09-000977PL Department Of Business And Professional Regulation, Regulatory Council Of Community Association Managers vs. Raul Aguilera Status: Closed Recommended Order on Wednesday, June 10, 2009.

Summary: Respondent violated the statute when he misinformed Petitioner that an election of directors for an association had been cancelled, when in fact the election was held as scheduled.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

REGULATORY COUNCIL OF COMMUNITY )

ASSOCIATION MANAGERS, )

)

Petitioner, )

)

vs. ) Case No. 09-0977PL

)

RAUL AGUILERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

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

Division of Administrative Hearings, on April 24, 2009, by video

teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Philip Francis Monte, III

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Raul Aguilera, pro se

2200 Northwest 102nd Avenue

Apartment 5

Miami, Florida 33172

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent, Raul

Aguilera, committed the violation alleged in an Administrative

Complaint, DPBR Case Number 2007-065018, issued by Petitioner

Department of Business and Professional Regulation on

January 12, 2009, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On January 12, 2009, an Administrative Complaint was issued

by the Department of Business and Professional Regulation in

DPBR Case No. 2007-065018 against Respondent, alleging that

Respondent had violated Section 468.436(1)(a), Florida Statutes,

by having violated Section 455.227(1)(m), Florida Statutes.

On or about February 13, 2009, Respondent filed an Election

of Rights form with Petitioner requesting a formal hearing to

contest the allegations of fact contained in the Administrative

Complaint.

The Administrative Complaint and Respondent's request for

hearing was filed with the Division of Administrative Hearings

on February 19, 2009, with a request that it be assigned to an

administrative law judge. The request was designated DOAH Case

No. 09-0977PL and was assigned to the undersigned.

The final hearing of this matter was scheduled for

April 24, 2009, by Notice of Hearing by Video Teleconferencing

entered March 4, 2009.

On April 10, 2009, Petitioner filed a Motion to Amend

Complaint to Correct Scrivener’s Error. That Motion was granted

and an Order was entered on April 20, 2009. The error corrected

was to add the word “he” in paragraph 9, of the Administrative

Complaint, so that the paragraph reads as follows: “In a letter

dated December 10, 2007, Respondent admitted that he had

misrepresented facts regarding the election to Carroll.”

At the final hearing, Petitioner presented the testimony of

Danielle Carroll. Petitioner's Exhibits numbered 1 through 12

were admitted without objection. Respondent testified in his

own behalf and presented the testimony of Ron Sedano.

Respondent’s Exhibit number 1 was admitted. That Exhibit was

filed by Respondent on April 30, 2009.

A one-volume Transcript of the final hearing was filed with

the Division of Administrative Hearings on May 14, 2009. By

agreement of the parties, proposed recommended orders were to be

filed on or before May 26, 2008. Petitioner filed “Respondent’s

[sic] Proposed Recommended Order” on May 20, 2009. Respondent

filed a letter on May 26, 2009. Because a copy of the letter

had not been provided to Petitioner, a Notice of Ex Parte

Communication was entered on June 1, 2009, giving Petitioner

until June 17, 2009, to respond to the letter. On June 9, 2009,

counsel for Petitioner indicated to the undersigned’s

administrative assistant that no response would be filed.

Therefore, this Recommended Order, after having considered the

Proposed Recommended Order of Petitioner and Respondent’s

May 26, 2009, letter, is being entered prior to June 17, 2009.

Both pleadings have been fully considered in entering this

Recommended Order.

All references to Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the 2007

versions unless otherwise indicated.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

Regulation (hereinafter referred to as the "Department"), is the

state agency charged with regulating the practice of community

association management pursuant to Chapters 455 and 468, Florida

Statutes.

2. Raul Aguilera is and was at the times material to this

proceeding a licensed Florida Community Association Manager

number CAM 6844.

3. At the times material to this proceeding,

Mr. Aguilera’s address of record was 2200 Northwest 102nd

Avenue, Apartment 5, Miami, Florida.

B. Courts of Birdwood Condominium Association .

4. At the times material to this proceeding, Mr. Aguilera

served as the Manager of SPM Group, Inc., and as the CAM for the

Courts of Birdwood Condominium Association (hereinafter referred

to as the “Association”).

C. The Association’s 2007 Election .

5. On or about October 16, 2007, the Department received a

petition package from residents of the Association requesting

the appointment of an election monitor (hereinafter referred to

as the “Petition”), an Association election that had been

scheduled for November 7, 2007. The Petition was reviewed and

determined to be complete.

6. At the time of receipt of the Petition, Danielle

Carroll was the Department’s “Condominium Ombudsmen.” See §

718.5011, Fla. Stat. Among other powers, Section 718.5012(5),

Florida Statutes, grants the following power to the Condominium

Ombudsmen:

(5) To monitor and review procedures and

disputes concerning condominium elections or

meetings, including, but not limited to,

recommending that the division pursue

enforcement action in any manner where there

is reasonable cause to believe that election

misconduct has occurred.

7. Section 718.5012(9), Florida Statutes, establishes the

Condominium Ombudsmen’s authority with regard to elections

disputes:

(9) Fifteen percent of the total voting

interests in a condominium association, or

six unit owners, whichever is greater, may

petition the ombudsman to appoint an

election monitor to attend the annual

meeting of the unit owners and conduct the

election of directors. The ombudsman shall

appoint a division employee, a person or

persons specializing in condominium election

monitoring, or an attorney licensed to

practice in this state as the election

monitor. All costs associated with the

election monitoring process shall be paid by

the association. The division shall adopt a

rule establishing procedures for the

appointment of election monitors and the

scope and extent of the monitor's role in

the election process.

8. Pursuant to the foregoing quoted charge, Ms. Carroll

first verified that 15 percent of the Association’s residents

had signed the Petition requesting the appointment of a monitor.

9. Once Ms. Carroll had verified that she was authorized

and, indeed, required to appoint an election monitor for the

Association, she sent a letter dated October 7, 2007, addressed

to the “Board of Directors” of the Association notifying them

that the Petition had been received, that it had been determined

to be complete and sufficient, and that she had, pursuant to the

authority of Section 718.5012(9), Florida Statutes, and Florida

Administrative Code Rule 61B-00215, “appointed an election

monitor to attend and conduct the election of directors at your

association’s annual meeting.” Ms. Carroll also informed the

Association that “all costs associated with the election

monitoring process shall be paid by the association.”

10. Once a request for an election monitor has been

received and verified, the Condominium Ombudsmen will not cancel

the monitor unless the scheduled election is cancelled.

11. In response to Ms. Carroll’s October 7, 2007, letter,

Mr. Aguilera spoke with Ms. Carroll by telephone on or about

October 25, 2007. During this conversation, Mr. Aguilera told

Ms. Carroll that “the Board members aren’t running for re-

election and so there wasn’t going to be an election.” In fact,

while the dispute that had led to the filing of the Petition had

been resolved, the November 7, 2007, election had not been

cancelled, which Mr. Aguilera was fully aware of.

12. In a letter dated October 29, 2007, from Mr. Aguilera

to Ms. Carroll, Mr. Aguilera confirmed that there would be no

election:

IN RESPONSE TO YOUR LETTER DATED OCTOBER 25,

2007 [NOT OFFERED AT HEARING], I MUST ADVISE

THAT THERE WAS NO ELECTION BEING HELD DUE TO

THE FACT THAT THE PRERSON THAT FILLED [SIC]

PETITION FOR RLECTION MONITOR WILL BE ON THE

BOARD OF DIRECTORS AUTOMATICALLY.

NO MEMBERS OF THE PRIOR BOARD OF DIRECTORS

SIGNEDUP FOR THE ELECTIONS [SIC].

. . . .

13. Mr. Aguilera’s representation to Ms. Carroll in the

October 29, 2007, letter was only partially correct, as

Mr. Aguilera was fully aware. What had actually happened was

that the Petition had been signed and filed because the

residents who signed it were upset with the current Board of

Directors. The persons on the Association’s Board of Directors

who the residents signing the Petition were upset with decided

not to run for re-election. This decision eliminated the

concern which had generated the Petition. Additionally,

Mr. Aguilera was concerned about the costs associated with

having a monitor at the election. In an effort to avoid the

costs of the monitor, Mr. Aguilera simply told Ms. Carroll that

the election had been cancelled.

14. Despite Mr. Aguilera’s representations to the

contrary, the election of the Association’s Board of Directors

was held as scheduled on November 7, 2007. Seven candidates

were listed on the election ballot and five of those individuals

were elected. Because the number of candidates exceeded the

number of positions, the election was necessary. See §

719.112(2)(d)1., Fla. Stat.

15. In a letter dated December 10, 2007, from Mr. Aguilera

to the Department’s Bureau Chief-Investigations, Mr. Aguilera

admitted that he “made a wrong decision and wrote a letter to

give some answers to the (DPBR) request.”

CONCLUSIONS OF LAW

A. Jurisdiction .

16. 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 (2008).

B. The Burden and Standard of Proof .

17. In the Administrative Complaint, the Department seeks

to impose penalties against Mr. Aguilera, including suspension

or revocation of his license and/or the imposition of an

administrative fine. The Department, therefore, has the burden

of proving the allegations of the Amended Administrative

Complaint by clear and convincing evidence. 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 Nair v.

Department of Business & Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

18. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined "clear and convincing evidence" 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).

C. The Charge Against Mr. Aguilera .

19. The Department has charged that Mr. Aguilera violated

Section 468.436(1)(a), Florida Statutes, which provides that

disciplinary action may be taken against the license of a CAM if

it is found that the CAM has violated any provision of Section

455.227(1), Florida Statutes. The Department alleges in the

Administrative Complaint that Mr. Aguilera violated Section

455.227(1)(m), Florida Statutes.

20. Section 455.227(1)(m), Florida Statutes, defines the

following disciplinable offense: “Making deceptive, untrue, or

fraudulent representations in or related to the practice of a

profession or employing a trick or scheme in or related to the

practice of a profession.”

21. Although the evidence failed to prove that

Mr. Aguilera was attempting to protect himself or obtain some

benefit for himself, the Department proved clearly and

convincingly that he made “deceptive, untrue, or fraudulent

representations in or related to the practice of a profession

and, therefore, that he violated Section 468.436(1)(a), Florida

Statutes, as alleged in the Administrative Complaint.

G. The Appropriate Penalty .

22. The only issue remaining for consideration is the

appropriate disciplinary action which should be taken by the

Department against Mr. Aguilera for the violation that has been

proved. To resolve this issue it is necessary to consult the

"disciplinary guidelines" of Florida Administrative Code Rule

61-20.010. Those guidelines effectively place restrictions and

limitations on the exercise of the Department’s disciplinary

authority in this case. 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 § 455.2273(5), Fla. Stat.

23. The Department has proved that Mr. Aguilera violated

Section 468.436(1)(a), Florida Statutes, by violating Section

455.227(1)(m), Florida Statutes as alleged, in part, in the

Administrative Complaint. The penalty guideline for this

$5000 fine; costs.” Fla. Admin. Code R. 61-20.010(5)(ff).

24. In addition to considering the adopted penalty ranges,

Florida Administrative Code Rule 61-20.010(2), provides for a

consideration of certain aggravating and mitigating

circumstances:

(a) Danger to the public;

(b) Physical or financial harm resulting

from the violation;

(c) Prior violations committed by the

subject;

(d) Length of time the registrant or

licensee has practiced;

(e) Deterrent effect of the penalty;

(f) Correction or attempted correction of

the violation;

(g) Effect on the registrant’s or

licensee’s livelihood;

(h) Any efforts toward rehabilitation;

(i) Any other aggravating or mitigating

factor which is directly relevant under the

circumstances.

25. In its Proposed Recommended Order, Petitioner has

suggested that Mr. Aguilera’s license be placed on probation for

18 months, that he attend 12 hours of continuing education in

CAM practice within one year of the issuance of a final order in

this matter, that he pay a fine of $750.00, and that he pay

costs in the amount of $316.12. While generally reasonable, it

will be recommended that the period of probation should only be

12 months in light of the fact that Mr. Aguilera was simply

attempting to avoid the costs the Association would have had to

pay for the election monitor when the problem that gave rise to

the filing of the Petition had been resolved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a final order finding that

Mr. Aguilera committed the violation described in this

Recommended Order and imposing the following penalties:

1. Probation for 12 months, beginning upon the entry of

the final order in this case;

2. Payment of an administrative fine in the amount of

$750.00;

3. Attendance at 12 hours of continuing education in CAM

practice to be completed within his probation period; and

4. Payment to the Department of costs of $316.12.

DONE AND ENTERED this 10th day of June, 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 10th day of June, 2009.

COPIES FURNISHED :

Philip F. Monte, III, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Raul Aguilera

2200 Northwest 102nd Avenue

Apartment 5

Miami, Florida 33172

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Anthony B. Spivey, Executive Director

Regulatory Council of Community

Association of Managers

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 this case.