10-000387 Department Of Business And Professional Regulation, Division Of Real Estate vs. Cara S. Cacioppo Status: Closed Recommended Order on Wednesday, September 29, 2010.

Summary: Respondent is not guilty of acting as an unlicensed real estate agent/sales associate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0387

)

CARA S. CACIOPPO , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 22,

2010, in Wildwood, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jennif er Leigh Blakeman, Esquire

Department of Business

and Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: Cara S . Cacioppo, pro se

5756 West Costa Mesa Lane

Beverly Hills, Florida 34465

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondent acted as

a real estate agent/sales associate without being t he holder of

a valid and current real estate license in violation of Section

475.42(1)(a), Florida Statutes, and therefore, in violation of

Section 455.228, Florida Statutes; and, if so , (b) what penalty

should be imposed.

PRELIMINARY STATEMENT

Petition er , Department of Business and Professional

Regula tion (Petitioner) , issued a four - count Administrative

Complaint, dated July 27, 2009, against Cara S. Cacioppo

(Respondent). In each count, the complaint alleged that

Respondent was guilty of having operat ed as a real estate

broker/sales associate without being the holder of a valid and

current license as a real estate broker or sale associate.

In an Election of Rights form dated September 11, 2009,

Respondent requested an administrative hearing to chall enge the

allegations in the complaint. Petitioner referred the matter to

the Division of Administrative Hearings on January 26, 2010.

On February 2, 2010, Petitioner filed a Motion to

Consolidate the instant case wit h a related case, DOAH Case

No. 10 - 038 8PL. The undersigned issued an Order of Consolidation

dated February 12, 2010.

A Notice of Hearing dated February 12, 2010, scheduled the

hearing for April 6, 2010. However, after several continuances,

the case was rescheduled for hearing on July 22, 2010.

On July 16, 2010, Petitioner filed a Motion to Relinquish

Jurisdiction in DOAH Case No. 10 - 0388PL. On July 21, 2010, the

undersigned issued an Order Relinquishing Jurisdiction and

Closing File in DOAH Case No. 10 - 0388PL.

During the hearing, Pe titioner presented the testimony of

four witnesses. Petitioner offered eight exhibits, P2 - P9, which

were admitted as evidence.

Respondent testified on her own behalf and presented the

testimony of two additional witnesses. Respondent offered five

exhi bits, R1 - R5, which were accepted as evidence.

Petitioner filed a Proposed Recommended Order on August 13,

2010. The Transcript was filed on August 16, 2010. Respondent

filed a proposed order on August 26, 2010.

Hereinafter, all references shall be to Florida Statutes

(2005), except as otherwise noted.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

responsibility of regulating the real estate industry pursuant

to Chapters 455 and 475, Florida Statutes. As such, Petitioner

is authorized to prosecute cases a gainst persons who operate as

real estate agent s /sales associate s without a real estate

license.

2. At all times material, Respondent was not a licensed

Florida real estate agent/sales associate or broker. From

January 2005 to June 2007, Respondent worked as a

secretary/administrative assistant to Gail Gee, licensed Florida

real estate agent and broker affiliated with Tradewinds of

Mandalay, Inc., trading as Tradewinds Realty, a brokerage

corporation located in or near C rystal River, Florida.

Respondent was not the only secretary in the office.

3 . In 2005, Ms. Gee had three real estate sales offices.

The offices were located in Beverly Hills, Ozello, and Crystal

River, Florida. Respondent began working at Ms. Gee's main

office in Ozello, Florida. Ms. Gee was at that office seven

days a week in 2005.

4 . Ms. Gee paid Respondent hourly wages. Respondent's

duties included the following pursuant to Ms. Gee's

instructions: (a) answering the phone and taking message s;

( b) faxing documents and e - mail listings; (c) placing

advertisements; (d) drafting contracts; and (e) researching

public property records.

5 . Ms. Gee took Respondent to a convention so they could

participate in a class where the need for an agent to have a

policy and procedure manual was discussed. Ms . Gee bought a

computer disc of the proposed manual and subsequently used it to

create one of her own.

6 . Ms. Gee had all of her associate agents and employees

sign the manual. The manual advised t he employees, including

Respondent, what they could and could not do.

7 . Sometime before February 2005, Bruce Sculthorpe of Ann

Arbor, Michigan, found some property in Citrus County, Florida,

listed for sale on the internet. One property was located a t

984 4 North Burr Oak Terrace, in the Crystal Manor area of

Crystal River, Florida. The other property consisted of two

lots, Lots 206 and 207, in Waterman Subdivision, in Citrus

County, Florida. Mr. Sculthorpe then contacted Ms. Gee to make

further inqu iries about the properties.

8 . On or about February 7, 2005, Bruce and Julie

Sculthorpe brought the property located at 9844 North Burr Oak

Terrace from Mary Lynn Netzel, for $25,063.50. As a result of

this transaction, Ms. Gee received a commission i n the amount of

$2,500. The Sculthorpes bought the property without seeing it.

9 . On or about February 8, 2005, the Sculthorpes listed

t heir property located at 9844 North Burr Oak Terrace, Crystal

River, Florida, with Ms. Gee. The exclusive listing agreement

indicates that the sale price for the property was $75,000 and

that the Sculthorpes agreed to pay Ms. Gee a 10 percent

commission.

10 . Later in February 2005, Mr. Sculthorpe learned that

Respondent worked for Ms. Gee. Neither Ms. Gee nor Res pondent

ever represented to the Sculthorpes that Respondent was a

licensed real estate agent.

11 . In March or April of 2005, Julie Sculthorpe came to

Florida to see the property located at 9844 North Burr Oak

Terrace for the first and only time. Ms. S culthorpe made the

trip with two female friends. Ms. Sculthorpe was over an hour

late to her appointment with Ms. Gee who had another appointment

pending. Ms. Gee understood that Ms. Sculthorpe just wanted to

see her property and was not interested in pu rchasing property

or doing any business.

12 . Ms. Gee introduced Ms. Sculthorpe to Respondent as her

secretary/assistant. Ms . Gee asked Respondent to use Ms. Gee's

van to take Ms. Sculthorpe and her friends to see the

Sculthorpes' property and the surr ounding properties because

they were unfamiliar with the area.

13 . Respondent did not "show" Ms. Sculthorpe other

properties with the intent to interest the Sculthorpes in future

purchases. The tr ip consisted of going to 9844 North Burr Oak

Terrace an d back without stopping anywhere else to look at

property.

14 . During the trip to 9844 North Burr Oak Terrace,

Ms. Sculthorpe was not impressed with the surrounding property.

She indicated that she and her husband would not be interested

in property t hat looked like "Sanford and Son," with "trailers

and license plates in their decorative stuff all over the front

of their yards and stuff."

15 . Respondent did not advise Ms. Sculthorpe to lower the

price on the property located at 9844 North Burr Oak Te rrace in

order to sell it quickly. Ms. Gee eventually made that

suggestion to the Sculthorpes.

16 . The record is silent regarding the circumstances of

the SculthorpesÓ purchase of property in the Waterman

subdivision. On or about June 28, 2005, the S culthorpes listed

their properties, Lots 206 and 207, in the Waterman Subdivision,

Crystal River, Florida, with Ms. Gee. The listing price for

each lot was $175,000. The Sculthorpes agreed to pa y Ms. Gee a

commission in the am ou n t of 8 percent on each lo t.

17 . On or about August 1, 2005, Gustavo Roperto and

Nathalie Roperto of West Palm Beach, Florida, bo ught property

located at 9844 North Burr Oak Terrace, Crystal River, Florida,

from the Sculthorpes for the contract sales price of $70,000.

As a res ult of this transaction, Tradewinds Realty and Exit

Realty, of Naples, Florida, each received $2,800 in commission.

The Sculthorpes made about $40,000 in profit in about six - months

time.

18 . Ms. Gee negotiated the sale price of the property

located at 9844 North Burr Oak Terrace. Respondent's only

involvement in the sale was in facilitating communication

between the Sculthorpes and Ms. Gee. Respondent did not loc ate

the buyers, Mr. and Mrs. Rop erto, or make any decision or make

any statement about th e property to the Sculthorpes, other than

as instructed by Ms. Gee.

19 . On September 3, 2005, Julie Sculthorpe's son died.

Mr. Sculthrope had subsequent conversations with Respondent

regarding the need to find a home for the deceased son's dogs.

Late r, Mr. Sculthorpe talked to Respondent about other personal

matters, like finding a Christmas gift for his wife, Julie

Sculthorpe.

20 . On or about September 21, 2005, the Sculthorpes signed

a contract to purc hase property located at 1106 South Ozello

T rail in Citrus County, Florida, from Willard Radcliffs of

Brooksville, Florida. The property is also described as Lots 9

and 10, St. Martians Esturary Retreats, Unit 1, in Citrus

County, Florida. The Sculthorpes agreed to pay Mr. Radcliffs

$285,000.00 fo r the property. The sales contract indicated that

Tradewinds Realty would receive commissions as the selling and

listing real estate agent.

21 . The sale of the property located at 1106 South Ozello

Trail closed on October 27, 2005, giving the Sculthor pes title

to the propertyadewinds Realty received a commission in the

amount of $17,000 for the sale of the property.

22 . On or about October 7, 2005, the St. Lucie Development

Corporation, located in Vero Beach, Florida, bought property

described as Lot 206, Waterman Subdivision in Crystal River,

Florida, from the Sculthorpes for the contract sales price of

$160,000. As a result of this transaction, Tradewinds Realty

and Kevin S. Hawkins each received commissions in the amount of

$6,400.

23 . On or about October 7, 2005, Orion Property and Sales,

Inc., located in Ft. Pierce, Florida, bought property described

as Lot 207, Waterman Subdivision in Crystal River, Florida, from

the Sculthorpes for the contract sales price of $160,000. As a

result o f this transaction, Tradewinds Realty and

Kevin S. Hawkins each received commis sions in the amount of

$6,400.

24 . Lots 206 and 207, located in the Waterman Subdivision

in Crystal River, Florida, are sometimes referred to in the

record as the Hunt Point L ots. There is no persuasive evidence

that Respondent had any involvement in the sale of the Hunt

Point property to St. Lucie Development Corporation and to Orion

Property and Sales, Inc., other than as instructed by Ms. Gee.

25 . On or about November 1 5, 2005, the Sculthorpes listed

the property located at 1106 Ozello Trail (Lots 9 and 10 in St.

Martians Estuary Retreats) for sale with Ms. Gee. The

Sculthorpes signed on exclusive listing agreement to sell Lot 9

for $249,000. They signed another exclus ive listing agreement

to sell Lot 10 for $249,000. In both agreements, the

Sculthorpes agreed to pay Ms. Gee a commission in the amount of

8 percent.

26 . Ms. Gee subsequently advertised Lot 9 in St. Martians

Estuary Retreats as for sale for $214,000. At the time of the

hearing, the Sculthorpes still owned the property located at

1106 Ozello Tr ail (Lots 9 and 10 in St. Marti ns Esturary

Retreats ) .

27 . When the Sculthorpes purchased the property at 1106

Ozello Trail, there was a stilt house on one lo t and a screened

enclosure with a fireplace on the other lot. The Sculthorpes

paid to have both structures removed before listing the lots for

sale. Respondent was not involved in finding someone to remove

the structures for Bruce and Julie Sculthorpe.

28 . Respondent began working part - time for another real

estate broker/developer, John Holdsworth, sometime toward the

end of 2005. Mr. Holdsworth owned a restaurant across the

street from Ms. Gee's office. Mr. Holdsworth hired Respondent

to manage the restaurant because of her prior experience owning

and operating a pizzeria.

29 . Ms. Gee and Mr. Holdsworth paid Respondent by the hour

for time spent in each respective business. Ms. Gee hired

another secretary around December 2005, to do the work

Re spondent no longer had time to do.

30 . During his business relationship with Ms. Gee,

Mr. Sculthorpe would call her, repeatedly asking, "What's next?"

He also called Respondent repeatedly, wanting information about

his properties or just to discuss hi s personal life.

Mr. Sculthorpe used e - mail and Instant Messaging so much that,

on one occasion, Ms. Gee instructed Respondent to turn off the

computer so she could get other work done.

31 . Ms. Gee and Respondent were not the only people in the

office answering Mr. Sculthorpe's calls. Other secretaries in

the office answered some of the calls . On some occasions, the

office staff would look at each other and ask who wanted to take

the call. On other o ccasions, Respondent placed

Mr. Sculthorpe's call on speakerphone . Mr. Sculthorpe "would

talk and talk and talk and talk" while Respondent continued to

do her work.

32 . At some point in time, Mr. Sculthorpe advised

Respondent that he did not like paying commissions to Ms. Gee.

Respondent then recomm ended that Mr. Sculthorpe take the same

real estate licensure course that she was taking. Respondent

gave Mr. Sculthorpe the web site for the real estate school.

33 . At some point in time, Mr. Sculthorpe's sister - in - law,

Linda Wilkinson went to Crysta l River. Ms. Wilkinson was a real

estate agent in another state. Ms. Gee showed Ms. Wilkinson

some property located in an area known as Bimini Bay.

Respondent never met with or talked to Ms. Wilkinson.

34 . During the hearing, Mr. Sculthorpe testified that

Respondent encouraged him to buy another piece of property.

Accordi ng to Mr. Sculthorpe, Respondent asked him to refer her

to another buyer after he re fused to buy the property.

Mr. Sculthorpe's testimony in this regard is not persuasive.

35 . To ward the end of the Sculthorpes' relationship with

Ms. Gee, Respond ent was still working only part - time with

Ms. Gee. After Mr. Holdsworth closed the restaurant, Respondent

continued to work for Ms. Gee.

36 . In June 2006, Ms. Gee moved Respondent from the Ozello

office to a new office that became Ms. Gee's primary office. In

June 2007, Respondent quit working for Ms. Gee because she could

no longer afford to pay Respondent a salary.

37 . At $33 per hour for an investigator's time, Petitioner

spent $412.50 investigating this case.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2010) .

39 . Petit ioner has the burden of proving, by clear and

convincing evidence that Respondent operated as an unlicensed

real estate agent/sales associate. See Department of Banking

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

1996), and Ferris v. Tur lington , 510 So. 2d 292 (Fla. 1987).

40 . Section 475.42(1)(a), Florida Statutes, prohibits any

person from acting as a real estate broker or sales associate in

Florida without a valid license. This statute warns that a

violation of this law is a felony.

41 . Section 475.01(3), Florida Statutes, provides that a

person operates as a real estate broker or sales person if he or

she commits one or more of the acts described in Chapter 475,

Florida Statutes, as constituting or defining a broker, broker -

sale s associate, or sales associate. The statute states that

"[a] single such act is sufficient to bring a person within the

meaning of this chapter, and each act, if prohibited herein,

constitutes a separate offense."

42 . Section 475.01(1)(a), Florida St atutes, provides as

follows in relevant part:

"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 compe nsation

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 an y

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,

aucti oning, 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 les sees 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 wh ich 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.

43 . In this case, the evidence is not persuasive that

Respondent acted as anything b ut a secretary/assistant to

Ms. Gee. Respondent did not discuss and/or negotiate pricing,

show properties, attempt to convince the Sculthorpes to purchase

p roperties or to reduce the price of property, or operate as a

real estate agent/sales associate. Evidence to the contrary is

not credible.

44 . Respondent performed secretarial duties as instructed

by Ms. Gee. She answered the phone, took phone and co mputer

messages, faxed documents and e - mail listing s , placed

advertisements, drafted contracts, and researched public

property records. Neither Respondent nor Ms. Gee ever

represented to the Sculthorpes, or any other person, that

Respondent was a licensed sales associate.

45 . Respondent had to spend an inordinate amount of time

listening to Mr. Sculthorpe on the phone. A lot of those

conversations related only to Mr. Sculthrope's personal life.

46 . Respondent also spent time facilitating communica tion

between Mr. Sculthorpe and Ms. Gee using a computer. However,

Respondent was not the only one in the office to use the

computer at Respondent's workstation . In any event, the most

persuasive evidence indicates that Respondent did not use the

compute r to engage in extensive discussions with Mr. Sculthrope

regarding properties.

47 . Petitioner has not met its burden of proof in this

case. The evidence is not clear and convincing that Respondent

violated Section 475.42(1)(a), Florida Statutes.

REC OMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

law, it is

Recommended:

That Petitioner enter a final order dismissing the

Administrative Complaint .

DONE AND ENTERED this 29th day of September, 2010 , in

Tallahassee, Leon Coun ty, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September , 2010 .

COPIES FURNISHED :

Jennifer Leigh Blakeman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orla ndo, Florida 32801

Cara S. Cacioppo

5756 West Costa Mesa Lane

Beverly Hills, Florida 34465

Heather A. Rutecki, Esquire

Rutecki & Associates, P.A.

Bank of America Tower

100 Southeast Second Street, Suite 2950

Miami, Florida 33131

Thomas W. OÓBryant, J r., Director

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Reginald Dixon, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 323 99 - 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 Fi nal Order in this case.