16-005873 Ambey Singh vs. Florida Real Estate Commission Status: Closed Recommended Order on Wednesday, May 10, 2017.

Summary: The Commission established factual and legal basis to deny Petitioner's application for a real estate sales associate license, however, based on the evidence, the Commission should exercise its discretion and grant Petitioner's application for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBEY SINGH,

Petitioner,

vs. Case No. 16 - 5873

FLORIDA REAL ESTATE COMMISSION,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.60, 120.569,

and 120.57(1), Florida Statutes (2016), 1/ on February 9, 2017, by

video teleconference with sites in Tallahasse e and Orlando,

Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

Suite 535

5728 Major Boulevard

Orlando, Florida 32819

For Respondent: Tom Barnhart, E squire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this matter is whether the Florida Real Estate

Commission may deny Petiti onerÓs application for a license as a

real estate sales associate , and, if so, whether it is

appropriate to do so based on the underlying facts .

PRELIMINARY STATEMENT

On January 21, 2016, Petitioner, Ambey Singh (ÐPetitionerÑ),

submitted an application to Respondent, the Florida Real Estate

Commission (the ÐCommissionÑ), for a license as a real estate

sales associate.

On August 16, 2016, the Commission issued a Notice of Intent

to Deny informing Petitioner that it was denying her

application. 2/ The Commiss ion determined that Petitioner was not

qualified to be issued a sales associate license because the

Commission had previously revoked her real estate brokerÓs

license in 2002.

On September 28, 2016, Petitioner requested an

administrative hearing challengin g the DepartmentÓs Notice of

Intent to Deny. On October 16, 2016, the Commission referred the

matter to the Division of Administrative Hearings (ÐDOAHÑ) and

requested assignment to an Administrative Law Judge to conduct a

c hapter 120 evidentiary hearing.

The final hearing was held on February 9, 2017. 3/ Petitioner

testified on her own behalf and presented the testimony of Mahavir

Ashok, Peter Lumseyfai , and Ashta Nankissoor . Petitioner did not

offer any exhibits. The Commission did not present any

witne sses. The CommissionÓs Exhibits 1 and 2 were admitted in to

evidence without objection.

A one - volume Transcript of the final hearing was filed with

DOAH on March 14, 2017. At the close of the hearing, the parties

were advised of a ten - day timeframe follow ing DOAHÓs receipt of

the hearing transcript to file post - hearing submittals. Through

PetitionerÓs unopposed Motion for Extension of Time, the parties

agreed to a deadline for filing post - hearing submissions more

than ten days after the filing of the hear ing tr anscript thereby

waiving the 30 - day time period for filing the Recommended Order. 4/

Both parties filed Proposed Recommended Orders which were duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Commission is the state agenc y charged with

licensing real estate sales associates in Florida. See

§ 475.161, Fla. Stat.

2. On January 21, 2016, Petitioner applied to the

Commission for a license as a real estate sales associate. In

her application, Petitioner dutifully divulged that on

December 12, 2002, the Commission revoked her real estate

brokerÓs license.

3. On August 16, 2016, the Commission issued a Notice of

Intent to Deny notifying Petitioner that it denied her

application for a sales associate license. The Commission denied

PetitionerÓs application based on its finding that PetitionerÓs

brokerÓs license was previously revo ked by the Commission in

2002.

4. At the final hearing, Petitioner explained the

circumstances that led to her brokerÓs license revocation. In

200 0, a Commission investigator audited her real estate trust

account. The audit uncovered information that Petitioner failed

to timely transfer a $1,000 deposit and properly reconcile her

escrow account. Petitioner disclosed that a sales contract she

was h andling required the buyers to deposit $1,000 with her as

the broker. The sale fell through, and the buyers did not close

on the house. In May, 2000, the buyers demanded Petitioner

transfer the deposit within 15 business days. Petitioner,

however, did n ot forward the deposit out of her escrow account

until four months later in September 2000.

5. Based on this incident, the Commission alleged that

Petitioner failed to account for deliver ed funds ; failed to keep

an accurate account of all trust fund trans actions ; failed to

take corrective action to balance her escrow account ; and filed a

false report in violation of sections 475.25(1)(d)1, 475.25(1)e,

475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule

61J2 - 14.012(2). Based on the charges, the Commission ordered

PetitionerÓs real estate broker Ós license permanently revoked.

6. Petitioner stressed that she did not steal the buyersÓ

money. Her mistake was in not timely transferring the deposit

from her trust account. Petitioner asserted that s he simply lost

track of the funds. At the final hearing , Petitioner accepted

full responsibility for her mismanagement.

7. At the final hearing, Petitioner expressed that she

first entered the Florida real estate industry in 1982 when she

became a licens ed real estate sales associate. In 1987, she

obtained her broker's license. She subsequently purchased a

Century 21 franchise. She conducted her real estate business

until 2002 when her brokerÓs license was revoked.

8. Petitioner explained that she is not seeking another

brokerÓs license from the Commission. Instead, she is just

applying for another sales associate license.

9. Petitioner described the difference between a sales

associate and a broker. 5/ Petitioner stated that a sales

associate works directly under, and is supervised by, a broker.

The sales associate interacts with prospective buyers and

sellers, negotiates sales prices, and accompanies clients to

closings. Regarding financial transactions, however, the broker,

not the sales associat e, processes all funds related to a real

estate sale. The broker, not the sales associate, transfers

funds into and out of escrow accounts. In other words, the error

Petitioner committed as a broker in 2000 could not happen again

if she was granted a sal es associate license.

10. Petitioner further testified that during the time she

worked as a sales associate, she was involved in the sale of

approximately 100 houses. Petitioner represented that she never

received any complaints or criticisms from any of her clients.

11. Petitioner relayed that she became motivated to return

to the real estate business following her husbandÓs death in

2015. Petitioner expressed that she was very good at selling

houses. Real estate is her passion. She voiced that she e ats,

sleeps, walks, and talks real estate. Despite her misstep in

2000, Petitioner declared that she is a very honest and

hardworking person. She just wants another chance to work in the

profession that she loves.

12. Currently, Petitioner works for a c haritable

organization. She helps administer and manage the charityÓs

finances. Petitioner represented that she has never failed to

meet her financial responsibilities. She has always accounted

for all of the funds for which she is entrusted (approximat ely

$8 million since she began working for the charity over 20 years

ago).

13. No evidence indicates that Petitioner has committed any

crimes or violated any laws since her brokerÓs license was

revoke d in 2002.

14. At the final hearing, Petitioner prese nted three

witnesses who testified in favor of her receiving a sales

associate license. A ll three witnesses proclaimed that

Petitioner is trustworthy, of good character, maintains high

moral values, and is spiritually strong. The witnesses, who know

Peti tioner both personally and professionally, opined that she is

honest, truthful, and has an excellent reputation for fair

dealing. All three witnesses declared that the public would not

be endangered if the Commission granted Petition erÓs application

for l icensure.

15. P etitioner also produced six letters of support. These

letters assert that Petitioner is an hon orable and trustworthy

person.

16. Based on the competent substantial evidence presented

at the final hearing, the preponderance of the evidence provides

the Commission sufficient legal grounds to deny PetitionerÓs

application. Consequently, Petitioner failed to meet her burden

of establishing that she is entitled to a license as a real

estate sales associate. However, as discussed below, Petiti oner

demonstrated that she is rehabilitated from the incident which

led to the revocation of her brokerÓs license in 2002.

Therefore, the Commission may, in its discretion, grant

PetitionerÓs application (with restrictions) pursuant to section s

475.25(1) and 455.227(2)(f).

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.60, 120.569, and 120.57(1).

18. The Florida Legislature created the Com mission within

the Department of Business and Professional Regulation (the

ÐDepartmentÑ). The Department shall license any applicant whom

the Commission certifies to be qualified to practice as a broker

or sales associate. See §§ 475.181, 475.1 61, and 47 5.02(1),

Fla. Stat.

19. The Commission shall certify for licensure any

applicant who satisfies the requirements of sections 475.17,

475.175, and 475.180. However, the Commission may refuse to

certify for licensure any applicant who is subject to discipl ine

under section 475.25. See § 475.181(2), Fla. Stat.

20. Petitioner challenges the CommissionÓs denial of her

application for a sales associate license. Petitioner, as the

party asserting the affirmative, carries the ultimate burden of

persuasion in t his administrative proceeding . Dep't of Child. &

Fams. v. Davis Fam. Day Care Home , 160 So. 3d 854, 857 (Fla.

2015); Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d

932, 934 (Fla. 1996) (ÐThe general rule is that a party asserting

the affirmativ e of an issue has the burden of presenting evidence

as to that issue.Ñ) ( Osborne Stern & Co. II ); DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

21. In an application denial proceeding, however, the

agency has the burden to prove the s pecific acts or violations

which it alleges are grounds for denial. See M.H. v. Dep't of

Child. & Fams. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008)(ÐWithout

question, an applicant for a license has the initial burden of

demonstrating his or her fitness to be licensed. . . . But if

the licensing agency proposes to deny the requested license based

on specific acts of misconduct, then the agency assumes the

burden of proving the specific acts of misconduct that it claims

demonstrate the applicant's lack of fitne ss to be licensed.Ñ

citing Osborne Stern & Co. II , 670 So. 2d at 934; see also

Comprehensive Med. Access, Inc. v. Off. of Ins. Reg. , 983 So. 2d

45, 46 (Fla. 1st DCA 2008)(While the applicant continuously has

the burden of persuasion to prove entitlement to be licensed,

Ðthe agency denying the license has the burden to produce

evidence to support a denial.Ñ).

22. The burden of proof in a license application proceeding

is governed by the preponderance of the evidence standard.

Osborne Stern & Co. II , 670 So . 2d at 934 - 935; see also

§ 120.57(1)(j), Fla. Stat.

23. The Commission cites to sections 475.25(1)(s) and

455.227(1)(f) as the legal basis for its denial of PetitionerÓs

application. Section 475.25 states, in pertinent part:

(1) The commission may deny an application

for licensure . . . may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impose an administrative fine not to

exceed $5,000 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that the

licensee, registrant, permittee, or

applicant:

(a) Has violated any provision of s .

455.227(1) . . .

* * *

(s) Has had a registration suspended,

revoked, or otherwise acte d against in any

jurisdiction.

24. Section 455.227(1) states, in pertinent part:

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) m ay be taken:

* * *

(f) Having a license or the authority to

practice the regulated profession revoked,

suspended, or otherwise acted against,

including the denial of licensure, by the

licensing authority of any jurisdiction,

including its agenci es or subdivisions, for a

violation that would constitute a violation

under Florida law.

25. Section 455.227(2) sets forth disciplinary actions the

Commission may take and states:

When the [Commission] [ 6/ ] . . . finds any

person guilty of the grounds set forth in

subsection (1) or of any grounds set forth in

the applicable practice act, including

conduct constituting a substantial violation

of subsection (1) or a violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an order

imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not

to exceed $5,000 for each count or separate

offense.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms w hich are reasonably

tailored to the violations found.

(g) Corrective action.

26. Based on the facts found in this matter, the Commission

met its burden of producing sufficient evidence to support its

authority to deny PetitionerÓs application. The Commission

denied PetitionerÓs application based on its fi nding that the

Commission had previously revoked PetitionerÓs real estate

brokerÓs license. The parties do not dispute that Petitioner had

Ða license or the authority to practiceÑ real estate permanently

revoked by the Commission in 2002. Accordingly, un der the clear

direction of both section 475.25(1)(s) and sections 455.227(1)(f)

and (2)(a), the Commission is authorized to deny PetitionerÓs

application for licensure as a real estate sales associate.

27. Notwithstanding the provisions of sections 475.25 and

455.227, Petitioner asserts that, before the Commission denies

her application, it must first determine whether she is

ÐqualifiedÑ to practice as a sales associate in accordance with

section 475.17 . For support, Petitioner cites section 475.181(1)

wh ich states that t he Department Ðshall license any applicant

whom the [C]ommission certifies, pursuant to subsection (2), to be

qualified to practice as a broker or sales associate.Ñ Section

475.17 prescribes the Ðqualifications for practiceÑ as a sales

as sociate and states:

An applicant for licensure who is a natural

person must be at least 18 years of age; hold

a high school diploma or its equivalent; be

honest, truthful, trustworthy, and of good

character; and have a good reputation for fair

dealing. An applicant for an active . . .

sales associateÓs license must be competent

and qualified to make real estate transactions

and conduct negotiations therefor with safety

to investors and to those with whom the

applicant may undertake a relatio nship of

trust and confidence.

28. Section 475.17(1)(a) further states that:

If . . . the applicantÓs registration or

license to practice or conduct any regulated

profession, business, or vocation has been

revoked or suspended, by this or any other

state, any nation, or any possession or

district of the United States, or any court or

lawful agency thereof, because of any conduct

or practices which would have warranted a l ike

result under this chapter . . . the applicant

shall be deemed not to be qualified unless,

becau se of lapse of time and subsequent good

conduct and reputation, or other reason deemed

sufficient, it appears to the commission that

the interest of the public and investors will

not likely be endangered by the granting of

registration . (E mphasis added) .

29. The gist of PetitionerÓs argument is that, prior to

denying PetitionerÓs application, section 475.17(1)(a) requires

the Commission to determine whether Petitioner is ÐqualifiedÑ for

a sales associate license. Therefore, even though Petitioner was

in itially Ðdeemed not to be qualifiedÑ (because her brokerÓs

license had been revoked), the Commission must consider that

Ðbecause of lapse of time and subsequent good conduct and

reputation, or other reason deemed sufficient, it appears to the

[C]ommission that the interest of the public will not likely be

endangered.Ñ Consequently, because t he Commission did not review

the factors outlined in section 475. 17(1)(a), it acted

improperly.

30. Taking her argument one step further, Petitioner

asserts that the e vidence shows that a significant amount of time

has lapsed since her brokerÓs license was revoked (15 years ago ),

and witness testimony attests to her good conduct and reputation

since the revocation. Based on these facts, at this time, the

Commission sho uld find Petitioner ÐqualifiedÑ to practice as a

real estate sales associate and grant her application for

licensure.

31. As a matter of law, however, the undersigned concludes

that the Commission is not required to consider the factors

described in secti on 475.17(1)(a) before denying PetitionerÓs

application. Statutory interpretation begins with an analysis of

whether a statuteÓs language is clear and unambiguous. Ð When

construing a statute, the court must first look to the plain

meaning of the words us ed by the Legislature.Ñ Brandy's Prods. v.

Dep't of Bus. & Prof'l Reg . , Div. of Alcoholic Beverages &

Tobacco , 188 So. 3d 130, 132 (Fla. 1st DCA 2016) citing Verizon

Bus. Purchasing, LLC v. Dep't of Revenue , 164 So. 3d 806, 809

(Fla. 1st DCA 2015); see al so W. Fla. Reg'l Med. Ctr., Inc. v.

See 79 So. 3d 1, 9 (Fla. 2012). Ð When a statute is clear, a

court may not look behind the statute's plain language or resort

to rules of statutory construction to determine legislative

intent. . . . The Legislature is assumed to know the meaning of

the words used in a statute and to have expressed its intent

through the use of the words.Ñ Dep't of Highway Safety & Motor

Vehicles v. Peacock , 185 So. 3d 632, 633 (Fla. 1st DCA 2016) ,

citing State, Dep't of Revenue v. Lock heed Martin Corp. , 905 So.

2d 1017, 1020 (Fla. 1st DCA 2005).

32. In a pplying the plain language of the applicable

statutes to the facts found in this matter, the undersigned

concludes neither section 475.25 nor section 455.227 require the

Commission to r efer to section 475.17 prior to denying

PetitionerÓs application on account of her previously revoked

real estate license. Similarly, neither section requires the

Commission to consider PetitionerÓs qualifications, good

character, good conduct, or reputat ion before making its

decision. Applying the clear intent of sections 475.25 and

455.227 (as stated above), the CommissionÓs authority to deny

PetitionerÓs application based solely on a finding that

Petitioner Ós real estate brokerÓs license was previously revoked

is unambiguous and straightforward.

33. Further, s ection 475.17 (unlike section 455.227) does

not appear to apply to applicants whose real estate licenses were

previously revoked by the Commission. Section 455.227(2)(a)

states that the Commissio n (Board) may refuse to certify an

application for a license from any person it finds has violated

455.227(1). Section 455.227(1)(f) specifically includes a person

whose license to practice Ð the regulated profession [was] revoked

. . . by the licensing au thority of any jurisdiction, including

its agen cies or subdivisions . . . Ñ (E mphasis added) . Through

this language, section 455.227 specifically authorizes the

Commission to refuse to certify Petitioner solely based on the

fact that it previously revoke d her real estate brokerÓs license.

Section 475.25(1)(s) even more clearly states that the Commission

Ðmay deny an application for licensure . . . if it finds that the

. . . applicant . . . has had a registration suspended, revoked,

or otherwise acted aga inst in any jurisdiction.Ñ No language in

either section 455.227 or section 475.25 requires the Commission

to consider the applicantÓs good character or reputation prior to

denial based to a previously revoked license.

34. Section 475.17, on the other ha nd, appears to pertain

to situations where the applicantÓs license to practice a

Ðregulated professionÑ other than real estate has been revoked.

Section 475.17(1)(a) addresses applications where the applicantÓs

license to practice Ðany regulated professio nÑ has been revoked

because of conduct Ðwhich would have warranted a like resultÑ or

Ðwhich would have been grounds for revokingÑ under chapter 475.

Based on this language, the undersigned concludes that the

Florida Legislature intended section 475.17 to apply to

applications in addition to those specially addressed by sections

455.227 and 475.25. See e.g. , State v. Mark Marks, P.A. , 698 So.

2d 533, 541 (Fla. 1997)(The Florida LegislatureÓs use of

Ðdifferent terms in different portions of the same statute is

strong evidence that different meanings were intended.") .

35. Finally, contrary to PetitionerÓs implication in its

Proposed Recommended Order, section 475.181 does not establish

that the Florida Legislature requires the Department or the

Commission to review whether an applicant is Ðqualified to

practice as a broker or sales associateÑ when considering whether

to deny a license based on a previously revoked real estate

license. Section 475.181(2) specifically states that Ðthe

[C]ommission may refuse t o certify any applicant . . . who is

subject to discipline under s. 475.25.Ñ As explained above,

Petitioner is subject to discipline under section 475.25(1)(a)

(which incorporates section 455.227(1)(f)) and section

475.25(1)(s) based on the 2002 revocatio n of her brokerÓs

license. 7/ Accordingly, under the plain and unambiguous statutory

language, sections 475.25 and 455.227 give the Commission full

authority to refuse to certify Petitioner for licensure as a sales

associate based on its revocation of her real estate brokerÓs

license in 2002.

36. Nevertheless, despite the fact that section

475.17(1)(a) does not apply to the CommissionÓs decision, nothing

prevents the Commission from examining PetitionerÓs character and

conduct before making its ultimate de cision whether to deny her

application for a sales associate license. Neither section

455.227(1)(f) nor section 475.25(1)(s) require the Commission to

deny PetitionerÓs application because it previously revoked her

brokerÓs license. Instead, both section s allow the Commission to

consider a range of penalties that it ÐmayÑ impose on

Petitioner. 8/ While one of these options is denial, the

Commission, in its discretion, may also elect to grant

PetitionerÓs application, then place her on probation or other

c onditions. See section 475.25(1)(ÐThe commission may deny an

application for licensure . . . [and] may place a licensee,

registrant, or permittee on probation . . . .Ñ ) (E mphasis added) . ;

and sections 455.227(2)(a) and (f)(ÐThe [Commission] may enter an

ord er imposing one or more of the following penalties . . .

Refusal to certify, or to certify with restrictions, an

application for license. . . . Placement of the licensee on

probation for a period of time and subject to such conditions of

the [Commission]. Ñ) (E mphasis added) .

37. Based on careful consideration of the competent

substantial evidence in the record, the undersigned finds that

Petitioner demonstrated, by a preponderance of the evidence, that

the interest of the public will not likely be endanger ed if the

Commission grants her a sales associate license. Petitioner

credibly testified that she fully acknowledges the seriousness of

her error in 2000 as a real estate broker. She also accepts

responsibility for her actions. In addition, Petitioner

p resented persuasive evidence and testimony establishing her good

character and conduct over the past 15 years. She has been

entrusted with fiduciary responsibility over a significant amount

of funds and, by all accounts, has been found honest and

trustwor thy.

38. Furthermore, granting PetitionerÓs application will not

place her in the same situation that led to her prior violation.

A sales associate works under the direction and oversight of a

broker. Therefore, certifying Petitioner for licensure as a real

estate sales associate will not expose the public to the

misconduct that led to PetitionerÓs license revocation in 2002.

39. Finally, the undersigned notes that, when the

Commission formulated its decision, it did not assess, evaluate,

or investigate PetitionerÓs current character or reputation.

Neither did the Commission have the benefit of PetitionerÓs

mitigating and supporting testimony presented at the final

administrative hearing. In light of the competent substantial

evidence in the record, th e undersigned concludes that, if

granted a sales associateÓs license, Petitioner will not present

a danger to the public. Petitioner demonstrated that she is

rehabilitated from the incident which led to the revocation of

her brokerÓs license in 2002. The refore, the undersigned

recommends the Commission exercise its discretion under sections

475.25(1) and 455.227(2) and grant PetitionerÓs application and

place her on probation for a period of time (or other con ditions

it deems appropriate).

40. In sum, th e Department met its burden of proving the

specific grounds and legal basis to deny PetitionerÓs application

for licensure as a real estate sales associate. Therefore, the

Commission is authorized to deny PetitionerÓs application for a

sale associate lice nse. However, Petitioner also demonstrated,

by a preponderance of the evidence, that she meets the

Ðqualifications for practiceÑ as a sales associate should the

Commission decide to impose a different penalty ( i.e. , probation)

as authorized under sections 475.25(1) and 455.227(2)(f).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Florida Real Estate Commission has the legal authority

to deny PetitionerÓs application for licensure. However, based

on the underlying facts in this matter, it is RECOMMENDED that

the Florida Real Estate Commission enter a final order granting

PetitionerÓs application for a license as a real estate sales

associate.

DONE AND ENTERED this 10 th day of May , 2017 , in Tallahassee,

Leon County, Flori da.

S

J. BRUCE CULPEPPER

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 May, 2017 .

ENDNOTE S

1/ All references to Florida Statutes will be to the 2016

version.

2/ Petitioner represents that she did not receive the

CommissionÓs Notice of I ntent to Deny until September 27, 2016.

3/ The final hearing was initially scheduled for December 16,

2016. Following the CommissionÓs unopposed Motion to Continue,

the final hearing was rescheduled for February 9, 2017.

4/ See Fla . Admin . Code R . 28 - 106.216.

5/ See section 475.01(1)(a) which defines ÐbrokerÑ to mean:

[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

opportunitie s 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, purchasers,

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 of

any transac tion 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 property infor mation or lists. A

broker renders a professional service and is

a professional within the meaning of s.

95.11(4)(a). . . . The term ÐbrokerÑ also

includes any person who is a general partner,

officer, or director of a partnership or

corporation which ac ts as a broker. The term

ÐbrokerÑ 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 behalf of any number of

persons, except as provided in ss. 475.011

and 721.20.

Se ction 475.01(1)(j) defines Ðsales associateÑ to mean:

[A] person who performs any act specified in

the definition of Ðbroker,Ñ 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).

6/ See section 455.01(1) which states: ÐÒBoardÓ means any board

or commission, or other statutorily created entity to the extent

such entity is authorized to exercise regulatory or rulemaking

functions, within the department, including the Florida Real

Estate Commission . . .Ñ

7/ In addition, the CommissionÓs Final Order revoking

PetitionerÓs brokerÓs license in 2002 was based on PetitionerÓs

v iolations of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l),

and 475.25(1)(b).

8/ See also section 475.181(2) which states, in pertinent part,

ÐThe commission may refuse to certify any applicant . . . who is

subject to discipline under s. 475.25.Ñ ( E m phasis added) .

COPIES FURNISHED:

Tom Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Daniel Villazon, Esquire

Daniel Villazon, P.A.

Suite 535

5728 Major Boulevard

Orlando, Florida 3281 9

(eServed)

Claude ÐChipÑ Boring, III, Chair

Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, N801

Orlando, Florida 32801

Jason Maine, General Counsel

Department of Business and

Professional Regulat ion

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.