07-004403PL Department Of Business And Professional Regulation, Division Of Real Estate vs. James K. Jones Status: Closed Recommended Order on Thursday, February 14, 2008.

Summary: Respondent, who is responsible for an ad suggesting that an unlicensed person held a real estate license, is guilty of misleading advertising. Recommend a penalty of a $1,000.00 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 4403PL

)

JAMES K. JONES , )

)

Respondent. )

__________________________________)

RE COMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH), on

December 20, 2007, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: Randall M. Shochet, Esquire

6308 Grand Cypress Circle

Lake Worth, Florida 33463

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint issued against him and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On April 26, 2007, Petitioner issued a two - count

Adm inistrative Complaint against Respondent containing the

following "[e]ssential [a]llegations of [m]aterial [f]act":

1. Petitioner is a state government

licensing and regulatory agency charged with

the responsibility and duty to prosecute

Administrative Co mplaints 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 rules

promulgated thereto.

2. Respondent is and was at all times

material hereto a licensed Florida real

es tate broker, issued license number 392077

in accordance with Chapter 475 of the

Florida Statutes.

3. The last license issued was as a broker

with Doctor's Choice Companies, Inc., 223

Shorewood Way, Jupiter, Florida 33458.

4. At all times material Resp ondent knew or

should have known that Dr. [J]erry Pyser is

not now, nor was at any time material

herein, registered as [a] licensed real

estate sales associate or broker in the

state of Florida.

5. Respondent published or caused to be

published advertise ments for the sales of

businesses. A copy of the advertisement[s]

is attached hereto and incorporated herein

as Administrative Complaint Exhibit 1.

6. Respondent published that Buyers contact

Pyser for the purchase of the businesses

advertised for sale.

Count I of the Administrative Complaint alleged that, "[b]ased

upon the foregoing [essential allegations of material fact],

Respondent is guilty of aiding, assisting, procuring, employing,

or advising any unlicensed person or entity to practice a

professi on contrary to Chapter 455, 475 or the rules of the

Petitioner in violation of Section 455.227(1)(j), Florida

Statutes." Count II of the Administrative Complaint alleged

that, "[b]ased upon the foregoing [essential allegations of

material fact], Responden t is guilty of having advertised

property or services in a manner which [was] fraudulent, false,

deceptive or misleading in form or content in violation of Rule

61J2 - 10.025 of the Florida Administrative Code and Section

475.25(1)(c), Florida Statutes."

On or about May 18, 2007, Respondent, through his attorney,

filed a Petition for Formal Administrative Hearing. In his

petition, Respondent "dispute[d] the factual allegations

contained in paragraphs 4, 5, and 6 of the Administrative

Complaint" and argued th at "Counts I and II [of the

Administrative Complaint were] without basis in fact." On

September 24, 2007, the matter was referred to DOAH to conduct

the hearing Respondent had requested.

As noted above, the hearing was held on December 20, 2007.

Three w itnesses testified at the hearing: Dawn Luchik, Gregory

Auerbach, and Respondent. In addition to these three witnesses'

testimony, nine exhibits (Petitioner's Exhibits A, B, C, D, F,

and G, and Respondent's Exhibits A, B, and D) were offered and

received into evidence.

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced, on the record, that the

deadline for the filing of proposed recommended orders was 14

days from the date of the filing of the hearing transcript with

DO AH.

The hearing Transcript (consisting of one volume) was filed

with DOAH on January 14, 2008.

On January 23, 2008, Respondent filed an unopposed motion

requesting an extension of the deadline for filing proposed

recommended orders. By order issued that same date, the motion

was granted and the proposed recommended order filing deadline

was extended to February 4, 2008.

Petitioner and Respondent filed their Proposed Recommended

Orders on January 29, 2008, and February 4, 2008, respectively.

FINDINGS OF F ACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made :

1. Respondent is now, and has been at all times material

to the instant case, a licensed real estate broker in the State

of Florida, holding license number BK - 392077. He has held a

Florida real estate license for approximately the past 20 years.

At no time during this period has any disciplinary action been

taken against him.

2. Since July 13, 2000, Respondent has been the qualifying

broker for Doctor's Choice Companies, Inc. (DCC), which he owns.

3. DCC specializes in dental practice sales and purchases

and related services.

4. As the owner of DCC, Respondent is responsible for its

advertising. The DCC advertisements he has "published or caused

to be published" include those listing dental practices for

sale.

5. Respondent's Exhibit B is a copy of a one - page DCC

advertisement that Respondent had published in the November 2006

edition of Today's FDA, a journal of the Florida Dental

Associ ation. 2

6. At the top of advertisement appeared the following:

Doctors Choice Companies, Inc.

Dental Practice Sales and Purchase

"Over 100 Statewide Opportunities"

"LOCAL AGENTS - EXPERT SERVICE"

MAIN OFFICE (EAST COAST) - (561)746 - 2102

SOUTHEAST, FL - (954)257 - 3059

NORTH, FL - (407)310 - 4829

NAPLES/SARASOTA, FL - (954)830 - 3147

CENTRAL, FL - (407)291 - 9311

WESTCOAST, FL - (727)323 - 3589

DADE/KEYS, FL - (305)904 - 1682

7. This was followed by twelve photographs of twelve

different individuals: Responde nt, Dr. Tony Cruz, Morcie Smith,

Dr. Pyser, Mary Ann Serkin, Dr. Marshall Berger, Mary Lou

Johnson, Curtis Johnson, Dr. Jack Saxonhouse, Dr. James

Vandenberghe, John Lytle, and Sandy Harris. The photographs

were arranged in three rows of four across. Dir ectly under each

photograph was the name of the person depicted; his or her title

or function (in Respondent's case, "Lic. Real Estate Broker" and

"President"; in Dr. Pyser's case, "Licensed Consultant"; in

Ms. Harris' case, "Associate Placement"; and in t he case of the

others, "Licensed Agent"); and, except in Respondent's case, the

geographic area he or she covered (in Dr. Cruz's, as well as

Mr. Lytle's, case, "Dade County/Keys, FL" ; in Mr. Smith's, as

well as Dr. Vandenberghe's, case, "West Coast, FL"; in

Dr. Pyser's case, "Naples/Sarasota, FL"; in Ms. Serkin's case,

"North, FL"; in Dr. Berger's case, "Southeast, FL"; in

Ms. Johnson's, as well as Mr. Johnson's, case, "Central, FL"; in

Dr. Saxonhouse's case, "Palm Beach County"; and, in Ms. Harris'

case, "Statewide").

8. The following text was at the bottom of this one - page

advertisement:

FOR INFORMATION ON OPPORTUNITIES - CALL OR

VISIT OUR WEBSITE www.doctorschoice1.net

- Practice Sales and Purchases

- Pre - Retirement Strategy

- Practice Appraisals

- Assoc iate Placement (Buy - In's)

- Commercial Property Sales/Leasing

- Investment Real Estate

To the immediate right of this text were five telephone numbers

((727)254 - 9707, (561)746 - 2102, (407)257 - 9841, (305)904 - 1682, and

(954)257 - 3059). To the right of these t elephone numbers was the

DCC logo.

9. Dr. Jerry Pyser is a licensed dentist with whom

Respondent has had a 15 to 20 - year business relationship.

10. Dr. Pyser does not now, nor did he at any time

material to the instant case, hold a Florida real estate li cense

of any kind.

11. At no time material to the instant case did Respondent

believe that Dr. Pyser held such a license.

12. Gregory Auerbach is a Florida - licensed real estate

sales associate. He and his father, Stuart Auerbach, are

associated with Pr ofessional Transitions, Inc. (PTI), which is a

competitor of DCC's.

13. There is "bad blood" between Respondent and Stuart

Auerbach and their respective companies.

14. In November 2006, Gregory Auerbach represented PTI at

a meeting of dental professio nals held in Gainesville, Florida.

DCC was also represented at the meeting.

15. On a table at the meeting site, Mr. Auerbach observed

Respondent's Exhibit B, along with the second page of another

DCC promotional document (Petitioner's Exhibit A2), which

c ontained various dental practice listings.

16. At the top of Petitioner's Exhibit A2 was a

Gainesville listing, followed by a St. Augustine listing. The

remaining listings were grouped under the following headings:

" DADE C OUNTY - Call Dr. Tony Cruz - (3 05)904 - 1682/Kenny Jones -

(561)746 - 2102"; " WEST COAST - Morcie Smith - (727)254 -

9707/Dr. Jerry Pyser - Naples to Sarasota (954) 830 - 3147"; and

" SPECIALTY - Call Kenny Jones (561)746 - 2102." Beneath these

three categories of listings was the following:

ASSOCIATE PLACEMENT OPPORTUNITIES -

POSITIONS AVAILABLE NOW!!

Need a Job or Need an Associate. Call Sandy

Harris (561)746 - 2102 or Go to our website at

www.doctorschoice1.net and click on the

Dental Associate Placement Link.

PLUMBED (BUILTOUT) SETUP SPACE'S [SIC] -

Call for Statewide Locations!

Email: [e-mail]

Website: www.doctorschoice1.net

We Buy - Sell - Lease Medical - Dental -

Veterinary Properties

Last Revised: 11/6/2006

Page 2[ 3 ]

17. Respondent's Exhibit B and Petitioner's Exhibit A2,

p articularly when read together, were misleading in that they

conveyed the impression that Dr. Pyser was licensed to engage in

activities relating to the sale and purchase of dental practices

in Florida (as a point of contact), when, in fact, as Respondent

was aware, Dr. Pyser had no such license. Prospective

purchasers reading these "flyers" would have been reasonable,

but in error, in believing that, if they were to contact

Dr. Pyser, they would be dealing with a person possessing a

Florida real estate li cense.

18. Mr. Auerbach picked up these two DCC "flyers"

(Respondent's Exhibit B and Petitioner's Exhibit A2) from the

table on which they were laying and took them with him when he

left the meeting. 4

19. He subsequently sent them, along with four pages from

DCC's public website that he had printed (Petitioner's Exhibit

A3 - 6), 5 to Petitioner.

20. The matter was investigated by Dawn Luchik, one of

Petitioner's investigators. Ms. Luchik spent 11 hours (at a

Petitioner - assigned hourly rate of $33.00) condu cting her

investigation. 6

21. Following the completion of Ms. Luchik's

investigation, Petitioner issued the Administrative Complaint

against Respondent described above.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the subject matter of this

procee ding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

23. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action against

Florida - licensed real estate brokers based upon any of the

grounds e numerated in Sections 455.227(1) and 475.25(1), Florida

Statutes.

24. Such disciplinary action may include one or more of

the following penalties: license revocation; license

suspension 7 ; imposition of an administrative fine not to exceed

$5,000.00 for each count or separate offense 8 ; issuance of a

reprimand; and placement of the licensee on probation 9 . §§

455.227(2) and 475.25(1), Fla. Stat. In addition, the

Commission "may assess costs related to the investigation and

prosecution of the case excludi ng costs associated with an

attorney's time." § 455.227(3)(a) , Fla. Stat.

25. The Commission may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pursuant to

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

Fla. Stat.

26. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

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

27. At th e hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the charging instrument. Clear and

convincing evidence of the licensee's guilt must be presented

for Petitioner to meet its burden of proof. See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996); Walker v. Florida Department of Business and

Professional Regulation , 705 So. 2 d 652, 655 (Fla. 5th DCA

1998)("The Department had the burden of proving fraud,

misrepresentation or concealment by clear and convincing

evidence, in order to justify revocation of Walker's license.");

and § 120.57(1)(j), Fla. Stat. ("Findings of fact shal l be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

28. Clear and convincing evidence is an "intermediate

standard," "requir[ing] 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). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the fa cts 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 evidence

must be of such weight that it produces in the mind of the t rier

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)( citing with approval ,

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

se e also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

(Fla. 1995)("The evidence [in order to be clear and convincing]

must be sufficient to convince the trier of fact without

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

the eviden ce is in conflict, . . . it seems to preclude evidence

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

Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

29. In determining whether Petitioner has met its burden

of proof, it is ne cessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits the

Commission from taking disciplinary action against a licensee

based on conduct not specifically alleged in the charging

instrument, unless those matters have been tried by consent.

See Shore Village Property Owners' Association, Inc. v.

Department of Environmental Protection , 824 So. 2d 208, 210

(Fla. 4th DCA 2002 ); Ald rete v. Department of Health, Board of

Medicine , 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004 ) ; and Delk v.

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

5th DCA 1992).

30. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the c harging 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 claimed [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 Djokic v.

Department of Business and Professional Regulation, Division of

Real Estate , 875 So. 2d 693, 695 (Fla. 4th DCA 2004) ; 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

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

31. 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 nec essary, in determining what

disciplinary action should 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 1999)("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, 1 063 (Fla.

1st DCA 1996)("[T]he case was properly decided 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

unde r 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 re quired to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

32. The Commission's "disciplinary guidelines" are set

forth in Florida Administrative Code Rule 61J2 - 24.001 . At all

times material to the instant ca se, they provided, in pertinent

part, as follows:

( 1) Pursuant to Section 455.2273, F.S., the

Commission sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapter 455 o r

475, F.S. 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, rangi ng from

lowest to highest, is: reprimand, fine,

probation, suspension, and revocation or

denial. Pursuant to Section 475.25(1),

F.S., combinations of these penalties are

permissible by law. Nothing in this rule

shall preclude any discipline imposed upon a

licensee pursuant 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 u nless

aggravating or mitigating circumstances

apply pursuant to subsection (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.

* * *

(d) Section 475.25(1)(c ), F.S. False,

deceptive or misleading advertising. The

usual action of the Commission shall be to

impose a penalty of an administrative fine

of $1,000 to a 1 year suspension .

* * *

(f) 475.25(1)(e) Violated any . . .

provision under Chapter[] . . . 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.[ 10 ]

* * *

(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 Section 120.57(1), F.S., hearing

by clear and c onvincing 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

may include, but are not limited t o, 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 d egree of financial hardship

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 the licensee.

* * *

33. The Administrative Complaint issued in the instant

case alleges that Respondent violated Section 455.227(1)(j),

Florida Statutes (Count I), as well as Section 475.25(1)(c),

Florida Sta tutes, and Florida Administrative Code Rule 61J2 -

10.025 (Count II), by "publish[ing] or caus[ing] to be published

advertisements for the sales of businesses" that instructed

"that Buyers contact [Dr.] Pyser for the purchase of the

businesses advertised for sale," when Respondent "knew or should

have known" that Dr. Pyser was not a "licensed real estate sales

associate or broker in the state of Florida."

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

455.227(1)(j), Florida Statutes, has authorized t he Commission

to take disciplinary action against a Florida - licensed real

estate broker for "[ a]iding, assisting, procuring, employing, or

advising any unlicensed person or entity to practice a

profession contrary to [Chapter 455, Florida Statutes], the

ch apter regulating [real estate brokers and sales associates,

Chapter 475, Florida Statutes], or the rules of the

[Commission]."

35. At all times material to the instant case, Chapter

475, Florida Statutes, has included a provision (found in

Section 475.42( 1)(a), Florida Statutes) prohibiting a person

from "operat[ing] as a broker or sales associate without being

the holder of a valid and current active license therefore. "

36. At all times material to the instant case, the terms

"broker " and "sales associa te," as used in Section 475.42,

Florida Statutes, and elsewhere in Chapter 475, Florida

Statutes, have been defined in Section 475.01(1)(a) and (j) ,

Florida Statutes, respectively, as follows:

(a) "Broker" means a person who, for

another, and for a compen sation or valuable

consideration directly or indirectly paid or

promised, expressly or impliedly, or with an

intent to collect or receive a compensation

or valuable consideration therefor,

appraises, auctions, sells, exchanges, buys,

rents, or offers, atte mpts 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 interest in or

concerning the same, including mineral

rights or leases, or who advertise s 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, exchanging,

leasing, or renting business enterprises or

business opportunities or real property of

others or interests therein, including

mineral rights, or who takes any part in the

procuring of sellers, purchasers, lessors,

or lessees of business enterprises or

business opportunities or the real property

of another, or leases, or interest therein,

including mineral rights, or who directs or

assists in the procuring of prospects or in

the negotiation or closing of any

transaction which does, or is calculated to,

result in a sale, exchange, or leasing

thereof, and who receives, expects, or is

promised any compensation or valuable

consideration, directly or indirectly

therefor; and all persons who advertise

rental property information or lists. A

broker renders a professional service and is

a professional within the meaning of s.

95.11(4)(a). Where the term "appraise" or

"appraising" appears in the definition of

the term "broker," it specifically excludes

those appraisal services which must be

performed only by a state - licensed or state -

certified appraiser, and those appraisal

services which m ay be performed by a

registered trainee appraiser as defined in

part II. The term "broker" also includes

any person who is a general partner,

officer, or director of a partnership or

corporation which acts as a broker. The

term "broker" also includes any person or

entity who undertakes to list or sell one or

more timeshare periods per year in one or

more timeshare plans on behalf of any number

of persons, except as provided in ss.

475.011 and 721.20.

* * *

(j) "Sales associate " means 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. A sales associate renders a

professional service and is a professional

within the meani ng of s. 95.11(4)(a).

37. To establish that Respondent violated Section

455.227(1)(j), Florida Statutes, as alleged in Count I of the

Administrative Complaint, it was necessary for Petitioner to

prove by clear and convincing evidence that Dr. Pyser actua lly

engaged in the unlicensed practice (as a real estate broker or

sales associate) that, according to the Administrative

Complaint, Respondent allegedly facilitated by his advertising.

See Florida Engineers Management Corporation v. The Pool People ,

Inc. , Nos. 05 - 0382 and 06 - 1581PL, 2006 Fla. Div. Adm. Hear.

LEXIS 554 *33 - 34 (Fla. DOAH November 29, 2006)(Recommended

Order)("The specific allegations of wrongdoing contained in

Count Two of the Administrative Complaint filed in DOAH Case No.

06 - 1581PL are th at, in connection with the Shelby Homes Project,

Mr. Huang violated Section 455.227(1)(j), Florida Statutes, and,

thereby, also Section 471.033(1)(a), Florida Statutes, 'by

aiding and assisting an unlicensed entity, The Pool People,

Inc., to practice engin eering.' To prove that Mr. Huang

committed such wrongdoing, the FEMC first had to establish by

clear and convincing evidence that The Pool People, the

'unlicensed entity' Mr. Huang allegedly 'aided and assisted,'

engaged in the practice of engineering (fo r which it needed to

have a certificate of authorization from the FEMC).").

Petitioner failed to make such a clear and convincing showing.

Accordingly, Count I of the Administrative Complaint must be

dismissed.

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

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

take disciplinary action against a Florida - licensed real estate

broker who "[h]as advertised property or services in a manner

which is fraudulent, false, deceptive, or misleadin g in form or

content," and it has further provide d that "[t]he [C]ommission

may adopt rules defining methods of advertising that violate

this paragraph."

39. The Commission has exercised this rulemaking authority

and adopted Florida Administrative Code Ru le 61J2 - 10.025 , which,

at all times material to the instant case, provided as follows:

(1) All advertising must be in a manner in

which reasonable persons would know they are

dealing with a real estate licensee. All

real estate advertisements must includ e the

licensed name and phone number [ 11 ] of the

brokerage firm. No real estate

advertisement placed or caused to be placed

by a licensee shall be fraudulent, false,

deceptive or misleading.

(2) When the licensee' s personal name

appears in the advertiseme nt, at the very

least the licensee' s last name must be used

in the manner in which it is registered with

the Commission.

(3)(a) When advertising on a site on the

Internet, the brokerage firm name as

required in subsection (1) above shall be

placed adjace nt to or immediately above or

below the point of contact information.

" P oint of contact information" refers to any

means by which to contact the brokerage firm

or individual licensee including mailing

address(es), physical street address(es), e -

mail addre ss(es), telephone number(s) or

facsimile telephone number(s).

(b) The remaining requirements of

subsections (1) and (2) apply to advertising

on a site on the Internet.

40. Petitioner clearly and convincingly established, as

alleged in Count II of the Ad ministrative Complaint, that

Respondent violated Section 475.25(1)(c), Florida Statutes , and

Florida Administrative Code Rule 61J2 - 10.025 , by engaging in

advertising that (as Respondent knew or should have known) was

misleading as to Dr. Pyser's real esta te licensure status.

41. According to Florida Administrative Code Rule 61J2 -

24.001 (3)(d), as it existed at the time of Respondent's

violation, t he " usual action of the Commission " where "[f] alse,

deceptive or misleading advertising " (as proscribed by Sect ion

475.25(1)(c), Florida Statutes , and Florida Administrative Code

Rule 61J2 - 10.025 ) is proven, was " to impose a penalty of an

administrative fine of $1,000 to a 1 year suspension ."

42. Having considered the facts of the instant case in

light of Subsecti on (3)(d) of Florida Administrative Code Rule

61J2 - 24.001 and the remaining pertinent and applicable

provisions of this rule , as they existed at the time of

Respondent's violation of Section 475.25(1)(c), Florida

Statutes , and Florida Administrative Code R ule 61J2 - 10.025 , it

is the view of the undersigned that the Commission should

discipline Respondent for these violation s, by fining him in the

amount of $1,000.00. 12 The Commission should also order

Respondent, pursuant to Section 455.227(3), Florida Statu tes, to

reimburse Petitioner for its reasonable investigative costs in

this case. "Due process considerations require, however, that

Respondent be given the opportunity to examine and question the

reasonableness of such costs before any are imposed."

Dep artment of Health, Board of Nursing v. Howard , No. 02 - 0397PL,

2002 Fla. Div. Adm. Hear. LEXIS 1310 *10 (Fla. DOAH October 30

2002)(Recommended Order). 13

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMEN DED that the Commission issue a Final Order

dismissing Count I of the Administrative Complaint; finding

Respondent guilty of the violations alleged in Count II of the

Administrative Complaint; fining him $1,000.00 for committing

these violations; and order ing him to pay Petitioner's

reasonable costs incurred in investigating these violations.

DONE AND ENTERED this 1 4 th day of February, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNE R

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 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 Ad ministrative Hearings

this 1 4 th day of February, 2008.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2007).

2 Pet itioner's Exhibit A1 is a poorer copy of the same

advertisement. It, along with Respondent's Exhibit B, were

received into evidence without objection, their authenticity

having been stipulated to by the parties.

3 The first page of this document, altho ugh appended to the

Administrative Complaint, was not offered into evidence, and it

therefore is not part of the evidentiary record in this case.

4 Respondent argues in its Proposed Recommended Order that

Petitioner's Exhibit A2 is an "unverified writi ng" of uncertain

origin. While the evidentiary record is devoid of any direct

evidence that DCC (and therefore Respondent) was responsible for

the creation and publication of Petitioner's Exhibit A2, there

is circumstantial record evidence that clearly an d convincingly

establishes that this exhibit is exactly what it purports to be,

a "flyer" put out by DCC: this "flyer" promoted sales

activities that would stand to benefit DCC; it was discovered by

Mr. Auerbach at a meeting of potential participants in s uch

activities to which DCC had sent a representative; it was found

on a table together with another DCC - generated document,

Respondent's Exhibit B (the authenticity of which is

undisputed ) ; and its contact information (individuals' names,

their telephone numbers, and company website address) is

consistent with the contact information contained in

Respondent's Exhibit B . See Coday v. State , 946 So. 2d 988,

1000 (Fla. 2006)("While section 90.901 requires the

authentication or identification of a document pr ior to its

admission into evidence, the requirements of this section are

satisfied by evidence sufficient to support a finding that the

document in question is what its proponent claims. See

§ 90.901, Fla. Stat. (1997). Authentication or identification

of evidence may include examination of its appearance, contents,

substance, internal patterns, or other distinctive

characteristics in conjunction with the circumstances.");

Casamassina v. United States Life Insurance Co. , 958 So. 2d

1093, 1099 (Fla. 4th D CA 2007)("There is no indication that the

records at issue are not what they purport to be.

'[A]uthentication or identification of evidence is required as a

condition precedent to its admissibility.' 'Evidence is

authenticated when prima facie evidence i s introduced to prove

that the proffered evidence is authentic.' Authentication by

circumstantial evidence is permissible; 'evidence may be

authenticated by appearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in

conjunction with the circumstances.' A court may consider

circumstances of discovery in determining prima facie

authenticity.")(citations omitted) ; State v. Love , 691 So. 2d

620, 621 (Fla. 5th DCA 1997)("In order to set forth a prima

facie case of authen ticity, the proponent of the evidence can

utilize both direct and circumstantial evidence. Evidence may

be authenticated by appearance, contents, substance, internal

patterns, or other distinctive characteristics taken in

conjunction with the circumstance s.")(citation omitted); United

States v. Fraser , 448 F.3d 833, 839 (6th Cir. 2006) (" The

district court made a proper preliminary determination that

Kahari [the defendant] wrote The Birth of a Criminal. The

dist rict court found that the book ' has the pictu re of the

defendant on the cover, lists the defendant as the author, has a

copyright date of 2002, a listed international standard book

number 2972571302 on Amazon.com and is pu blished by Gutter

Publications. The book is further authenticated by the

defen dant's website . . . . The defendant is listed as the

founder of Gutter Magazine under a title on the internet of

'about us.'"); United States v. Maldonado - Rivera , 922 F.2d 934,

958 (2d Cir. 1990)("There was no abuse of discretion here in the

ruling that the communique was sufficiently shown to be a

document written by one or more of the coconspirators. The

communique's appearance, contents, substance, timing, and

provenance, together with other evidence, all suggested that it

was such a document. First, there was strong evidence that the

communique was in fact a Los Macheteros document. It bore a Los

Macheteros logo that was indistinguishable from the Los

Macheteros logo that appeared on other documents whose

authenticity was not challenged. It claimed responsibility for

the Wells Fargo robbery, which was consistent with Segarra's

telling Cox that the robbery had been a Los Macheteros

operation. And the proposition that the communique was a Los

Macheteros document was consistent with other evidence tha t Los

Macheteros frequently sought publicity for their acts. . . .

The inference that the communique was a coconspirator document

was further supported by the fact that a copy was found at the

home of a codefendant . . . . Defendants' challenges to the

a uthenticity of the communique, such as their argument that the

'logo could have been constructed by someone outside the

Macheteros organization' (Segarra - Ramirez - Camacho brief on

appeal at 61), go more to the weight of the evidence than to its

admissibilit y. The district court did not err in ruling that

the document's contents and the surrounding circumstances

provided a rational basis for concluding that the document was

what the government claimed it was, i.e., the statement of a

coconspirator. "); Settle s v. United States , 570 A.2d 307, 309

(D.C. 1990)("Proof of the authenticity of the writing need not

be established by direct testimony but may be established by the

nature and contents of the writing combined with the location of

its discovery."); People v. Munoz , 70 Ill. App. 3d 76, 84 (Ill.

App. Ct. 1979)("In the case at bar, direct proof of authorship

was not offered; but authentication by circumstantial evidence

is uniformly recognized as permissible.") ; Broward County School

Board v. Menke , Nos. 04 - 38 35 and 05 - 4189PL, 2007 Fla. Div. Adm.

Hear. LEXIS 449 *34 - 35 (Fla. DOAH August 13, 2007)(Recommended

Order)("The identity of the author of the website material is

clear because the printouts contained in Exhibit SB2 are rife

with photographs of Respondent and comments about Respondent.") ;

and Department of Professional Regulation, Board o f Medicine v.

Sternberg , No. 91 - 5044, 1993 Fla. Div. Adm. Hear. LEXIS 5888

*20 - 21 n.1 (Fla. DOAH January 20, 1993)(Recommended Order)("Even

circumstantial evidence can be c lear and convincing. As Henry

David Thoreau noted in his Journal of November 11, 1850, 'Some

circumstantial evidence is very strong, as when you find a trout

in the milk.'" ). Furthermore, when Respondent took the stand at

hearing, he did not deny that th is "flyer" was produced by his

company. When asked whether or not it was an "advertisement[]

of Doctors Choice," he answered, "It could be but I can't say

for certain." He later added, "It has a familiarity about it,"

lending further support to the view that this was a genuine, not

a bogus, DCC advertisement.

Contrary to the further argument made by Respondent,

Petitioner's Exhibit A2 did not constitute hearsay evidence.

This is because it was offered merely to establish its existence

and contents, no t to prove the truth of any representations

contained in it. See Burkey v. State , 922 So. 2d 1033, 1036

(Fla. 4th DCA 2006)("The record reveals that the defendant did

not offer his statement to the CI that 'I don't do that kind of

stuff' to prove the matt er asserted therein. Rather, the

defense was trying to establish that the defendant rejected the

CI's offer to buy drugs. His statement was relevant non - hearsay

and should have been admitted."); Powell v. State , 908 So. 2d

1185, 1187 (Fla. 2d DCA 2005)(" An out - of - court statement is not

hearsay if it has been offered for a purpose other than proving

the truth of its contents."); Cephas v. Department of Health and

Rehabilitative Services , 719 So. 2d 7, 8 (Fla. 2d DCA

1998)("Hearsay is an out - of - court statem ent offered in evidence

to prove the truth of the matter asserted. See § 90.801, Fla.

Stat. (1995). McMillion's telephone conversation testimony was

not offered to prove the truth of the matter asserted, i.e.,

whether Baker worked at the WIC office. Rath er, it was admitted

to prove that Cephas, as the recipient of McMillion's call, used

his position as an agency employee to make false statements

concerning Baker's employment. Therefore, it was not hearsay.

It was a 'verbal act,' indicating that the call was made and the

contents of the call."); King v. State , 684 So. 2d 1388, 1389

(Fla. 1st DCA 1996)("If testimony is offered for a purpose other

than to prove the truth of the matter asserted, it is by

definition not hearsay."); Beech Aircraft Corp. v. Rai ney , 488

U.S. 153, 173 n.18 (1988)("Nor would a hearsay objection have

been availing. Although the question called for Rainey to

testify to an out - of - court statement, that statement was not

offered 'to prove the truth of the matt er asserted .' Rule

801(c) . Rather, it was offered simply to prove what Rainey had

said about the accident six months after it happened, and to

contribute to a fuller understanding of the material the defense

had already placed in evidence.") ; and Iams Co. v. Nutro

Products, Inc. , No. C - 3 - 00 - 566, 2004 U.S. Dist. LEXIS 15129 *8

(S.D. Ohio July 26, 2004) ("[S] tatements made by the Nutro

demonstrators are not hearsay because they are not being offered

to prove the truth of their content, but merely to show what

that content was. Thus they do not come within the definition

of hearsay."). In any event, any representations made by or

attributable to Respondent (such as those contained in DCC

advertising, for which Respondent was responsible) that

Petitioner had offered into evidence for their truthfulness

would have constituted hearsay f alling within the "admissions"

exception to the hearsay rule described in Section 90.803(18),

Florida Statutes, and , as such, would be "sufficient in

[themselves] to support a finding" in this administrati ve

proceeding pursuant to Section 120.57(1)(c), Florida Statutes ,

which provides that " [h]earsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it

shall not be sufficient in itself to support a finding unless it

wou ld be admissible over objection in civil actions. "

5 One of these pages, Petitioner's Exhibit A5, contained the

same "Westcoast" listings (with one exception) that had been

advertised in Petitioner's Exhibit A2. It indicated that Dr.

Pyser, whose ph otograph appeared on the page, could be contacted

about these listings (at (954)830 - 3147), as could Respondent (at

(561)746 - 2102), Morcie Smith (at (727)254 - 9707), Dr. Jim

Vandenberghe, and Connie Quintanilla (at 561)746 - 2102).

6 As part of her investiga tion, Ms. Luchik interviewed

Respondent. In the written report that she completed at the

conclusion of her investigation, Ms. Luchik wrote, among other

things, that Respondent had stated during his interview with her

that "he [had] only distributed that o ne listing sheet in

November 2006" and that he would "immediately remove PYSER from

future advertising until PYSER [was] properly licensed with

DEBAR."

7 A suspension for a violation of Section 475.25(1), Florida

Statues, may not exceed ten years.

8 Pr ior to July 1, 2006, the effective date of Chapter 2006 - 210,

Laws of Florida, the maximum administrative fine authorized by

Section 475.25(1), Florida Statutes, was $1,000.00.

9 An additional penalty that the Commission may impose for a

violation of Sec tion 455.227(1), Florida Statutes, is

"restriction of practice." § 455.227(2)(c), Fla. Stat.

10 Effective December 25, 2007, Subsections (3)(d) and (f) of

Florida Administrative Code Rule 61J2 - 24.001 were amended to

increase the administrative fine refer red to in those subections

from $1,000.00 to $5,000.00.

11 The words "and phone number" were removed from the rule

effective February 5, 2007.

12 A harsher penalty w ould be inappropriate, given Respondent's

unblemished prior disciplinary record , the abs ence of any other

proven violations, and the lack of any record evidence showing

that Respondent's misleading advertising resulted in actual harm

to any consumer.

13 The prehearing stipulation that the parties jointly filed

gave no indication that the rea sonableness of Petitioner's

claimed investigative costs would be an issue litigated at the

final hearing in this case.

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Department of Business and Professional

Regulation, Division of Real Estate

400 Wes t Robinson Street, Suite N - 801

Orlando, Florida 32801

Randall M. Shochet, Esquire

6308 Grand Cypress Circle

Lake Worth, Florida 33463

Thomas W. O'Bryant, Jr., Director

Department of Business and

Professional Regulation

Division of Real Estate

400 W est Robinson Street, Suite N - 802N

Orlando, Florida 32801

Ned Luczynski, General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit written except ions 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.