17-003959PL Department Of Business And Professional Regulation vs. Maria Camila Murata Status: Closed Recommended Order on Tuesday, January 2, 2018.

Summary: Broker's failure to deliver funds, failure to actively supervise sales associate, and failure to maintain accounts and records warranted fine and suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

vs. Case No. 17 - 3959PL

MARIA CAMILA MURATA,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Oc tober 31, 2017, a duly - noticed hearing was held by

video teleconference at locations in West Palm Beach and

Tallahassee, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitio ner: Crystal D. Stephens, Esquire

Nicholas Lee DuVal, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: Labeed A. Choudhry, Esquire

Ward, Damon, Posner, Pheterson &

Bleau, P.L.

4420 Beacon Circle, Suite 100

West Palm Beach, Florida 33407

STATEMENT OF THE ISSUE S

Whether Respondent violated provisions of chapter 475,

Florida Statutes (2016) , 1/ regulating real estate sales brokers,

as alleged in the Administrative Complaint; and, if so, what

sanctions are appropriate.

PRELIMINARY ST ATEMENT

On April 27, 2017, the Department of Business and

Professional Regulation ( " Department " or " Petitioner " ) filed

an Administrative Complaint against Maria Camila Murata

( " Ms. Murata " or " Respondent " ), alleging four violations of

c hapter 475 in connec tion with an offer to rent real property

located at 5100 S outhwest 90th Avenue, Unit 312, Cooper City,

Florida 33328 ( " subject property " ). On July 14, 2017, this case

was referred to the Division of Administrative Hearings ( " DOAH " )

for assignment of an Ad ministrative Law Judge.

The case was noticed for video hearing on September 19,

2017, and after continuance , was heard on October 31, 2017. The

parties stipulated to several facts, which were accepted and are

included among the findings of fact below. Pe titioner offered

22 exhibits, Petitioner ' s Exhibits P - 1 through P - 9 and P - 13

through P - 25, all of which were admitted. Petitioner called four

witnesses: Percylla Kennedy, investigator with the Department;

Audrey Flanders, a real estate broker involved in lease of the

subject property; Joan Feloney, owner of the subject property;

and Respondent. Respondent offered no exhibits and testified on

her own behalf.

The Transcript of the proceeding was filed with DOAH on

November 28, 2017. After a request for ex tension of time in

which to file was granted, both parties timely filed proposed

recommended orders on December 15, 2017.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of real estate pursuant to s ection 20.165

and c hapters 455 and 475 , Florida Statutes.

2. Ms. Murata is a licensed real estate broker in Florida,

having been issued license numbers BK 3266198, 3326041, 3330594,

3334183, 3338731, 3345773, 3346456, 3346845, 3350300, 3364670,

3366527, 3366441, 33682 35, 3369788, 3372663 and 3378303.

3. Ms. Murata is under the jurisdiction of Petitioner and

subject to applicable statutes and rules.

4. Ms. Murata is the owner of the Florida Qualifying

Broker of Record Service and maintains the Internet website,

http:/ /floridabrokerofrecord.com, which states its business model

to be an opportunity for Florida real estate sales associates to

run their own real estate companies without having to share their

commissions with the broker of record.

5. Friendly International Realty, LLC ( " Friendly " ) , was

formed in June 2011.

6. From March 3, 2016 , to June 7, 2016, Ms. Murata was the

qualifying real estate broker for Friendly.

7. Ms. Murata agreed to receive a monthly fee of $289 .00 in

exchange for being the qualifying bro ker of record for Friendly.

8. Ms. Murata did not physically visit the license location

of Friendly, at 937 N ortheast 125th Street, North Miami, Florida ,

33161, during the time that she was the qualifying broker.

9. Ms. Murata was not a signatory on any escrow account

used by Friendly.

10. Ms. Murata did not keep any of Friendly ' s brokerage

records.

11. From March 4, 2016 , to November 21, 2016, Jean

Berthelot was a registered real estate sales associate with

Friendly. He acted as an independent cont ractor.

12. Ms. Murata was aware that Mr. Berthelot was doing

business on the Multiple Listing Service ("MLS") .

13. After she became the broker for Friendly, Ms. Murata

activated one sales associate to help Mr. Berthelot.

14. Joan Feloney is the owner o f the subject property.

15. Audrey Flanders is a real estate broker acting on

behalf of Ms. Feloney in her efforts to lease the subject

property. Ms. Flanders received a contract to enter into a lease

from Tamara Stanton, a real estate sales associate at Friendly,

on behalf of Paul Allicock. Ms. Felon e y accepted the offer.

16. Mr. Allicock paid $2,350.00 to Friendly toward lease of

the subject property in the form of signed money orders dated

March 6 and March 18, 2016. The money was placed in a Friend ly

escrow account. These money orders were paid to engage the

services of Friendly and Ms. Murata as broker in the rental of

the subject property. Pursuant to a written statement signed by

Ms. Feloney, $550.00 of this amount was to be paid to Friendly ,

a nd $1,650.00 was to be paid to Ms. Feloney.

17. A lease agreement between Mr. Allicock as tenant and

Ms. Feloney as landlord and owner of the subject property was

executed on March 21, 2016. Mr. Berthelot wrote a check from the

Friendly escrow account to Ms. Feloney for $1,650.00 on the same

date.

18. Ms. Feloney attempted to deposit the check, but on

April 14, 2016, the check was returned to her marked " NSF , "

indicating that insufficient funds were in the account. She was

charged a $15.00 return item f ee.

19. Under the agreement between Ms. Murata and Friendly,

Mr. Berthelot was not authorized to have an escrow account or

otherwise hold funds or assets on behalf of a third party. As

for brokerage transactions, he was supposed to e - mail

transactional r ecords to Ms. Murata or place them in a dropbox.

20. Neither Ms. Stanton nor Mr. Berthelot ever placed

documents in the dropbox. But, as Ms. Murata told Investigator

Percylla Kennedy, she did learn that Friendly was doing business

on the MLS.

21. Ms. Mu rata became aware of the Friendly escrow account

on April 26 , 2016, in connection with a complaint about a

transaction unrelated to this Administrative Complaint. She

discussed the escrow account with Mr. Berthelot on April 27 ,

2016 .

22. Ms. Murata reque sted that Mr. Berthelot close the

escrow account, submit proof that he had closed the account, and

turn over all contracts between Mr. Berthelot and current

clients.

23. Ms. Murata did not want to perform a reconciliation of

the escrow account. As she t estified in deposition:

Q: When you learned that there were third

party funds being held by Friendly

International Realty, did you demand the

records of that account so you could perform

a reconciliation?

A: No, because [ sic ] was to be closed,

because I did not want to manage an escrow

account. So when I discovered what he was

doing, the agreement was that he was going to

close it immediately. I was not going to

manage an escrow account for him, so I

demanded, what I demanded was proof that the

account was closed and proof that he had

engaged in a written agreement with a title

company for all escrow funds.

Q: Approximately when did you make that

demand?

A: The moment that Jessica Schuller came up

and he confessed that he had kept the account

from h is previous broker. That he had not

told me because he was going to close it. I

threatened I was going to resign once he paid

those funds to Jessica. But then I agreed to

continue if he closed that account

immediately.

24. On May 10, 2016 , a complaint was filed with the

Department against Ms. Murata, as broker of Friendly, regarding

the lease transaction involving the subject property.

25. After Ms. Murata became aware that Friendly owed money

to Ms. Feloney, she maintained regular contact with her br okerage

in an attempt to ensure that the money owed to Ms. Feloney was

paid.

26. Ms. Murata cooperated with the Department ' s

investigation.

27. Ms. Feloney, through Audrey Flanders, requested on

June 2, 2016, that the $1,650.00 and an additional service charge

of $82.00 be paid within 15 days or a case would be filed with

the s tate a ttorney ' s o ffice.

28. The parties stipulated that on June 7, 2016, Ms. Murata

resigned from her position as broker of record for Friendly. She

testified that she resigned be cause she had not received the

documents or actions that she had requested of Mr. Berthelot.

29. Ms. Murata did not write a check to Ms. Feloney to pay

the amount Friendly owed her because, with an investigation

underway, Ms. Murata did not want it to be construed as an

admission that she had personally collected funds from

Mr. Allicock. She also evidently believed that since she had

resigned , she was not professionally responsible for obligations

that arose during the time that she had been the broker .

Ms. Murata convincingly testified that in another, unrelated,

situation , she became involved as the broker to resolve a

potential dispute by ensuring that the party entitled to funds

was paid.

30. On June 25, 2016, a Bad Check Crime Report was filed

with the Broward County State Attorney ' s Office.

31. By letter dated June 8, 2016, the Department requested

that Ms. Murata provide copies of monthly reconciliation

statements; bank statements and records; and sales, listing, and

property management files of Friendly. As Ms. Kennedy testified,

Ms. Murata never provided those accounts and records to the

Department, saying she did not have them.

32. While Ms. Murata insists that any failure was only

because Mr. Berthelot actively kept information from her, th e

parties stipulated that Ms. Murata failed to maintain control of,

and have reasonable access to, some of the documents associated

with the rental of the subject property.

33. Mrafton, an experienced real estate broker and

expert in real estate brok erages, reviewed chapter 475 ; Florida

Administrative Code R ule T itle 61J ; the deposit paperwork of

Mr. Allicock ; the B ad C heck C rime R eport ; the investigative

report ; and the Administrative Complaint. He prepared an expert

report to the Department.

34. A s Mrafton testified, the usual and customary

standard applicable to brokers is that they must promptly deliver

funds in possession of the brokerage that belong to other

parties. Mrafton also testified that the standard of care

applicable to a brok er in supervising sales associates require s

active supervision. He also testified that a broker must

maintain the records of the brokerage. Mrafton testified

that in his opinion, Ms. Murata failed to meet these standards.

35. Ms. Murata failed to p romptly deliver funds to

Ms. Feloney that were in possession of the brokerage.

36. Ms. Murata failed to manage, direct, and control R eal

E state S ales A ssociate Berthelot to the standard expected of a

broker of record. She did not actively supervise him , instead

relying completely on Mr. Berthelot and other associates to

provide her any information she needed to know.

37. Ms. Murata failed to preserve accounts and records

relating to the rental or lease agreement of the subject

property.

38. Petitioner did not clearly show that Respondent was

guilty of either " culpable negligence " or " breach of trust. "

39. As I nvestigator Kennedy testified, and as corroborated

by cost summary reports maintained by the Department, from the

start of the investigation o f this complaint through

September 14, 2017, costs incurred by the Department were

$1,443.75, not including costs associated with an attorney ' s

time.

CONCLUSIONS OF LAW

40. DOAH has jurisdiction over the subject matter and

the parties to this proceeding p ursuant to sections 120.569

and 120.57(1), Florida Statutes (2017).

41. Petitioner seeks to take disciplinary action against

the real estate broker ' s licenses of Respondent. A proceeding to

impose discipline against a professional license is penal in

nat ure, and Petitioner bears the burden to prove the allegations

in the Administrative Complaint by clear and convincing evidence.

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

4 2. Clear and convincing evidence has been said to require:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacki ng 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 or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

S . Fla . Water Mgmt . Dist. v. RLI Live Oak, LLC , 139 So. 3d 869,

872 - 73 (Fla. 2014) ( citing Inquiry Concerning a Judge , 645 So. 2d

398, 404 (Fla. 1994)(quoting Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983)) ) .

43. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011). Any ambiguities must be construed in favo r

of the licensee. Lester v. Dep ' t of Prof ' l Reg. , 348 So. 2d 923,

925 (Fla. 1st DCA 1977).

Count I

44. Section 475.25(1)(d)1. provided, in relevant part, that

discipline could be imposed if a real estate licensee:

Has failed to account or deliver to any

person, including a licensee under this

chapter, at the time which has been agreed

upon or is required by law or, in the absence

of a fixed time, upon demand of the person

entitled to such accounting and delivery, any

personal property such as money, fund ,

deposit, check, draft, abstract of title,

mortgage, conveyance, lease, or other

document or thing of value . . . which has

come into the licensee ' s hands and which is

not the licensee ' s property or which the

licensee is not in law or equity entitled to

r etain under the circumstances.

45. Petitioner clearly showed that Mr. Berthelot collected

more than $2,200.00 from Mr. Allicock on behalf of Friendly to

lease the subject property, placing the money in Friendly ' s

escrow account. Mr. Berthelot gave Ms. F eloney a check for

$1,650.00 drawn upon the escrow, but it was returned by the bank

for insufficient funds. Ms. Feloney made demand upon Friendly

for the amount due her, as well as a service charge, on June 2,

2016, but Friendly did not pay it.

46. As Fr iendly ' s broker, Respondent, as well as

Mr. Berthelot, had clear legal responsibility to promptly deliver

the funds to Ms. Felon e y. As Mrafton testified, this is the

customary practice and standard applicable to brokers. This is

what section 475.25(1 )(d)1. requires. Respondent ' s suggestion

that the broker has no obligation unless separate demand is made

upon the broker individually, rather than only upon the

brokerage, is rejected. While the escrow account, through fraud

or mismanagement, had insuff icient funds, this fact has no

bearing on Respondent ' s legal responsibility to deliver the funds

that had been entrusted to Friendly. 2/ As the licensed broker,

Respondent is presumed to know that the provisions of chapter 475

require her, upon the demand of the entitled person, to deliver

funds that Friendly was not entitled by law to retain. Wallen v.

Fla. Dep ' t of Prof ' l Reg., Div. of Real Estate , 568 So. 2d 975,

975 (Fla. 3d DCA 1990). See also White v. Dep ' t of Bus. & Prof ' l

Reg. , 715 So. 2d 1130 (Fl a. 5th DCA 1998)(failure of broker to

return buyer ' s money when transaction failed was violation of

section 475.25(1)(d)1.).

47. Petitioner proved by clear and convincing evidence that

Respondent violated section 475.25(1)(d)1.

Count II

48. Section 475.2 5(1)(u) provided, in relevant part, that

discipline may be imposed if the Florida Real Estate Commission

finds that a real estate licensee:

Has failed, if a broker, to direct, control,

or manage a broker associate or sales

associate employed by such broker .

49. The fact that Mr. Berthelot was operating as an

independent contractor does not take Respondent out of the scope

of this statute. Section 475.01(2) provided that the terms

" employ, " " employment, " " employer, " and " employee, " as used in

c hapter 475 to describe the relationship between a broker and a

sales associate, include an independent contractor relationship.

In the context of chapter 475, the existence of such relationship

does not relieve the broker of her duties, obligations, or

responsibilit ies.

50. Section 475.01(1)(j) provided that a " sales associate "

is 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. Mr. Berthelot was clearly s hown

to be a sales associate, licensed to perform the duties of a

broker when acting under Respondent ' s direction, control, and

management.

51. In support of Count II, Petitioner showed that during

the time of the leasing of the subject property, Mr. Bert helot

was an employee , and Respondent was the licensed broker of record

for Friendly.

52. At the hearing, Petitioner presented expert testimony

establishing that a broker must engage in active supervision over

her brokerage to meet the statutory requireme nts. Respondent did

not meet that standard with respect to Friendly.

53. Respondent argues that Mr. Berthelot violated the

agreement between them and failed to provide information to her,

arguing that all fault therefore lies with him. This contention

is rejected. It is beyond dispute that Mr. Berthelot acted

inappropriately, but Respondent could not, by either written

agreement or consistent practice, ever shift her own statutory

responsibility to manage onto the managed. The argument that

either th e withholding of information by an employee or the

delegation of authority to the very persons a broker is supposed

to be controlling absolves the broker of responsibility is

completely inconsistent with the burden the statutory scheme

places upon a broker . This is not to say that a broker has

absolute liability for the actions of her sales associates, but

the statutory duty to direct, control, and manage cannot be

lessened or contracted away. Petitioner showed that Respondent

did not actively supervise S ales A ssociate Berthelot.

54. Petitioner proved by clear and convincing evidence that

Respondent violated section 475.25(1)(u).

Count III

55. Section 475.25(1)(e) provided , in part , that discipline

could be imposed for violation of any of the provisions of

chapter 475.

56. Section 475.5015 provided, in relevant part:

Each broker shall preserve at least one

legible copy of all books, accounts, and

records pertaining to her or his real estate

brokerage business for at least 5 years from

the date of receip t of any money, fund,

deposit, check, or draft entrusted to the

broker or, in the event no funds are

entrusted to the broker, for at least 5 years

from the date of execution by any party of

any listing agreement, offer to purchase,

rental property manageme nt agreement, rental

or lease agreement, or any other written or

verbal agreement which engages the services

of the broker.

57. As stipulated by the parties, Respondent did not

maintain brokerage records for the escrow account or any of the

transactions that were taking place during the time she served as

the broker at Friendly. It was shown that Mr. Berthelot

maintained an unauthorized escrow account unbeknownst, initially,

to Respondent. Respondent argues that since Mr. Berthelot kept

information from her, and because she was unaware of either the

existence of the escrow account or the fact that any transactions

were taking place at Friendly, she cannot be held responsible for

the failure to perform account reconciliations or to preserve

those accounts and transaction records.

58. Whatever weight that argument might carry with respect

to the escrow account -- given that under the arrangement with

Mr. Berthelot there was not supposed to be an escrow at all --

cannot reasonably be extended to the transacti onal records. The

argument that Respondent was entitled to blindly assume that a

real estate brokerage under her direction was not engaging in any

transactions at all because no records had been placed in the

dropbox is not convincing. The parties stipul ated that

Respondent had become aware that Mr. Berthelot was doing business

on the MLS. Even before that moment, Respondent had a duty to

actively seek out information about Friendly and the operations

of the brokerage.

59. A broker cannot hide behind a curtain of ignorance and

leave herself completely dependent for information on those she

has the responsibility to control. A broker has an ongoing duty

to inform herself as to the conduct of the brokerage. This was

not a situation in which a substanti al number of transaction

records were being provided and only documents related to a

single transaction had been omitted. The apparent absence of any

transaction documents is certainly a circumstance that should

have compelled Respondent to further inquir y. Under all of the

circumstances, her calculated reliance on an empty transactions

dropbox was completely inconsistent with the affirmative legal

duty imposed upon her by section 475.5015 to preserve all

accounts and records.

60. In any event, the fac ts are clear that at no time after

Respondent had actual knowledge that an escrow account was being

utilized at Friendly did she ever direct that the escrow records

be immediately provided to her, preserve them, or perform

reconciliation on them, as was he r duty. To the contrary, she

freely testified that she sought to avoid this statutory

responsibility and only asked that the escrow account be closed.

Respondent ' s eventual resignation as broker was a prudent step

given Mr. Berthelot ' s actions, but it di d nothing to meet her

obligation to preserve the accounts that arose at the time

Mr. Allicock engaged the services of Friendly by providing money

that was deposited into the escrow account. At the time she

realized what had happened earlier during her tim e as broker , she

sought to divest herself of her duty rather than perform it.

61. Petitioner proved by clear and convincing evidence that

Respondent violated sections 475.5015 and 475.25(1)(e).

Count IV

62. Section 475.25(1)(b) provided, in relevant pa rt, that

discipline may be imposed if the real estate licensee:

Has 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 busines s transaction in this

state or any other state, nation, or

territory.

63. In the Administrative Complaint, Petitioner alleges

Respondent violated this statute through the same conduct

involved in the earlier counts: (1) by receiving funds for the

lease of the subject property but failing to remit these funds to

Ms. Feloney as required by law; (2) by failing to adequately

supervise the actions of her sales associate; or (3) by failing

to provide the transaction file and all supporting documents

connected with the subject property, as well as complete escrow

reconciliation records and bank statements for Friendly ' s escrow

account.

64. As the Florida Supreme Court has stated:

It is clear that section 475.25(1)(b) is

penal in nature. As such, it must be

con strued strictly, in favor of the one

against whom the penalty would be imposed.

Holmberg v. Department of Natural Resources ,

503 So. 2d 944 (Fla. 1st DCA 1987). Reading

the first clause of section 475.25(1)(b)(the

portion of the statute which appellant w as

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.

Munch v. Dep ' t of Prof ' l Reg., Div. of Real Estate , 592 So. 2d

1136, 1143 Î 44 (Fla. 1st DCA 1992).

65. Petitioner does not argue that Respondent was in any

way involved in fraud, misrepresentation, concealment, false

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

device, or similar dishonest activity toward Ms. Feloney,

Mr. Berthelot, or any other person.

66. Petitioner alleges that Respondent was guilty of

" culpable negligence " or " breach of trust. " The Florida Supreme

Court described culpable negligence in a criminal case as

involving " that entire want of care which would raise the

presumption of indifference to consequences; or such wantonness

or recklessness or grossly careless disregard of the safety and

welfare of the public, or that reckless indifferen ce to the

rights of others, which is equivalent to an intentional violation

of them. " State v. Greene , 348 So. 2d 3, 4 (Fla. 1977).

67. Reckless carelessness or breach of trust was not

clearly shown here. Respondent ' s failure to deliver to

Ms. Felon e y t he funds that had been entrusted to Friendly, while

based on incorrect assumptions, did not rise to an intentional

breach of trust. While Respondent failed to properly direct,

control, and manage her sales associate, it was not shown that

she exhibited su ch wantonness or reckless indifference so as to

attribute culpable intent to that inaction. Her efforts to close

the escrow account, though not meeting her obligations to

preserve and reconcile records and accounts, demonstrated her

intent to correct the situation after it came to her attention.

68. Petitioner failed to prove by clear and convincing

evidence that Respondent violated section 475.25(1)(d).

Penalty

69. The Florida Real Estate Commission adopted disciplinary

guidelines for the imposition o f penalties authorized by section

475.25(1) in Florida Administrative Code Rule 61J2 - 24.001.

70. Rule 61J2 - 24.001(3)(e) provided that a $250 .00 to

$1 , 000 .00 administrative fine and license suspension to

revocation was the appropriate range of penalty fo r the first

offense of failing to account or deliver escrowed property to

any person as required by agreement or law in violation of

section 475.25(1)(d).

71. Rule 61J2 - 24.001(3)(u) provided that a $250 .00 to

$1 , 000 .00 administrative fine and license susp ension to

revocation was the appropriate range of penalty for the first

offense of failing to direct, control, or manage a sales

associate in violation of section 475.25(1)(u).

72. Rule 61J2 - 24.001(3)(e) provided that a $250 .00 to

$1 , 000 .00 administrative fine and license suspension to

revocation was also the appropriate range of penalty for the

first offense of violating any rule or provision under

chapter 475 in violation of section 475.25(1)(e).

73. Section 455.227(3)(a) provided that, in addition to a ny

other discipline, the Florida Real Estate Commission may assess

costs related to the investigation and prosecution of the case,

excluding costs associated with an attorney ' s time.

74. Rule 61J2 - 24.001(4) provided that the demonstration of

aggravating o r mitigating circumstances warrants deviation from

the penalty guidelines. The rule provided that aggravating or

mitigating circumstances may include, but are not limited to:

1. The degree of harm to the consumer or

public.

2. The number of counts in t he

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 suspe nsion of the license.

6. Violation of the provision of

Chapter 475, F.S., wherein a letter of

guidance as provided in Section 455.225(4),

F.S., previously has been issued to the

licensee.

75. No aggravating or mitigating circumstances were

properly not iced or demonstrated here so as to warrant deviation

from the wide range of penalties already permitted within the

guidelines.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that a final order be

entered by the Florida Real Estate Commission:

Finding Maria Camila Murata in violation of sections

475.25(1)(d)1., 475.25(1)(u), and 475.25(1)(e) as charged in the

Administrative Complaint ; imposing an administrative fine of

$2,250 .00; imposing license suspension for a period of two

months ; and imposing costs related to the investigation and

prosecution of the case.

DONE AND ENTERED this 2 nd day of January , 201 8 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Ad ministrative 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 Hea rings

this 2nd day of January, 2018 .

ENDNOTE S

1/ Except as otherwise indicated, references to statutes and

rules are to versions in effect in the Spring of 2016, when the

conduct forming the basis of the charges against Ms. Murata is

alleged to have t aken place.

2/ While Mrafton suggested that Respondent " should " have

transferred her own personal funds to Ms. Feloney, only

Respondent ' s failure to deliver the funds entrusted to Friendly

is addressed here.

COPIES FURNISHED:

Labeed A. Choudhry, E squire

Ward, Damon, Posner, Pheterson &

Bleau, P.L.

4420 Beacon Circle , Suite 100

West Palm Beach, Florida 33407

(eServed)

Crystal D. Stephens, Esquire

Nicholas Lee DuVal, Esquire

Department of Business and

Professional Regulation

Capital Commerce Ce nter

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Thomas Luzie r, Chair

Florida Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.