10-001609PL
Department Of Business And Professional Regulation, Division Of Real Estate vs.
Michael Jacob Piwko
Status: Closed
Recommended Order on Friday, June 18, 2010.
Recommended Order on Friday, June 18, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF REAL ESTATE, )
21)
22Petitioner, )
24)
25vs. ) Case No. 10-1609PL
30)
31MICHAEL JACOB PIWKO, )
35)
36Respondent. )
38)
39RECOMMENDED ORDER
41Pursuant to notice, a formal hearing was held in this case
52by video teleconference on May 6, 2010, with the parties to
63appear from Orlando, Florida, before J. D. Parrish, a designated
73Administrative Law Judge of the Division of Administrative
81Hearings.
82APPEARANCES
83For Petitioner: Joseph A. Solla, III, Esquire
90Department of Business and
94Professional Regulation,
96Division of Real Estate
100400 West Robinson Street, N801
105Orlando, Florida 32801-1757
108For Respondent: No Appearance
112STATEMENT OF THE ISSUES
116Whether Michael Jacob Piwko (Respondent), committed the
123violations alleged in the Administrative Complaint dated
130December 15, 2009, and, if so, what penalties should be imposed.
141PRELIMINARY STATEMENT
143The Department of Business and Professional Regulation,
150Division of Real Estate (Petitioner) filed a four-count
158Administrative Complaint against Respondent that alleged
164violations of Subsection 475.25(1), Florida Statutes (2008).
171The alleged violations stemmed from Respondents dealings with
179one individual who allegedly deposited funds with Respondent in
188the course of real estate transactions that ultimately were not
198completed. All references to law are to Florida Statutes (2008)
208unless otherwise stated.
211On or about January 15, 2010, Respondent, through counsel,
220forwarded a Notice of Appearance, Answer, Request for
228Investigative File, Request for Formal Hearing, Motion to
236Dismiss for Lack of Subject Matter Jurisdiction and Request for
246Attorneys Fees. Thereafter, the matter was forwarded to the
255Division of Administrative Hearings (DOAH) for formal
262proceedings. Timely with the referral, an Initial Order was
271issued on March 25, 2010.
276On March 31, 2010, a Notice of Withdrawal was filed by
287Respondent's counsel followed by Petitioner's Unilateral
293Response to Initial Order on April 1, 2010. An Order on the
305Notice of Withdrawal was entered on April 6, 2010, that
315provided, in pertinent part:
319A Notice of Withdrawal has been filed by
327Heather Rutecki, Esquire, counsel for
332Respondent, in this case. The Notice fails
339to comply with Florida Administrative Code
345Rule 28-106.105(3):
347On written motion served on the party
354represented and all other parties of
360record, the presiding officer shall
365grant counsel of record . . . leave to
374withdraw for good cause shown.
379The Notice fails to include a certificate of
387service indicating that Respondent or
392counsel for Petitioner have been served with
399the Notice and is not in the form of a
409motion. No action to remove Ms. Rutecki as
417counsel of record will be taken until
424Florida Administrative Code Rule
42828-106.105(3) is complied with.
432On April 14, 2010, a Notice of Hearing by Video
442Teleconference and an Order of Pre-hearing Instructions were
450entered. The case was set for hearing for May 6, 2010.
461A second Notice of Withdrawal was filed by Respondents
470counsel on May 3, 2010. It is more fully addressed in the
482conclusions of law below as is the Motion for Emergency Relief
493Where Final Hearing Held in [sic] Absent of Both Respondent and
504Counsel for Respondent.
507At the hearing, Petitioner presented the testimony of
515Joaquin Inigo and Arthur Soule. The documents attached to the
525Administrative Complaint were admitted into evidence as Exhibits
5331-3. The Transcript of the proceedings was filed with DOAH on
544June 10, 2010. Petitioner timely filed a Proposed Recommended
553Order.
554FINDINGS OF FACT
5571. Petitioner is an agency of the State of Florida created
568by Section 20.165, Florida Statutes. Petitioner is charged with
577the responsibility of regulating the real estate industry in
586Florida pursuant to Chapters 455 and 475, Florida Statutes. As
596such, Petitioner is fully authorized to prosecute disciplinary
604cases against real estate licensees.
6092. Respondent was at the times material to this matter,
619the holder of a Florida real estate associate license, license
629number 707518, issued by Petitioner. As last known, Respondent
638was an active sales associate with All Star Investment Realty,
648Inc., 9425 Sunset Drive #180, Miami, Florida 33173.
6563. From January 2008 through May 2008, Respondent was
665employed as a sales associate with Enrique Piwko, the qualifying
675broker for All Star Investment Realty, Inc.
6824. In January of 2008, Joaquin Inigo, a buyer, sought to
693purchase a condominium in Tampa, Florida. He gave Respondent a
703deposit for the purchase, but was later advised the deal had
714fallen through.
7165. On or about May 17, 2008, Mr. Inigo executed a contract
728for purchase and sale seeking to acquire a second condominium,
738unit number 208, at 310 Crestwood Circle, Royal Palm Beach,
748Florida 33411. As part of the transactions with Respondent,
757Mr. Inigo tendered approximately $77,000.00 to Respondent to be
767applied to the purchase price of unit 208.
7756. Monies were tendered to Respondent directly because
783Mr. Inigo expected Respondent to get an employee discount
792related to the sale and pass that on to him.
8027. The closing date in July passed without unit 208 being
813conveyed to Mr. Inigo. Efforts to achieve a refund of the
824deposit monies were fruitless.
8288. Upon investigation of the matter, Petitioner discovered
836that Respondent never deposited Mr. Inigos funds in escrow with
846his broker. Petitioner did not negotiate the purchase of
855unit 208. Petitioner did not refund the deposit monies.
8649. All monies provided by Mr. Inigo to Respondent were for
875the purchase of unit 208 and were not a personal loan to
887Respondent.
88810. Respondent asserted in pleadings that the monies from
897Mr. Inigo were a personal loan. Respondent did not, however,
907present written evidence of the alleged loan or its terms and
918declined to respond to the investigatory efforts made by
927Petitioner.
92811. Petitioner did not present evidence regarding the cost
937of investigating this matter.
941CONCLUSIONS OF LAW
94412. DOAH has jurisdiction over the subject matter of this
954proceeding and of the parties thereto pursuant to Sections
963120.569 and 120.57(1), Florida Statutes (2009).
96913. Petitioner seeks to impose administrative penalties
976against Respondent that include the suspension or revocation of
985his real estate license. Therefore, Petitioner has the burden
994of proving the specific allegations of fact that support its
1004charges by clear and convincing evidence. See Department of
1013Banking and Finance, Division of Securities and Investor
1021Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);
1033Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.
1045Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d
1056DCA 1998).
105814. What constitutes clear and convincing evidence was
1066described by the court in Evans Packing Co. v. Department of
1077Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5
1088(Fla. 1st DCA 1989), as follows:
1094[C]lear and convincing evidence requires
1099that the evidence must be found to be
1107credible; the facts to which the witnesses
1114testify must be distinctly remembered; the
1120evidence must be precise and explicit and
1127the witnesses must be lacking in confusion
1134as to the facts in issue. The evidence must
1143be of such weight that it produces in the
1152mind of the trier of fact the firm belief or
1162conviction, without hesitancy, as to the
1168truth of the allegations sought to be
1175established. Slomowitz v. Walker , 429 So. 2d
1182797, 800 (Fla. 4th DCA 1983).
1188See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re
1201Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida
1212Department of Business and Professional Regulation , 705 So. 2d
1221652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
122815. Section 475.25, Florida Statutes, authorizes
1234Petitioner to discipline any Florida real estate licensee who
1243commits any of a number of offenses defined by the statute.
1254Pertinent to this case, however, are the following provisions
1263that Petitioner alleged Respondent violated:
1268(1) The commission may deny an application
1275for licensure, registration, or permit, or
1281renewal thereof; may place a licensee,
1287registrant, or permittee on probation; may
1293suspend a license, registration, or permit
1299for a period not exceeding 10 years; may
1307revoke a license, registration, or permit;
1313may impose an administrative fine not to
1320exceed $5,000 for each count or separate
1328offense; and may issue a reprimand, and any
1336or all of the foregoing, if it finds that
1345the licensee, registrant, permittee, or
1350applicant:
1351* * *
1354(b) Has been guilty of fraud,
1360misrepresentation, concealment, false
1363promises, false pretenses, dishonest dealing
1368by trick, scheme, or device, culpable
1374negligence, or breach of trust in any
1381business transaction in this state or any
1388other state, nation, or territory; has
1394violated a duty imposed upon her or him by
1403law or by the terms of a listing contract,
1412written, oral, express, or implied, in a
1419real estate transaction; has aided,
1424assisted, or conspired with any other person
1431engaged in any such misconduct and in
1438furtherance thereof; or has formed an
1444intent, design, or scheme to engage in any
1452such misconduct and committed an overt act
1459in furtherance of such intent, design, or
1466scheme. It is immaterial to the guilt of
1474the licensee that the victim or intended
1481victim of the misconduct has sustained no
1488damage or loss; that the damage or loss has
1497been settled and paid after discovery of the
1505misconduct; or that such victim or intended
1512victim was a customer or a person in
1520confidential relation with the licensee or
1526was an identified member of the general
1533public.
1534* * *
1537(d)1. Has failed to account or deliver to
1545any person, including a licensee under this
1552chapter, at the time which has been agreed
1560upon or is required by law or, in the
1569absence of a fixed time, upon demand of the
1578person entitled to such accounting and
1584delivery, any personal property such as
1590money, fund, deposit, check, draft, abstract
1596of title, mortgage, conveyance, lease, or
1602other document or thing of value, including
1609a share of a real estate commission if a
1618civil judgment relating to the practice of
1625the licensees profession has been obtained
1631against the licensee and said judgment has
1638not been satisfied in accordance with the
1645terms of the judgment within a reasonable
1652time, or any secret or illegal profit, or
1660any divisible share or portion thereof,
1666which has come into the licensees hands and
1674which is not the licensees property or
1681which the licensee is not in law or equity
1690entitled to retain under the circumstances.
1696However, if the licensee, in good faith,
1703entertains doubt as to what person is
1710entitled to the accounting and delivery of
1717the escrowed property, or if conflicting
1723demands have been made upon the licensee for
1731the escrowed property, which property she or
1738he still maintains in her or his escrow or
1747trust account, the licensee shall promptly
1753notify the commission of such doubts or
1760conflicting demands and shall promptly:
1765a. Request that the commission issue an
1772escrow disbursement order determining who is
1778entitled to the escrowed property;
1783b. With the consent of all parties, submit
1791the matter to arbitration;
1795c. By interpleader or otherwise, seek
1801adjudication of the matter by a court; or
1809d. With the written consent of all parties,
1817submit the matter to mediation. The
1823department may conduct mediation or may
1829contract with public or private entities for
1836mediation services. However, the mediation
1841process must be successfully completed
1846within 90 days following the last demand or
1854the licensee shall promptly employ one of
1861the other escape procedures contained in
1867this section. Payment for mediation will be
1874as agreed to in writing by the parties. The
1883department may adopt rules to implement this
1890section.
1891If the licensee promptly employs one of the
1899escape procedures contained herein and
1904abides by the order or judgment resulting
1911therefrom, no administrative complaint may
1916be filed against the licensee for failure to
1924account for, deliver, or maintain the
1930escrowed property. Under certain
1934circumstances, which the commission shall
1939set forth by rule, a licensee may disburse
1947property from the licensees escrow account
1953without notifying the commission or
1958employing one of the procedures listed in
1965sub-subparagraphs a.-d. If the buyer of a
1972residential condominium unit delivers to a
1978licensee written notice of the buyers
1984intent to cancel the contract for sale and
1992purchase, as authorized by s. 718.503, or if
2000the buyer of real property in good faith
2008fails to satisfy the terms in the financing
2016clause of a contract for sale and purchase,
2024the licensee may return the escrowed
2030property to the purchaser without notifying
2036the commission or initiating any of
2042the procedures listed in sub-subparagraphs
2047a.-d.
20482. Has failed to deposit money in an escrow
2057account when the licensee is the purchaser
2064of real estate under a contract where the
2072contract requires the purchaser to place
2078deposit money in an escrow account to be
2086applied to the purchase price if the sale is
2095consummated.
2096(e) Has violated any of the provisions of
2104this chapter or any lawful order or rule
2112made or issued under the provisions of this
2120chapter or chapter 455.
2124* * *
2127(k) Has failed, if a broker, to immediately
2135place, upon receipt, any money, fund,
2141deposit, check, or draft entrusted to her or
2149him by any person dealing with her or him as
2159a broker in escrow with a title company,
2167banking institution, credit union, or
2172savings and loan association located and
2178doing business in this state, or to deposit
2186such funds in a trust or escrow account
2194maintained by her or him with some bank,
2202credit union, or savings and loan
2208association located and doing business in
2214this state, wherein the funds shall be kept
2222until disbursement thereof is properly
2227authorized; or has failed, if a sales
2234associate, to immediately place with her or
2241his registered employer any money, fund,
2247deposit, check, or draft entrusted to her or
2255him by any person dealing with her or him as
2265agent of the registered employer. The
2271commission shall establish rules to provide
2277for records to be maintained by the broker
2285and the manner in which such deposits shall
2293be made. A broker may place and maintain up
2302to $5,000 of personal or brokerage funds in
2311the brokers property management escrow
2316account and up to $1,000 of personal or
2325brokerage funds in the brokers sales escrow
2332account. A broker shall be provided a
2339reasonable amount of time to correct escrow
2346errors if there is no shortage of funds and
2355such errors pose no significant threat to
2362economically harm the public. It is the
2369intent of the Legislature that, in the event
2377of legal proceedings concerning a brokers
2383escrow account, the disbursement of escrowed
2389funds not be delayed due to any dispute over
2398the personal or brokerage funds that may be
2406present in the escrow account.
241116. Additionally, Petitioner maintains that Respondent
2417violated Florida Administrative Code Rule 61J2-14.009. That
2424regulation provides:
2426Every sales associate who receives any
2432deposit, as defined in Rule 61J2-14.008,
2438Florida Administrative Code, shall deliver
2443the same to the broker or employer no later
2452than the end of the next business day
2460following receipt of the item to be
2467deposited. Saturday, Sundays and legal
2472holidays shall not be construed as business
2479days. Receipt by a sales associate or any
2487other representative of the brokerage firm
2493constitutes receipt by the broker for
2499purposes of paragraph 61J2-14.008(1)(d),
2503Florida Administrative Code.
250617. Based upon the undisputed testimony in this cause,
2515Respondent was given deposit monies that were not applied for
2525the benefit of the buyer. Respondent did not promptly deposit
2535the monies into his brokers account, did not refund those
2545monies when requested, and did not negotiate the sales
2554transaction to assure that the funds would be appropriately
2563applied to the purchase price.
256818. Based upon the foregoing, Petitioner has established
2576by clear and convincing evidence that Respondent violated the
2585provisions of law cited by the Administrative Complaint.
259319. Next, it is necessary to decide Respondents Motion
2602for Emergency Relief where Final Hearing Held in [sic] Absent of
2613Both Respondent and Counsel for Respondent. Essentially, the
2621motion seeks to re-notice the hearing for trial and afford the
2632Respondent with additional notice of the proceedings. The basis
2641for the request stemmed from counsels continuing effort to
2650withdraw in this matter and Respondents alleged refusal to
2659contact counsel or to participate in the defense of the cause.
2670As indicated above, counsel for Respondent was advised by order
2680dated April 6, 2010, of the requirements in order to consider a
2692motion for withdrawal. The pleading filed on May 3, 2010, some
2703three days before the scheduled hearing, represented that a copy
2713of the document had been provided to Respondent on or about
2724April 21, 2010. The docket of this case has been available
2735on-line at all times. Respondent and counsel for Respondent
2744could easily review the docket to determine if a ruling had been
2756entered on the Notice of Withdrawal filed May 3, 2010. A
2767continuance of the May 6, 2010, hearing date was not requested.
277820. Finally, Respondent did not bear the burden of proof
2788in this cause. Petitioner was obligated to go forward and to
2799present its evidence to support the allegations of the
2808Administrative Complaint. Had Respondent sought to provide
2815information regarding his side of the matter, he could have done
2826so during the investigatory period of the case or in advance of
2838the hearing. Respondent was not required to prove anything.
2847Subsequent to the hearing date Respondent, individually, did not
2856seek relief of any kind. Based upon the foregoing, Respondent's
2866request for emergency relief is denied. Having treated the
2875second Notice of Withdrawal as a motion for same, it is hereby
2887granted.
288821. The only issue remaining for consideration is the
2897appropriate disciplinary action which should be taken by the
2906Florida Real Estate Commission (hereinafter referred to as the
2915Commission), against Respondent for the violations noted in
2923the Administrative Complaint and proven as indicated above.
2931After consulting the disciplinary guidelines of the Commission
2939set forth in Florida Administrative Code Chapter 61J2-24, it is
2949noted that the guidelines place restrictions and limitations on
2958the exercise of the Commissions disciplinary authority. See
2966also Parrot Heads, Inc. v. Department of Business and
2975Professional Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA
29851999)(An administrative agency is bound by its own rules . . .
2997creat[ing] guidelines for disciplinary penalties.); and
3003§ 455.2273(5), Fla. Stat.
300722. In accordance with the guidelines, it is therefore
3016recommended that Respondent be fined not less than $2,000.00 and
3027have his license suspended for not less than five years.
3037RECOMMENDATION
3038Based on the foregoing Findings of Fact and Conclusions of
3048Law, it is RECOMMENDED that a final order be entered by the
3060Florida Real Estate Commission finding Respondent in violation
3068of the provisions of law set forth in the Administrative
3078Complaint as alleged by Petitioner, imposing an administrative
3086fine in the amount of $2,000.00, and imposing a suspension of
3098Respondents real estate license for a period of five years.
3108DONE AND ENTERED this 18th day of June, 2010, in
3118Tallahassee, Leon County, Florida.
3122S
3123J. D. PARRISH
3126Administrative Law Judge
3129Division of Administrative Hearings
3133The DeSoto Building
31361230 Apalachee Parkway
3139Tallahassee, Florida 32399-3060
3142(850) 488-9675
3144Fax Filing (850) 921-6847
3148www.doah.state.fl.us
3149Filed with the Clerk of the
3155Division of Administrative Hearings
3159this 18th day of June, 2010.
3165COPIES FURNISHED :
3168Joseph A. Solla, Esquire
3172Department of Business and
3176Professional Regulation
3178400 West Robinson Street, Suite 801N
3184Orlando, Florida 32801-1757
3187Heather A. Rutecki, Esquire
3191Rutecki & Associates, P.A.
3195Bank of America Tower
3199100 Southeast Second Street, Suite 4600
3205Miami, Florida 33131
3208Roger P. Enzor, Chair
3212Real Estate Commission
3215Department of Business and
3219Professional Regulation
3221400 West Robinson Street, N801
3226Orlando, Florida 32801
3229Thomas W. OBryant, Jr., Director
3234Division of Real Estate
3238400 West Robinson Street, N801
3243Orlando, Florida 32801
3246Reginald Dixon, General Counsel
3250Department of Business and
3254Professional Regulation
3256Northwood Centre
32581940 North Monroe Street
3262Tallahassee, Florida 32399-0792
3265NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3271All parties have the right to submit written exceptions within
328115 days from the date of this recommended order. Any exceptions
3292to this recommended order should be filed with the agency that
3303will issue the final order in these cases.
- Date
- Proceedings
- PDF:
- Date: 06/08/2011
- Proceedings: Letter to Judge Parrish from H. Rubio regarding an order granting reconsideration filed.
- PDF:
- Date: 05/20/2011
- Proceedings: Respondent's Reply to Petitioner's Objections to Respondent's Motion to Vacate the Recommended Order filed.
- PDF:
- Date: 05/12/2011
- Proceedings: Petitioner's Objection to Respondent's Motion to Vacate Recommended Order filed.
- PDF:
- Date: 05/09/2011
- Proceedings: Respondent's Emergency Motion to Vacate Recommended Order Dated June 18, 2010, Motion for New Trial, Motion to Allow Respondent to Conduct Discovery and for Relief from Recommended Order filed.
- PDF:
- Date: 04/25/2011
- Proceedings: Healther A. Rutecki's Reply in Support of Affidavit and in Opposition to Michael Piwko's Motion to Strike the Affidavit filed.
- PDF:
- Date: 04/22/2011
- Proceedings: Michael Piwko's Response to Affidavit Filed by Heather Rutecki and Motion to Strike the Affidavit filed.
- PDF:
- Date: 01/04/2011
- Proceedings: Respondent's Emergency Motion for Relief from a Final Order filed.
- PDF:
- Date: 06/18/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 06/10/2010
- Proceedings: Transcript filed.
- PDF:
- Date: 05/20/2010
- Proceedings: Motion for Emergency Relief Where Final Hearing Held in Absent of Both Respondent and Cousel for Respondent
- Date: 05/06/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 04/23/2010
- Proceedings: Motion to Permit Witnesses to Appear by Telephone (unsigned) filed.
- PDF:
- Date: 04/14/2010
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for May 6, 2010; 9:00 a.m.; Orlando and Tallahassee, FL).
Case Information
- Judge:
- J. D. PARRISH
- Date Filed:
- 03/25/2010
- Date Assignment:
- 04/22/2010
- Last Docket Entry:
- 07/22/2011
- Location:
- Ormond By The Sea, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Humberto Rubio, Esquire
Address of Record -
Heather A. Rutecki, Esquire
Address of Record -
Joseph A. Solla, Esquire
Address of Record