08-001756PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Eleanor Borling Dioneda Status: Closed Recommended Order on Monday, August 11, 2008.

Summary: Respondent assisted in payment of compensation to an unlicensed person involved in negotiations for a real estate transaction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-1756PL

)

ELEANOR BORLING DIONEDA, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 20, 2008, an administrative hearing in this case

was conducted by video teleconference between Orlando and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801-1757

For Respondent: Eric W. Ludwig, Esquire

250 North Orange Avenue, Suite 1250

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set

forth in the Administrative Complaint are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 14, 2007, the

Department of Business and Professional Regulation, Board of

Real Estate (Petitioner), alleged that Eleanor Borling Dioneda

(Respondent) violated Subsection 455.227(1)(j), Florida

Statutes.

The Respondent disputed the allegations of the

Administrative Complaint and requested a formal hearing. The

Petitioner forwarded the request to the Division of

Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1 through 5, 7, and 8

admitted into evidence. The Respondent had one exhibit admitted

into evidence.

A Transcript of the hearing was filed on July 2, 2007.

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

licensed as a real estate sales associate, holding Florida

license number 3035990.

2. In late spring of 2005, the Respondent was contacted by

Arnold Macabugao, a California resident who was interested in

acquiring a home in Orlando, Florida, for himself and his wife.

3. The Respondent was aware of a house for sale at

14213 Sports Club Way, Orlando, Florida 32837, which she

apparently thought would be suitable for the Macabugaos'

purchase.

4. The owner of the house was Jack Girton. Mr. Girton did

not reside in the property at any time material to this dispute.

5. The Girton house was inhabited by a woman identified as

Kim Capiello. Ms. Capiello was an acquaintance of Mr. Girton's.

Ms. Capiello had no ownership interest in the property. All

documents related to the purchase of the property by the

Macabugaos identified Mr. Girton as the owner.

6. During negotiations on the property, the Respondent

provided all documents to Ms. Capiello. It is reasonable to

conclude that Ms. Capiello transmitted the documents to

Mr. Girton.

7. There is no evidence that the Respondent dealt directly

with Mr. Girton at any time during the sales process. The

weight of the evidence establishes that the Respondent

negotiated the Macabugaos' purchase of the Girton property

through Ms. Capiello.

8. At some point in the negotiations, the Respondent

received a document titled "SIDE AGREEMENT TO PURCHASE CONTRACT"

from Ms. Capiello. The document, which required payment of

$10,000 directly to Ms. Capiello by the Macabugaos, in relevant

part, provided as follows:

This side agreement is between Buyers named

above and Kim Capiello wherein the buyers

agree to give $10,000 to Kim Capiello for

services rendered in the search and purchase

of the above named property. This agreement

is contingent upon the buyers securing a

loan, its lender determining a firm closing

date and last but not the least, actual

closing and funding of the above named

property.

The amount will be paid as follows:

$5,000 to be paid at the time the Purchase

contract is signed by all parties for the

above property and contingent upon the

buyers securing a loan and its lender

determining a firm closing date.

$5,000 to be paid the day after the closing

under the condition being that the above

property has been vacated and in move in

condition.

Kim Capiello further agrees that this side

agreement is between her and the buyers only

and has nothing to do with the actual

purchase agreement entered into by the

buyers and Jack Girton. (Emphasis in

original)

9. The Respondent facilitated the payment of the $10,000

by the Macabugaos to Ms. Capiello pursuant to the side

agreement. The Respondent transmitted the document to the

Macabugaos, who signed it. A signature purportedly of

Ms. Capiello is also on the document.

10. The Respondent instructed the Macabugaos on how to

make the payments. She collected the funds from them. The

Respondent used her personal checking account as a transfer

mechanism for one of the $5,000 payments.

11. The side agreement does not identify the date of

execution, but Mr. Macabugao testified that he signed the side

agreement after the sales contract had been signed. The

executed sales contract between the Macabugaos and Mr. Girton

was dated June 7, 2005.

12. Mr. Macabugao testified that he had no communication

with Ms. Capiello.

13. The evidence fails to establish the Macabugaos'

rationale for agreeing to make the payments to Ms. Capiello,

other than the fact that the Respondent transmitted the document

to the Macabugaos and instructed them on how to make the

payments.

14. None of the sales documents suggested that

Ms. Capiello held licensure in Florida as a real estate

professional.

15. Based upon a review of the Petitioner's licensure

files, the Petitioner's investigator testified that Ms. Capiello

was not licensed in Florida as a real estate professional in any

capacity. There was no credible evidence to the contrary, and

the investigator's testimony has been credited.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

17. Subsection 455.227(1)(j), Florida Statutes (2005),

provides as follows:

455.227 Grounds for discipline; penalties;

enforcement.--

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(j) Aiding, assisting, procuring,

employing, or advising any unlicensed person

or entity to practice a profession contrary

to this chapter, the chapter regulating the

profession, or the rules of the department

or the board.

* * *

(2) When the board, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection (1) or a violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

18. The Petitioner has the burden of establishing the

truthfulness of the allegations in the Administrative Complaint

by clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). In

this case, the burden has been met.

19. The Petitioner has alleged that the Respondent

assisted Ms. Capiello to act as a broker for compensation in the

referenced real estate sales transaction. Subsection

475.01(1)(a), Florida Statutes (2005), provides the following

applicable definition:

"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 consideration 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 interest 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, 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 may 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. (Emphasis supplied)

20. Ms. Capiello met the definition of broker in this case

because she took part in the negotiations with the seller of the

property and received $10,000 from the buyers for her services.

The Respondent used Ms. Capiello as a conduit for negotiations

between the buyers and seller of the Girton property, after

which the Respondent directed the buyers to pay $10,000 to

Ms. Capiello.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a final order

finding Eleanor Borling Dioneda guilty of violating Subsection

455.227(1)(j), Florida Statutes (2005); imposing a two-year

license suspension followed by a two-year probationary period;

imposing a fine of $5,000; and requiring completion of a

remedial professional education course to be determined by the

Petitioner.

DONE AND ENTERED this 11th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2008.

COPIES FURNISHED :

Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801-1757

Eric W. Ludwig, Esquire

250 North Orange Avenue, Suite 1250

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802N

Orlando, Florida 32801

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.