09-003337PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Cristal Coleman Status: Closed Recommended Order on Monday, November 23, 2009.

Summary: Petitioner failed to prove the essential allegations of fact of the Administrative Complaint. Recommended dismissal of the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case Nos. 09-3337PL

) 09-3338PL

CRISTAL COLEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

cases before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on September 23, 2009, at

Key Largo, Florida.

APPEARANCES

For Petitioner: Jennifer Blakeman, Senior Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801

Orlando, Florida 32801

For Respondent: Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent, Cristal

Coleman, committed the violations alleged in two separate four-

count Administrative Complaints filed with the Petitioner

Department of Business and Professional Regulation on April 17,

2009, and, if so, what disciplinary action should be taken

against her Florida real estate associate license.

PRELIMINARY STATEMENT

On April 17, 2009, two separate four-count Administrative

Complaints, FDBPR Case Nos. 2008048014 and 2009004361, were

filed with Petitioner, Department of Business and Professional

Regulation, against Respondent, Cristal Coleman, who holds a

Florida real estate associate license. It is alleged in the

Administrative Complaints that Respondent violated the following

provisions of Florida law: Section 475.25(1)(b), Florida

Statutes; Section 475.25(1)(d)1., Florida Statutes; Section

455.227(1)(j), Florida Statutes; and Section 475.25(1)(e),

Florida Statutes, by violating Section 475.42(1)(b), Florida

Statutes.

On or about April 17, 2009, Respondent, through counsel,

filed an Answer to Administrative Complaint, Denial of Essential

Allegations and Request for Formal Hearing, along with executed

Election of Rights forms for each Administrative Complaint.

On June 18, 2009, Petitioner filed the Administrative

Complaints, Respondent’s responsive pleadings, and a letter for

each case requesting that an administrative law judge be

assigned to hear the matters. The requests for hearing were

designated DOAH Case Nos. 09-3337PL and 09-3338PL. Both cases

were assigned to the undersigned.

On July 7, 2009, a Motion to Consolidate the two cases was

filed. That Motion was granted by an Order entered July 7,

2009.

On July 10, 2009, the final hearing of this matter was

scheduled for September 23, 2009. The Notice of Hearing was

subsequently amended, changing the location of the hearing.

At the final hearing, Petitioner presented the testimony of

its investigator, Felix Taver Mizioznickov, and Respondent.

Petitioner also had admitted Petitioner’s Exhibits 1, 2, 6, 7

(admitted only as to whether an email was sent, not for the

truth of what is contained in the email), 8, 9 (pages 1 and 2

only), and 11. Respondent had admitted two exhibits.

The Transcript of the final hearing was filed with the

Division of Administrative Hearings on October 2, 2009. Due to

the unavailability of the undersigned during the month of

October, the parties were given until November 2, 2009, to file

proposed recommended orders.

Petitioner filed Petitioner’s Proposed Recommended Order

timely. Respondent filed Respondent’s Proposed Recommended

Order on November 3, 2009. It does not appear that Petitioner

has been prejudiced in any way by Respondent’s late-filing.

Accordingly, both proposed orders have been fully considered in

preparing this Recommended Order.

All further references to the Florida Statutes in this

Recommended Order are to the 2007 and 2008 editions, unless

otherwise noted.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

Regulation, Division of Real Estate (hereinafter referred to as

Section 20.165, Florida Statutes. The Division is charged with

the responsibility for the regulation of the real estate

industry in Florida pursuant to Chapters 455 and 475, Florida

Statutes.

2. Respondent, Cristal Coleman, was at the times material

to this matter, the holder of a Florida real estate associate

license, license number 693909, issued by the Division.

3. From January 4, 2005, until March 31, 2008, Ms. Coleman

was registered as a sales associate with Cristal Clear Realty

(hereinafter referred to the “Realty Company”).

B. Cristal Clear Rentals, LLC., and Ms. Coleman’s

Relationship Thereto .

3. Cristal Clear Rentals, LLC (hereinafter referred to as

the “CC Rentals”), is a Florida limited liability company

registered with the office of the Florida Secretary of State,

Division of Corporations.

4. CC Rentals business consisted of marketing and renting

for compensation transient rental properties.

5. CC Rentals did not engage in the sale of real estate

and, therefore, was not registered with the Division as a

licensed real estate broker.

6. Ms. Coleman became the sole managing member of CC

Rentals as of December 5, 2007. As a managing member, CC

Rentals office manager, rental manager, and accountant reported

to her on a regular basis.

C. The Richard Bloom and Greg Sousa Rentals .

7. CC Rentals, at the times relevant, was managing two

separate properties, one owned by Richard Bloom (hereinafter

referred to as the “Bloom Property”), and one owned by Greg

Sousa (hereinafter referred to as the “Sousa Property”). The

nature of the role of CC Rentals in managing the Bloom Property

and the Sousa Property was not proved. Whatever agreements

existed as to the management of these properties was not proved.

Nor was any evidence presented as to whether any money, in the

form of a security deposit, rental fees, or any other form, was

received or in the possession of CC Rentals at the times

relevant to this matter.

8. On or about May 6, 2008, a form email was sent from

Ms. Coleman’s email address to clients of CC Rentals notifing

clients of the financial demise of CC Rentals (hereinafter

referred to as the “Email Notice”). The Email Notice was sent

to Mr. Bloom and to Mr. Sousa.

9. In pertinent part, the Notice Email stated:

We regret to advise you that Cristal Clear

Rentals, LLC is no longer sufficiently

solvent to continue operating. The Company

has ceased trading effective May 6, 2008.

We have tried to weather a very difficult

season where the economic crisis in our

country has seriously impacted travel and

especially rentals in the Florida Keys this

year.

Since the Company has no funds, we need to

advise Owners:

The contract between you and Cristal

Clear Rentals, LLC is no longer valid

and is terminated.

There are no funds to pay Owners any

rentals collected but not yet paid to

Owners through April 2008.

If there are current reservations we

are providing the contact details below

to allow you to make direct contact

with your pending guests.

Since there are no funds in Cristal

Clear Rentals, LLC, the Company cannot

refund any security deposits to the

people who made the reservation. This

means that any Owner accepting the

reservation directly will need to

reimburse the guest out of pocket for

the amount of the Security Deposit

after their stay.

. . . .

10. According the specific information included in Email

Notices sent to Mr. Bloom and Mr. Sousa, there were tenants in

the Bloom Property and Sousa Property of a term longer than a

transient rental. Ms. Coleman was not, however, aware of either

rental property or the nature of any agreement with Mr. Bloom

and Mr. Sousa for the management of their properties.

CONCLUSIONS OF LAW

A. Jurisdiction .

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

B. The Burden and Standard of Proof .

12. The Division seeks to impose penalties against

Ms. Coleman pursuant to the Administrative Complaints that

include the suspension or revocation of her real estate

associate license. Therefore, the Division has the burden of

proving the specific allegations of fact that support its

charges by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998).

13. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), 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 or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaints .

14. Section 475.25, Florida Statutes, authorizes the

Division to discipline any Florida real estate broker licensee

who commits any of a number of offenses defined therein. In

this case, the Division has charged Ms. Coleman with having

committed, with regard to the Bloom Property and the Sousa

Property, four violations: Section 475.25(1)(b), Florida

Statutes (Count One of each Administrative Complaint); Section

475.25(1)(d)1., Florida Statutes (Count Two of each

Administrative Complaint); Section 455.227(1)(j), Florida

Statutes (Count Three of each Administrative Complaint); and

Section 475.25(1)(e), Florida Statutes, by violating Section

475.42(1)(b), Florida Statutes (Count Four of each Administrative

Complaint).

15. Section 475.25(1), Florida Statutes, provides the

following with regard to the charged offenses:

(1) The commission may deny an

application for licensure, 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 impose 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 has 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 sustained 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 general

public.

. . . .

(d)1. Has failed to account or deliver to

any person, including a licensee under this

chapter, at the time which has been agreed

upon or is required by law or, in the

absence of a fixed time, upon demand of the

person entitled to such accounting and

delivery, any personal property such as

money, fund, deposit, check, draft, abstract

of title, mortgage, conveyance, lease, or

other document or thing of value, including

a share of a real estate commission if a

civil judgment relating to the practice of

the licensee's profession has been obtained

against the licensee and said judgment has

not been satisfied in accordance with the

terms of the judgment within a reasonable

time, or any secret or illegal profit, or

any divisible share or portion thereof,

which has come into the licensee's hands and

which is not the licensee's property or

which the licensee is not in law or equity

entitled to retain under the circumstances.

. . .

(e) Has violated any of the provisions of

this chapter or any lawful order or rule

made or issued under the provisions of this

chapter or chapter 455.

16. As to the violation of Section 475.25(1)(e), Florida

Statutes, it is alleged that Ms. Coleman violated Section

475.42(1)(b), Florida Statutes, which defines the following

“violation”: “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.”

17. Finally, Section 455.227(1)(j), Florida Statutes,

defines the following ground for disciplinary action: “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.”

D. The Division’s Proof .

18. The essential allegations of the Administrative

Complaints in support of the alleged statutory violations all

turn on two essential facts: the nature of the agreements

between Mr. Bloom and Mr. Sousa and CC Rentals; and, whether

CC Rentals was in possession of any money which Mr. Bloom or

Mr. Sousa were entitled to which not paid to them by CC Rental.

Neither of these crucial facts was proved by competent

substantial evidence.

19. While the Email Notice establishes that there was some

relationship between CC Rental and Mr. Bloom and Mr. Sousa, the

nature of the relationship is not proved clearly and

convincingly. Additionally, while the Email Notice clearly

states that no money owed to Mr. Bloom or Mr. Sousa would be

returned to them, the evidence failed to prove that any money

was in fact due. The Notice Email was a form notice sent to all

clients of CC Rental and only proved that, if any money was due

a client, CC Rental could not pay it.

20. Based upon the foregoing, it is concluded that the

Division failed to prove any of the violations alleged in the

Administrative Complaints.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Commission:

1. Finding that the Division failed to prove any of the

violations alleged in the Administrative Complaints; and

2. Dismissing the Administrative Complaints.

DONE AND ENTERED this 23rd of November, 2009, in

Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 23rd day of November, 2009.

COPIES FURNISHED :

Jennifer Blakeman, Senior Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N801

Orlando, Florida 32801

Nicholas W. Mulick, Esquire

Nicholas W. Mulick, P.A.

91645 Overseas Highway

Tavernier, Florida 33070

Thomas W. O’Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N802

Orlando, Florida 32801

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 these cases.