10-009845 Department Of Business And Professional Regulation, Division Of Real Estate vs. Kimberly D. Casella Capiello Status: Closed Recommended Order on Thursday, February 10, 2011.

Summary: Respondent acted as real estate broker without being licensed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 9845

)

KIMBERLY D. CASELLA CAPIELLO , )

)

Respondent . )

)

RECOMMENDED ORDER

On December 6, 2010, a telephonic administrative hearing

was conducted between Orlando and Tallahassee, Florida, before

William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Lauren N. Roderick,

Qualified Representa tive

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 3280 1

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set

forth in the Administrative Complaint are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 16, 2007, the

Department of Business and Professional Regulation, Board of

Real Estate (Petitioner), alleged that Kimberly D. Casella

Capiello (Respondent) violated Florida law by operating, without

proper licensure, as a broker in a real estate transaction. The

Respondent disputed the allegations of the Administrative

Complaint and requested a formal hearing. On October 19, 2010,

the Petitioner forwarded the request to the Division of

Administrative Hearings, which sch eduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

two witnesses and had exhibits numbered 1 through 7 admitted

into evidence. The Respondent did not appear at the final

hearing.

A Transcript of the hearing was filed on January 5, 2011.

The Petitioner filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In June 2005, the Respondent resided at a house located

at 14213 Sports Club Way, Orl ando, Florida, 32837. The

Respondent had no ownership interest in the house.

2. The house was owned by Jack Girton (Mr. Girton), who

did not reside in the house, and was "for sale by owner,"

according to a sign in the yard.

3. In June 2005, the Responde nt was contacted by a

licensed real estate agent, Eleanor Dioneda (Ms. Dioneda), who

was seeking to locate a suitable house for purchase by Arnold

Macabugao and his wife (buyers).

4. Ms. Dioneda wrote a contract for purchase of the house

between the buyer s and Mr. Girton.

5. A separate contract between the buyers and the

Respondent, titled "SIDE AGREEMENT TO PURCHASE CONTRACT,"

required payment of $10,000 directly to the Respondent by the

buyers. The document provided in relevant part as follows:

This si de agreement is between Buyers named

above and Kim Capiello wherein the buyers

agree to give $10,000 to Kim Capiello for

services rendered in the search and purchase

of the above named property. This agreement

is contingent upon the buyers securing a

loan , its lender determining a firm closing

date and last but not the least, actual

closing and funding of the above named

property.

The amount will be paid as follows:

$5,000 to be paid at the time the Purchase

contract is signed by all parties for the

above property and contingent upon the

buyers securing a loan and its lender

determining a firm closing date.

$5,000 to be paid the day after the closing

under the condition being that the above

property has been vacated and in move in

condition.

Kim Cap iello further agrees that this side

agreement is between her and the buyers only

and has nothing to do with the actual

purchase agreement entered into by the

buyers and Jack Girton.

6. Ms. Dioneda forwarded the document to the buyers and

instructed the b uyers on how to make the payments. She

collected the first $5,000 installment from the buyers ;

apparently deposited the funds into her personal checking

account ; and then wrote a $ 5,000 check to the Respondent.

7. The buyers eventually completed the purc hase of the

house from Mr. Girton and wrote a $5,000 check directly to the

Responden t from their checking account.

8. The Respondent received both checks for a total of

$10,000 as s tated in the "side agreement."

9. The Respondent was not licensed in the State of Florida

as a real estate broker or sales associate at a ny time material

to this case.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2010).

11. Section 475.42(1)(a), Florida Statutes (2005), 1/

prohibits any person from operating "as a broker or sales

associate without being the holder of a valid and current active

license therefor."

12. Section 475.01 provides , in relevant part , as follows:

(1) As used in this part:

(a) "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 collec t or receive a compensation

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 any

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,

auctioning, 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, purchas ers, lessors,

or lessees 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 o f any

transaction which 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 p roperty information or lists. A

broker renders a professional service and is

a professional within the meaning of

s. 95.11(4)(a). Where the term "appraise"

or "appraising" appears in the definition of

the term "broker," it specifically excludes

those app raisal services which must be

performed only by a state - licensed or state -

certified appraiser, and those appraisal

services which may be performed by a

registered trainee appraiser as defined in

part II. The term "broker" also includes

any person who is a general partner,

officer, or director of a partnership or

corporation which acts as a broker. The

term "broker" also includes any person or

entity who undertakes to list or sell one or

more timeshare periods per year in one or

more timeshare plans on beh alf of any number

of persons, except as prov ided in ss.

475.011 and 721.20.

* * *

(3) Wherever the word "operate" or

"operating" as a broker, broker associate,

or sales associate appears in this chapter;

in any order, rule, or regulation of the

commission; in any pleading, indictment, or

information under this chapter; in any court

action or proceeding; or in any order or

judgment of a court, it shall be deemed to

mean the commission of one or more acts

described in this chapter as constituting o r

defining a broker, broker associate, or

sales associate, not including, however, any

of the exceptions stated therein. 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.

13. The Petitioner has the burden of establishing the

truthfulness of the allegations in the Administrative Complaint

by clear and convincing evidence. Dep ' t of Banking & Fin . v.

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

Turlington , 510 So. 2d 292 (Fla. 1987). In this case, the

burden has been met.

14. The Respondent acted as a broker in this transaction

because she received $10,000 from the buyers for the "services

rendered in the search and purchase" of the Girton house by the

buyers. The Respondent did not hold a proper license at the

time of the tra nsaction.

15. Florida Administrative Code Rule 61J2 - 24.001(3)

identifies the penalties applicable to a first violation of

s ection 475.42(1)(a) as an administrative penalty from $250 to

$2,500 and suspension or revocation of licensure. Th e

Respondent has no licensure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate, enter a f inal

o rder finding Kimberly D. Casella Capiello guilty of violating

s ection 475.42(1)(a) and imposing a fine of $2,500.

DONE AND ENTERED this 10 th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTL EBAUM

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of February , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 version.

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Lauren N. Roderick

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N801

Orlando, Florida 32801

Kimberly D. Casella

2903 Conner Lane

Kissimmee, Florida 34741

Amy Toman, Hearing Officer

Office of the General Counsel

Depar tment of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802N

Orlando, Florida 32801

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.