09-000953PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Myava L. Rodriguez Status: Closed Recommended Order on Monday, June 29, 2009.

Summary: Petitioner should fine Respondent $1,000 for failing to retain a copy of a deposit check in her business records and failing to supervise a real estate agent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-0953PL

)

MYAVA L. RODRIGUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on April 22, 2009, in Kissimmee, 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: (No appearance)

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Subsections

475.25(1)(e) and (u) and Section 475.5015, Florida Statutes

(2006), 1 respectively, by failing to preserve and make available

books, records, and supporting documents; failing to keep an

accurate account of all trust fund transactions; and failing to

direct, control, or manage a sales associate, and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on September 16, 2008. Respondent timely requested a

formal hearing, and Petitioner referred the matter to DOAH to

conduct the hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted six exhibits for admission into evidence.

Respondent did not appear and did not present any evidence. The

identity of the witness and exhibits, and the rulings regarding

each, are reported in the Transcript of the hearing filed with

DOAH on June 22, 2009.

Petitioner timely filed its Proposed Recommended Order

(PRO) on June 19, 2009. On June 22, 2009, Petitioner requested

that the time for filing PROs be extended to June 19, 2009. The

ALJ granted the motion. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of real estate in the state. Respondent

is licensed as a real estate broker pursuant to license

number 674853.

2. Respondent operates a real estate brokerage office in

the name of Sky Land Realty Group, LLC. (Sky Land). The

principal place of business of Sky Land is 4248 Town Center

Boulevard, Number 5, Orlando, Florida. Respondent's duties

include the supervision of Ms. Jamicell Janet Perez, a licensed

real estate sales associate, referred to hereinafter as the

sales associate.

3. On May 22, 2007, Respondent and the sales associate

represented Mr. Edwin Torres and Ms. Meary Ann Berrios (the

Buyers) in the purchase of a residential property located at

7471 Wayland Boulevard, Orlando, Florida (the property). The

Buyers submitted a written offer to purchase the property. In

relevant part, the offer included an earnest money deposit of

$500.00.

4. On May 22, 2007, the owners of the property, in

relevant part, verbally rejected the Buyers' offer and counter

offered to sell the property, if the earnest money deposit were

increased to $2,000.00. Changes to the written contract are

initialed by the owners and dated May 23, 2007.

5. The sales associate did not deliver the $500.00 deposit

to Respondent but shredded the check after receiving the verbal

counter offer from the owners on May 22, 2007. The record does

not show whether the Buyers replaced the destroyed check with a

check for $2,000.00; accepted any other terms of the counter

offer; or purchased the property. It is undisputed that the

listing broker for the owners of the property is the complaining

witness in this proceeding, but the broker did not testify at

the hearing.

6. At some future date, an investigator for Petitioner

requested Respondent's relevant business records. Respondent

failed to retain a copy of the $500.00 deposit check.

Respondent failed to supervise the sales associate by requiring

her to deliver the check to Respondent so that Respondent could

deliver the check to the listing broker.

CONCLUSIONS OF LAW

7 . D O A H has jurisdiction over the parties to and subject

(2008). DOAH provided the parties with adequate notice of the

final hearing.

8 . Peti tioner bears the burden of proof. Petitioner must

show by clear and convincing evidence that Respondent committed

the acts alleged in the Administrative Complaint and the

reasonableness of any penalty. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); State ex rel.

Vining v. Florida Real Estate Commission , 281 So. 2d 487

(Fla. 1973).

9. Petitioner satisfied its burden of showing that

Respondent violated Subsection 475.25(1)(u) by failing to

supervise the sales associate to ensure the sales associate

delivered the check to Respondent so that Respondent could

deposit the check into the appropriate escrow account. The

evidence is also clear and convincing that Respondent violated

Subsection 475.25(1)(e) and Florida Administrative Code

Rule 61J2-14.012(1), which requires an accurate accounting of

all trust fund transactions, by failing to retain a copy of the

deposit check of $500.00 in Respondent's business records of the

transaction.

10. The evidence is less than clear and convincing that

Respondent failed to deliver any other records to Petitioner.

The evidence is also less than clear and convincing that the

sales associate retained the deposit check of $500.00 until

June 8, 2007, as alleged in paragraph number 6 of the

Administrative Complaint.

11. The Administrative Complaint does not allege that the

sales associate held the deposit check of $500.00 and shredded

it on the same day it was written. Petitioner cannot find the

sales associate guilty of acts not alleged in the Administrative

Complaint. Ghani v. Department of Health , 714 So. 2d 1113 (Fla.

1st DCA 1998); Cotrill v. Department of Insurance , 685 So. 2d

1371 (Fla. 1st DCA 1996). However, the allegations in the

Administrative Complaint against the sales associate are

rendered moot by a settlement agreement entered into at the

hearing between Petitioner and the sales associate. 2

12. Petitioner submitted no evidence of prior disciplinary

history against Respondent. There is no evidence that the

violations resulted in financial harm to any person. There is

no factual basis to support Petitioner’s request in its PRO for

revocation of Respondent’s license or the imposition of a

$5,000.00 fine.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

that Respondent failed to supervise a sales associate and failed

to retain a copy of a deposit check of $500.00; imposing a fine

of $1,000.00; and requiring Respondent to pay fees pursuant to

Subsection 455.227(3).

DONE AND ENTERED this 29th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2006), unless otherwise stated.

2/ The Administrative Complaint names Respondent and

Respondent's sales associate as co-respondents in the Complaint.

Count III of the Administrative Complaint makes allegations

against the sales associate. The sales associate was never

named as a respondent in this proceeding against the real estate

broker. Petitioner entered into a settlement agreement with the

sales associate in DOAH Case No. 09-0952, which renders moot the

allegations in Count III of the Administrative Complaint against

the sales associate in DOAH Case No. 09-0953.

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801

Orlando, Florida 32801

Myava L. Rodriguez

8810 Commodity Circle

Orlando, Florida 32819

Reginald Dixon, 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.