09-003338PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Cristal Coleman
 Status: Closed
Recommended Order on Monday, November 23, 2009.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case Nos. 09-3337PL

30) 09-3338PL

32CRISTAL COLEMAN, )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41Pursuant to notice, a formal hearing was held in these

51cases before Larry J. Sartin, an Administrative Law Judge of the

62Division of Administrative Hearings, on September 23, 2009, at

71Key Largo, Florida.

74APPEARANCES

75For Petitioner: Jennifer Blakeman, Senior Attorney

81Department of Business and

85Professional Regulation

87400 West Robinson Street

91Hurston Building-North Tower, Suite N801

96Orlando, Florida 32801

99For Respondent: Nicholas W. Mulick, Esquire

105Nicholas W. Mulick, P.A.

10991645 Overseas Highway

112Tavernier, Florida 33070

115STATEMENT OF THE ISSUES

119The issues in these cases are whether Respondent, Cristal

128Coleman, committed the violations alleged in two separate four-

137count Administrative Complaints filed with the Petitioner

144Department of Business and Professional Regulation on April 17,

1532009, and, if so, what disciplinary action should be taken

163against her Florida real estate associate license.

170PRELIMINARY STATEMENT

172On April 17, 2009, two separate four-count Administrative

180Complaints, FDBPR Case Nos. 2008048014 and 2009004361, were

188filed with Petitioner, Department of Business and Professional

196Regulation, against Respondent, Cristal Coleman, who holds a

204Florida real estate associate license. It is alleged in the

214Administrative Complaints that Respondent violated the following

221provisions of Florida law: Section 475.25(1)(b), Florida

228Statutes; Section 475.25(1)(d)1., Florida Statutes; Section

234455.227(1)(j), Florida Statutes; and Section 475.25(1)(e),

240Florida Statutes, by violating Section 475.42(1)(b), Florida

247Statutes.

248On or about April 17, 2009, Respondent, through counsel,

257filed an Answer to Administrative Complaint, Denial of Essential

266Allegations and Request for Formal Hearing, along with executed

275Election of Rights forms for each Administrative Complaint.

283On June 18, 2009, Petitioner filed the Administrative

291Complaints, Respondent’s responsive pleadings, and a letter for

299each case requesting that an administrative law judge be

308assigned to hear the matters. The requests for hearing were

318designated DOAH Case Nos. 09-3337PL and 09-3338PL. Both cases

327were assigned to the undersigned.

332On July 7, 2009, a Motion to Consolidate the two cases was

344filed. That Motion was granted by an Order entered July 7,

3552009.

356On July 10, 2009, the final hearing of this matter was

367scheduled for September 23, 2009. The Notice of Hearing was

377subsequently amended, changing the location of the hearing.

385At the final hearing, Petitioner presented the testimony of

394its investigator, Felix Taver Mizioznickov, and Respondent.

401Petitioner also had admitted Petitioner’s Exhibits 1, 2, 6, 7

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

423truth of what is contained in the email), 8, 9 (pages 1 and 2

437only), and 11. Respondent had admitted two exhibits.

445The Transcript of the final hearing was filed with the

455Division of Administrative Hearings on October 2, 2009. Due to

465the unavailability of the undersigned during the month of

474October, the parties were given until November 2, 2009, to file

485proposed recommended orders.

488Petitioner filed Petitioner’s Proposed Recommended Order

494timely. Respondent filed Respondent’s Proposed Recommended

500Order on November 3, 2009. It does not appear that Petitioner

511has been prejudiced in any way by Respondent’s late-filing.

520Accordingly, both proposed orders have been fully considered in

529preparing this Recommended Order.

533All further references to the Florida Statutes in this

542Recommended Order are to the 2007 and 2008 editions, unless

552otherwise noted.

554FINDINGS OF FACT

557A. The Parties .

5611. Petitioner, the Department of Business and Professional

569Regulation, Division of Real Estate (hereinafter referred to as

578Section 20.165, Florida Statutes. The Division is charged with

587the responsibility for the regulation of the real estate

596industry in Florida pursuant to Chapters 455 and 475, Florida

606Statutes.

6072. Respondent, Cristal Coleman, was at the times material

616to this matter, the holder of a Florida real estate associate

627license, license number 693909, issued by the Division.

6353. From January 4, 2005, until March 31, 2008, Ms. Coleman

646was registered as a sales associate with Cristal Clear Realty

656(hereinafter referred to the “Realty Company”).

662B. Cristal Clear Rentals, LLC., and Ms. Coleman’s

670Relationship Thereto .

6733. Cristal Clear Rentals, LLC (hereinafter referred to as

682the “CC Rentals”), is a Florida limited liability company

691registered with the office of the Florida Secretary of State,

701Division of Corporations.

7044. CC Rentals business consisted of marketing and renting

713for compensation transient rental properties.

7185. CC Rentals did not engage in the sale of real estate

730and, therefore, was not registered with the Division as a

740licensed real estate broker.

7446. Ms. Coleman became the sole managing member of CC

754Rentals as of December 5, 2007. As a managing member, CC

765Rentals office manager, rental manager, and accountant reported

773to her on a regular basis.

779C. The Richard Bloom and Greg Sousa Rentals .

7887. CC Rentals, at the times relevant, was managing two

798separate properties, one owned by Richard Bloom (hereinafter

806referred to as the “Bloom Property”), and one owned by Greg

817Sousa (hereinafter referred to as the “Sousa Property”). The

826nature of the role of CC Rentals in managing the Bloom Property

838and the Sousa Property was not proved. Whatever agreements

847existed as to the management of these properties was not proved.

858Nor was any evidence presented as to whether any money, in the

870form of a security deposit, rental fees, or any other form, was

882received or in the possession of CC Rentals at the times

893relevant to this matter.

8978. On or about May 6, 2008, a form email was sent from

910Ms. Coleman’s email address to clients of CC Rentals notifing

920clients of the financial demise of CC Rentals (hereinafter

929referred to as the “Email Notice”). The Email Notice was sent

940to Mr. Bloom and to Mr. Sousa.

9479. In pertinent part, the Notice Email stated:

955We regret to advise you that Cristal Clear

963Rentals, LLC is no longer sufficiently

969solvent to continue operating. The Company

975has ceased trading effective May 6, 2008.

982We have tried to weather a very difficult

990season where the economic crisis in our

997country has seriously impacted travel and

1003especially rentals in the Florida Keys this

1010year.

1011Since the Company has no funds, we need to

1020advise Owners:

1022The contract between you and Cristal

1028Clear Rentals, LLC is no longer valid

1035and is terminated.

1038There are no funds to pay Owners any

1046rentals collected but not yet paid to

1053Owners through April 2008.

1057If there are current reservations we

1063are providing the contact details below

1069to allow you to make direct contact

1076with your pending guests.

1080Since there are no funds in Cristal

1087Clear Rentals, LLC, the Company cannot

1093refund any security deposits to the

1099people who made the reservation. This

1105means that any Owner accepting the

1111reservation directly will need to

1116reimburse the guest out of pocket for

1123the amount of the Security Deposit

1129after their stay.

1132. . . .

113610. According the specific information included in Email

1144Notices sent to Mr. Bloom and Mr. Sousa, there were tenants in

1156the Bloom Property and Sousa Property of a term longer than a

1168transient rental. Ms. Coleman was not, however, aware of either

1178rental property or the nature of any agreement with Mr. Bloom

1189and Mr. Sousa for the management of their properties.

1198CONCLUSIONS OF LAW

1201A. Jurisdiction .

120411. The Division of Administrative Hearings has

1211jurisdiction over the subject matter of this proceeding and of

1221the parties thereto pursuant to Sections 120.569 and 120.57(1),

1230Florida Statutes (2009).

1233B. The Burden and Standard of Proof .

124112. The Division seeks to impose penalties against

1249Ms. Coleman pursuant to the Administrative Complaints that

1257include the suspension or revocation of her real estate

1266associate license. Therefore, the Division has the burden of

1275proving the specific allegations of fact that support its

1284charges by clear and convincing evidence. See Department of

1293Banking and Finance, Division of Securities and Investor

1301Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

1313Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

1325Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

1336DCA 1998).

133813. What constitutes "clear and convincing" evidence was

1346described by the court in Evans Packing Co. v. Department of

1357Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

1368(Fla. 1st DCA 1989), as follows:

1374. . . [C]lear and convincing evidence

1381requires that the evidence must be found to

1389be credible; the facts to which the

1396witnesses testify must be distinctly

1401remembered; the evidence must be precise and

1408explicit and the witnesses must be lacking

1415in confusion as to the facts in issue. The

1424evidence must be of such weight that it

1432produces in the mind of the trier of fact

1441the firm belief or conviction, without

1447hesitancy, as to the truth of the

1454allegations sought to be established.

1459Slomowitz v. Walker , 429 So. 2d 797, 800

1467(Fla. 4th DCA 1983).

1471See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

1484Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

1495Department of Business and Professional Regulation , 705 So. 2d

1504652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

1511C. The Charges of the Administrative Complaints .

151914. Section 475.25, Florida Statutes, authorizes the

1526Division to discipline any Florida real estate broker licensee

1535who commits any of a number of offenses defined therein. In

1546this case, the Division has charged Ms. Coleman with having

1556committed, with regard to the Bloom Property and the Sousa

1566Property, four violations: Section 475.25(1)(b), Florida

1572Statutes (Count One of each Administrative Complaint); Section

1580475.25(1)(d)1., Florida Statutes (Count Two of each

1587Administrative Complaint); Section 455.227(1)(j), Florida

1592Statutes (Count Three of each Administrative Complaint); and

1600Section 475.25(1)(e), Florida Statutes, by violating Section

1607475.42(1)(b), Florida Statutes (Count Four of each Administrative

1615Complaint).

161615. Section 475.25(1), Florida Statutes, provides the

1623following with regard to the charged offenses:

1630(1) The commission may deny an

1636application for licensure, registration, or

1641permit, or renewal thereof; may place a

1648licensee, registrant, or permittee on

1653probation; may suspend a license,

1658registration, or permit for a period not

1665exceeding 10 years; may revoke a license,

1672registration, or permit; may impose an

1678administrative fine not to exceed $5,000 for

1686each count or separate offense; and may

1693issue a reprimand, and any or all of the

1702foregoing, if it finds that the licensee,

1709registrant, permittee, or applicant:

1713. . . .

1717(b) Has been guilty of fraud,

1723misrepresentation, concealment, false

1726promises, false pretenses, dishonest dealing

1731by trick, scheme, or device, culpable

1737negligence, or breach of trust in any

1744business transaction in this state or any

1751other state, nation, or territory; has

1757violated a duty imposed upon her or him by

1766law or by the terms of a listing contract,

1775written, oral, express, or implied, in a

1782real estate transaction; has aided,

1787assisted, or conspired with any other person

1794engaged in any such misconduct and in

1801furtherance thereof; or has formed an

1807intent, design, or scheme to engage in any

1815such misconduct and committed an overt act

1822in furtherance of such intent, design, or

1829scheme. It is immaterial to the guilt of the

1838licensee that the victim or intended victim

1845of the misconduct has sustained no damage or

1853loss; that the damage or loss has been

1861settled and paid after discovery of the

1868misconduct; or that such victim or intended

1875victim was a customer or a person in

1883confidential relation with the licensee or

1889was an identified member of the general

1896public.

1897. . . .

1901(d)1. Has failed to account or deliver to

1909any person, including a licensee under this

1916chapter, at the time which has been agreed

1924upon or is required by law or, in the

1933absence of a fixed time, upon demand of the

1942person entitled to such accounting and

1948delivery, any personal property such as

1954money, fund, deposit, check, draft, abstract

1960of title, mortgage, conveyance, lease, or

1966other document or thing of value, including

1973a share of a real estate commission if a

1982civil judgment relating to the practice of

1989the licensee's profession has been obtained

1995against the licensee and said judgment has

2002not been satisfied in accordance with the

2009terms of the judgment within a reasonable

2016time, or any secret or illegal profit, or

2024any divisible share or portion thereof,

2030which has come into the licensee's hands and

2038which is not the licensee's property or

2045which the licensee is not in law or equity

2054entitled to retain under the circumstances.

2060. . .

2063(e) Has violated any of the provisions of

2071this chapter or any lawful order or rule

2079made or issued under the provisions of this

2087chapter or chapter 455.

209116. As to the violation of Section 475.25(1)(e), Florida

2100Statutes, it is alleged that Ms. Coleman violated Section

2109475.42(1)(b), Florida Statutes, which defines the following

2116“violation”: “A person licensed as a sales associate may not

2126operate as a broker or operate as a sales associate for any

2138person not registered as her or his employer.”

214617. Finally, Section 455.227(1)(j), Florida Statutes,

2152defines the following ground for disciplinary action: “Aiding,

2160assisting, procuring, employing, or advising any unlicensed

2167person or entity to practice a profession contrary to this

2177chapter, the chapter regulating the profession, or the rules of

2187the department or the board.”

2192D. The Division’s Proof .

219718. The essential allegations of the Administrative

2204Complaints in support of the alleged statutory violations all

2213turn on two essential facts: the nature of the agreements

2223between Mr. Bloom and Mr. Sousa and CC Rentals; and, whether

2234CC Rentals was in possession of any money which Mr. Bloom or

2246Mr. Sousa were entitled to which not paid to them by CC Rental.

2259Neither of these crucial facts was proved by competent

2268substantial evidence.

227019. While the Email Notice establishes that there was some

2280relationship between CC Rental and Mr. Bloom and Mr. Sousa, the

2291nature of the relationship is not proved clearly and

2300convincingly. Additionally, while the Email Notice clearly

2307states that no money owed to Mr. Bloom or Mr. Sousa would be

2320returned to them, the evidence failed to prove that any money

2331was in fact due. The Notice Email was a form notice sent to all

2345clients of CC Rental and only proved that, if any money was due

2358a client, CC Rental could not pay it.

236620. Based upon the foregoing, it is concluded that the

2376Division failed to prove any of the violations alleged in the

2387Administrative Complaints.

2389RECOMMENDATION

2390Based on the foregoing Findings of Fact and Conclusions of

2400Law, it is RECOMMENDED that a final order be entered by the

2412Commission:

24131. Finding that the Division failed to prove any of the

2424violations alleged in the Administrative Complaints; and

24312. Dismissing the Administrative Complaints.

2436DONE AND ENTERED this 23rd of November, 2009, in

2445Tallahassee, Leon County, Florida.

2449LARRY J. SARTIN

2452Administrative Law Judge

2455Division of Administrative Hearings

2459The DeSoto Building

24621230 Apalachee Parkway

2465Tallahassee, Florida 32399-3060

2468(850) 488-9675 SUNCOM 278-9675

2472Fax Filing (850) 921-6847

2476www.doah.state.fl.us

2477Filed with the Clerk of the

2483Division of Administrative Hearings

2487this 23rd day of November, 2009.

2493COPIES FURNISHED :

2496Jennifer Blakeman, Senior Attorney

2500Department of Business and

2504Professional Regulation

2506400 West Robinson Street

2510Hurston Building-North Tower, Suite N801

2515Orlando, Florida 32801

2518Nicholas W. Mulick, Esquire

2522Nicholas W. Mulick, P.A.

252691645 Overseas Highway

2529Tavernier, Florida 33070

2532Thomas W. O’Bryant, Jr., Director

2537Division of Real Estate

2541Department of Business and

2545Professional Regulation

2547400 West Robinson Street

2551Hurston Building-North Tower, Suite N802

2556Orlando, Florida 32801

2559Reginald Dixon, General Counsel

2563Department of Business and

2567Professional Regulation

2569Northwood Centre

25711940 North Monroe Street

2575Tallahassee, Florida 32399-0792

2578NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2584All parties have the right to submit written exceptions within

259415 days from the date of this recommended order. Any exceptions

2605to this recommended order should be filed with the agency that

2616will issue the final order in these cases.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/06/2010
Proceedings: Agency Final Order
PDF:
Date: 04/06/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 11/23/2009
Proceedings: Recommended Order
PDF:
Date: 11/23/2009
Proceedings: Recommended Order (hearing held September 23, 2009). CASE CLOSED.
PDF:
Date: 11/23/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/03/2009
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 11/02/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 10/02/2009
Proceedings: Transcript filed.
Date: 09/23/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/15/2009
Proceedings: Petitioner's Filing of Additional Witness filed.
PDF:
Date: 09/10/2009
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 08/19/2009
Proceedings: Petitioner's Filing of Additional Exhibit (exhibit not available for viewing) filed.
PDF:
Date: 08/19/2009
Proceedings: Petitioner's Filing of Exhibit's (exhibits not available for viewing) filed.
PDF:
Date: 08/14/2009
Proceedings: Petitioner's Filing of Exhibit's filed.
PDF:
Date: 08/14/2009
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 08/14/2009
Proceedings: Petitioner's Filing of Additional Exhibit filed.
PDF:
Date: 07/15/2009
Proceedings: Amended Notice of Hearing (hearing set for September 23, 2009; 9:30 a.m.; Key Largo, FL; amended as to location of hearing).
PDF:
Date: 07/10/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/10/2009
Proceedings: Notice of Hearing (hearing set for September 23, 2009; 9:30 a.m.; Key Largo, FL).
PDF:
Date: 07/07/2009
Proceedings: Order of Consolidation (DOAH Case Nos. 09-3337PL and 09-3338PL).
PDF:
Date: 07/07/2009
Proceedings: (Petitioner's) Motion to Consolidate filed.
PDF:
Date: 06/26/2009
Proceedings: Respondent's Response to Initial Order filed.
PDF:
Date: 06/23/2009
Proceedings: (Petitioner's) Unilateral Response to Initial Order filed.
PDF:
Date: 06/18/2009
Proceedings: Initial Order.
PDF:
Date: 06/18/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 06/18/2009
Proceedings: Answer to Administrative Complaint, Denial of Essential Allegations and Request for Formal Hearing filed.
PDF:
Date: 06/18/2009
Proceedings: Election of Rights filed.
PDF:
Date: 06/18/2009
Proceedings: Agency referral

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
06/18/2009
Date Assignment:
06/18/2009
Last Docket Entry:
04/06/2010
Location:
Key Largo, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Related Florida Statute(s) (6):