04-001326 Department Of Business And Professional Regulation, Division Of Real Estate vs. Infiniti Realty, Llc; Jacqueline M. Mulligan; Richard T. Price; Anita B. Turner; Margherita A. Mcdaniel; Steven Craig Thomas; And Shaw W. O`neill Status: Closed Recommended Order on Thursday, October 7, 2004.

Summary: Petitioner failed to meet burden of proof to establish that Respondents had failed to register licenses with new broker or that broker had hired Respondents without being properly licensed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1326

)

INFINITI REALTY, LLC; )

JACQUELINE M. MULLIGAN; RICHARD )

T. PRICE; ANITA B. TURNER; )

MARGHERITA A. MCDA NIEL; STEVEN )

CRAIG THOMAS; and SHAW W. )

O'NEILL, )

)

Respondents. )

)

RECOMMENDED ORDER

In accordance with proper notice this cause came on for

formal proceeding and hear ing, before P. Michael Ruff, duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, on June 23, 2004, in Deland, Florida.

The appearances were as follows:

APPEARANCES

For Petitioner: Alfonso Santana, Esquire

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32802

For Respondents: Steven W. Johnson , Esquire

100 South Bumby Avenue, Suite B

Orlando, Florida 32803

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding are two - fold.

First it must be determined whether Infiniti Realty, LLC

(Infiniti) is guilty of having employed persons as sales

associates who do not hold a va lid and current licenses as sales

associates. Secondly, it must be determined whether those

individual sales persons, the Respondents in this case, operated

as sales associates for any person or entity not registered as

their employing broker, in violatio n of Subsections

475.42(1)(b)and (e), Florida Statutes (2002) and, derivatively,

in violation of Subsection 475.25(1)(e), Florida Statutes

(2002). If the violations or any of them are proven, it must be

determined what if any penalty should be imposed on the

Respondents' real estate licensure.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative

Complaint in which the Petitioner Agency alleges that the

Respondent Infiniti employed, used or engaged services of the

Respondents, named above, who are not the holders of valid,

current licenses as sales associates, for a period from

December 30, 2002, through February 11, 2003. This is because

their licenses were allegedly not registered with Infiniti as

their broker, in purported violat ion of Section 475.42(1)(c),

Florida Statutes (2002), and, correspondingly, in violation of

Section 475.25(1)(e), Florida Statutes (2002). The Petitioner

contends that the named Respondents operated as sales associates

for that period of time until Februa ry 11, 2003, for a person

not registered as their employer in violation of Section

475.42(1)(b), Florida Statutes, and also 475.25(1)(e), Florida

Statutes (2002).

The Respondents elected to dispute the charges and avail

themselves of the right to a formal proceeding to contest them.

They requested a formal hearing, which was conducted on June 23,

2004. The cause came on for hearing, as noticed, at which the

Petitioner presented the testimony of one witness, Mr. James

Courchaine, an investigator for the De partment of Business and

Professional Regulation, Division of Real Estate (Department)

and offered Petitioner's Exhibits one, seven, eight, nine, ten

(a - f), and twelve, which were admitted into evidence. The

Respondents presented the testimony of one witn ess Carolyn Cass -

Lamore and the Respondents each testified on their on behalf.

(The Respondents also relied on some the Petitioner - sponsored

exhibits.)

Upon conclusion of the proceedings the parties elected to

obtain a transcript thereof and to submit P roposed Recommended

Orders. The Proposed Recommended Orders were timely submitted

and have been considered in the rendition of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida

charged with enforcing th e statutory provisions pertaining to

real estate licensure and to persons and entities holding real

estate licensure and practicing the profession of real estate in

Florida both as sales persons and brokers, in accordance with

Chapters 455, and 475, Florid a Statutes (2002), and rules

promulgated thereunder.

2. The Respondent, Infiniti was, at all times pertinent

hereto, a real estate corporate brokerage licensed in Florida

holding license number CQ1015795.

3. The other named Respondents, at all times pertinent

hereto, have been real estate sales persons licensed in the

State of Florida. Infiniti is located at 511 North Oceanshore

Boulevard, Flagler Beach, Florida 32136.

4. The Respondents all practice their profession in

Flagler Beach, Florida . The broker for Infiniti is Ms. Carolyn

Cass - Lamore. The owner, a licensed sales person, is Mr. Sean

O'Neill, who organized the new real estate brokerage known as

Infiniti Realty, LLC in late 2002. Most of the staff, including

the Respondents in questi on, had formerly been employed as sales

persons at Connie Boyle Realty, located in the Flagler Beach

area. The Respondents became increasingly dissatisfied with

their practice and with business and working conditions at

Connie Boyle Realty, because they f elt that the business was not

being properly operated. Consequently, they elected to leave

Connie Boyle Realty and form their own firm, with Mr. O'Neill as

owner and Ms. Cass - Lamore as the licensed broker.

5. With this in mind, the Respondents all execu ted "forms

2050," which provide for a change of employer registration for

sales persons and/or the means by which sales persons inform and

record with the Petitioner agency their change of employment

from one broker to another broker or brokerage. These f orms

were completed after consultation between Ms. Cass - Lamore and

Mr. O'Neill on Friday, December 27, 2002. The Respondents

Mr. O'Neill and Ms. Cass - Lamore had to act quickly to change the

registration with the Department because a newspaper

advertisemen t announcing the advent and operation of Infiniti

Realty was published, or they learned that it was to be

published, one or two weeks before they had requested it to be

published. Consequently, they had to act hurriedly to inform

Ms. Boyle that they were leaving the employ of her firm and to

also file their appropriate change of registration forms with

the Real Estate Commission (Commission), because they would have

to get into business sooner than they had originally planned

with the new firm.

6. In an y event, the change of registration forms were

completed on December 27, 2002. Mr. O'Neill was to file the

forms with the Real Estate Commission. Consequently, on that

day, Ms. Cass - Lamore faxed the forms for all the Respondents to

Mr. O'Neill in Philade lphia. He, in turn, dispatched the forms

to the Petitioner agency by Federal Express from Philadelphia,

for overnight delivery, to be received by the Commission on

December 30, 2002, in order to comply with the statute regarding

changes of registration an d changes of employing brokers. This

fact is supported by Mr. O'Neill's testimony and that of

Ms. Cass - Lamore, as well as evidence of the transaction obtained

by Mr. O'Neill and submitted in the form of Petitioner's Exhibit

Nine, in evidence. The relevan t documents for change of

registration were also sent by fax to the local Board of

Realtors for Flagler Beach. The Commission registered Infiniti

as a corporation and Ms. Cass - Lamore as the broker, but for some

reason did not immediately register the abov e - named Respondents,

Ms. Mulligan, Ms. Turner, Ms. McDaniel, Mr. Steven Thomas, and

Mr. O'Neill as being employed by the broker and corporation.

7. In early January 2003, however, approximately

January 4th, Mr. Thomas, one of the Respondents looked for h is

registration status on the Agency's website and, at that point,

observed that he and the other Respondents had indeed been

registered as being employed as sales agents with Infiniti. All

the Respondents were thus notified that their status was active

a nd legal at that point, in order to practice with Infiniti.

8. For unknown reasons at a later time the registrations

of the Respondents were either deleted from or not completed in

the records of the Agency and Infiniti and the other Respondents

were r equired to resubmit the form 2050. As result of contact

with the Petitioner's investigator, this fact and the apparent

lapse of registration (after registration had been originally

recorded for the Respondents with Infiniti) resulted in charges

being file d against the Respondents for practicing with a new

broker without being properly registered as such.

9. The greater weight of the evidence establishes that the

Respondents genuinely believed that they were properly licensed.

They exercised due diligenc e in filing the required documents to

establish that their licenses were transferred or were to be

transferred to Infiniti. Mr. O'Neill timely dispatched the

required transfer documents to the Commission by Federal

Express, overnight delivery, and it is m ost likely given the

facts and circumstances proven, that the documents were received

by the Commission. This is especially the case, given

Mr. Thomas' testimony that in the first week of January he

inquired of the Commission's website and observed that a ll of

the Respondents were recorded thereon as having active licenses

with Infiniti at that point. Sometime later, for unknown

reasons, their names were apparently deleted from the Agency's

record as being active licensee with Infiniti. The testimony of

Mr. O'Neill and Mr. Thomas is accepted as credible in this

regard.

10. It is thus determined that the Respondents, due to

efforts of Mr. O'Neill and Ms. Cass - Lamore, timely and

reasonably exercised diligence in filing the required licensure

transfer docum ents with the Real Estate Commission and the

Respondents' names were recorded as having been transferred as

to their licensure to the Infiniti brokerage. If their names

were then deleted from the Agency's records sometime later,

requiring them to be re - en tered, effective February 11, 2003, it

can only be presumed to have occurred through some ministerial

error or omission. It may be, as Ms. Mulligan, in her

testimony, opined, that only a portion of the licensure

information was originally entered in the C ommission's computer

file and that the entirety of it was either mis - placed or

entered much later.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 an d 120.57(1), Fla. Stat. (2004).

12. The burden of proof in this proceeding lies with the

Petitioner to prove by clear and convincing evidence that the

Respondents committed violations of Subsections 475.42(1)(b) and

(c) Florida Statutes (2002) and Subsect ion 475.25(1)(e),

Florida Statutes (2002). Clear and convincing evidence has been

defined as credible, precise, explicated evidence, lacking

confusion as to the facts in issue. It must be of such weight

that it that it produces in the mind of the trier o f fact the

firm belief or conviction as to the truth of the allegations.

Evans Packing Company vs. Department of Agriculture and Consumer

Services , 550 So. 2d 112, 116, N.5 (Fla. 1st DCA 1989);

Slomowitz vs. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) .

13. Disciplinary statutes are penal in nature and must be

strictly interpreted against the imposition of discipline and in

favor of the person sought to be penalized. Munch vs.

Department of Business and Professional Regulation , 592 So. 2d

1136, 1143 ( Florida 1st DCA 1992); Fleishman vs. Department of

Business and Professional Regulation , 441 So. 2d 1121, 1133

(Florida 3rd DCA 1983).

14. Section 475.25 Florida Statutes (2002) authorizes the

Florida Real Estate Commission to impose disciplinary action

a gainst a licensee for violation of the statutory authority

referenced above. Subsection 475.42(1)(c), Florida Statutes

(2002) provides in pertinent part: "a broker may not employ, or

continue in employment any person as a sales associate who is

not the h older of a valid and current license as a sales

associate, and therefore in violation of Section 475.25(1)(e),

Florida Statutes."

15. Subsection 475.42 (1)(b), Florida Statutes (2002)

provides pertinently: "a person licensed as a sales associate

may no t operate as a broker or operate as a sales associate for

any person not registered as her or his employer, and therefore,

in violation of Section 475.25(1)(e), Florida Statutes."

16. In consideration of the greater weight of the evidence

of record, inclu ding the determination as to credibility of

certain witnesses culminating in the above findings of fact; it

appears that the Respondents were conscientious with regard to

compliance with the licensing or license transfer obligations

and thus, in substantia l part, comported with the above -

referenced professional standards and requirements. They made

timely effort to inform the commission, by the filing of the

forms through overnight, Federal Express delivery, of their

transfer from Connie Boyle Realty to th e Respondent Infiniti.

The testimony and evidence produced by both the Respondents and

the Petitioner, based in part upon the determination as to

credibility, shows that the statutory provisions referenced

above were complied with by the Respondents. The mailing of a

document to the direct address creates a presumption that the

item mailed was in fact received by the addressee. W.T. Holding

Inc. vs. State of Florida , 682 So. 2d 124 (Florida 5th DCA

1996). The testimony of Mr. Thomas, Ms. Cass - Lamore, a nd

Mr. O'Neil, considered together with Petitioner's exhibit Nine,

establish that at the very least, a substantial likelihood that

the documents in question were sent by overnight Federal Express

delivery to the correct address for the Commission. Thus th e

Petitioner's evidence in support of the charges concerning

failure to properly file the transfer documents and properly

register licensure with a new employer is not clear and

convincing, and the complaint should be dismissed.

RECOMMENDATION

Havi ng considered the foregoing F indings of F act,

C onclusions of L aw, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and argument of the

parties, it is therefore

RECOMMENDED that a final order be entered by the Florida

Real Estate Commission finding that the Respondents are not

guilty of the statutory violations charged and that the

administrative complaint be dismissed in its entirety.

DONE AND ENTERED this 7th day of October, 2004, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

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 October, 2004.

COPIES FURNISHED :

Alfonso Santana, Esquire

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32802

Steven W. John son , Esquire

100 South Bumby Avenue, Suite B

Orlando, Florida 32803

Leon Biegalski, General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Juana Watkins, Acting Direc tor

Division of Real Estate

400 West Robinson Street, Suite N - 802

Orlando, Florida 32802

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.