05-003275 Robert Meller, Jr. And Kristine M. Meller vs. Revonda Cross And Department Of Business And Professional Regulation Status: Closed Recommended Order on Tuesday, February 21, 2006.

Summary: Petitioners made a claim for recovery of monies from the Florida Real Estate Recovery Fund. The subject property was exempt as a transient rental property. Recommend that the claim be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT MELLER, JR. AND )

KRISTINE M. MELLER, )

)

Petitioners, )

)

vs. ) Case No. 05 - 3275

)

REVONDA CROSS AND DEPARTMENT OF )

BUSINESS AND PROFESSIONAL )

REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on November 23, 2005, in Orlando, Florida.

APPEARANCES

For Petitioner s: Robert L. Meller, Jr., Esquire, pro se

Best & Flanagan, LLP

225 South 6th Street, Suite 4000

Minneapolis, Minnesota 55402 - 4690

For Re spondent s : Joseph A. Solla, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

Revonda Stewart Cross , pro se

1102 South East 39th Terrace, No. 104

Cape Coral, Florida 33904

STATEMENT OF THE ISSUE

Whether Petitioners' rental property was licensed under

Chapter 509, Flori da Statutes (2003).

PRELIMINARY STATEMENT

In October 2003, a Recovery Fund Claim Final Order was

entered in Case No. 2002012997, Robert Meller, Jr. , and

Kristine M. Meller, Claimant, v. Revonda Cross, Licensee . In

that F inal O rder, the Florida Real Estat e C ommission (FREC )

denied claimants' claim based on a determination that the

l icensee managed claimants' property as a transient rental

property licensed under Chapter 509, Florida Statutes (2003) ,

thereby specifically exempting the property from protecti on

afforded the public under Part 1, Chapter 475, Florida Statutes.

Claimants, Petitioners herein, appealed FREC's decision

to the District Court of Appeal, Fifth District, which, in

May 2005, ruled that Petitioners were entitled to a S ubs ection

120.57(1 ), Florida Statutes (2005) , hearing. After a particular

discussion of the facts of the case, Justice Sawaya, speaking

for the panel, indicated: " [W]hether the property was licensed

under Chapter 509 is a critical issue because it determines

whether the M ellers can recover."

Petitioners made a timely request for administrative

hearing by letter to FREC dated July 7, 2005. On September 6,

2005, FREC forwarded the case to the Division of Administrative

Hearings on September 6, 2005. On September 12, 2005, an

Initial Order was sent to all parties. At Petitioners ' request,

the case was scheduled for November 23, 2005, in Orlando,

Florida.

The case was presented as scheduled on November 23, 2005.

Petitioners presented themselves as witnesses and offered

11 exhibits , which were received into evidence and marked as

Petitioners' Exhibits 1 through 11. Respondent, Department of

Business and Professional Regulation (Respondent DBPR) ,

presented Respondent , Revonda Cross (Respondent Cross) , as its

witness and offe red four exhibits which were received into

evidence and ma rked as Respondent's Exhibits 1 through 4.

Respondent Cross testified on her own behalf. At the close of

her testimony, leave was granted for Respondent Cross to produce

computer printouts that we re provided to the Division of Hotels

and Restaurants which listed transient rental properties

maintained by Properties in Paradise, Inc. On December 5, 2005,

Respondent Cross filed documents consisting of 24 pages of

computer printout which has b een mark ed as Respondent Cross'

Exhibit 1, which is included in this record as these records

have been considered by the undersigned Administrative Law

Judge.

The Transcript of Proceedings was filed on December 20,

2005. Petitioners and Respondent D BPR filed Prop osed

Recommended Orders , which have been considered by the

undersigned in preparation of this Recommended Order .

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petiti oners, Robert Meller, Jr. , and Kristine M.

Meller , were owners of a rental property (a house located at

4516 Bowa n Bayou ) in Sanibel, Florida. In addition, they owned

a condominium in the same area.

2. Respondent Cross held a valid real estate license at

all times material to matters at issue. Respondent Cross had a

business relationship with Petitioners , which antedated the

purchase of the Bowen Bayou house as a result of being the

leasing agent for a condominium association with which

Petitioners were associated.

3. Respondent DBPR is the State of Florida agency which

represents the F REC in matters such as this matter.

4. In January 2000, Petitioners purchased the house in

Sanibel located at 4516 Bowan Bayou.

5. On or about January 20, 2000, Resp ondent Cross mailed a

Rental Property Management Agreement to Petitioners for the

property located at 4516 Bowan Bayou, Sanibel, Florida. The

parties to this contract were Petitioners and Properties in

Paradise, Inc. Petitioner, Robert Meller, Jr. , signe d the

contract and returned the contract to Respondent Cross.

6. Petitioners maintain that the Rental Property

Management Agreement was not signed by Petitioner, Robert

Meller, Jr., and that his name is forged. He maintains that he

entered into an oral a greement with Respondent Cross,

individually, to manage the property.

7. From the purchase of the house in January 2000 thr o u gh

April 2001, Petitioners received correspondence, including a

monthly "owner statemen t" reflecting short - term rental income,

com missions, and debits for maintenance, from Properties in

Paradise, Inc., regarding all aspects of the business

relationship contemplated by the Rental Property Management

Agreement.

8. By letter dated January 20, 2000, Petitioner, Robert

Meller, Jr., auth orized "Revonda Cross of Properties in Paradise

as my agent in establishing telephone and electrical service and

so forth for my property on Sanibel Island at 4516 Bowen's [sic]

Bayou Road." Thereafter, Petitioners received correspondence

from Respondent Cross relative to the subject property wherein

she is identified as "Operations Manager, Properties in

Paradise, Inc."

9. During the relevant time period, Petitioners' property

was rented at least 22 times; once for 17 days, four times for

14 days, once f or nine days, thirteen times for seven days, and

once for five days. The frequency and term of these rentals

qualify for the statutory definition of a "resort dwelling" and

transient rental dwelling.

10. Properties in Paradise, Inc. , listed the property

located at 4516 Bowan Bayou in the list of properties it

provided the Division of Hotels and Restaurants as licensed in

accordance with Chapter 509, Florida Statutes (2005) .

11. In April 2001, Properties in Paradise, Inc., through

an attorney, notified c lients that it had effectively ceased

doing business. At that time , Petitioners were owed $11,588.06 ,

which went unpaid.

12. Petitioners made a claim in July 2001, against

Respondent Cross to recover their loss from the Florida Real

Estate Recovery Fund. In October 2003, Petitioners ' claim was

denied by the Florida Real Estate Recovery Fund.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceeding . § 120.57(1), Fl a. Stat . (2005).

14. Petitioners have the burden of proof in these

proceedings. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

15. Petitioners have failed to demonstrate that the Rental

Property Management Agr eement dated January 20, 2000, was not

signed by Petitioner , Robert M eller, Jr. The greater weight of

the evidence compels the conclusion that the Rental Property

Management Agreement controlled the related activities of the

parties and was generally foll owed by both parties until

Properties in Paradise, Inc. , defaulted in late April 2001.

16. Petitioners ' claim to recover their losses is exempt

from the Florida Real Estate Recovery Fund. The statutes

governing the requirement for eligibility to make a c laim

require that the activity giving rise to the claim must be part

of a brokerage transaction. §§ 475.482(1) and 475.483(1),

Florida Statutes (2003). The activity of Respondent Cross and

Properties in Paradise, Inc. , arose from Petitioners' contract

to manage the transient rental property.

17. Subsection 475.482(1), Florida Statutes (2003), reads

as follows:

Real Estate Recovery Fund . - - There is created

the Florida Real Estate Recovery Fund as a

separate account in the Professional

Regulation Trust Fun d.

(1) The Florida Real Estate Recovery

Fund shall be disbursed as provided in

s. 475.484, on order of the commission, as

reimbursement to any person, partnership, or

corporation adjudged by a court of competent

civil jurisdiction in this state to ha ve

suffered monetary damages by reason of any

act committed, as a part of any real estate

brokerage transaction involving real

property in this state, by any broker or

sales associate who:

* * *

(c) Was acting solely in the capacity of

a real estate licensee in the transaction;

18. Subsection 475.483(1)(a), Florida Statutes (2003),

reads as follows:

Conditions for recovery; eligibility . --

(1) Any person is eligible to seek

recovery from th e Real Estate Recovery Fund

if:

(a) Such perso n has received a final

judgment in a court of competent civil

jurisdiction in this state against an

individual broker or sales associate in any

action wherein the cause of action was based

on a real estate brokerage transaction.

19. Subsection 475.011, F lorida Statutes (2003), reads as

follows:

Exemptions. This part [Part 1 which

includes Section 476.482, Florida Statutes

(2003)] does not apply to:

* * *

(11) Any person, partnership,

corporation, or other legal entity which,

for another and for compensation or other

valuable consideration, rents or advertises

for rent, for transient occupancy, any

public lodging establishment licensed under

chapter 509.

20. In accordance with its responsibilities as set forth

in the Rental Property Manageme nt Agreement dated January 20,

2000, as demonstrated by the evidence, Properties in Paradise,

Inc. , licensed Petitioners' rental property as a transient

rental property in accordance with Subsection 509.242(1)(g),

Florida Statutes (2003) , which reads as fo llows:

Public lodging establishments;

classifications. --

(1) A public lodging establishment shall

be classified as a hotel, motel, resort

condominium, nontransient apartment,

transient apartment, roominghouse, bed and

breakfast inn, or resort dwelling if the

establishment sa tisfies the following

criteria:

* * *

( g) Resort dwelling. -- A resort dwelling

is any individually or collectively owned

one - family, two - family, three - family, or

four - family dwelling house or dwelling unit

which is rented more than three times in a

calendar year for periods of less than 30

days or 1 calendar month, whichever is less,

or which is advertised or held out to the

public as a place regularly rented for

periods of less than 30 days or 1 calendar

month, whichever is less.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that Respondent, Department of Business and

Professional Regulation , enter a final order denying

Petitioners' claim for recovery from the Florida Rea l Estate

Recovery Fund .

DONE AND ENTERED this 2 1 s t day of February , 2006 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 2 1 s t day of February , 2006 .

COPIES FURNISHED :

Joseph A. Sol la, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street , S uite 801N

Orlando, Florida 32801 - 1757

Robert L. Meller, Jr., Esquire

Best & Flanagan, LLP

225 South 6th Street, Suite 4000

Minneapolis, Minnesota 55402 - 4690

Rev onda Stewart Cross

1102 South East 39th Terrace, No. 104

Cape Coral, Florida 33904

Nancy B. Hogan, Chairman

Florida Real Estate Commission

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

Josefina Tamayo, General Counsel

Department of Busine ss 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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.