10-010431PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Alexis Acosta Status: Closed Recommended Order on Wednesday, May 18, 2011.

Summary: Evidence insufficient to prove licensee was guilty of making a "misprepresentation" in violation of section 475.25(1)(b), as alleged, but sufficient to prove that she committed alleged violation of the version 61J2-14.008(2)(b) in effect in May 2007.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10431 PL

)

ALEXIS ACOSTA , )

)

Respondent. )

__________________________________)

R ECOMMENDED ORDER

Pursuant to notice, a hearing was cond ucted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated a dministrative law

j udge of the Division of Administrative Hearings (DOAH), on

March 4, 20 11 , by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

Div ision of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

For Respondent: Mariajose Sanchez , Esquire

1500 Ponce de Leon Boulevard, 2nd Floor

Coral Gables , Florid a 3 3134

Maritere Andreu, Esquire

1805 Ponce de Leon Boulevard , Suite 410

Miami, Florida 331 34

STATEMENT OF THE ISSUE S

Whether Res pondent committed the violation s alleged in the

Administrative Complai nt in the manner specified therein and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about September 2 1 , 20 10 , Petitioner issued a n

Administrative Complaint against Respondent charging her with :

one count of violating s ection 475.2 5(1)(b), Florida Statutes ,

"by misrepresenting to [the] Seller s [in a real estate

transaction in which she was representing the Buyer] that the

Escrow Agent was holding in escrow the Buyer's $3,000 deposit

for purchase of the Subject Property" (Count One) ; and one count

of violating section 475.25(1)(e) " by violating Rule 61J2 -

14.008(2)(b), F.A.C., when [s]he failed to indicate in the sales

and purch a se contract for the Subject Property the address for

the Escrow Agent and failed to obtain and retain writte n

verification upon delivery of the Buyer's deposit " (Count Two).

Respondent thereafter requested an a dministrative hearing

pursuant s ection 120.57(1 ). On November 29, 2010 , the matter

w as referred to DOAH for the assignment of an a dministrative law

j udg e to conduct the hearing Respondent had requested.

As noted above, the hearing was held on March 4, 2011. 2 At

the outset of the hearing, Respondent admitted the allegations

set forth in numbered paragraphs 1 through 9 of the

Administrative Complaint, and she further conceded that she was

guilty of the violation alleged in Count Two of the

Administrative Complaint. Petitioner's evidentiary presentation

at hearing consisted of offering three exhibits (Petitioner's

Exhibits 1 through 3), all of which were re ceived into evidence.

Respondent testified on her own behalf. She presented no other

evidence .

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced, on the record, that the

deadline for the filing of proposed recommended orders w ould be

ten days from the date of the filing of the hearing transcript

with DOAH.

On April 15, 2011, the undersigned issued an Order

Requiring Status Report, which provided as follows:

At the one - day final hearing in the instant

case, which was held on March 4, 2011, the

undersigned announced on the record that

proposed recommended orders had to be filed

no later than ten days from the date that

the hearing transcript was filed with the

Division of Administrative Hearings (DOAH).

As of this date , the hearing transcript has

yet to be filed with DOAH.

No later than seven days from the date of

this Order, the parties shall advise the

undersigned in writing as to whether they

were able, through post - hearing settlement

negotiations, to amicably reso lve the

instant controversy, and, if not, when the

hearing transcript is expected to be filed

with DOAH. Failure to timely file such a

written advisement will result in the

conclusion that this matter has been

amicably resolved and that therefore there

is no longer any need for the DOAH file in

this case to remain open.

On April 29, 2011, Petitioner filed a unilateral Status Report,

which contained the following advisements:

1) Due to a paperwork error, an official

transcript was not timely ordered.

2) The error has been corrected and a

transcript has been ordered and will be

filed within a week.

As promised, t he hearing Transcript (consisting of one

volume) was filed with DOAH on May 5, 2011. On May 6, 2011, the

undersigned issued a Notice of Filing Transcript, notifying the

parties that the hearing transcript had been filed with DOAH on

May 5, 2011, and that therefore proposed recommended orders had

to be filed with DOAH no later than Monday, May 16, 2011 .

To date, neither Petitioner nor Respondent h as filed a

proposed recommended order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, including the admissions made by Respondent at the

outset of the final hearing, the following findings of fact are

made:

1. Respon dent is now, and has been at all times material

to the instant case, a Florida - licensed real estate sales

associate , holding license number SL - 3025826 .

2. At no time during the almost nine years Respondent has

held this license has any disciplinary action been taken against

her . 3

3. Respondent now works, as she did at all times material

to the instant case , as a real estate sales associate for Home

Wiz USA, Inc., a Florida - licensed brokerage company located in

Miami, Florida.

4. On or about May 15, 2007, Hector Chaparro (Buyer)

signed a contract (Subject Contract) to purchase from Edward J.

and Paule F. Sch u pay (Sellers) , as Trustees for the Schupay

Revocable Trust dated July 6, 1982, property located at 16643

Sagu aro Lane in Spring Hill , Florida ( Propert y ). The Sellers

signed the Subject Contract on May 18, 2007, but there was never

a closing beca use the appraised value of the P roperty was not

high enough to enable the Buyer to obtain financing .

5. Respondent represented the Buyer in the transaction ,

an d she prepared the Subject Contract, using (at the Sellers'

realtor's request) a printed "As Is" Contract for Sale and

Purchase form approved by the Florida Association of Realtors

and The Florida Bar (Form ).

6. Section II.(a) of the Form read as follows : "Deposit

held in escrow by __________ (Escrow Agent) in the amount of

(checks subject to clearance) $________________ . " Respondent

completed this section of the F orm by writing "Secure Close

Title" and "3,000 .00 ," respectively, on the lines where th e name

of the "Escrow Agent" and the dollar amount of the deposit were

to be entered. Unaware she was required to do so, Respondent

did not, anywhere in the Subject Contract, indicate the address

of Secure Close Title (Secure).

7. The Subject Contract re placed a prior contract (Prior

Contract) into which the Buyer had entered to purchase the

Property from the Sellers. The Prior Contract had also provided

for the Buyer to make a $3,000.00 deposit .

8. As both Respondent and the Sellers' realtor were awa re,

a t the time Respondent was preparing the Subject Contract to

replace the Prior Contract , the $3,000.00 deposit the Buyer had

made (by check) pursuant to the Prior Contract (First Deposit)

was be ing held in escrow , as agreed to by the parties in the

Pri or Contract, by a Miami title company ( Previous Escrow Agent )

which had a relationship with the mortgage lender (Elite Home

Loans) from whom the Buyer was seeking a loan to purchase the

Property . The Sellers' realtor , wh en he asked Respondent to

prepare t he Subject Contract to replace the Prior Contract, not

only told Respondent that the Sellers wanted the deposit

required by the Subject Contract to be held by Secure ( because

of Secure's location in Spring Hill, near where the Property was

located ) , he als o informed Respondent that he had made

arrangements, through Elite Home Loans, to have the First

Deposit ( that was being held by the Previous Escrow Agent ) sent

to Secure.

9. Respondent believed that , in writing "Secure Close

Title" on the "Escrow Agent" line in Section II.(a) of the

Subject Contract, she was merely indicating that the $3,000.00

deposit required by the Subject Contract was to be held by

Secure (as the Sellers, through their realtor, had requested).

It was not at all her intent to mislead or deceive anyone,

including the Sellers or their realtor , concerning the then

whereabouts of that deposit (a matter about which the Sellers,

through their real tor, knew as much as, if not more than ,

Respondent did) .

10. Although she was advised by Elit e Home Loans that it

had mailed to Secure the $3,000.00 deposit referred to in

Section II.(a) of the Subject Contract (Subject Security

Deposit) , Respondent never obtain ed written verification of

Secure's receipt of the deposit , an oversight attributable t o

her not knowing that she had a legal obligation to procure and

retain such verification .

11. After it became apparent that the transaction

contemplated by the Subject Contract would not be consummated,

the Subject Security Deposit was returned to the B uyer.

CONCLUSIONS OF LA W

12. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to c hapter 120 .

13. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action ag ainst

Florida - licensed real estate sales associates based upon any of

th e grounds enumerated in s ection 475.25(1), including "[having]

been guilty of fraud, misrepresentation, concealment, false

promises, false pretenses, dishonest dealing by trick, scheme ,

or device, culpable negligence, or breach of trust in any

business transaction in this state or any other state, nation,

or territory " (as described in section 475.25(1)(b)), and

"[having] violated any of the provisions of [chapter 475] or any

lawful ord er or rule made or issued under the provisions of

[chapter 475] or chapter 455" (as described in section

475.25(1)(e)).

14. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

not exceeding ten years ; imposition of an administrative fine

not to exceed $5,000.00 for each count or separate offense;

issuance of a reprimand; and placement of the licen see on

probation. § 475.25(1). In addition, the Commission "may

assess costs related to the inv estigation and prosecution of the

case excluding costs associated with an attorney 's time."

§ 455.227(3)(a).

15. The Commission may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportun ity to re quest a proceeding pursuant to

s ections 120. 569 and 120.57 . See § 120.60(5).

16. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

See Hollis v. Dep ' t of Bus . & Prof' l Reg . , 982 So . 2d 1237, 1239

(Fla. 5th DCA 2008); and §§ 120.569(1) and 120.57(1).

17. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct alleged in the charging

instrument. Proof greater than a mere preponderance of the

e vidence must be presented. Clear and convincing evidence is

required. See Dep't of Banking & Fin , , Div. of Sec. & Investor

Prot . v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996);

Walker v. Fl a . Dep't of Bus. & Prof' l Reg . , 705 So. 2d 652, 655

(Fla . 5th DCA 1998)("The Department had the burden of proving

fraud, misrepresentation or concealment by clear and convincing

evidence, in order to justify revocation of Walker's license.");

and § 120.57(1)(j) ("Findings of fact shall be based upon a

preponder ance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

18. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidenc e' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses t estify must be distinctly remembered; the

testimony 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 a firm belief o r conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994 ) , quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

967 (Fla. 1995)("The evidence [in order to be clear and

convincing] must be sufficient to convince the trier of fact

without hesitancy."). "Although this standard of proof may be

met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Electric

Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st

DCA 1991).

19. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evi dentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits an

agency from taking penal action against a licensee based on

m atters not specifically alleged in the charging instrument,

unl ess those matters have been tried by consent. See Trevisani

v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint. ") ; Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746 - 747 (Fla. 3d DCA 2000)("Marcelin first contends

that the administrative law judge found that he had committed

three violations which were not alleged in the administrative

complaint. This point is well taken. . . . We strike these

violations because they are outside the administrative

complaint."); Dep't of Rev. v. Vanjaria Enters. , 675 So. 2d 252,

254 (Fla. 5th DCA 1996)("[T]the issue must be treated as though

it had been raised in the pleadings because the parties tried

the issue by consent. "); and Delk v. Dep't of Prof'l Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must

legally fall within the statute or rule claimed [in the

administrative complaint] to have been violated.").

20. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk , 595 So. 2d at 967. In deciding

whether the statute or rule claimed [in the charging in strument]

to have been violated was in fact violated, as alle ged by

Petitioner, if there is any reasonable doubt, that doubt must be

resolved in favor of the licensee. See Djokic v. Dep ' t of Bus .

& Prof'l Reg., Div. of Real Estate , 875 So. 2d 693, 695 (Fla.

4th DCA 2004); Elmariah v . Dep't of Prof'l Reg., B d . of Me d . ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Dep't of

Prof'l & Occupational Reg s . , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

21. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

consult the Commission's "disciplinary guidelines," as they

existed at the time of the violation(s). See Parrot Heads, Inc.

v. Dep't of Bus. & Prof'l Reg. , 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 Orasan v. Ag. for Hea lth Care Admin., B d . of Med . , 668 So.

2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly

decided under the disciplinary guidelines in effect at the time

of the alleged violations."); see also State v. Jenkins , 469 So.

2d 733, 734 (Fla. 1985)("[A]ge ncy rules and regulations, duly

promulgated under the authority of law, have the effect of

law."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An agency must comply with its own rules."); and Williams

v. Dep' t of Transp . , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

22. The Commission's "disciplinary guidelines" are set

forth in Florida Administrative Code Rule 61J2 - 24.001. At a ll

times material to the instant case, they provided, in pertinent

part, as follows:

(1) Pursuant to Section 455.2273, F.S., the

Commission sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensee s guilty of violating Chapter 455 or

475, F.S. The purpose of the disciplinary

guidelines is to give notice to licensees of

the range of penalties which normally will

be imposed for each count during a formal or

an informal hearing. For purposes of this

rule, the order of penalties, ranging from

lowest to highest, is: reprimand, fine,

probation, suspension, and revocation or

denial. Pursuant to Section 475.25(1),

F.S., combinations of these penalties are

permissible by law. Nothing in this rule

shall p reclude any discipline imposed upon a

licensee pursuant to a stipulation or

settlement agreement, nor shall the range of

penalties set forth in this rule preclude

the Probable Cause Panel from issuing a

letter of guidance.

(2) As provided in Section 475. 25(1), F.S.,

the Commission may, in addition to other

disciplinary penalties, place a licensee on

probation. The placement of the licensee on

probation shall be for such a period of time

and subject to such conditions as the

Commission may specify. Stand ard

probationary conditions may include, but are

not limited to, requiring the licensee: to

attend pre - licensure courses; to

satisfactorily complete a pre - licensure

course; to attend post - licensure courses; to

satisfactorily complete a post - licensure

cours e; to attend continuing education

courses; to submit to and successfully

complete the state - administered examination;

to be subject to periodic inspections and

interviews by a DBPR investigator; . . . .

(3) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to subsection (4). The

verbal identification of offenses is

descriptive only; the full language of each

statutory provision cited must be consulted

in order to determine the conduct included.

* * *

(c) VIOLATION[:] Section 475.25(1)(b),

F.S. - Guilty of . . . misrepresentation

. . . .

* * *

RECOMMENDED RANGE OF PENALTY: In the case

of . . . misrepresentation . . . , the usual

action of the Commission sha ll be to impose

a penalty of revocation . [ 4 ]

* * *

(f) VIOLATION[:] Section 475.25(1)(e),

F.S. - Violated any rule or order or

provision under Chapters 475 and 455, F.S.

RECOMMENDED RANGE OF PENALTY: The usual

action of the C ommission shall be to impose

a penalty from an 8 year suspension to

revocation and an administrative fine of

$1,000. [ 5 ]

* * *

(4)(a) When either the Petitioner or

Respondent is able to demonstrate

aggravating or mitigating circ umstances

. . . to a Divisi on of Administrative

Hearings [administrative law j udge] in a

Section 120.57(1), F.S., hearing by clear

and c onvincing evidence, the . . .

[administrative law j udge] shall be entitled

to deviate from the above guidelines

in . . . recom mending discipline . . . upon

a licensee. . . .

(b) Aggravating or mitigating circumstances

may include, but are not limited to, the

following:

1. The degree of harm to the consumer or

public.

2. The number of counts in the

Administrative Co mplaint.

3. The disciplinary history of the

licensee.

4. The status of the licensee at the time

the offense was committed.

5. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license .

6. Violation of the provision of Chapter

475, F.S., wherein a letter of guidance as

provided in Section 455.225(3), F.S.,

previously has been issued to the licensee.

23. The Administrative Complaint issued in the instant

case contains two counts. Co unt One al leges that Respondent

violated s ection 475.25(1)(b ) by " misrepresenting to the seller

that the Escrow Agent was holding in Escrow the Buyer's $3,000

deposit for the purchase of t he Subject Property." Count Two

alleges that Respondent violated Fl orida Administrative Code

Rule 61J2 - 14.008(2)(b) , and therefore also section 475.25(1)(e) ,

" when [s]he failed to indicate in the [Subject Contract] the

address for the Escrow Agent and failed to obtain and retain

written verification upon delivery of the B uyer's deposit."

24. At all times material to the instant case, s ection

475.25(1)(b) has authorized the Commission to take disciplinary

action against a Florida - licensed real estate sales associate

who:

[h]as been guilty of . . .

misrepresentation . . . in any business

transaction in this state or any other

state, nation, or territory . It is

immaterial to the guilt of the licensee that

the victim or intended victim of the

misconduct has sustained no damage or loss;

that the damage or loss has been settle d and

paid after discovery of the misconduct; or

that such victim or intended victim was a

customer or a person in confidential

relation with the licensee or was an

identified member of the general public.

25. For there to be " misrepresentation " in viola tion of

s ecti on 475.25(1)(b) , there must be wrongful intent or scienter .

See Munch v. Dep't of Prof' l Reg . , 592 So. 2d 1136, 1143 - 44

(Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b)

Florida Statutes, which, in its first clause, authorizes the

Co mmission to discipline a licensee guilty of fraud,

misrepresentation, concealment, false promises, false pretenses,

dishonest dealing by trick, scheme or device, culpable

negligence, or breach of trust in any business transaction is

penal in nature. As su ch, it must be construed strictly, in

favor of the one against whom the penalty would be

imposed. . . . Reading the first clause of Section 475.25(1)(b)

(the portion of the statute which appellant was charged with

having violated in Count I of the compla int), and applying to

the words used their usual and natural meaning, it is apparent

that it is contemplated that an intentional act be proved before

a violation may be found."); and Morris v. Dep't of Prof' l Reg . ,

474 So. 2d 841, 843 (Fla. 5th DCA 1985)(g rounds of "'fraud,

misrepresentation, concealment, false promises, dish onest

dealing by trick, scheme or device, culpable negligence and

breach of trust in a business transaction in violation of

section 475.25(1)(b) . . . alleged by the complaint all requi re

a finding of wrongful intent or scienter . . . .") ; cf . Fla. Bar

v. Lanford , 691 So. 2d 480, 480 - 481 (Fla. 1997)("In order to

find that an attorney acted with dishonesty, misrepresentation,

deceit, or fraud, the Bar must show the necessary element of

in tent. An attorney's lack of intent to defraud or deceive a

client supports a referee's finding that the attorney's conduct

did not constitute dishonesty, misrepresentation, deceit o r

fraud.")(citation omitted).

26. The wrongful intent or scienter requi r ed to establish

a violation of s ection 475.25(1)(b) may be proven by

circumstantial evidence. See Inquiry Concerning a Judge

(Allen) , 998 So. 2d 557, 562 (Fla. 2008)("Although there is no

direct evidence presented that animus was the motive for Judge

All en's concurring opinion, motive and intent are generally

proven through circumstantial evidence."); Baker v. State , 639

So. 2d 103, 104 (Fla. 5th DCA 1994)("Intent is an operation of

the mind and is not subject to direct proof, however, intent can

be prove n by circumstantial evidence."); and Grover v. State ,

581 So. 2d 1379, 1380 (Fla. 4th DCA 1991)("It is black - letter of

course that intent, being a state of mind, is rarely if ever

susceptible of direct proof. Almost inevitably, as here, it

must be shown s olely by circumstantial evidence."). For

instance, it may be inferred from the licensee's actions. See

Swanson v. State , 713 So. 2d 1097, 1101 (Fla. 4th DCA

1998)("Appellant's actions are sufficient to show intent to

participate."); and State v Breland , 421 So. 2d 761, 766 (Fla.

4th DCA 198 2) ("Actions manifest intent.").

27. At all times material to the instant case, section

475.25(1)(e) has authorized the Commission to take disciplinary

action against a Florida - licensed real estate sales associate

who " [h]as violated any . . . rule made . . . under the

provisions of [chapter 475]." Among the rule provisions that

have been adopted pursuant to chapter 475 is Florida

Administrative Code Rule 61J2 - 14.008 (2)(b), which, at all times

material to the instant case, provided as follows:

When escrow funds are placed with a title

company or an attorney, the licensee shall

indicate on the sales contract the name and

address of said entity. The licensee shall

obtain and retain written verification of

said deposit u pon delivery of the funds to

the title company or attorney. [ 6 ]

28. Because of their penal nature , the foregoing statutory

and rule provisions must be strictly construed, with any

reasonable doubts as to their meaning being resolved in favor of

the licens ee . See Camejo v. Dep't of Bus. & Prof'l Reg. , 812

So. 2d 583 , 583 - 84 (Fla. 3d DCA 2002) ("'Statutes such as those

at issue authorizing the imposition of discipline upon licensed

contractors are in the nature of penal statutes, which should be

strictly con strued.'"); Munch , 592 So. 2d at 1143 ("It is clear

that [s]ection 475.25(1)(b ) is penal in nature. As such, it

must be construed strictly, in favor of the one against whom the

penalty would be imposed."); and McClung v. Crim. Just. Stds. &

Training Com m' n , 458 So. 2d 887, 888 (Fla. 5th DCA 1984)

("[W]here a statute provides for revocation of a license the

grounds must be strictly construed because the statute is penal

in nature. No conduct is to be regarded as included within a

penal statute that is not reasonably proscribed by it; if there

are any ambiguities included, they must be construed in favor of

the licensee." ).

29. Evaluating Petitioner's evidentiary presentation in

light of the foregoing, the undersigned finds that, g iven the

absence of a clea r and convincing showing of wrongful intent or

scienter on Respondent's part, Petitioner failed to meet its

burden of proving Respondent's guilt of the violation of section

475.25(1)(b) alleged in Count One of the Administrative

Complaint.

30. The record evidence , however, clearl y and convincingly

establishes -- and even Respo ndent herself has acknowledged -- that

she violated rule 61J2 - 14.008 (2)(b) and, derivatively, section

475.25(1)(e) " when [s]he failed to indicate in the [Subject

Contract] the address fo r the Escrow Agent and failed to obtain

and retain written verification upon delivery of the Buyer's

deposit, " as alleged in Count Two of the Administrative

Complaint.

30. While the " usual [disciplinary] action of the

Commission , " under the "disciplinary guidelines" in effect at

the time of her violation of section 475.25(1)(e) , was " to

impose a penalty from an 8 year suspension to revocation and an

administrative fine of $1,000 " for such a violation, the facts

of the instant case justify imposing a lesser penalty, outside

this "usual" range .

31. M itigating against the imposition of a penalty as

harsh as one within the "usual" range is that Respondent's

violation was an isolated unintentional, technical one that did

not harm anyone . A further mitigating f actor is that, in the

almost nine years she has held her license, she has never before

been disciplined. In view of these mitigating circumstances, a

more appropriate penalty is to fine Respondent $250.00 and to

place her on probation for a period of 90 d ays, during which

time she must take and pass an appropriate real estate education

course.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Commission issue a Final Order (1)

dismissing Cou nt One of the Administrative Complaint ; and (2)

f inding Re spondent guilty of Count Two of the Administrative

Complaint and disciplining her therefor by fining h er $25 0.00

and placing her on probation for a period of 90 days, during

which time she shall tak e and pass an appropriate real estate

education course.

DONE AND ENTERED this 18 th day of May, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administra tive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850 ) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18 th day of May, 2011.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2010).

2 The hearing was originally scheduled for Febru ary 25, 2011,

but was continued at Respondent's request.

3 From April 1, 2002, through April 15, 2002, Respondent's

license was "invalid [by operation of law] due to non - renewal."

4 The current version of rule 61J2 - 24.001 provides that , for a

"first vi olation" of section 475.25(1)(b) by

"misrepresentation," the "penalty range" is a " $1,000 to $2,500

administrative fine and 30 - day suspension to revocation," and , for

a "second and subsequent violations , " the "penalty range" is a

"$2,500 to $5,000 administ rative fine and 6 month suspension to

revocation."

5 The current version of rule 61J2 - 24.001 provides that , for a

"first violation" of section 475.25(1)(e), the "penalty range"

is a " $250 to $1,000 administrative fine and suspension to

revocation," and , for a "second and subsequent violations," the

"penalty range" is a "$1,000 to $5,000 administrative fine and

suspension to revocation."

6 Rule 61J2 - 14.008 (2)(b) currently provides as follows:

When a deposit is placed or to be placed

with a title company or an attorney, the

licensee who prepared or presented the sales

contract ("Licensee"), shall indicate on

that contract the name, address, and

telephone number of such title company or

attorney. Within ten (10) business days

after each deposit is due und er the sales

contract, the Licensee's broker shall make

written request to the title company or

attorney to provide written verification of

receipt of the deposit, unless the deposit

is held by a title company or by an attorney

nominated in writing by a se ller or seller's

agent. Within ten (10) business days of the

date the Licensee's broker made the written

request for verification of the deposit, the

Licensee's broker shall provide Seller's

broker with either a copy of the written

verification, or, if no verification is

received by Licensee's broker, written

notice that Licensee's broker did not

receive verification of the deposit. If

Seller is not represented by a broker, then

Licensee's broker shall notify the Seller

directly in th e same manner indicat ed

herein.

Were the current version of r ule 61J2 - 14.008 (2)(b) in effect at

the time of the operative events of the instant case,

Respondent, as a real estate sales associate, would not have

been required by the rule to have obtained and retained written

v erification of Secure's receipt of the Subject Security

Deposit.

COPIES FURNISHED :

Patrick J. Cunningham, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Mariajose Sanchez, Esquire

1500 Ponce de Leon Boulevard, 2nd Floor

Coral Gables, Florida 33134

Maritere Andreu, Esquire

1805 Ponce de Leon Boulevard, Suite 410

Miami, Florida 33134

Thomas W. O'Bryant, Jr. Director

Division of Rela Estate

400 W est Robinson Street, Suite N - 801

Orlando, Florida 32801

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

N OTICE OF RIGHT TO SU BMIT 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.