03-004759PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Patrick Bowie Status: Closed Recommended Order on Wednesday, July 7, 2004.

Summary: Respondent is not subject to disciplinary action for failing to follow unreasonable instructions of employer/broker at closing nor for receiving commission check, made payable to him, from his former employer/broker.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4759PL

)

PATRICK BOWIE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

April 14, 2004, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Alpheus C. Parsons, Esquire

Department of Business and

Professional Reg ulation

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged i n the

Administrative Complaint issued against him and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On October 15, 2003, Petitioner issued a two - count

Administrative Complaint alleging that, in connection with the

sale, in 2001, of "real property commonly known as 3800 South

Federal Hwy, Fort Pierce, Florida," Respondent, a Florida -

licensed real estate sales associate, acted "in violation of

Section 475.42(1)(d), Florida Statutes and, therefore, in

violation of Section 475.25(1)(e), Florid a Statutes (Count I);

and was also "guilty of fraud, misrepresentation, concealment,

false promises, false pretenses, dishonest dealing by trick,

scheme or device, culpable negligence, or breach of

trust . . . in violation of Section 475.25(1)(b), Florida

Statutes." Respondent "disputed the allegations of fact

contained in the Administrative Complaint" and requested a

"formal hearing" pursuant to Section 120.57(1), Florida

Statutes. On December 18, 2003, the matter was referred to DOAH

for the assignment of an Administrative Law Judge to conduct the

"formal hearing" Respondent had requested.

As noted above, the hearing was held on April 14, 2004. 1

Petitioner was represented at the hearing by its counsel of

record. Respondent, on the other hand, did not make an

appearance, either in person or through counsel or a qualified

representative. At the outset of the hearing, Petitioner

requested, and was granted, leave to amend the Administrative

Complaint to correct an obvious error in numbered paragraph 11

of the Administrative Complaint's "[e]ssential [a]llegations of

[m]aterial [f]act." This portion of the Administrative

Complaint (that is, the "[e]ssential [a]llegations of [m]aterial

[f]act"), as amended, read as follows:

1. Petitioner is a state governme nt

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 Chapters 120, 455 and

475, of the Florida Statutes and the rul es

promulgated pursuant thereto.

2. Respondent is and was at all times

material hereto a licensed Florida real

estate sales associate, issued license

number 695252 in accordance with Chapter 475

of the Florida Statutes.

3. The last license listed was a s a sales

associate with Southern Properties Treasure

Coast, 3418 NE Indian River Drive, Jensen

Beach, Florida 34957.

4. At all times material, GMAC Realty

Unlimited, Inc. ("GRU") was noted in

Petitioner's records as Respondent's

registered employer.

5 . On or about August 7, 2001, Respondent

attended a real estate closing on behalf of

GRU regarding real property commonly known

as 3800 South. Federal Hwy, Fort Pierce,

Florida. A copy of the purchase and sale

contract is attached and incorporated as

Adm inistrative Complaint Exhibit 1.

6. At all times material, GRU was the

escrow agent for the transaction and a

cooperating broker.

7. At all times material, Allen Real

Estate, Inc. ("Allen") was the listing

broker, pursuant to a listing agreement with

t he seller. A copy of the listing agreement

is attached and incorporated as

Administrative Complaint Exhibit 2.

8. Pursuant to the listing agreement,

Seller was required to pay an 8% commission

to Allen for procuring a buyer.

9. Pursuant to the purchas e and sale

contract, GRU was entitled to a commission

as a cooperating broker.

10. On or about August 7, 2001,

Respondent's registered broker, Kevin

Schevers ("Schevers") instructed Respondent

not to deliver the escrow deposit check

until the closing doc uments were changed to

indicate that GRU was a cooperating broker

entitled to a commission.

11. On or about August 9, 2001, without the

authorization of GRU or Schevers, Respondent

delivered the deposit check to the closing

agent.

12. On or about Augus t 9, 2001, without the

authorization of GRU or Schevers, Respondent

received a commission check payable to

Respondent from the listing broker, Allen

Real Estate. A copy of the check is

attached and incorporated as Administrative

Complaint Exhibit 3.

13. At all times material, GRU did not

receive a commission in the above

transaction.

During the evidentiary portion of the hearing, Petitioner

presented the testimony of three witnesses (Gary Sprauer, Kevin

Schevers, and Dawn Luchik) and offered five exhibi ts,

Petitioner's Exhibits 1 through 5, which were all received into

evidence. 2

At the close of the taking of evidence, the undersigned

established the deadline for the filing of proposed recommended

orders at 15 days from the date of the filing of the he aring

transcript.

The hearing transcript (consisting of one volume) was filed

on June 15, 2004.

On June 29, 2004, Respondent filed a Proposed Recommended

Order, which the undersigned has carefully considered.

To date, Respondent has not filed any post h earing

submittal.

FINDINGS OF FACT

Based on the evidence adduced at the "formal hearing," and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since October of 2000,

a licensed real estate sales associat e in the State of Florida,

holding license number 695252. He is currently associated with

AAA Realty, Inc., a broker corporation doing business in Broward

County, Florida.

2. From March 1, 2001, through June 26, 2001, Respondent

was an active real estate sales associate with Allen Real

Estate, Inc. (Allen), a broker corporation doing business in

St. Lucie County, Florida.

3. From June 27, 2001, through August 13, 2001, Respondent

was an active real estate sales associate with Realty Unlimited,

Inc. (Unl imited), a broker corporation (affiliated with GMAC

Real Estate) with offices in Port St. Lucie and Stuart, Florida.

Unlimited is now, and has been at all times material to the

instant case, owned by Kevin Schevers, a Florida - licensed real

estate broker.

4. Gary Sprauer is a Florida - licensed real estate sales

associate. He is currently associated with Unlimited.

5. Like Respondent, Mr. Sprauer began his association with

Unlimited on June 27, 2001, immediately after having worked for

Allen.

6. Respo ndent and Mr. Sprauer worked as "partners" at both

Allen and Unlimited. They had an understanding that the

commissions they each earned would be "split 50 - 50" between

them.

7. On February 7, 2001, Allen, through the efforts of

Respondent and Mr. Sprauer, obtained an exclusive listing

contract (Listing Contract) giving it, for the period of a year,

the "exclusive right to sell," in a representative capacity,

commercial property located at 3800 South Federal Highway that

was owned by Vincent and Renee Piazz a (Piazza Property).

Paragraphs 6 and 7 of the Listing Contract addressed the

subjects of "compensation," "cooperation with other brokers,"

and "dispute resolution," respectively, and provided, in

pertinent part as follows as follows:

6. COMPENSATION: S eller will compensate

Broker as specified below for procuring a

buyer who is ready, willing, and able to

purchase the Property or any interest in the

Property on the terms of this Agreement or

on any other terms acceptable to Seller.

Seller will pay Broke r as follows (plus

applicable sales tax):

(a) 8% of the total purchase price or

$15,000 maximum, no later than the date of

closing specified in the sales contract.

However closing is not a prerequisite for

Broker's fee being earned.

* * *

(d) Broker's fee is due in the following

circumstances: (1) If any interest in the

Property is transferred . . . , regardless

of whether the buyer is secured by Broker,

Seller or any other person.

* * *

7. COOPE RATION WITH OTHER BROKERS:

Broker's office policy is to cooperate with

all other brokers except when not in the

Seller's best interest, and to offer

compensation to: __ Buyer's agents, who

represent the interest of the buyer and not

the interest of Selle r in a transaction,

even if compensated by Seller or Broker

__ Nonrepresentatives __ Transaction

brokers.

__ None of the above (if this box is

checked, the Property cannot be placed in

the MLS).

* * *

10. DISPUTE RESOLUTION: This Agreement

will be construed under Florida law. All

controversies, claim and other matters in

question between the parties arising out of

or relating to this Agreement or the breach

thereof will be settled by first attempting

mediation under the rules of the American

Arbitration Association or other mediator

agreed upon by the parties. . . .

8. Shortly after they left the employ of Allen and began

working for Unlimited, Respondent and Mr. Sprauer showed

Nicholas Damiano the Piazza Property.

9. Mr. Damiano thereafter made a written offer to purchase

the Piazza Property, which the Piazzas accepted, in writing, on

July 4, 2001.

10. The sales price was $165,000.00.

11. Mr. Damiano put down a $10,000.00 deposit, which, in

accordance with paragraph 2(a ) of the contract between

Mr. Damiano and the Piazzas (Sales Contract), was "held in

escrow by [Unlimited]."

12. The obligations of Unlimited, as escrow agent, were

described in paragraph 6 of the Sales Contract, which provided

as follows:

ESCROW. Buyer and Seller authorize GMAC,

Realty Unlimited Telephone: . . .

Facsimile: . . . Address: . . . to receive

funds and other items and, subject to

clearance, disburse them in accordance with

the terms of this Contract. Escrow Agent

will deposit all funds rece ived in a non -

interest bearing account. If Escrow Agent

receives conflicting demands or has a good

faith doubt as to Escrow Agent's duties or

liabilities under this Contract, he/she may

(a) hold the subject matter of the escrow

until the parties mutually agree to its

disbursement or until issuance of a court

order or decision of arbitrator determining

the parties' rights regarding the escrow or

(b) deposit the subject matter of the escrow

with the clerk of the circuit court having

jurisdiction over the dis pute. Upon

notifying the parties of such action, Escrow

Agent will be released from all liability

except for the duty to account for items

previously delivered out of escrow. If a

licensed real estate broker, Escrow Agent

will comply with applicable prov isions of

Chapter 475, Florida Statutes. In any suit

or arbitration in which Escrow Agent is made

a party because of acting as agent hereunder

or interpleads the subject matter of the

escrow, Escrow Agent will recover reasonable

attorneys' fees and costs at all levels,

with such fees and costs to be paid from the

escrowed funds or equivalent and charged and

awarded as court or other costs in favor of

the prevailing party. The parties agree

that Escrow Agent will not be liable to any

person for misdelivery to Buyer or Seller of

escrowed items, unless the misdelivery is

due to Escrow Agent's willful breach of this

Contract or gross negligence.

13. Paragraph 12 of the Sales Contract addressed the

subject of "brokers" and provided as follows:

BROKERS. Neith er Buyer nor Seller has

utilized the services of, or for any other

reason owes compensation to, a licensed real

estate broker other than:

(a) Listing Broker: Allen Real Estate,

Inc. who is a transaction broker and who

will be compensated by x Seller _ B uyer

_ both parties pursuant to x a listing

agreement _ other (specify)

(b) Cooperating Broker: GMAC Realty

Unlimited who is a transaction broker who

will compensated by _ Buyer x Seller

_ both parties pursuant to _ an MLS or other

offer of compensati on to a cooperating

broker _ other (specify)

(collectively referred to as "Broker") in

connection with any act relating to the

Property, included but not limited to,

inquiries, introductions, consultations and

negotiations resulting in this transaction.

Seller and Buyer agree to indemnify and hold

Broker harmless from and against losses,

damages, costs and expenses of any kind,

including reasonable attorneys' fees at all

levels, and from liability to any person,

arising from (1) compensation claimed which

is inconsistent with the representation in

this Paragraph, (2) enforcement action to

collect a brokerage fee pursuant to

Paragraph 10, (3) any duty accepted by

Broker at the request of Buyer or Seller,

which duty is beyond the scope of services

regulated by Chapter 475, F.S., as amended,

or (4) recommendations of or services

provided and expenses incurred by any third

party whom Broker refers, recommends or

retains for or on behalf of Buyer or Seller.

14. The Damiano /Piazza transaction was originally

sc heduled to close on July 25, 2001.

15. At the request of the Piazzas, the closing was

rescheduled for August 7, 2001.

16. A few days before August 7, 2001, Mr. Sprauer asked

Respondent "where the closing was going to take place" and "what

title compan y" would be handling the matter. Respondent replied

that the closing was "going to be delayed again because

Mr. Damiano . . . was going to have to have some type of cancer

surgery."

17. It turned out that the closing was not "delayed

again." It took pla ce on August 7, 2001.

18. At the closing were Mr. Damiano, the Piazzas,

Respondent, and the closing agent from the title company, First

American Title Insurance Company (First American). 3

19. Neither Mr. Schevers, nor Mr. Sprauer, was in

attendance.

20. Mr. Sprauer did not even know that the closing was

taking place. He was under the impression, based on what

Respondent had told him, that the closing had been postponed.

Had he not been misinformed, he would have attended the closing.

Respondent di d not contact Mr. Sprauer following the closing to

let him know that, in fact, the closing had occurred.

21. Mr. Schevers, on the other hand, was made aware that

closing would be held on August 7, 2001. He was unable to

attend because he had "prior comm itments."

22. It was Respondent who informed Mr. Schevers of the

August 7, 2001, closing date.

23. The morning of August 7, 2001, Respondent went to

Unlimited's Stuart office and asked Mr. Schevers for the

$10,000.00 Unlimited was holding in escrow in connection with

the Damiano/Piazza transaction, explaining that he needed it for

the closing that was going to be held later that day.

24. Before complying with Respondent's request,

Mr. Schevers contacted First American and asked that he be faxed

a copy of the United States Department of Housing and Urban

Development Settlement Statement (HUD Statement) that First

American had prepared for the closing.

25. As requested, First American faxed a copy of the HUD

Statement to Mr. Schevers.

26. Upon revie wing the document, Mr. Schevers "immediately

noticed that [it indicated that] the entire commission [of

$7,000.00] was going to Allen."

27. Mr. Schevers "then proceeded to call First American"

and asked why Unlimited was not "reflected on this settlement

statement." Mr. Schevers was told that a First American

representative "would get right on it and get back to [him]."

28. Mr. Schevers did not wait to hear back from First

American before handing an "escrow check" in the amount of

$10,000.00 to Responden t. He instructed Respondent, however, to

"not give anybody this check unless that statement [the HUD

Statement] [was] changed and reflect[ed] [Unlimited's]" share of

the commission earned from the sale of the Piazza Property. He

further directed Respon dent to telephone him if this change was

not made.

29. Respondent did not follow the instructions

Mr. Schevers had given him. He delivered the $10,000.00 "escrow

check" to the closing agent at the closing, even though the HUD

Statement had not been chang ed to reflect Unlimited's sharing of

the commission. At no time during the closing did Mr. Schevers

receive a telephone call from Respondent.

30. According to the HUD Statement that Mr. Damiano, the

Piazzas, and the closing agent signed at the closing, A llen

received a commission of $7,000.00 "from seller's funds at

settlement." The document makes no mention of any other

commission having been paid as part of the closing.

31. On or about August 9, 2001, Respondent received a

"commission check" from Alle n. The check was made payable to

Respondent and was in the amount of $3,000.00. Under the

"DOLLARS" line on the check, the following was typed:

4200 Total Comm[ 4 ]

1200 ADVANCE[ 5 ]

Typed next to "MEMO" on the bottom left hand corner of the check

was "DAMI ANO - PIAZZA 165,000 S&L."

32. It has not been shown that the "commission check"

Respondent received from Allen was for anything other than the

commission Allen owed Respondent for services performed when

Respondent was still employed by Allen.

33. Mr. Schevers' consent to Respondent's receiving this

$3,000.00 "commission check" was neither sought nor given.

34. Less than a week after the closing, having spotted

Mr. Damiano mowing grass on a vacant lot that Mr. Damiano owned,

Mr. Sprauer walked up to h im and asked "how his surgery [had

gone]." Mr. Damiano "acted very surprised [like] he didn't know

what [Mr. Sprauer] was talking about." Mr. Damiano's reaction

to his inquiry led Mr. Sprauer to believe "that the closing had

probably taken place." He "i mmediately contacted [Mr. Schevers]

and asked him to check into it."

35. Mr. Schevers subsequently learned from First American

that Allen "had gotten all of the [commission] check" at the

closing.

36. Mr. Schevers then telephoned Respondent. This was th e

first communication he had had with Respondent since before the

closing. Respondent told Mr. Schevers that "he got the check"

and "he would be right over with it." Respondent, however, did

not keep his promise.

37. After his telephone conversation wit h Respondent,

Mr. Schevers discovered that Allen "had cut [Respondent] a check

and [Respondent] had gone immediately and deposited it."

38. This discovery prompted Mr. Schevers to place another

telephone call to Respondent. This telephone conversation en ded

with Mr. Schevers telling Respondent "he was terminated."

39. Mr. Schevers thereafter notified Petitioner in writing

that Respondent was no longer associated with Unlimited. He

also filed with Petitioner a complaint against Respondent

alleging that R espondent had "acted inappropriately" in

connection with the Damiano/Piazza transaction.

40. Mr. Schevers had expected Unlimited to receive, for

the role it played in the Damiano/Piazza transaction, "50

percent of the total commission," or $3,500.00, in a ccordance

with the provisions of the "multiple listing service for

St. Lucie County." 6 He holds Respondent responsible, at least in

part, for Unlimited's not receiving these monies. 7

41. At the time of the Damiano/Piazza transaction,

Unlimited had contr acts with its sales associates which provided

that the associates would receive "70 percent of the net" of any

commission Unlimited earned as a result of the associates'

efforts. Had Unlimited received a commission as a result of the

Damiano/Piazza transa ction, it would have "split" it with

Respondent and Mr. Sprauer as required by the contracts it had

with them. 8

CONCLUSIONS OF LAW

42. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Fl orida Statutes.

43. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action against

Florida - licensed real estate sales associates 9 based upon any of

the grounds enumerated in Section 475.25(1), Florida Statutes .

44. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

(for a period not exceeding ten years); imposition of an

administrative fine not to exceed $1,000.00 for each count or

separate of fense; issuance of a reprimand; and placement of the

licensee on probation. § 475.25(1), Fla. Stat.

45. The Commission may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to req uest a proceeding pursuant to

Sections 120.569 and 120.57, Florida Statutes. § 120.60(5),

Fla. Stat.

46. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

§§ 120.569(1) and 120.57(1), Fla. Stat.

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

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the charging instrument. It must do

so even if, as the instant case, the licensee fails to appea r at

the hearing. See Scott v. Department of Professional

Regulation , 603 So.2d 519, 520 (Fla. 1st DCA 1992) (" The

appellant is a registered nurse who challenges an administrative

order by which her license was suspended after a hearing before

the Board of Nursing. The appellant did not appear at the

hearing, and did not otherwise respond to the complaint against

her. However, the appellant's failure to appear or respond does

not relieve the appellee of its obligation to substantiate the

charges by presen ting sufficient evidence."). 10

48. Proof greater than a mere preponderance of the

evidence must be presented by Petitioner to meet its burden of

proof. Clear and convincing evidence of the licensee's guilt is

required. See Department of Banking and Finan ce, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and Se ction

120.57(1)(j), Florida Statutes ("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 . . . .").

49. Clear and convincing evidence "re quires 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). It is an "intermediate standard."

Id. For proof to be considered "'clear and c onvincing' . . .

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 evi dence

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 approv al,

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

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shule r Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

50. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate Petitioner's evidentiary

presentation in light of the specific factual allegations made

in the charging instrument. Due process prohibits an agency

from taking disciplinary action against a licensee based upon

conduct not specifically alleged in the charging instrument ,

unless those matters have been tried by consent. See Jones v.

Department of Business an d Professional Regulation , 29 Fla. L.

Weekly D1273 , 2004 WL 1175267 *1 (Fla. 5th DCA May 28, 2004) ;

Aldrete v. Department of Health , 29 Fla. L. Weekly D967a , 2004

WL 825514 *1 (Fla. 1st DCA April 19, 2004); Shore Village

Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Hamilton v. Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla .

4th DCA 1999); Ghani v. Department of Health , 714 So. 2d 1113,

1114 - 15 (Fla. 1st DCA 1998) ; Cottrill v. Department of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967 (Fla.

5th DCA 1 992); and Wray v. Department of Professional

Regulation, Board of Medical Examiners , 435 So. 2d 312, 315

(Fla. 1st DCA 1983); cf. Montalbano v. Unemployment Appeals

Commission , 873 So. 2d 417 (Fla. 4th DCA 2004)(" The UAC argues

that appellant had notice, g enerally, that she was discharged

for misconduct connected with work and it is inconsequential

that her employer was allowed to change his mind during the

hearing as to the exact conduct which led to appellant's

termination. We reject that argument. Appe llant attended the

hearing with the understanding that she would have to defend the

allegation that she falsified documents and not the allegation

that she argued with her employer and was insubordinate on the

day she was fired.") .

51. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule cla imed [in the charging

instrument] to have been violated" was in fact violated, as

alleged by Petitioner, if there is any reasonable doubt, that

doubt must be resolved in favor of the licensee. See Whitaker

v. Department of Insurance and Treasurer , 680 So. 2d 528, 531

(Fla. 1st DCA 1996); Elmariah v. Department of Professional

Regulation, Board of Medicine , 574 So. 2d 164, 165 (Fla. 1st DCA

1990); and Lester v. Department of Professional and Occupational

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

52. 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 sh ould be taken against the licensee, to

consult the Commission's "disciplinary guidelines," as they

existed at the time of the violation(s). See Parrot Heads, Inc.

v. Department of Business and Professional Regulation , 741 So.

2d 1231, 1233 (Fla. 5th DCA 1 999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and Orasan v. Agency for Health Care

Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996)("[T]he case was properly d ecided under the

disciplinary guidelines in effect at the time of the alleged

violations."); see also State v. Jenkins , 469 So. 2d 733, 734

(Fla. 1985)("[A]gency rules and regulations, duly promulgated

under the authority of law, have the effect of law."); Buffa v.

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

must comply with its own rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

53. At all times material to the instant case, the

Commission's "disciplinary guidelines" have been set forth in

Florida Administrative Code Rule 61J2 - 24.001, and have provided,

in pertinent part, as follows:

Pursuant to s. 455.2273, Florida Statutes,

the Commission sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapters 455

or 475, Florida Statutes. 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 s. 475.25(1), Florida Statutes,

combinations of these penalties are

permissible by law. Nothing in this rule

shall preclude any discipline imposed upon a

licensee pursua nt 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.

* * *

(3) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to paragraph (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.

* * *

(c) 475.25(1)(b) Guilty of fraud,

misrepresentation, concealment, false

promises, dishonest dealing by trick,

scheme, or device, culpable negligence or

breach of trust. . . . - In the case of

fraud, misrepresentation and dishonest

dealing, the usual action of the Commission

shall be to impose a penalty of revocation.

In the case of concealment, false promises,

and false pretenses, the usual action of the

Commission shall be to impose a penalty of a

3 to 5 year suspension and an administrat ive

fine of $1,000. In the case of culpable

negligence and breach of trust, the usual

action of the Commission shall be to impose

a penalty from a $1,000 fine to a 1 year

suspension. . . .

* * *

(f) 475.25(1)(e) Violated any rule or

order or provision under Chapters 475 and

455, F.S. - 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.

* * *

(z) 475.42(1)(d) A sales associate shall

not collect any money in connection with any

real estate brokerage transaction except in

the name of the employer - The usual action

of the Commission shall be to impose a

penalty of an administrative fine of $1,000

to a 3 year su spension.

* * *

(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 s. 120.57(1), Florid a Statutes,

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

m ay include, but are not limited to, the

following:

(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 Complain t.

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.

* * *

54. The Administrative Complaint issued in the instant

case alleges that, in connection with the sale of the Piazza

Property to Mr. Damiano, Respondent acted in violation of

Section 475.25(1)(b), Florida Statutes, and Section

475.42(1)(d), Florida Statutes (thereby also violating Section

475.25(1)(e), Florida Statutes).

55. The statutory provisions that Petitioner claims

Respondent has violated are "in effect, . . . penal

statute[s] . . . This being true the[y] must be stric tly

construed and no conduct is to be regarded as included within

[them] that is not reasonably proscribed by [them].

Furthermore, if there are any ambiguities included such must be

construed in favor of the . . . licensee." Lester v. Department

of Profe ssional and Occupational Regulations , 348 So. 2d 923,

925 (Fla. 1st DCA 1977); see also Djokic v. Department of

Business and Professional Regulation, Division of Real Estate ,

29 Fla. L. Weekly D1370 , 2004 WL 1196563 *2 (Fla. 4th DCA

June 2, 2004)("We follo w, of course, the well established rule

that penal statutes -- which this [Section 475.25(1)(d)1, Florida

Statutes] surely is -- are construed in favor of the licensee and

against the regulatory authority.); Whitaker v. Department of

Insurance and Treasurer , 6 80 So. 2d 528, 531 (Fla. 1st DCA

1996)("Because the statute [Section 626.954(1)(x)4, Florida

Statutes] is penal in nature, it must be strictly construed with

any doubt resolved in favor of the licensee."); and Elmariah v.

Department of Professional Regulat ion, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990)(" Although it is generally

held that an agency has wide discretion in interpreting a

statute which it administers, this discretion is somewhat more

limited where the statute being interpreted a uthorizes sanctions

or penalties against a person's professional license. Statutes

providing for the revocation or suspension of a license to

practice are deemed penal in nature and must be strictly

construed, with any ambiguity interpreted in favor of th e

licensee.").

56. At all times material to the instant case, Section

475.25(1)(b), Florida Statutes, has authorized the Commission to

take disciplinary action against a Florida - licensed real estate

sales associate who "[h]as been guilty of fraud,

misrep resentation, concealment, false promises, false pretenses,

dishonest dealing by trick, scheme, or device, culpable

negligence, or breach of trust in any business

transaction . . . ."

57. For there to be a violation of Section 475.25(1)(b),

Florida Statut es, there must be wrongful intent or scienter, or

reckless indifference, on the part of the licensee. See Munch

v. Department of Professional Regulation , 592 So. 2d 1136, 1143 -

44 (Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b)

[Florida Statutes , which, in its first clause, authorizes the

Commission to discipline a licensee 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] is

penal in nature. As such, it must be construed strictly, in

favor of the one against whom the penalty would be

imposed. . . . Reading the first clause of Section 475.25(1)(b)

(the portion of the statute which appellant was charg ed with

having violated in Count I of the complaint), and applying to

the words used their usual and natural meaning, it is apparent

that it is contemplated that an intentional act be proved before

a violation may be found."); Morris v. Department of

Profe ssional Regulation , 474 So. 2d 841, 843 (Fla. 5th DCA

1985)(grounds of "'fraud, misrepresentation, concealment, false

promises, dishonest dealing by trick, scheme or device, culpable

negligence and breach of trust in a business transaction in

violation of section 475.25(1)(b) . . . alleged by the complaint

all require a finding of wrongful intent or scienter . . . .");

and Department of Professional Regulation, Division of Real

Estate v. Powell , No. 92 - 3751, 1993 WL 943473 *7 (Fla. DOAH

1993)(Recommended Or der)("'Culpable negligence' has been defined

as ' that reckless indifference to the rights of others which is

equivalent to an intentional violation of them.'").

58. The wrongful intent or scienter required to establish

a violation of Section 475.25(1)(b), Florida Statutes, may be

proven by circumstantial evidence. See Walker v. Department of

Business and Professional Regulation , 705 So. 2d 652, 654 (Fla.

5th DCA 1998)("DBPR presented undisputed circumstantial evidence

that Walker's acts were intentional." ); and Baker v. State , 639

So. 2d 103, 104 ( Fla. 5th DCA 1994)("Intent i s an operation of

the mind and is not subject to direct proof, however, intent can

be proven by circumstantial evidence."). For instance, it may

be inferred from the licensee's action s. See Swanson v. State ,

713 So. 2d 1097, 1101 (Fla. 4th DCA 1998)("Appellant's actions

are sufficient to show intent to participate."); State v

Breland , 421 So. 2d 761, 766 (Fla. 4th DCA 1982) ("Actions

manifest intent."); G. K. D. v. State , 391 So. 2d 3 27, 328 - 29

(Fla. 1st DCA 1980)("Appellant testified that he did not intend

to break the window, but the record indicates that he did

willfully kick the window, and he may be presumed to have

intended the probable consequences of his actions."); State v.

We st , 262 So. 2d 457, 458 (Fla. 4th DCA 1972 )("[Intent] is not

usually the subject of direct proof. It is inferred from the

acts of the parties and from the surrounding circumstances.");

and Rolex Watch U.S.A., Inc. v. Dauley , 1986 WL 12432 ( N.D. Cal.

1986) (" A finding of wrongful intent may be inferred from

defendant's actions.").

59. The mere failure to fulfill a promise or obligation,

without more, does not constitute a violation of Section

475.25(1)(b), Florida Statutes. See Capital Bank v. MVB, Inc. ,

6 44 So. 2d 515, 521 ( Fla. 3d DCA 1994)("[F] ailure to perform a

promise does not constitute fraud, unless the bank intended not

to perform the contract at the time it was entered."); John

Brown Automation, Inc. v. Nobles , 537 So. 2d 614, 618 ( Fla. 2d

DCA 198 8)("[W] ell accepted precedent leaves no doubt that the

mere failure to perform a promise does not constitute fraud.

The result we reach would, of course, be different if the record

disclosed a specific purpose in the appellants not to perform

the contract at the time it was entered."); Steyr Daimler Puch

of America v. A & A Bicycle Mart, Inc. , 453 So. 2d 1149, 1150

(Fla. 4th DCA 1984)("As a general rule fraud cannot be

predicated upon a mere promise not performed."); Department of

Professional Regulation v . Boyd , No. 89 - 6718, 1991 WL 833017

*31 (Fla. DOAH 1991)(Recommended Order)("[F]ailure to perform

according to a contract of service is not tantamount to fraud

regardless of who the parties to the contract are."); and

Department of Professional Regulation , Division of Real Estate

v. O'Neill , No. 87 - 1210, 1988 WL 618039 *6 (Fla. DOAH

1988)(Recommended Order)("A promise that is merely unfulfilled,

however, is not necessarily a false promise which would justify

disciplinary action against the broker who makes it.").

60. At all times material to the instant case, Section

475.25(1)(e), Florida Statutes, has authorized the Commission to

take disciplinary action against a Florida - licensed real estate

sales associate who " [h]as violated any of the provisions of

th is chapter [Chapter 475, Florida Statutes] or any lawful order

or rule made or issued under the provisions of this chapter or

chapter 455. "

61. Among the provisions of Chapter 475, Florida Statutes,

is Section 475.42(1)(d), Florida Statutes, which provide s as

follows:

A sales associate may not collect any money

in connection with any real estate brokerage

transaction, whether as a commission,

deposit, payment, rental, or otherwise,

except in the name of the employer and with

the express consent of the empl oyer; and no

real estate sales associate, whether the

holder of a valid and current license or

not, shall commence or maintain any action

for a commission or compensation in

connection with a real estate brokerage

transaction against any person except a

pe rson registered as her or his employer at

the time the sales associate performed the

act or rendered the service for which the

commission or compensation is due.

The version of Section 475.42, Florida Statutes, in effect in

August of 2001, when Respondent allegedly violated Section

475.42(1)(d), Florida Statutes, was, in all material respects,

substantially identical to the current version. 11

62. Section 475.42(1)(d), Florida Statutes, does not

prohibit a real estate sales associate who has changed brokers -

employers from receiving from his former broker - employer,

without the "express consent" of his present broker - employer, a

check, made payable to the associate, for services rendered by

the associate during the associate's employment with the former

broker - employer. See Mitchell v. Frederich , 431 So.2d 727, 728

(Fla. 3d DCA 1983) (" The evidence is without dispute that the

contract between the broker and his salesman was that a salesman

who procured an exclusive right of sale listing would be

entitled to 60% of that which the broker received. Section

475.42 Florida Statutes (1979) cannot prevent Mitchell as a

salesman from receiving the benefit of the commission to be paid

under the exclusive right of sale agreement which he negotiated

simply because he is n o longer in the employ of the broker,

through no fault of either of the parties.").

63. The specific conduct alleged to constitute the

violations of Section 475.25(1)(b), Florida Statutes, and

Section 475.42(1)(d), Florida Statutes, of which Respondent i s

accused in the Administrative Complaint is identified in

numbered paragraphs 11 and 12 of the Administrative Complaint's

"[e]ssential [a]llegations of [m]aterial [f]act," which read as

follows:

11 On or about August 9, 2001, without the

authorization of GRU or Schevers [and

contrary to Schevers' express

instructions[ 12 ]] Respondent delivered the

deposit check to the closing agent.

12. On or about August 9, 2001, without the

authorization of GRU or Schevers, Respondent

received a commission check payable to

Respondent from the listing broker, Allen

Real Estate.

Any violation found by the Commission in this case must be based

on these alleged acts described in the Administrative Complaint

and no other conduct (including any misrepresentations

Respondent m ay have made to Mr. Sprauer, Mr. Schevers, or anyone

else or Respondent's failure to have shared with Mr. Sprauer 13

the commission he received from Allen as a result of the sale of

the Piazza Property .). See Jones v. Department of Business and

Professional Regulation , 2004 WL 1175267 *1; Aldrete v.

Department of Health , 2004 WL 825514 *1; Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d at 210; Hamilton v. Department of

Business and Professional Regulati on , 764 So. 2d at 778; Lusskin

v. Agency for Health Care Administration , 731 So. 2d at 69;

Ghani v. Department of Health , 714 So. 2d at 1114 - 15; Cottrill

v. Department of Insurance , 685 So. 2d at 1372; Delk v.

Department of Professional Regulation , 595 So. 2d at 967; and

Wray v. Department of Professional Regulation, Board of Medical

Examiners , 435 So. 2d at 315.

64. Petitioner clearly and convincingly established that,

as alleged in the Administrative Complaint, " Respondent

delivered the deposit check to the closing agent" contrary to

the instructions Mr. Schevers had given him to "not . . .

deliver" the check until the HUD Statement was "changed to

indicate that [Unlimited] was a cooperating broker entitled to a

commission." Petitioner contends that, in engaging in such

conduct, Respondent acted in derogation of his fiduciary

relationship with Unlimited and thus violated Section

475.25(1)(b), Florida Statutes. It is true that a real estate

sales associate " owes a duty of loyalty to the broker with whom

h e associates" and must act diligently to carry out the broker's

reasonable directives. Re/Max International, Inc. v. Smythe,

Cramer Co. , 265 F. Supp. 2d 882, 898 (N.D. Ohio 2003) . An

associate's failure to act in accordance with this obligation,

however, is outside the regulatory sphere of Chapter 475,

Florida Statutes. As the Fourth District of Appeal recently

stated:

Chapter 475, was enacted for the purpose of

protecting the public in dealings with real

estate agents. The role of the judiciary is

usur ped if the commission is permitted to

decide charges which are predicated upon

factual matters pertaining solely to the

internal business affairs of a real estate

agency. The administrative processes of the

commission should be directed at the

dishonest a nd unscrupulous operator, one who

cheats, swindles or defrauds the General

public in handling real estate transactions.

(internal quotations omitted). Djokic v. Department of Business

and Professional Regulation, Division of Real Estate , 2004 WL

1196563 *2, quoting from Cannon v. Florida Real Estate

Commission , 221 So. 2d 240, 241 (Fla. 4th DCA 1969).

65. Moreover, the directive that Mr. Schevers gave

Respondent was not a reasonable one. Had Respondent followed

Mr. Schevers' instructions and "not . . . deliver[ed]" the

check, thereby holding up the closing contrary to the best

interests of the buyer and seller, then there would have been a

"breach of trust" of the type contemplated by Section

475.25(1)(b), Florida Statutes . See Wallace v. Odham , 579 S o.

2d 171, 174 - 76 (Fla. 5th DCA 1991)(" Odham steadfastly maintains

that his only purpose in addressing the school board at its

June 10, 1988, meeting was to protect his commission.

Unquestionably, Odham was entitled to protect his commission and

to addres s the school board. However, while doing so, he had

the primary obligation to exercise his fiduciary[ 14 ] duty to his

principal. Florida courts elevate the level of duty of a broker

to that of an attorney or banker in that the broker's relation

to the publ ic exacts the highest degree of trust and

confidence. . . . [Odham's] misdirected efforts to protect his

commission went beyond the bounds of propriety when he insisted

that, if the terms desired by him were not inserted in the

purchase agreement, there should be no negotiated purchase but

an acquisition by condemnation. A broker has no superior right

to insist upon terms to be inserted in a contract between seller

and buyer. The listing agreement even provides that, while the

broker was receiving an ex clusive listing agreement, the terms

of sale had to be acceptable to the seller. Odham also lost

sight of the rather obvious fact that, absent his signature on

the purchase agreement, that document could not change the terms

of his agreement with Wallace. Odham's proper course of action

was simple: allow the transaction to close without attempting

to thwart the sale, thereby entitling him to a commission in

accordance with the requirement of his listing agreement that a

sale take place. If the amount of the commission is

unacceptable or inaccurate under the broker's interpretation of

the listing agreement, the court system is still available to

resolve the differences."); and Hayber v. Department of Consumer

Protection , 36 Conn. L. Rptr. 603, 2004 WL 574 662 *4 - 5 (Conn.

Super. Ct. March 8, 2004)("Plaintiff Hayber was a party to the

commission agreement. However, he was not a party to the escrow

agreement. The Sale and Purchase Agreement contained three

separate agreements: (a) the underlying real estate agreement;

(b) the escrow agreement; and (c) the broker's commission

agreement. Regarding the escrow agreement, Hayber was a

fiduciary to the parties, but he was not a party and his consent

was not required to release the funds. Simply because Hayber

wa s a party to the broker's commission agreement, he was not a

party to the escrow agreement. Therefore, his consent was not

needed to release the funds in escrow. The escrow agreement was

created by the parties to facilitate the administration of the

real estate transaction. Hayber's acceptance of his duties as

an escrow agent do not make him a party to the Agreement or

permit him to condition the discharge of the escrow to the

payment of his disputed commission. Nothing in the escrow

agreement requires Hayber's consent as a condition for the

discharge of the funds. . . . Hayber breached his fiduciary

duties as an escrow agent by withholding the funds in escrow

against the agreement of the parties. The Real Estate

Commission has ordered Hayber to return the $16,000.00 and has

imposed statutory sanctions to discipline Hayber. For the

foregoing reasons, the decision of the Real Estate Commission is

affirmed and Plaintiff Hayber's appeal is dismissed."). To find

Respondent guilty of a Section 475.25(1)(b) violation for

failing to follow Mr. Schevers' instructions to "withhold[] the

funds in escrow against the agreement of the parties" if the HUD

Statement was not changed to reflect that Unlimited was

" entitled to a commission" would turn the statute on its head

and would serve to encourage the very activity it was designed

to deter. Instructing Respondent to request that the HUD

Statement be changed to reflect Unlimited's share of the

commission was not inappropriate. 15 Mr. Schevers, however,

crossed the l ine of propriety when he directed Respondent to

"withhold[] the funds in escrow" if the requested change was not

made, particularly inasmuch as the contents of the HUD Statement

did not affect Unlimited's entitlement to share the commission

resulting from the sale of the Piazza Property (as provided for

in the Sales Contract). See Hampden Real Estate, Inc. v.

Metropolitan Management Group , 2003 WL 23206072 *5 (E.D. Pa.

2003)("The regulatory genesis of the HUD - 1 Statement, coupled

with the fact that a closi ng agent prepared the document, and

the absence of case law giving the HUD - 1 contractual force,

supports the conclusion that this is simply a disclosure

document and not a contractual amendment to the Agreement of

Sale.").

66. Finally, it cannot be said , without hesitation, that

Respondent's failure to do as he was told by Mr. Schevers was

the product of ill intent, especially given the lack of clear

and convincing evidence establishing that Respondent had any

evil motive, financial 16 or otherwise, to dis obey his employer

and thereby place his employment in jeopardy. While, as noted

above, wrongful intent may be proven by circumstantial evidence,

the circumstances shown to be present in the instant case do not

constitute clear and convincing proof that Re spondent acted with

such wrongful intent when he failed to comply with the directive

he had been given by Mr. Schevers.

67. With respect to the other alleged act of misconduct,

Respondent's " receiv[ing] a commission check payable to

Respondent from the li sting broker, Allen," Petitioner

established by clear and convincing evidence that Respondent

engaged in such conduct. His receiving this check, however, did

not constitute a violation of Section 475.42(1)(d), Florida

Statutes, as alleged by Petitioner, s ince these monies were for

services rendered by Respondent for Allen at a time when Allen

was his employer and he therefore did not need the "express

consent" of Unlimited, his employer at the time he was given the

check by Allen, to receive, in his own na me, these monies that

Allen owed him. See Mitchell v. Frederich , 431 So.2d at 728.

68. In view of the foregoing, both counts of the

Administrative Complaint must be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Commission issue a final order

dismissing the Administrative Complaint issued against

Respondent in the instant case in its entirety.

DONE AND ENTERED this 7th day of July, 2004, 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

(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 7th day of July, 2004.

ENDNOTES

1 The hearing was originally scheduled for February 26, 2004,

but was continued at Respondent's request.

2 Petitioner's Exhibit 5 is Respondent's response to

Petitioner's First Request for Admissions. In his response,

Respondent admitted t he matters asserted in numbered paragraphs

2, 3, 7 (first sentence), 9, 12 (first sentence) and 13 of the

Administrative Complaint.

3 None of these attendees testified at the final hearing in this

case.

4 $4,200.00 is 60 percent of the $7,000.00 commis sion Allen

received on the sale of the Piazza Property.

5 Respondent had "borrowed money on quite a few occasions" from

the owner/broker of Allen. These loans were in the form of

"advances" of anticipated commissions. (Respondent had also

"requested a dvances [during his employment with Unlimited), but

[Mr. Schevers had routinely] refused" to grant these requests.)

6 Although the Sales Contract did indicate that Unlimited would

be paid a commission as the "cooperating broker," it neither

specified how much Unlimited would receive, nor described how

the amount would be determined.

7 It is not clear from the evidentiary record what direct steps,

if any, Mr. Schevers has taken (on behalf of Unlimited) to

recover this $3,500.00 (which Unlimited has stil l not been

paid).

8 The evidentiary record does not reveal what amount the "net"

would have been, and it therefore cannot be determined whether

Respondent's and Mr. Sprauer's percentage take (as a team) of

the $3,500.00 would have been greater than, less than, or the

same as their percentage take of the $7,000.00 commission Allen

received.

9 Prior to July 1, 2003, the effective date of Chapter 2003 - 164,

Laws of Florida, real estate "sales associates" were referred to

in Chapter 475, Florida Statutes, as real estate "salespersons."

10 In Scott , " [t]he only evidence which the appellee presented

at the hearing was a hearsay report which would not have been

admissible over objection in a civil action." The court held

that "this evidence was not sufficient in itself to support the

Board's findings," notwithstanding that that there was no

objection to its admission into evidence by the licensee (who

was absent from the hearing)." Id. ; see also Yost v.

Unemployment Appeals Commission , 848 So. 2d 1235, 1238 (F la. 2d

DCA 2003)(unobjected to hearsay evidence insufficient, standing

alone, to support a finding of fact); Brown v. International

Paper Co. , 710 So. 2d 666, 668 (Fla. 2d DCA 1998)(same); Doyle

v. Florida Unemployment Appeals Commission , 635 So. 2d 1028,

1032 (Fla. 2d DCA 1994)(same); and Harris v. Game and Fresh

Water Fish Commission , 495 So. 2d 806, 809 (Fla. 1st DCA

1986)(same).

11 It read, in pertinent part, as follows:

No salesperson shall collect any money in

connection with any real estate brokera ge

transaction, whether as a commission,

deposit, payment, rental, or otherwise,

except in the name of the employer and with

the express consent of the employer; and no

real estate salesperson, whether the holder

of a valid and current license or not, shal l

commence or maintain any action for a

commission or compensation in connection

with a real estate brokerage transaction

against any person except a person

registered as her or his employer at the

time the salesperson performed the act or

rendered the ser vice for which the

commission or compensation is due.

12 These instructions are described in numbered paragraph 10 of

the Administrative Complaint's "[e]ssential [a]llegations of

[m]aterial [f]act."

13 Mr. Sprauer is not even mentioned, by name or other wise, in

the Administrative Complaint.

14 A "fiduciary," as that term is used in Chapter 475, Part I,

Florida Statutes, is defined in Section 475.01(1)(f), Florida

Statutes, as follows:

"Fiduciary" means a broker in a relationship

of trust and confidence between that broker

as agent and the seller or buyer as

principal. The duties of the broker as a

fiduciary are loyalty, confidentiality,

obedience, full disclosure, and accounting

and the duty to use skill, care, and

diligence.

15 The evidentiary record does not reveal whether Respondent

made such a request at the closing.

16 See endnote 8, supra .

COPIES FURNISHED :

Alpheus C. Parsons, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Patrick Bowie

660 Forster Avenue

Sabastian, Florida 32958

Juana Watkins, Acting Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 802

Orlando, Florida 32801

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

N OTICE OF RIGHT TO SU BMIT 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.