOEL T. WINTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Carolyn S. Holifield, conducted a formal hearing in this case on

March 1, 2004, by videoconference between Orlando and

Tallahassee, Florid a.

APPEARANCES

For Petitioner: Alpheus C. Parsons, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N801

Orlando, Florida 32801

For Respondent: Noel T. Winter, pro se

1751 Rose Garden Lane

Orlando, Florida 32825

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint dated February 4, 2002; and if so, what

penalty should be i mposed.

PRELIMINARY STATEMENT

In a two - count Administrative Complaint dated February 4,

2002, the Department of Business and Professional Regulation

(Department), charged Noel T. Winter (Respondent) with violating

Subsections 475.227(1)(q) and 475.42(1)(a ) and Section 455.228,

Florida Statutes (2000). 1 Specifically, in Count I of the

Administrative Complaint, the Department charged Respondent with

having violated a lawful order of the Department in violation of

Subsection 475.227(1)(q), Florida Statutes. In Count II,

Respondent is charged with having operated as a broker or

salesperson without being the holder of a valid and current

license as a broker or salesperson, in violation of

Subsection 475.42(1)(a) and Section 455.228, Florida Statutes.

During t his proceeding, the Department dismissed Count I

after discovering that the Final Order, which was the basis of

that charge, had been superceded by an Amended Final Order.

Thus, Count II is the only allegation that remains at issue.

The Administrative Co mplaint includes the following factual

allegations to support the charge in Count II:

6. On or about May 16, 2000, the

Department of Business and Professional

Regulation entered a final order that, in

pertinent part, ordered Respondent to

"immediately c ease and desist from offering

any real property for sale, rent, or lease

until such time as Respondent has purchased,

closed on, and in good faith acquired title

to such real property."

7. On or about November 1, 2000,

Respondent and Marie Saintil exe cuted a

Contract for Sale and Purchase for real

property located at 1818 Verona Street,

Kissimmee, Florida. Respondent was listed

as seller. . . .

8. Respondent did not own the property.

9. The Contract states "subject to seller

closing on prior t ransaction to purchase."

10. Ms. Saintil tendered to Respondent

$1,500.00 as a deposit towards purchase of

the property.

11. Respondent was listed as the escrow

agent.

12. On or about December 5, 2000,

Respondent and Eladio and Marim [sic]

Rodr iguez executed a Contract for Sale and

Purchase for real property located at 1818

Verona Street, Kissimmee, Florida.

Respondent was listed as the buyer.

13. On or about December 18, 2000,

Respondent and Marie Saintil executed a

second Contract for Sal e and Purchase for

real property located at 1818 Verona Street,

Kissimmee, Florida.

Respondent timely challenged the allegations and requested

a formal hearing. The Department forwarded the matter to the

Division of Administrative Hearings for assignmen t of an

Administrative Law Judge. Pursuant to notice, the final hearing

was held on March 1, 2004.

At hearing, the Department presented the testimony of

Patrick Forsyth, a real estate broker and salesperson, and

Robert Baird, a former investigator with t he Department. The

Department had six exhibits received into evidence. Respondent

testified on his own behalf and had three exhibits received into

evidence. The record was left open until March 15, 2004, to

give Respondent additional time to attempt to locate

Ms. Saintil, so that he could present her testimony. However,

on March 11, 2004, Respondent filed a notice advising the

undersigned that he would not be presenting additional witnesses

or documentary evidence.

On March 8, 2004, the Department file d a Notice of

Supplemental Exhibit and requested that it be allowed to offer

as a late - filed exhibit a document which had not been presented

at the final hearing. That request is denied, and the document

marked by the Department as Exhibit numbered 8 has not been

considered in preparation of this Recommended Order.

A Transcript of the proceeding was filed on March 22, 2004.

The Department filed a Proposed Recommended Order on March 30,

2004. Respondent's Motion for Dismissal and Suggested Proposed

Orde r was filed on March 11, 2004, and Respondent's Response to

Proposed Recommended Order was filed on April 14, 2004.

Respondent's Motion for Dismissal is addressed below.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

fi nal hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Petitioner, the Department of Professional Regulation,

is the state government licensing and regulatory agency charged

with the responsibility and duty to prosecute administrative

complaints pursuant to the laws of the State of Florida, in

particular Section 20.165 and Chapter 475, Florida Statutes

(2003), and the rules promulgated thereto.

2. At all times relevant to this proceeding, Respondent,

Noel T. Winter, was not registered as a real estate broker or

salesperson in the State of Florida in accordance with

Chapter 475, Florida Statutes.

3. On May 5, 2000, Respondent and the Department entered

into a Stipulation in FDBPR Case Nos. 97 - 80646 and 97 - 804 96.

Subsequently, the Department issued an Amended Final Order in

FDBPR Case Nos. 97 - 80646 and 97 - 80496, which adopted and

incorporated that Stipulation. Both the Stipulation and the

Amended Final Order provide that Respondent will immediately

cease and desist from offering any real property for sale, rent,

or lease until such time as Respondent has "purchased, closed

on, or in good faith believed that Respondent would acquire

title to such property prior to closing."

4. On or about November 1, 2000, Re spondent and Marie

Saintil executed a Contract for Sale and Purchase (Saintil

Contract), which provided for the purchase of real property

located at 1818 Verona Street, Kissimmee, Florida (Verona Street

property). The Saintil Contract listed Respondent as the seller

and Ms. Saintil as the buyer. Respondent was also listed as the

escrow agent. The closing date for the Saintil Contract was set

for November 30, 2000.

5. The Saintil Contract indicates that Ms. Saintil paid

Respondent a deposit of $1,500.0 0. However, Ms. Saintil did not

pay the $1,500.00 for approximately three weeks after she

executed the contract.

6. On November 1, 2000, at the time he signed the Saintil

Contract, Respondent did not own the Verona Street property.

7. The Saintil Contr act that was executed by Respondent

and Ms. Saintil had a hand - written notation which indicated that

the sale of the Verona Street property was "subject to seller

closing on prior transaction to purchase."

8. On November 1, 2000, Respondent had no prior contract

to purchase the Verona Street property.

9. Respondent, Eladio Rodriquez, and his daughter, Marin

Perez (also Marin Rodriquez), executed a Contract for Sale and

Purchase (Rodriquez Contract) for the Verona Street property.

On this contract, Res pondent was listed as the buyer, and

Mr. Rodriquez and Ms. Perez were listed as the sellers of the

property.

10. Respondent signed the Rodriquez Contract on

November 21, 2000, and paid a deposit of $500.00 to secure the

contract. Mr. Rodriquez and Ms. Pe rez signed the Rodriquez

Contract on December 5, 2000.

11. The Rodriquez Contract set the closing date for

December 30, 2000.

12. On or about December 18, 2000, Respondent and

Ms. Saintil executed a second Contract for Sale and Purchase

(Second Saintil Contract) for the Verona Street property.

13. Part III of the Saintil Contract provides that "the

Seller does not own title to the subject property," but that "he

will be able to deliver title at the time a simultaneous closing

occurs." That contract als o provides that the "Seller

[Respondent] discloses he is holding or is expected to hold an

executed contract between the current titleholder and himself to

purchase the property that is the subject of this contract" and

that the contract "is subject to Sel ler closing on the prior

contract with the current titleholder."

14. The Rodriquez Contract negotiated between Respondent

and Mr. Rodriquez and Ms. Perez was never completed. The reason

the transaction failed was because financing was never obtained.

1 5. The transaction between Respondent and Ms. Saintil was

never completed because financing was never obtained.

16. If the Saintil and Rodriguez transactions had closed,

Respondent expected to make as much as $4,000.00 to $5,000.00.

17. Respondent spent $895.00 of the $1,500.00 deposit paid

to him by Ms. Saintil in connection with the Saintil Contract.

These funds were spent for an appraisal, a processing fee,

credit reports, long - distance phone calls to a mortgage company,

and postage for mailing two l oan packages.

18. Respondent has never returned the remaining $605.00

of the deposit to Ms. Saintil, because he does not know where

she is residing or working.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction of the part ies to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2003).

20. In its Administrative Complaint, the Department seeks

to impose penalties against Respondent that include issuance of

a ce ase and desist order and/or imposition of an administrative

fine. Therefore, the Department has the burden of proving by

clear and convincing evidence that Respondent committed the

violations alleged in the Administrative Complaint. See

Department of Ban king and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996).

21. Clear and convincing evidence is that which is

credible, precise, explicit, and lacking in confusion as to the

facts in issue. Th e evidence must be of such weight that it

produces in the mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the truth of the

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

DCA 1983).

22. As noted above, d uring the course of this proceeding,

the Department dismissed Count I of the Administrative

Complaint. Therefore, the only allegation to be addressed is

the one contained in Count II.

23. In Count II of the Administrative Complaint,

Respondent is charge d with having operated as a broker or

salesperson without being the holder of a valid and current

license as a broker or salesperson. It is alleged that this

conduct is a violation of Subsection 475.42(1)(a) and

Section 455.228, Florida Statutes.

24. Sub section 475.42(1)(a), Florida Statutes, provides as

follows:

(1) VIOLATIONS. --

(a) No person shall operate as a broker or

salesperson without being the holder of a

valid and current active license therefor.

25. Subsection 475.01(1)(a), Florida Statut es, defines the

term "broker" 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 bu siness 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 bus iness 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, p urchasers, 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 clo sing 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

re ntal 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

tho se 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 assistant 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 plan s on behalf of any number

of persons, except as provided in

ss. 475.011 and 721.20.

26. Subsection 475.01(3), Florida Statutes, defines

"operate" as follows:

(3) Wherever the word "operate" or

"operating" as a broker, broker - salesperson,

or salesperso n 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 commis sion 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.

27. Based on the findings of fact herein, the Department

has proved by clear and convincing evidence that Respondent

operated as a real estate broker with respect to t he Saintil

Contract for the Verona Street property.

28. The clear and convincing evidence established that on

November 1, 2000, when he offered to sell the Verona Street

property to Ms. Saintil, Respondent had not purchased or closed

on that property. M oreover, when he made the offer to sell the

Verona Street property to Ms. Saintil, Respondent did not have a

contract to purchase that property.

29. The evidence established that Respondent received

compensation from Ms. Saintil and intended to receive ad ditional

compensation for this transaction. First, Respondent accepted

$1,500.00 from Ms. Saintil in connection with the Saintil

Contract. Of this amount, Respondent used approximately $900.00

for costs and preparation of paperwork for the transaction.

Moreover, Respondent testified that he expected to make as much

as $4,000.00 to $5,000.00 at the closing of the Saintil and

Rodriquez transactions.

30. Subsection 475.011(2), Florida Statutes, which exempts

certain individuals and entities from Chapter 47 5, Florida

Statutes, provides, in relevant part:

Exemptions. -- This part does not apply to:

* * *

2) Any individual, corporation,

partnership, trust, joint venture, or other

entity which sells, exchanges, or leases its

own real property; however, th is exemption

shall not be available if and to the extent

that an agent, employee, or independent

contractor paid a commission or other

compensation strictly on a transactional

basis is employed to make sales, exchanges,

or leases to or with customers in th e

ordinary course of an owner's business of

selling, exchanging, or leasing real

property to the public; . . . .

31. According to Subsection 475.011(2), Florida Statutes,

quoted above, an individual who is not a licensed real estate

broker or salesperso n may sell property, if he owns that

property. However, that exception does not apply in this case

because the clear and convincing evidence established that

Respondent did not own the property he was offering to sell.

32. Respondent argues that the Depar tment should be

estopped from bringing this action, because his conduct is

consistent with the language in the Amended Final Order and

Stipulation in paragraph 3 above. That language states that

Respondent should "cease and desist from offering any real

p roperty for sale, rent, or lease, until such time as Respondent

has purchased, closed on, or in good faith believed he would

acquire title to such property prior to closing." Respondent's

argument is unpersuasive. Here, the evidence established that

when he entered into the Saintil Contract, Respondent did not

own the real property or have a contract to purchase that

property. Moreover, the Saintil Contract established a closing

date prior to Respondent's purchasing or having a contract to

purchase the V erona Street property.

33. Subsection 455.228(1), Florida Statutes, authorizes

the Department to impose penalties for the unlicensed practice

of professions which are licensed and regulated by the

Department. Those penalties include the issuance of cease and

desist orders and the imposition of administrative penalties not

to exceed $5,000.00 per incident.

34. The Department seeks to impose a penalty of $5,000.00

against Respondent for the violation of Subsection

475.042(1)(a), Florida Statutes, as allege d in Count II of the

Administrative Complaint. That administrative penalty, which is

the maximum penalty, is appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby:

RECOMMENDED that the D epartment of Business and

Professional Regulation enter a final order:

1. Denying Respondent's motion for dismissal;

2. Sustaining the allegation in Count II of the

Administrative Complaint; and

3. Imposing an administrative penalty of $5,000.00 agains t

Noel T. Winter.

DONE AND ENTERED this 30th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2004.

ENDNOTE

1/ All references are to Fl orida Statutes (2000), unless

otherwise indicated.

COPIES FURNISHED :

Alpheus C. Parsons, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N801

Orlando, Florida 32801

Noel T. Win ter

1751 Rose Garden Lane

Orlando, Florida 32825

John Washington, Hearing Officer

Office of General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.