12-000359PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Frank Rhoden, P.A. Status: Closed Recommended Order on Wednesday, May 2, 2012.

Summary: Petitioner did not meet burden of proving that Respondent acted outside the scope of his licensure or that he misrepresented his licensure status, but did prove that he committed a breach of trust by storing his property in listed unit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0359 PL

)

FRANK RHODEN, P.A., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1 /

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

judge of the Division of Administrative Hearings (DOAH), on

March 20, 2012, by video teleconference at sites in Lauderdale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrew R ubin Fi er , Esquire

Joshua N. Kendrick, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Frank Rhoden, pro se

4280 Northwest 61st Court

Coconut Creek, Florida 33073

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint in the manner specified therein and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 22 , 2011, Petitioner issued a two -

count Administrative Complaint against Respondent , which

contains the followi ng factual allegations:

1. Petitioner is the state agency charged

with regulating the practice of real estate

pursuant to [s] ection 20.165, Florida

Statutes, and [c] hapters 120, 455, and 475,

of the Florida Statutes.

2. Respondent is licensed as a real estate

sales associate having been issued license

number SL 557575.

3. Respondent ' s address of record is 4280

NW 61st Court, Coconut Creek, FL, 33073.

4. At all times material hereto,

Respondent ' s broker of record was All Homes

Realty, Inc. ("All Homes ").

5. On or about April 28, 2009, Respondent

entered into a property management agreement

with Gina Brimmell ("Brimmell"), to rent

Brimmell ' s residence in Pompano, Beach, FL,

to a third party for a fee.

6. The contract did not require Respondent

to stage the Brimmell residence with

personal property.

7. All Homes was not a party to the

property management agreement.

8. Respondent failed to lease the property,

and in or about June 2009, was discovered to

have moved personal property into the

Brimm ell residence.

Count One of the Administrative Complaint alleges that

"Resp ondent violated [s]ection 475.42(1)(b ), Florida Statutes,

by entering into a property management contract for the Brimmell

residence without All Homes," conduct that amounted to

"o perat[ing] as a broker without requisite licensure." Count

Two of the Administrative Complaint alleges that "Respondent

violated [s]ection 475. 25 (1)(b) , Florida Statutes, when

Respondent moved personal property into the Brimmell home and

misrepresented hi s licensure status. " Respondent subsequently

requested a "formal hearing" on the allegations against him , and

Petitioner thereafter referred the matter to DOAH for the

assignment of an administrative law judge to conduct such a

hearing .

As noted above, the hearing in the instant case was held on

March 20, 2012 . Petitioner presented the testimony of two

witnesses: William Russell and Gina Brimmell . It also offered

four exhibits (Petitioner ' s Exhibits A through D ), which were

all receive d into evidence. Respondent testified on his own

behalf. He presented no other evidence in h is defense.

At the conclusion of the evidentiary portion of the

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

deadline for the filing of proposed re commended orders would be

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

with DOAH.

Respondent and Petitioner both timely filed their Proposed

Recommended Orders , 2 / the former o n March 29 , 2012, 3 / and the

latter on April 23, 2012.

FINDINGS OF FACT

1. Respondent has been a Florida - licensed real estate

sales associate since March 19, 1990. He holds license number

SL - 557575 . His license has been in the name of his professional

association (Frank Rhoden, P.A.) , as allowed by Florida

Administ rative Code Rule 61J2 - 1.013(1)(f), 4 / since January 11,

2007. At no time during the period that he has been licensed

(from March 19, 1990, to present) has he ever been disciplined.

2. Respondent (operating as a professional association) is

now, and was at all times material to the instant case,

affiliated with All Homes Realty, Inc. (All Homes) , a Florida -

registered brokerage corporation . 5 /

3. Since the late 1970 ' s, Gina Brimmell , a now - retired

school teacher, 6 / has owned a condominium unit -- Unit 305 -- lo cated

at 4311 Crystal Lake Drive, Pompano Beach , Florida ( Subject

Unit).

4. In or around April 2009, Ms. Brimmel l asked a

representative of the community association management firm

servicing the condominium association to which (by virtue of her

ownership of the Subject Unit) she belonged (CAM Firm) to

recommend a real estate professional to help her sell or rent

the Subject U nit 7 / and, in response to her request, was given

Respondent ' s name. 8 /

5. Ms. Brimmell , who was then resi ding in North Carolina,

thereafter contacted Respondent and, on April 28, 2009, met with

him in person to discuss the possibility of her using him to

market the Subject Unit , which at the time was unoccupied and

vacant, except for a television and VCR belo nging to

Ms. Brimmell that she had left behind ( on a built - in shelving

unit (Shelving Unit)) when she had moved out of the Subject

Unit .

6. In introducing himself at th e April 28, 2009, meeting,

Respondent handed Ms. Brimmell his business card , which

indicated that he was working for All Homes . After

"interview[ing]" Respondent, an impressed Ms. Brimmell (who was

aware of Respondent ' s affiliation with All Homes and that

Respondent was not his own "boss" 9 / ) let Respondent know that she

wanted to use his services. Respondent thereupon presented to

Ms. Brimmell, for her consideration and signature, the following

Property Management Agreement (PMA) :

PROPERTY MANAGEMENT AGREEMENT:

Owner of: 4311 Crystal Lake Drive, #305,

Pompano Beach, Fl. 33064

Authorizes Frank Rhoden P.A. To manage, rent

and maintain the above property for a fee of

10% of the annual ren t al and 10% per month

of the rent for management services.

Frank Rhoden PA will provide electricians,

plumbers, painters, and ensure that property

is well maintained and rent collected in a

timely manner. Owner authorizes the payment

of rental fees, management fees, repairs and

maintenance out of rent collected.

Frank Rhoden PA and Attorney will evict

tenants who fail to pay rent in a tim ely

manner, disturb the peace or fail to

maintain the excellent condition of the

condo as rented.

Agreed to By:

__________________ __________________

Owner Frank Rhoden PA

After reviewing the PMA, Ms. Brimmell wrote the following

han dwritten language (Handwritten Addition) underneath the

signature lines on the PMA:

10% fee up front to rent (equal to one

month ' s rent) then 10% per month to manage

property.

Then, Ms. Brimmel l and Respondent signed and dated the PMA (on

the appropriate signature line s ) , and they both placed t he i r

initials beneath the Handwritten Addition . 10 / During their

meeting, Ms. Brimmell and Respondent also executed a listing

agreement for the sale of the Subject Unit (Listing

Agreement) . 11 /

7. Before the meeting ended, Ms. B rimmell gave Respondent

the key to the Subject Unit so that he would be able to show it

to prospective buyers and rent ers . She instructed him to market

the unit, which had been cleaned, "as is." At no time did she

ask or au thorize him to bring and leave any item in the unit, be

it for staging the unit or for any other purpose .

8. Respondent was not the only one , aside from

Ms. Brimmell, in possession of a key to the Subject Unit.

Ms. Brimmell had also given keys to the condominium association

and to her good friend, William Russell .

9. Mr. Russell resided year - round in a unit (Unit 309)

down the hall from th e Subject Unit. Ms. Brimmell had given him

a key when she had moved away and asked him to, every now and

then, go inside the Subject Unit to make sure nothing was amiss ,

a responsibility he had agreed to undertake .

10. True to his word, every month or two following

Ms. Brimmell ' s move to North Carolina, Mr. Russell insp ected the

inside of the Subject Unit . During one such visit on or about

June 22, 2009, he observed numerous items in the Subject Unit

that had not been there during his last inspection (Unfamiliar

Items) , including books, paintings, and "knickknacks" on the

Shelving Unit; clothing and a suitca se in the unit ' s walk - in

closet; bags, boxes, bins, and containers with various articles

in them; and large, blue industrial - looking barrels or drums . 12 /

Although Mr. Russell di d not know it at the time, Respon dent was

using the Subject Unit to store things (without Ms. Brimmell ' s

knowledge or authorization) .

11. Later that same day , Mr. Russell telephoned

Ms. Brimmell and told her about the Unfamiliar Items he had

found in the Subject Unit , commenting that it looked like

someone had moved in to the unit . Two days later, he went back

into the Subject Unit, took digital photographs of the

Unfamiliar Items, and electronically sent the se photographs to

Ms. Brimmell.

12 . After viewing the photographs, Ms. Brimmell telephoned

the CAM Firm, All Homes, 13 / an d Respondent to find out what, if

anything, they knew about the Unfamiliar Items ' presence in the

Subject Unit .

13. Ms. Brimmell was unable to reach Respondent, so sh e

left messages for him. After a time, Respondent called her back

and spoke to her. During their discussion, Respondent admitted

to Ms. Brimmell that he was "storing stuff" in the Subject Unit,

and he apologized to her for doing so. Ms. Brimmell, who wa s

"extremely upset," advised Respondent that she was terminating

the PMA and the Listing Agreement (neither of which h ad produced

the result Ms. Brimmell had hoped for -- rental of the Subject

Unit in the case of the PMA, and sale of the Subject Unit in the

case of the Listing Agreement ) , and she demanded that he return

the key to the Subject Unit she had given him.

14. Some time shortly after Respondent ' s and

Ms. Brimmell ' s telephone conversation, t he Unfamiliar Items were

removed from the Subject Unit .

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

16. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary ac tion against

Florida - licensed real estate sales associates based upon any of

the grounds enumerated in section 475.25(1) .

17. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

not exceedin g 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 licensee on

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

assess costs related to the i nvestigation and prosecution of the

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

§ 455.227(3)(a).

18. The Commission may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opport unity to request a proceeding pursuant to

sections 120.569 and 120.57. See § 120.60(5).

19. 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).

20. 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

evidence 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. Fla. Dep ' t of Bus. & Prof ' l Reg. , 705 So. 2d 652, 655

(F la. 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

prepond erance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

21. Clear and convincing evidence is an "intermediate

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

evidence ' 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 witn esses testify 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 b elief or 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 A doption 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 confl ict, . . . 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).

22. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

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

matters not specifically alleged in the charging instrume nt,

unless those matters have been tried by consent. See Trevisani

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

Marcelin v. Dep ' t of Bus. & Prof ' l Reg. , 753 So. 2d 745, 746 - 747

(Fla. 3d DCA 2000 ) ; Dep ' t of Rev. v. Vanjaria Enters. , 675 So.

2d 252, 254 (Fla. 5th DCA 1996 ) ; and Delk v. Dep ' t of Prof ' l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992 ) .

23. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument a nd 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, " which impose

restrictions and limitations on the exerc ise of the Commission ' s

disciplinary authority. 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 ."). The "disciplinary

guidelines" that must be consulted and applied are those that

were in effect at the time the proven violation(s) were

committed . See Orasan v. Ag. for Health Care Admin ., 668 So. 2d

1062, 1063 (Fla. 1st DCA 1996)("[T]he case was proper ly decided

under the disciplinary guidelines in effect at the time of the

alleged violations.") .

24. At all times material to the instant case , t he

Commission ' s "disciplinary guidelines" were set forth in Florida

Administrative Code Rule 61J2 - 24.001 and p rovided, in pertinent

part, as follows 14 / :

(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

licensees 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 preclude any discipline imposed upon a

licen see 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 th e

Commission may specify. Standard

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

course; 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 condu ct included.

* * *

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

F.S. - Guilty of fraud, misrepresentation,

concealment, false promises, false promises,

fasle pretenses, dishonest dealing by trick,

scheme or device, culpable negligen ce or

breach of trust.

RECOMMENDED RANGE OF PENALTY:

In the case of . . . misrepresentation

. . . , the usual action of the Commission

shall be to impose a penalty of revocation.

* * *

In the case of . . . breach of trust, the

usual action of the Commission shall be to

impose an administrative fine not to exceed

$5,000 and to a 1 year suspension.

* * *

(z) VIOLATION[:] Section 475.42(1)(b),

F.S. - Practicing beyond scope as a sales

associate.

R ECOMMENDED RANGE OF PENALTY:

The usual action of the Commission shall be

to impose a 3 year suspension to revocation.

* * *

(4)(a) When either the Petitioner or

Respondent is able to demonstrate

aggravating or mitigating

ci rcumstances . . . to a Division of

Administrative Hearings [administrative law

judge] in a Section 120.57(1), F.S., hearing

by clear and convincing evidence, the . . .

[administrative law judge] shall be entitled

to deviate from the above guidelines

in . . . recommending 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 Complaint.

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.

25. The Administrative Complaint issued in the instant

case contains t wo coun ts. Count One alleges that "Resp ondent

violated [s]ection 475.42(1)(b ), Florida Statutes, by entering

into a property management contract for the [Subject Unit]

without All Homes." Count Two alleges that "Respondent violated

[s]ection 475. 25(1)(b) , Flor ida Statutes, when Respondent moved

personal property into the [Subject Unit] and misrepresented his

licensure status."

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

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

action against a Florida - licensed real estate sales associate

who "[h]as violated any provision of . . . s. 475.42," including

the following provision found in su bsection (1)(b) of that

statu t e:

A person licensed as a sales associate may

not operate as a broker or operate as a

sales associate for any person not

registered as her or his employer.

"Broker" and "sales associate," as those terms are used in

section 475.42 and elsewhere in part I of chapter 475, are

defined in subsections (1)(a) and (1)(j), respectively, of

se ction 475.01 as follows:

(1) (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 collect 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 a ny 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, selli ng, 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 lessees of business ent erprises 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 which does, or is calc ulated 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. 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 appraisal 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 per iods per year in one or

more timeshare plans on behalf of any number

of persons, except as prov ided in ss.

475.011 and 721.20.

(1)(j) "Sales associate" means a person who

performs any act specified in the definition

of "broker," but who performs such act under

the direction, control, or management of

another person. A sales associate renders a

professional service and is a professional

within the meaning of s. 95.11(4)(a).

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

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

action against a Florida - licensed real estate broker who "[h]as

been guilty of fraud, misrepresentation, concealment, false

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

or device, culpa ble negligence, or breach of trust 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 l oss; that the damage or loss has

been settled 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. " For there to be a violation 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)("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 complaint), 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 Morri s v. Dep ' t

of Prof ' l Reg . , 474 So. 2d 841, 843 (Fla. 5th DCA 1985)(grounds

of "fraud, misrepresentation, concealment, false promises,

dishonest dealing by trick, scheme or device, culpable

negligence and breach of trust in a business transaction " in

violat ion of section 475.25(1)(b) " all require a finding of

wro ngful intent or scienter ") . Th e wrongful intent or scienter

requir 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 Allen ' s concurring opinion, motive and intent are

generally proven thr ough circumstantial evidence.") For

instance, it may be inf erred 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 .").

28. Because of their penal nature, the foregoing statutory

provisions must be strictly construed, with any reasonable

doubts as to their meaning being resolved in favor of the

licensee. 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 construed. ' "); 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 Comm ' n , 458 So. 2d 887, 888 (Fla. 5th DCA 1984)

("[W]here a statute prov ides 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 at

the final hearing in light of the above , the undersigned finds

that Petitioner failed to meet its burden of proving , by clear

and convincing evidence , Respondent ' s guilt of the violation of

section 475.42(1)(b ) (and, d erivatively, section 475.25(1)(a ))

alleged in Count One of the Administrative Complaint . While the

record evidence does establish that Respondent did execute the

PMA, as alleged, an insufficient showing was made that he did so

outside the " direction, control, or management " of All Homes. 15 /

That the PMA wa s in Respondent ' s , not All Home ' s, name does not

compel a contrary conclusion , inasmuch as " Florida authority

establishes that a party [such as All Homes] may contract in the

name of an agent ." Impossible Elec. Techniques, Inc. v.

Wackenhut Protective Sys. , Inc. , 610 F.2d 371, 372 (5th Cir.

1980) ; see also Love v. Brown Dev. Co. , 131 So. 144 (Fla.

1930)("A principal has the right to do business in his own name

or in the name of his agent ."); CC - Aventura, Inc. v. Weitz Co.,

LLC , No. 06 - 21598 - CIV, 2007 U.S. Dist. LEXIS 53743 *12 (S.D.

Fla. July 25, 2007)("[T]here is no requirement under Florida law

that a principal be specifically i dentified in a contract

entered into by its agent in order for the principal to be bound

by the contract. To the contrary, a principal may enter into

agreements in its own name or that of its agent.").

30. Petitioner ' s proof at the final hearing likewise fell

short of clearly and convincingly establishing the allegation

made in Count Two of the Administrative Complaint that

Respondent , in his dealings with Ms. Brimmell, violated section

475.25(1)(b) by "misrepresent[ing] his licensure status . " A

review o f the complete evidentiary record leaves the undersigned

unable to find, without hesitancy, that Respondent represented

himself to be anything other than what he actually was: a

licensed real estate sales associate working for All Homes.

31. Petitioner, however, did present clear and convincing

proof of Respondent ' s guilt of the remaining allegation made in

Count Two of the Administrative Complaint -- that "Respondent

violated [s]ection 475. 25(1)(b) , Florida Statutes, when

Respondent moved personal property into the [Subject Unit] " and

thereby breached the trust of Ms. Brimmell, who had given

Respondent access to the Subject Unit only for purposes of

facilitating its rental or sale . T hat proof consisted of , not

only ci rcumstantial evidence , but also compelling , direct

evidence, in the form of Ms. Brimmell ' s persuasive hearing

testimony that Respondent apologized to her for "storing stuff"

in the Subject Unit (which testimony the undersigned has

credited 16 / ) . See J.J.N. v. State , 877 So. 2d 806, 809 n.1 (Fla.

5th DCA 2004) (" We note that J.J.N. made an admission at the

Center and that evidence of an inculpatory statement is direct,

not circumstantial, evidence. "); and Jorge v. State , 861 So. 2d

1279, 1280 (Fla. 3d D CA 2003 ) (" The defendant takes the view that

only circumstantial evidence supported defendant ' s knowledge

that cocaine was in the bag, but that is not so. At a minimum

the defendant ' s inculpatory statement is direct, not

circumstantia l, evidence establishing guil ty knowledge. ").

Respondent ' s using the Subject Unit for this unauthorized

purpose constituted a breach of trust, in violation of section

475.25(1)(b), as alleged in Count Two of the Administrative

Complaint. See Dep ' t of Bus. & Prof ' l Reg., Div. of Real Estate

v. Hampton , No. 96 - 4384, 1997 Fla. Div. Adm. Hear. LEXIS 5258

*11 (Fla. DOAH Apr. 25, 1997; FREC July 28, 1997)( "[T]the

wrongful diversion is an act which constituted a breach of trust

by the Respondent and his corporation as soo n as the moneys were

put to an unauthorized use. ").

32. Having considered the facts of the instant case in

light of the pertinent and applicable provisions of Florida

Administrative Code Rule 61J2 - 24.001 set forth above, it is the

view of the undersigned that, as punishment for having engaged

in this breach of trust in violation of section 475.25(1)(b) ,

Respondent should be fined $ 1,500 .00 , his license should be

suspended for a period of six months , and he should be directed

to pay, pursuant to section 45 5.227(3)(a), investigative and

non - attorney prosecutorial costs related to this violation in an

appropriate amount to be determined in accordance with chapter

120 .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is here by

RECOMMENDED that the Florida Real Estate Commission issue a

Final Order (1) finding that, as alleged in Count T wo of The

Administrative Complaint, "Respondent violated [s]ection

475. 25(1)(b) , Florida Statutes, when Respondent moved personal

property into the [Subject Unit]" and disciplining him therefor

by fining him $ 1,500 .00 , suspending his license for a period of

six months, and directing him to pay, pursuant to section

455.227(3)(a), investigative and non - attorney prosecutorial

costs related to th is violation in an appropriate amount to be

determined in accordance with chapter 120; and (2) dismissing

the remaining allegations of professional misconduct made in the

Administrative Complaint.

DONE AND ENTERED this 2nd day of Ma y, 2012, in Tallahassee,

Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 2nd day of May , 2012.

ENDNOTES

1 / Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to that version of Florida

Statutes in effect at the time of the occurrence of the

particular event or action being discussed.

2 / The Transcript of the hearing (consisting of one volume) was

filed with DOAH on April 13, 2012.

3 / Appended to Respondent ' s Proposed Recommended Order were

documents that were neither offered nor received into evidence

at the final hearing. The following day (March 30, 2012), two

other such non - record documents were filed with DOAH by

Respondent. Because these documents are outside the scope of

the evidentiary record in this case, they cannot provide a basis

for any finding of fact. See General Development Utilities,

Inc. v. Hawkins , 357 So. 2d 408, 409 (Fla. 1978)("The Commission

selected a ratio which nowhere appears in t he record, apparently

fabricating one for the company based on information it has

compiled for water companies generally. The arbitrary selection

of this ratio as a ' fact ' comes from outside the record of the

proceeding and plainly violates the notions of agency due

process which are embodied in the administrative procedure

act."); and Section 120.57(1)(j), Florida Statutes ("Findings of

fact . . . shall be based exclusively on the evidence of record

and on ma tters officially recognized.").

4 / Rule 61J2 - 1.013(1)(f) provides as follows:

Registration in the following categories

shall show the name, the business address,

effective and expiration date:

Active Professional Association

see also Fla. Admin. Code R. 61J2 - 1.011(5) (a) (" The following

fees shall be charged for the following purposes: Change of

Individual License to Professional Association or Professional

Association to Individual License $30.00.").

5 / Section 475.15, Florida Statutes, requires any corporation

that "ac ts as a broker" to register with the Florida Real Estate

Commission. See Meteor Motors, Inc. v. Thompson Halbach and

Assocs. , 914 So. 2d 479, 482 (Fla. 4th DCA 2005).

6 / Ms. Brimmell retired from teaching in 2006.

7 / The Subject Unit had been on the market "on and off" since

2006, and the "two or three different realtors" with whom the

unit had been listed during these times had been unable to

produce a sale.

8 / The CAM Firm and All Homes (the brokerage corporation with

which Respondent was affiliated) had common ownership.

9 / Ms. Brimmell testified at hearing that, before meeting with

Respondent, "[Respondent ' s] boss [had] told [her] that he was

his boss."

10 / The undersigned has rejected Respondent ' s hearing testimony

that he did not sign, and had "nothing to do with," the PMA, in

favor of Ms. Brimmell ' s more credible hearing testimony to the

contrary.

11 / The evidentiary record does not shed any further light on

the contents of this agreement (whic h was not offered into

evidence and is not part of the evidentiary record).

12 / By any reasonable standard, the presence of the Unfamiliar

Items, with the possible exception of those on the Shelving

Unit, detracted from the appearance of the Subject Unit, and it

is inconceivable that any reasonable real estate professional

would have placed these items in the unit for staging purposes.

13 / That Ms. Brimmell contacted All Homes is further evidence of

her understanding that Respondent was working for All Ho mes.

14 / The instant case involves violations alleged to have been

committed in 2009, prior to the July 21, 2010, effective date of

the current version of Florida Administrative Code Rule 61J2 -

24.001 . The provisions set forth below are those of that

version of the rule in effect from December 25, 2007, until

July 20, 2010.

15 / No one from All Homes testified at the final hearing.

16 / In his hearing testimony, Respondent unconvincingly denied

maki ng such an apology to Ms. Brimmell, claiming instead that,

if he apologized to Ms. Brimmell for anything, it was to

"express that [he was] sorry that the [Subject Unit] wasn ' t

rented" (a claim that is difficult to reconcile with the equally

unconvincing te stimony that he had given earlier in his

examination, referenced in endnote 10 above, concerning the

PMA).

COPIES FURNISHED :

Andrew Rubin Fi er , Esquire

Joshua N. Kendrick, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Frank Rhoden

4280 Nort hwest 61st Court

Coconut Creek, Florida 33073

Juana Watkins, Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801

Layne Smith, General Counsel

Departme nt of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 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 Final Order in this case.