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.
Recommended Order on Thursday, February 10, 2011.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF REAL ESTATE , )
21)
22Petitioner , )
24)
25vs. ) Case No. 10 - 9845
32)
33KIMBERLY D. CASELLA CAPIELLO , )
38)
39Respondent . )
42)
43RECOMMENDED ORDER
45On December 6, 2010, a telephonic administrative hearing
53was conducted between Orlando and Tallahassee, Florida, before
61William F. Quattlebaum, Administrative Law Judge, Division of
69Administrative Hearings.
71APPEARANCES
72For Petitioner: Patrick J. Cunningham, Esquire
78Lauren N. Roderick,
81Qualified Representa tive
84Department of Business and
88Professional Regulation
90400 West Robinson Street
94Hurston Building - North Tower, Suite N801
101Orlando, Florida 3280 1
105For Respondent: (No appearance)
109STATEMENT OF THE ISSUES
113The issues in the case are whether the allegations set
123forth in the Administrative Complaint are correct, and, if so,
133what penalty should be imposed.
138PRELIMINARY STATEMENT
140By Administrative Complaint dated July 16, 2007, the
148Department of Business and Professional Regulation, Board of
156Real Estate (Petitioner), alleged that Kimberly D. Casella
164Capiello (Respondent) violated Florida law by operating, without
172proper licensure, as a broker in a real estate transaction. The
183Respondent disputed the allegations of the Administrative
190Complaint and requested a formal hearing. On October 19, 2010,
200the Petitioner forwarded the request to the Division of
209Administrative Hearings, which sch eduled and conducted the
217proceeding.
218At the hearing, the Petitioner presented the testimony of
227two witnesses and had exhibits numbered 1 through 7 admitted
237into evidence. The Respondent did not appear at the final
247hearing.
248A Transcript of the hearing was filed on January 5, 2011.
259The Petitioner filed a Proposed Recommended Order that has been
269considered in the preparation of this Recommended Order.
277FINDINGS OF FACT
2801. In June 2005, the Respondent resided at a house located
291at 14213 Sports Club Way, Orl ando, Florida, 32837. The
301Respondent had no ownership interest in the house.
3092. The house was owned by Jack Girton (Mr. Girton), who
320did not reside in the house, and was "for sale by owner,"
332according to a sign in the yard.
3393. In June 2005, the Responde nt was contacted by a
350licensed real estate agent, Eleanor Dioneda (Ms. Dioneda), who
359was seeking to locate a suitable house for purchase by Arnold
370Macabugao and his wife (buyers).
3754. Ms. Dioneda wrote a contract for purchase of the house
386between the buyer s and Mr. Girton.
3935. A separate contract between the buyers and the
402Respondent, titled "SIDE AGREEMENT TO PURCHASE CONTRACT,"
409required payment of $10,000 directly to the Respondent by the
420buyers. The document provided in relevant part as follows:
429This si de agreement is between Buyers named
437above and Kim Capiello wherein the buyers
444agree to give $10,000 to Kim Capiello for
453services rendered in the search and purchase
460of the above named property. This agreement
467is contingent upon the buyers securing a
474loan , its lender determining a firm closing
481date and last but not the least, actual
489closing and funding of the above named
496property.
497The amount will be paid as follows:
504$5,000 to be paid at the time the Purchase
514contract is signed by all parties for the
522above property and contingent upon the
528buyers securing a loan and its lender
535determining a firm closing date.
540$5,000 to be paid the day after the closing
550under the condition being that the above
557property has been vacated and in move in
565condition.
566Kim Cap iello further agrees that this side
574agreement is between her and the buyers only
582and has nothing to do with the actual
590purchase agreement entered into by the
596buyers and Jack Girton.
6006. Ms. Dioneda forwarded the document to the buyers and
610instructed the b uyers on how to make the payments. She
621collected the first $5,000 installment from the buyers ;
630apparently deposited the funds into her personal checking
638account ; and then wrote a $ 5,000 check to the Respondent.
6507. The buyers eventually completed the purc hase of the
660house from Mr. Girton and wrote a $5,000 check directly to the
673Responden t from their checking account.
6798. The Respondent received both checks for a total of
689$10,000 as s tated in the "side agreement."
6989. The Respondent was not licensed in the State of Florida
709as a real estate broker or sales associate at a ny time material
722to this case.
725CONCLUSIONS OF LAW
72810. The Division of Administrative Hearings has
735jurisdiction over the parties to and subject matter of this
745proceeding. §§ 120.569 and 120.57, Fla . Stat . (2010).
75511. Section 475.42(1)(a), Florida Statutes (2005), 1/
762prohibits any person from operating "as a broker or sales
772associate without being the holder of a valid and current active
783license therefor."
78512. Section 475.01 provides , in relevant part , as follows:
794(1) As used in this part:
800(a) "Broker" means a person who, for
807another, and for a compensation or valuable
814consideration directly or indirectly paid or
820promised, expressly or impliedly, or with an
827intent to collec t or receive a compensation
835or valuable consideration therefor,
839appraises, auctions, sells, exchanges, buys,
844rents, or offers, attempts or agrees to
851appraise, auction, or negotiate the sale,
857exchange, purchase, or rental of business
863enterprises or business opportunities or any
869real property or any interest in or
876concerning the same, including mineral
881rights or leases, or who advertises or holds
889out to the public by any oral or printed
898solicitation or representation that she or
904he is engaged in the business of appraising,
912auctioning, buying, selling, exchanging,
916leasing, or renting business enterprises or
922business opportunities or real property of
928others or interests therein, including
933mineral rights, or who takes any part in the
942procuring of sellers, purchas ers, lessors,
948or lessees of business enterprises or
954business opportunities or the real property
960of another, or leases, or interest therein,
967including mineral rights, or who directs or
974assists in the procuring of prospects or in
982the negotiation or closing o f any
989transaction which does, or is calculated to,
996result in a sale, exchange, or leasing
1003thereof, and who receives, expects, or is
1010promised any compensation or valuable
1015consideration, directly or indirectly
1019therefor; and all persons who advertise
1025rental p roperty information or lists. A
1032broker renders a professional service and is
1039a professional within the meaning of
1045s. 95.11(4)(a). Where the term "appraise"
1051or "appraising" appears in the definition of
1058the term "broker," it specifically excludes
1064those app raisal services which must be
1071performed only by a state - licensed or state -
1081certified appraiser, and those appraisal
1086services which may be performed by a
1093registered trainee appraiser as defined in
1099part II. The term "broker" also includes
1106any person who is a general partner,
1113officer, or director of a partnership or
1120corporation which acts as a broker. The
1127term "broker" also includes any person or
1134entity who undertakes to list or sell one or
1143more timeshare periods per year in one or
1151more timeshare plans on beh alf of any number
1160of persons, except as prov ided in ss.
1168475.011 and 721.20.
1171* * *
1174(3) Wherever the word "operate" or
"1180operating" as a broker, broker associate,
1186or sales associate appears in this chapter;
1193in any order, rule, or regulation of the
1201commission; in any pleading, indictment, or
1207information under this chapter; in any court
1214action or proceeding; or in any order or
1222judgment of a court, it shall be deemed to
1231mean the commission of one or more acts
1239described in this chapter as constituting o r
1247defining a broker, broker associate, or
1253sales associate, not including, however, any
1259of the exceptions stated therein. A single
1266such act is sufficient to bring a person
1274within the meaning of this chapter, and each
1282act, if prohibited herein, constitutes a
1288separate offense.
129013. The Petitioner has the burden of establishing the
1299truthfulness of the allegations in the Administrative Complaint
1307by clear and convincing evidence. Dep ' t of Banking & Fin . v.
1321Osborne Stern and Co . , 670 So. 2d 932 (Fla. 1996); Fe rris v.
1335Turlington , 510 So. 2d 292 (Fla. 1987). In this case, the
1346burden has been met.
135014. The Respondent acted as a broker in this transaction
1360because she received $10,000 from the buyers for the "services
1371rendered in the search and purchase" of the Girton house by the
1383buyers. The Respondent did not hold a proper license at the
1394time of the tra nsaction.
139915. Florida Administrative Code Rule 61J2 - 24.001(3)
1407identifies the penalties applicable to a first violation of
1416s ection 475.42(1)(a) as an administrative penalty from $250 to
1426$2,500 and suspension or revocation of licensure. Th e
1436Respondent has no licensure.
1440RECOMMENDATION
1441Based on the foregoing Findings of Fact and Conclusions of
1451Law, it is RECOMMENDED that the Department of Business and
1461Professional Regulation, Division of Real Estate, enter a f inal
1471o rder finding Kimberly D. Casella Capiello guilty of violating
1481s ection 475.42(1)(a) and imposing a fine of $2,500.
1491DONE AND ENTERED this 10 th day of February , 2011 , in
1502Tallahassee, Leon County, Florida.
1506S
1507WILLIAM F. QUATTL EBAUM
1511Administrative Law Judge
1514Division of Administrative Hearings
1518The DeSoto Building
15211230 Apalachee Parkway
1524Tallahassee, Florida 32399 - 3060
1529(850) 488 - 9675
1533Fax Filing (850) 921 - 6847
1539www.doah.state.fl.us
1540Filed with the Clerk of the
1546Division of Administrative Hearings
1550this 10 th day of February , 2011 .
1558ENDNOTE
15591/ Unless otherwise indicated, all references to the Florida
1568Statutes are to the 2005 version.
1574COPIES FURNISHED :
1577Patrick J. Cunningham, Esquire
1581Lauren N. Roderick
1584Department of Business and
1588Professional Regulation
1590400 West Robinson Street
1594Hurston Building - North Tower, Suite N801
1601Orlando, Florida 32801
1604Kimberly D. Casella
16072903 Conner Lane
1610Kissimmee, Florida 34741
1613Amy Toman, Hearing Officer
1617Office of the General Counsel
1622Depar tment of Business and
1627Professional Regulation
1629Northwood Centre
16311940 North Monroe Street
1635Tallahassee, Florida 32399 - 0792
1640Reginald Dixon, General Counsel
1644Department of Business and
1648Professional Regulation
1650Northwood Centre
16521940 North Monroe Street
1656Tallahassee, Florida 32399 - 0792
1661Thomas W. O'Bryant, Jr., Director
1666Division of Real Estate
1670Department of Business and
1674Professional Regulation
1676400 West Robinson Street, Suite 802N
1682Orlando, Florida 32801
1685NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1691All parties have the right to submit written exceptions within
170115 days from the date of this Recommended Order. Any exceptions
1712to this Recommended Order should be filed with the agency that
1723will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/10/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 01/05/2011
- Proceedings: Transcript (not available for viewing) filed.
- Date: 12/06/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/06/2010
- Proceedings: Notice of Filing Additional Exhibits (exhibits not available for viewing).
Case Information
- Judge:
- WILLIAM F. QUATTLEBAUM
- Date Filed:
- 10/22/2010
- Date Assignment:
- 10/25/2010
- Last Docket Entry:
- 04/15/2011
- Location:
- Orlando, Florida
- District:
- Middle
Counsels
-
Kimberly D. Casella
Address of Record -
Patrick J. Cunningham, Esquire
Address of Record -
Lauren N. Roderick, Esquire
Address of Record -
Lauren Roderick Brusca, Esquire
Address of Record