07-002325PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Mathew Johnson Status: Closed Recommended Order on Friday, September 21, 2007.

Summary: Respondent violated the statute by submitting a referral fee invoice in his own name, rather than that of his qualifying broker.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case N o. 07 - 2325PL

)

MATHEW JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Lawrence P. Stevenson, Administrative

Law Judge, Division of Administrative Hearings, conducted a

formal hearing in the above - styled case via video - teleconference

on August 2, 2007, at locations in Orlando and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

For Respondent: Chad Alvaro, Esquire

Mateer & Harbert, P.A.

Post Office Box 2854

Orlando, Florida 32802 - 2854

STATEMENT OF THE ISSUE

W hether Respondent committed the offenses set forth in the

two - count Administrative Complaint, dated April 17, 2007, and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 17, 2007, Petitioner issued a two - count

Administrative Complaint against Respondent, Mathew Johnson, a

licensed Florida real estate sales associate. Count I alleges

that Respondent is 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, in violation of Subsection

475.25(1)(b), Florida Statutes(2006). 1 Count II alleges that

Respondent is guilty of having operated as a broker while

licensed as a sales associate, in violation of S ubsection

475.42(1)(b), Florida Statutes.

On May 18, 2007, Respondent submitted a Petition for Formal

Hearing denying the allegations and requesting a formal hearing.

On May 24, 2007, this matter was forwarded to the Division of

Administrative Hearings (" DOAH") for assignment of an

Administrative Law Judge and conduct of a formal administrative

hearing.

At the hearing, Petitioner offered the testimony of Denise

Johnson, the investigation specialist who conducted the

investigation of the original complaint that led to the charges

against Respondent; and of Tab L. Bish, Respondent's former

employing broker and the original complainant in this case.

Petitioner's Exhibits 1 through 6 were admitted into evidence.

Respondent testified on his own behalf and prese nted the

testimony of Jacqueline Sanderson, his current employing broker;

and of Corina Johnson, Respondent's wife. Respondent's Exhibits

1 through 6 were admitted into evidence.

The parties agreed at the hearing that proposed recommended

orders would be filed within 21 days of the filing of the final

hearing. Respondent filed a Proposed Recommended Order on

August 22, 2007, then timely filed an Amended Proposed

Recommended Order on August 23, 2007. Petitioner timely filed

its Proposed Recommended Order on August 23, 2007. A Transcript

of the hearing was filed at DOAH on August 24, 2007.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are ma de:

1. The Department of Business and Professional Regulation,

Division of Real Estate (the "Department"), is the state agency

charged with enforcing the statutory provisions pertaining to

persons holding real estate broker and sales associate's

licenses in Florida, pursuant to Section 20.165 and Chapters 455

and 475, Florida Statutes.

2. At all times relevant to this proceeding, except where

specifically noted, Respondent Mathew Johnson was a licensed

Florida real estate sales associate, having been issu ed license

number SL3149081.

3. Respondent first obtained his real estate associate's

license in 2003 and worked under the license of broker

Jacqueline Sanderson in Orlando. When he married and his wife

became pregnant, Respondent believed that he needed a more

steady income than his commission - based employment with

Ms. Sanderson provided. Respondent left Ms. Sanderson's employ

on good terms and commenced work as the marketing manager for

the downtown YMCA in Orlando.

4. While working at the downtown Y MCA, Respondent met a

member of the YMCA named Tab L. Bish ("Mr. Bish"), a broker who

owns First Source, Inc., an Orlando real estate sales company

(sometimes referred to as "FSI Realty"). Respondent became

friendly with Mr. Bish, and expressed an interes t in getting

back into the real estate business. Mr. Bish offered Respondent

a job at First Source.

5. Respondent had allowed his sales associate's license to

lapse while he was working at the YMCA. Respondent informed

Mr. Bish of that fact, and told M r. Bish that he required a

salaried position in order to support his young family.

Respondent testified that Mr. Bish was happy to hire him as an

office manager, because Mr. Bish wanted Respondent to perform a

marketing role for First Source similar to th at he had performed

for the YMCA. Respondent started working at First Source in

May 2005, as a salaried office manager.

6. Mr. Bish agreed that he initially hired Respondent as

an office manager, but only on the understanding that Respondent

would take the necessary steps to reactivate his sales

associate's license and commence selling property as soon as

possible. Respondent took the licensing course again. Mr. Bish

believed that Respondent was taking too long to obtain his

license, and cast about for something Respondent could do during

the interim.

7. In order to make profitable use of Respondent's time,

Mr. Bish began to deal in referral fees from apartment

complexes. Certain complexes in the Orlando area would pay a

fee to brokers who referred po tential renters to the apartments,

provided these potential renters actually signed leases. Among

the apartment complexes offering referral fees was the Jefferson

at Maitland, which in 2005 offered a referral fee of half the

first month's rent.

8. Mr. Bi sh placed Respondent in charge of connecting

potential renters with apartment complexes, showing the

apartments, following up to determine whether the potential

renters signed leases, and submitting invoices for the referral

fees. Mr. Bish did not authori ze Respondent to collect the

payments. Respondent initiated contact with the Jefferson at

Maitland and began sending potential renters there. Respondent

would submit invoices to the Jefferson at Maitland, payable to

First Source, for each referral that r esulted in a lease

agreement. Respondent estimated that he submitted between 12

and 15 invoices for referral fees to the Jefferson at Maitland

during his employment with First Source.

9. Respondent obtained his license and became an active

sales associat e under Mr. Bish's broker's license on

November 16, 2005. Mr. Bish began a process of weaning

Respondent away from his salaried position and into working on a

full commission basis. Respondent stopped showing apartments

under the referral arrangement an d began showing properties for

sale. The last lease for which First Source was due a referral

fee from the Jefferson at Maitland was dated December 5, 2005.

10. In early February 2006, it occurred to Respondent that

he had failed to follow up with the Je fferson at Maitland

regarding the last group of potential renters to whom he had

shown apartments during October and November 2005. Respondent

claimed that he "hadn't had the opportunity" to follow up

because of the press of his new duties as a sales asso ciate and

the intervening holiday season. However, nothing cited by

Respondent explained his failure to make a simple phone call to

the Jefferson at Maitland to learn whether First Source was owed

any referral fees.

11. Respondent finally made the call t o the Jefferson at

Maitland on February 9, 2006. He spoke to a woman he identified

as Jenny Marrero, an employee whom he knew from prior dealings.

Ms. Marrero reviewed Respondent's list and found three persons

who had signed leases after Respondent showe d them apartments:

Mike Tebbutt, who signed a one - year lease on October 26, 2005,

for which First Source was owed a referral fee of $532.50; Terry

Ford, who signed an eight - month lease on November 14, 2005, for

which First Source was owed a referral fee o f $492.50; and Juan

Sepulveda, who signed an eight - month lease on December 2, 2005,

for which First Source was owed a referral fee of $415.00.

12. However, there was a problem caused by Respondent's

failure to submit invoices for these referral fees in a timely

manner. Respondent testified that Ms. Marrero told him that the

Jefferson at Maitland had reduced its referral fee from 50

percent to 20 percent of the first month's rent, effective

January 2006. 2 Ms. Marrero could not promise that these late

invo ices would be paid according to the 2005 fee structure.

According to Respondent, Ms. Marrero suggested that the

Jefferson at Maitland's corporate office would be more likely to

pay the full amount owed if Respondent did something to "break

up" the invoice s, making it appear that they were being

submitted by different entities. She also suggested that no

invoice for a single payee exceed $1,000, because the corporate

office would know that amount exceeded any possible fee under

the 2006 fee structure. Ms. Marrero made no assurances that her

suggestions would yield the entire amount owed for the 2005

invoices, but Respondent figured the worst that could happen

would be a reduction in the billings from 50 percent to 20

percent of the first month's rent.

13. On February 9, 2006, Respondent sent a package to the

Jefferson at Maitland, via facsimile transmission. Included in

the package were three separate invoices for the referral fees

owed on behalf of Messrs. Tebbutt, Ford, and Sepulveda. The

invoices for Messrs. Tebbutt and Sepulveda stated that they were

from "Matt Johnson, FSI Realty," to the Jefferson at Maitland,

and set forth the name of the lessee, the lease term, the amount

of the "referral placement fee," and stated that the checks

should be made p ayable to "FSI Realty, 1600 North Orange Avenue,

Suite 6, Orlando, Florida 32804."

14. The invoice for Mr. Ford stated that it was from "Matt

Johnson" to the Jefferson at Maitland. It, too, set forth the

name of the lessee, the lease term, and the amount of the

referral fee. However, this invoice stated that the check

should be made payable to "Matt Johnson, 5421 Halifax Drive,

Orlando, Florida 32812." The Halifax Drive location is

Respondent's home address.

15. The package sent by Respondent also incl uded an

Internal Revenue Service Form W - 9, Request for Taxpayer

Identification Number and Certification, for Mr. Bish and for

Respondent, a copy of Respondent's real estate sales associate

license, a copy of Mr. Bish's real estate broker's license, and

a c opy of First Source, Inc.'s real estate corporation

registration.

16. Approximately one month later, in early March 2006,

Mr. Bish answered the phone at his office. The caller

identifying herself as "Amber" from the Jefferson at Maitland

and asked for Re spondent, who was on vacation. Mr. Bish asked

if he could help. Amber told Mr. Bish that the W - 9 form

submitted for Respondent had been incorrectly filled out, and

that she could not send Respondent a check without the proper

information.

17. Mr. Bish t old Amber that under no circumstances should

she send a check payable to Respondent. He instructed her to

make the payment to First Source. Amber said nothing to

Mr. Bish about a need to break up the payments or to make sure

that a single remittance did not exceed $1,000.

18. Mr. Bish asked Amber to send him copies of the

documents that Respondent had submitted to the Jefferson at

Maitland. Before those documents arrived, Mr. Bish received a

phone call from Respondent, who explained that he submitted t he

invoice in his own name to ensure that Mr. Bish received the

full amount owed by the Jefferson at Maitland.

19. On March 10, 2006, after reviewing the documents he

received from the Jefferson at Maitland, Mr. Bish fired

Respondent. On March 29, 2006, Mr. Bish filed the complaint

that commenced the Department's investigation of this matter. 3

20. At the hearing, Mr. Bish explained that, even if

Respondent's story about the need to "break up" the invoices and

keep the total below $1,000 were true, the pr oblem could have

been easily resolved. Had Mr. Bish known of the situation, he

would have instructed the Jefferson at Maitland to make one

check payable to him personally as the broker, and a second

check payable to First Source, Inc.

21. In any event, t here was in fact no problem. By a

single check, dated March 15, 2008, First Source received

payment from the Jefferson at Maitland in the amount of $1,440,

the full sum of the three outstanding invoices from 2005.

22. Respondent testified that he never i ntended to keep

the money from the invoice, and that he would never have

submitted it in his own name if not for the conversation with

Ms. Marrero. Respondent asserted that if he had received a

check, he would have signed it over to Mr. Bish.

23. Respond ent and his wife each testified that the family

had no great need of $492.50 at the time the invoices were

submitted. Respondent's wife is an attorney and was working

full time in February 2006, and Respondent was still receiving a

salary from First Sourc e. In his capacity as office manager,

Respondent had access to the company credit card to purchase

supplies. Mr. Bish conducted an internal audit that revealed no

suspicious charges.

24. Respondent failed to explain why he did not

immediately tell Mr. B ish about the potential fee collection

problem as soon as he learned about it from Ms. Marrero, why he

instructed the Jefferson at Maitland to send the check to his

home address rather than his work address, or why he allowed a

month to pass before telling Mr. Bish about the invoices. He

denied knowing that Mr. Bish had already learned about the

situation from the Jefferson at Maitland's employee.

25. The Department failed to demonstrate that Respondent

intended to keep the $492.50 from the invoice made p ayable to

Respondent personally. The facts of the case could lead to the

ultimate finding that Respondent was engaged in a scheme to

defraud First Source of its referral fee. However, the same

facts also may be explained by Respondent's fear that Mr. Bis h

would learn of his neglect in sending the invoices, and that

this neglect could result in a severe reduction of First

Source's referral fees. Respondent may have decided to keep

quiet about the matter in the hope that the Jefferson at

Maitland would ult imately pay the invoices in full, at which

time Respondent would explain himself to Mr. Bish with an "all's

well that ends well" sigh of relief. Given the testimony at the

hearing concerning Respondent's character and reputation for

honesty, given that Re spondent contemporaneously told the same

story to his wife and to Ms. Sanderson that he told to this

tribunal, and given that this incident appears anomalous in

Respondent's professional dealings, the latter explanation is at

least as plausible as the form er.

26. Respondent conceded that, as a sales associate, he was

not authorized by law to direct the Jefferson at Maitland to

make the referral fee check payable to him without the express

written authorization of his broker, Mr. Bish. Respondent also

conc eded that Mr. Bish did not give him written authorization to

accept the referral fee payment in his own name.

27. Respondent has not been subject to prior discipline.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over th e subject matter of this proceeding and of

the parties thereto, pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

29. In its Administrative Complaint, the Department seeks

to impose penalties against Respondent that include suspensio n

or revocation of Respondent's license and/or the 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 Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is the proper standard in lic ense revocation

proceedings, because they are penal in nature and implicate

significant property rights. See Osbourne Stern , 670 So. 2d

at 935.

30. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the Court defined clear and convincing evidence as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The 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 a llegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

31. Judge Sharp, in her dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998 )(Sharp, J., dissenting),

reviewed recent pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Grazi ano , 696

So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 67 2 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the fact

finder a firm belief or conviction as to the

truth of the allegations sought to be

established. Inqu iry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

32. In Count I of the Administrative Complaint, Respondent

is charged with having violated Subsection 475.25(1)(b), Florida

Statutes, which provides:

(1) The commission may deny an application

for l icensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impos e an administrative fine not to

exceed $5,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that

the licensee, registrant, permittee, or

applicant:

* * *

(b) Has been 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 in this state or any

other state, nation, or territory; has

violated a duty imposed upon her or him by

law or by the terms of a listing contract,

written, oral, express, or implied, in a

real estate transaction; has aided,

assisted, or conspired with any other person

engaged in any such misconduct and in

furtherance thereof; or h as formed an

intent, design, or scheme to engage in any

such misconduct and committed an overt act

in furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the licensee that the victim or intended

victim of the misconduct has sus tained no

damage or loss; that the damage or loss has

been settled and paid after discovery of the

misconduct; or that such victim or intended

victim was a customer or a person in

confidential relation with the licensee or

was an identified member of the g eneral

public.

33. There must be wrongful intent or scienter on the part

of the licensee for there to be a violation of Subsection

475.25(1)(b), Florida Statutes. See Munch v. Department of

Professional Regulation , 592 So. 2d 1136, 1143 - 44 (Fla. 1st DCA

1992); and Morris v. Department of Professional Regulation , 474

So. 2d 841, 843 (Fla. 5th DCA 1985).

34. The Morris case may be usefully applied to the facts

of the instant case. In Morris , a broker had been accused of

violating Subsection 475.25(1)(b) for passing a check on an

account with insufficient funds for a deposit on a purchase of

land. The hearing officer found that the broker made an

unconditional commitment to make a $37,000 deposit on a large

tract of land for his own purposes, wrote a chec k for the

$37,000 deposit on Saturday, then decided to back out of the

deal and stopped payment on the check. The hearing officer

found the fact that there were insufficient funds in the account

at the time the check was written was immaterial, because th e

check was tendered on a Saturday. Had he intended to follow

through on the transaction, the broker could have transferred

sufficient funds into the account on Monday morning to allow the

check to clear. The hearing officer concluded that the broker

mig ht be civilly liable for reneging on the deal, but that there

was no evidence the broker entered the transaction with any

dishonest or illicit intent. 474 So. 2d at 843.

35. The agency's final order rejected the hearing

officer's conclusion and held that the broker's issuance of a

check on an account with insufficient funds constituted a

violation of Subsection 475.25(1)(b) as a matter of law. On

appeal, the court rejected the agency's conclusion under the

following analysis: " Passing a worthless check may be prob a tive

of a finding of fraud u lent intent . . ., [b]ut it clearly is not

determinative of fraud, as a matter of law. The finding of

absence of fraudulent intent in this case is a finding of fact."

Id. (citations omitted)

36. In the instant case , Respondent's submitting the

invoice made payable to himself was probative of a finding of

fraudulent intent, but it was not determinative of Respondent's

intent to defraud First Source. The element of wrongful intent

was not established in this case. T he Department has failed to

prove by clear and convincing evidence that Respondent violated

Subsection 475.25(1)(b), Florida Statutes. 4

37. In Count II of the Administrative Complaint,

Respondent is charged with having violated Subsection

475.42(1)(b), Fl orida Statutes, which provides:

A person licensed as a sales associate may

not operate as a broker or operate as a

sales associate for any person not

registered as her or his employer.

38. Subsection 475.01(1)(a) provides the definition of

"broker," whic h states, in relevant part:

"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 consi deration 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 business opportunities or any

real property or any in terest 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 business of appraising,

auctioning, buying, selling, e xchanging,

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, purchasers, lessors,

or lessees of business enterpri ses 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 closing of any

transaction which does, or is calculate d 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

rental property information or lists.

39. A person may not operate as a broker without being the

holder of a current and active broker's license. Subsection

475.42(1)(a), Florida Statutes. Respondent did not have a

broker's license at the time he committed the alleged violation

of submitting a referral f ee invoice to the Jefferson at

Maitland that directed the apartment complex to pay the fee

directly to Respondent.

40. At the time of the alleged violation, Respondent was

licensed as a sales associate, defined as "a person who performs

any act specified in the definition of 'broker,' but who

performs such act under the direction, control, or management of

another person." Subsection 475.01(1)(j), Florida Statutes. As

a sales associate, Respondent acted under the "direction,

control, or management" of h is employer and qualifying broker,

Mr. Bish.

41. The Department proved by clear and convincing evidence

that Respondent violated Subsection 475.42(1)(b), Florida

Statutes . The evidence established that Respondent "operate[d]

as a broker" by seeking direc t compensation for referring a

renter to the Jefferson at Maitland, and that he did so outside

the "direction, control, or management" of Mr. Bish. 5

42. Florida Administrative Code Rule 61J2 - 24.001 sets

forth disciplinary guidelines providing a range of p enalties

that the Florida Real Estate Commission ("Commission") can

impose on licensees who are guilty of having violated Chapter

475, Florida Statutes. Florida Administrative Code Rule 61J2 -

24.001(3)(x) sets forth the range of penalties specified for a

v iolation of Subsection 475.42(1)(b), Florida Statutes (2003),

as follows:

The usual action of the Commission shall be

to impose a penalty of a 3 year suspension

to revocation.

43. Florida Administrative Code Rule 61J2 - 24.001(3)

provides that the Commissi on may consider aggravating or

mitigating circumstances in imposing a penalty. Florida

Administrative Code Rule 61J2 - 24.001(4) provides, in relevant

part:

(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 Complaint.

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 ha rdship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

6. Violation of the provision of Chapter

475, F.S., wherein a letter of guidance as

provided in Section 455.225(3), F.S.,

previously has been issued to th e licensee.

44. While there is no question that Respondent's violation

constituted a serious lapse in judgment, there are several

mitigating factors in this case. No harm came to any consumer

or member of the public. It was not established that Respond ent

intended to convert the funds to his own use. The

Administrative Complaint had two counts, both related to a

single incident. Respondent has not been subject to prior

discipline. While no direct evidence was presented as to the

financial hardship Re spondent would incur as a result of a

suspension, the evidence did establish that Respondent has a

wife and two young children, and from this it is not

unreasonable to presume that the loss of Respondent's income

would be a hardship for the family.

45. It is concluded that revocation of Respondent's

license would be draconian under all the circumstances of the

case. A suspension of Respondent's license for a period of one

year is sufficient in light of all the circumstances.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a

final order:

1. Dismissing Count I of the Administrative Complaint

against Respondent; and

2. Suspending Respondent's sales associate's li cense for a

period of one year for the violation established in Count II of

the Administrative Complaint.

DONE AND ENTERED this 21st day of September, 2007, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

A dministrative 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 21st day of September, 2007.

ENDNOTES

1/ All references are to the 2006 edition of the Florida

Statutes, unless otherwise noted.

2/ Neither Ms. Marrero nor another Jefferson at Maitland

employee identified only as "Amber " testified at the hearing in

this matter. Mr. Bish testified that he had spoken to Amber on

the telephone, but that he had never heard of Ms. Marrero.

3/ At the hearing, Respondent introduced evidence intended to

show that Mr. Bish filed the complaint in retaliation for

Respondent's refusal to settle an unrelated dispute regarding

listings that Respondent had secured prior to his dismissal from

First Source. Mr. Bish's motive in filing the complaint is

irrelevant to the complaint's merits. Further, Mr . Bish was a

thoroughly credible witness.

4/ The Department's case clearly was based on allegations

sounding in fraud or misrepresentation, not "culpable

negligence." In Munch , 592 So. 2d at 1143 - 1144, the court made

the following observations about the first clause of Subsection

475.25(1)(b), Florida Statutes, which contains the term

"culpable negligence":

It is clear that Subsection 475.25(1)(b) is

penal in nature. As such, it must be

construed strictly, in favor of the one

against whom the penalty w ould be imposed

. . . . Reading the first clause of Section

475.25(1)(b) . . . 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. See R ivard v. McCoy , 212 So.

2d 672 (Fla. 1st DCA), cert. denied , 219 So.

2d 703 (Fla. 1968). [Emphasis in the

original].

Culpable negligence was not proven in this case.

5/ Respondent argues that he did not violate Subsection

475.42(1)(b), because he never held himself out to the public as

a broker. Respondent contends that his act of sending his sales

associate's license to the Jefferson at Maitland along with the

invoice demonstrates that he was not acting as a broker. This

argument is an effort to shif t the responsibility for

ascertaining the legal significance of Respondent's licensure

status over to the management of the apartment complex, and is

rejected.

COPIES FURNISHED :

Chad Alvaro, Esquire

Mateer & Habert, P.A.

Post Office Box 2854

Orlando, Fl orida 32802 - 2854

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower

Suite N801

Orlando, Florida 32801

Zed Lucynski, General Counsel

Department of Business and

Pro fessional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

400 West Robinson Street

Suite 802 North

Orlando, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.