20-003889PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Armando Adames Rivas Status: Appeal.

Summary: Respondent violated many provisions of the real estate statutes, acted outside the scope of his real estate license, committed fraud or misuse of escrow funds, all under aggravated circumstances resulting in a revocation of his license, fines and costs.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION , D IVISION OF

R EAL E STATE ,

Petitioner ,

vs. Case No. 20 - 3889PL

A RMANDO A DAMES R IVAS ,

Respondent .

/

F INAL O RDER

On November 19 and 23, 2020, a n administrative hearing involving

disputed issues of material fact was held in this case via Zoom video

teleconference i n Tallahassee, Florida, before the Honorable Robert S. Co hen,

Administrative Law Judge ( " ALJ " ) , with the Division of Administrative

Hearings ( " DOAH " ).

A PPEARANCES

For Petitioner: Nadia M. Hamade, Esquire

Amanda Sampaio Bova, Esquire

Department of Business and

Professional Regulation

400 West Robinson Stree t

Orlando, Florida 32801

For Respondent: Dwight O. Slater, Esquire

Cohn Slater, P.A.

3689 Coolidge C ourt , Unit 3

Tallahassee, F lorida 32311

S TATEMENT O F T HE I SSUE S

a. Whether Respondent violated section 475. 25 (1)(b), Florida Statutes, by

committing fraud, misrepresentation, concealment, etc., or by violating a

duty imposed upon him by law or by the terms of a listing contract and, if so,

what is the appropriate penalty ;

b. Whether Respondent violated section 475.25(1)(d) 1. , by failing to timely

ac count or deliver to any person any personal property such as money, fund s ,

deposit, check draft, etc. and, if so, what is the appropriate penalty ; and

c. Whether Respondent, a sales associate, registered as an officer, director

of a brokerage corporation , or general partner of a brokerage partnership is

in violation of Florida Administrative Code Rule 61J2 - 5.016 and, if so, what

is the appropriate penalty.

P RELIMINARY S TATEMENT

On June 10, 2020, the Department of Business and Professional

Regulation, Divi sion of Real Estate ( " Department " or " Petitioner " ) , filed an

Administrative Complaint ( " A.C. " ) against Armando Adames Rivas

( " Mr. Rivas " or " Respondent " ), alleging three violations of chapter 475 in

connection with two contracts, each for the sale and pur chase of two distinct

real properties, and in connection with the registration and operation of

Global Real Estate Holdings of South Florida, LLC ( " GREH " ), license number

CQ 1053189. On August 28, 2020, this case was referred to DOAH for

assignment of an A LJ .

This case was noticed for hearing on October 26, 2020, and , after a

continuance, was heard on November 19 and 23, 2020, via Zoom c onference.

On October 20, 2020, upon Petitioner ' s Motion for Summary Proceedings and

after a telephone conference with co unsel for both parties, who agreed with

the motion, held b y previously assigned ALJ Cathy Sellers, the judge

previously assigned, this matter was directed to be heard as a summary

proceeding, pursuant to section 120.574, Florida Statutes. The parties

stipu lated to several facts, which are accepted and included among the

findings of fact below. Respondent disputed the allegations contained in the

A .C. and elected to proceed with a n administrative hearing involving

disputed issues of material fact .

Petition er offered 29 exhibits, Petitioner ' s Exhibits A through CC, all of

which were admitted, with the exception of Exhibit R. Petitioner called

13 witnesses: Mr. Rivas; Souksavanah Mossucco ( " Mrs. Mossucco " ), a listing

sales associate and seller on the second o f the two subject contracts; Frank

Mossucco ( " Mr. Mossucco " ), a seller on the second of the two subject

contracts; Carlos Rubio, an investigative supervisor with the Department;

Michele Weintraub (" Ms. Weintraub ") , a title agent handling the second of

the two subject contracts; Frederick Breault, a seller on the first of the two

subject contracts; Evelyn Breault, a seller on the first of the two subject

contracts; Annelyn Sylvain, a buyer under both subject contracts;

Carlos Avila (" Mr. Avila ") , the license d, qualifying, real estate broker for

G REH , at the time of both subject contracts; Arnauld Sylvain, a buyer under

both subject contracts; Michelle Klymko, Esq uire , the title attorney handling

the first of the two subject contracts; Rodney Henson ("Henson") , the licensed,

qualifying, real estate broker for G REH , at the time the A .C. was filed; and

Dawn Luchik, an investigator with the Department. Respondent offered

20 exhibits, Respondent ' s Exhibits 1 through 20, of which Exhibits 1 through

6, 8, 10 through 14, 19A, 19B , and 20 were admitted into evidence.

Respondent testified on his own behalf and offered the testimony of Enrique

Nieves, III, Esq uire .

A transcript of the proceeding was filed with DOAH on December 8, 2020 .

The parties agreed that proposed fi nal orders would be submitted on or

before December 28, 2020. On that date, counsel for Respondent requested an

extension of time for the filing of his proposed final order due to illness. The

undersigned granted the motion, over objection by counsel for P etitioner and,

since Petitioner had already filed its P roposed F inal O rder, allowed

Petitioner ten days after Respondent submitted his proposed order to file a

reply in order to avoid any unfair advantage since Petitioner ' s P roposed Final

O rder would be av ailable for public viewing on the DOAH website.

Respondent filed his P roposed Final O rder on January 15, 2021, followed by

Petitioner ' s R eply on January 25, 2021. The timely - filed post - hearing

submittals have been duly considered by the undersigned in writ ing this

Final Order.

Any references to the Florida Statutes are to the version in effect at the

time any of the alleged violations subject to these proceedings occurred ,

unless otherwise specified .

F INDINGS O F F ACT

1. The Department is the state agency charged with regulating the

practice of real estate pursuant to s ection 20.165 and c hapters 120, 455, and

475, Florida Statutes.

2. DOAH has jurisdiction, pursuant to s ection 120.574, to render a

decision in this matter, which shall be final agency action subject to judicial

review under s ection 120.68.

3. Mr. Rivas is a licensed real estate sales associate , holding license

number 3385508, issued by the State of Florida .

Structure of the Brokerage Corporation

4. On or about April 7, 2015, Respondent registe red GREH with the State

of Florida, Division of Corporations (" Division of Corporations ") , identifying

himself as the registered agent and manager of GREH.

5. Respondent filed documents on behalf of GREH with the Division of

C orporation s on the following d ates and identified himself with the following

titles with GREH:

a. On April 13, 2016, March 14, 2017, and April 17, 2018, Respondent

identified himself as the registered agent, managing member , and president;

b. On November 22, 2017, and April 17, 2018, Respondent identified

himself as an authorized member;

c. On April 22, 2019, Respondent identified himself as a registered agent,

an authorized member , and managing member;

d. On October 23, 2019, Respondent identified himself as registered agent

and mem ber;

e. On November 27, 2019, Respondent identified himself as a registered

agent, member, and manager;

f. On December 6, 2019, Respondent identified himself as registered agent

and shareholder; and

g. On December 10, 2019, Respondent identified himself as registered

agent.

6. On March 23, 2017, GREH registered with the Florida Real Estate

Commission ( " Commission " ) as a real estate corporation in the State of

Florida, having been issued license number CQ 1053189.

7. At no time was Respondent registered w ith the Commission as a real

estate broker in the State of Florida.

8. From November 27, 2017 , to October 3, 2019, Mr. Avila, who at that

time was a real estate broker in the State of Florida, having been issued

license number BK 3401612, was the qualifyin g broker of GREH.

9. From October 3, 2019 , to October 15, 2019 , and from November 25,

2019 , to December 9, 2019, GREH ' s license was invalidated due to it not

having a qualifying broker.

10. From October 15, 2019 , to November 25, 2019, Gamila Murata was the

qualifying broker for GREH.

11. From December 9, 2019 , to July 29, 2020, Mr. Henson was the

qualifying broker for GREH .

12. On August 22, 2019, without the authority of the qualifying broker for

GREH, Respondent filed a civil action on behalf of GREH agai nst Arnauld

and Annelyn Sylvain (collectively, the " Sylvains " ) in the Circuit Court of the

15th Judicial Circuit in and for Palm Beach County, Florida, in case number

502019CA008774XXXXMB, seeking, among other things, to recover real

estate commissions all egedly claimed due by GREH and Respondent.

13. Respondent subsequently retained attorney Monica Woodard to

represent GREH in the civil proceedings, and GREH ' s complaint was

dismissed.

14. On or about November 19, 2019, the Sylvains filed a separate civil

a ction against GREH in the Circuit Court of the 15th Judicial Circuit in and

for Palm Beach County, Florida, in case number 502019CC015230XXXXMB,

seeking to recover a $10,000.00 escrow deposit.

15. Respondent failed to inform the qualifying broker of record for GREH ,

Mr. Henson , who assumed that position shortly after the filing of the civil

action, of the pending lawsuit.

16. Respondent opened bank accounts on behalf of GREH, including an

account called an " Escrow Account, " which was controlled by Responden t and

at no time was controlled by a qualifying broker for GREH.

17. Respondent deposited escrow funds into the Escrow Account for

GREH, without the authority of the qualifying broker for GREH.

18. Respondent closed the Escrow Account held in the name of G REH and

removed funds that were to be held in trust from the account without

authority of the qualifying broker for GREH.

19. Respondent controlled all communications regarding certain real

estate transactions on behalf of GREH, without the knowledge or au thority of

the qualifying broker for GREH.

Contract 1

20. On or about March 4, 2019, an " AS IS " Residential Contract for Sale

and Purchase ( " Contract 1 " ) was entered into between the Sylvains, as

buyers, and Frederick F. Breault and Evelyn Breault ( the " Br eaults " ), as

sellers, for property located at 16595 93rd R oad N orth , Loxahatchee, Florida

33470 ( " Subject Property 1 " ).

21. Respondent facilitated Contract 1 on behalf of the Sylvains.

22. Pursuant to the requirements of Contract 1, the Sylvains deposited

$10,000.00 with GREH, to be held in escrow as the initial deposit.

23. The escrow funds were delivered to Respondent in the form of a

certified check drawn from SunTrust Bank in the amount of $10,000.00 and

purchased by Mr. Sylvain on March 4, 2019 ( " SunTr ust Certified Check " ).

24. The $10,000.00 escrow funds were deposited into a bank account held

in the name of GREH.

25. The SunTrust Certified Check was deposited into a bank account over

which Respondent had sole control.

26. The GREH account in which the SunTrust Certified Check was

deposited was at no relevant time controlled by a Florida licensed real estate

broker.

27. Contract 1 provided that the Sylvains had 20 days from the effective

date to obtain loan approval ( " Loan Approval Period " ).

28. Paragra ph 18(F) of the Contract provided as follows:

TIME: Calendar days shall be used in computing

time periods. Time is of the essence in this

Contract. Other than time for acceptance and

Effective Date as set forth in Paragraph 3, any time

periods provided for or dates specified in this

Contract, whether preprinted, handwritten,

typewritten or inserted herein, which shall end or

occur on a Saturday, Sunday, or a national legal

holiday (see 5 U.S.C. 6103) shall extend to 5 .[:] 00

p.m. (where the Property is locat ed) of the next

business day.

29. Because 20 days from the effective date fell on a Sunday, the Loan

Approval Period expired on Monday, March 25, 2019 .

30. Paragraph 8(b)(i) of Contract 1 provided that: " Buyer [the Sylvains]

shall ... use good faith and d iligent effort to obtain approval of a loan meeting

the Financing terms ( ' Loan Approval ' ) and thereafter to close this Contract. "

31. Paragraph 8(b)(v) of the Contract further provided that if neither

party timely cancelled the Contract pursuant to paragra ph 8, the financing

contingency would " be deemed waived. "

32. Paragraph 8(b)(vii) finally provided that " [i]f Loan Approval has been

obtained, or deemed to have been obtained, as provided above, and Buyer

fails to close this Contract, then the Deposit shal l be paid to Seller È . "

3 3 . The parties agreed to close Contract 1 by April 10, 2019.

3 4 . The Sylvains did not obtain final loan approval ( " clear to close " ) within

the Loan Approval Period.

35. The loan was not denied for any of the exceptions set forth i n

paragraph 8(b)(vii), to release of the escrow deposit to the seller.

36. The Sylvains did not terminate the contract within the Loan Approval

Period.

37. After the Loan Approval Period expired, the Sylvains sought to extend

Contract 1, without considerat ion for the extension.

38. The Breaults countered the Sylvains ' request to extend with an offer

that an extension would be granted for consideration that the Sylvains agree

to forfeit the earnest money deposit.

39. The parties never reached an agreement to extend Contract 1 and

Contract 1 failed to close.

40. On or about May 2, 2019, the Sylvains ' s loan application for Contract 1

was denied.

41. On May 8, 2019, the Breaults executed a Release and Cancellation of

Contract demanding release of the $10,000.00 escrow deposit on Contract 1,

which Respondent received by email on that date from Betty Khan, the sales

associate representing the Breaults .

42. The Sylvains also executed a Release and Cancellation of Contract

seeking return of the $10,000.00 escrow depo sit on Contract 1, which

Respondent communicated to Ms. Khan on May 8, 2019 .

43. Also , on May 8, 2019, Respondent informed the Sylvains of the

Breaults ' s claim on the earnest money deposit.

44. Despite knowing that there were conflicting demands for the es crowed

funds, Respondent failed to inform Mr. Avila, the qualifying broker for GREH

at the time, or the Department , of the escrow dispute.

45. The Breaults were never informed of any escrow dispute filed with the

Department, were never sued in relation to the escrow deposit, and never

went to mediation or arbitration with regard to the escrow deposit, despite

making a demand for the escrow deposit .

46. Respondent claimed that he applied the $10,000.00 escrow funds to

another contract under which the Sylvain s were buyers.

47. Respondent closed the GREH Escrow Account , removing the

$10,000.00 from the account, without consent of either the Sylvains or the

Breaults.

Contract 2

48. On or about May 2, 2019, an " AS IS " Residential Contract for Sale and

Purchase (C ontract 2) between the Sylvains, as buyers, and the Mossuccos, as

sellers, for property located at 7584 Apache B oulevard , Loxahatchee, Florida

33470 ( " Subject Property 2 " ).

49. Respondent facilitated Contract 2 on behalf of the Sylvains.

50. In relation to Contract 2, specifically paragraph 2(a), which required

an earnest money deposit in the amount of $10,000.00, Respondent requested

that the Sylvains provide him a check in the amount of $10,000.00 to show

the Mossuccos.

51. On or about May 6, 2019, the Sy lvains then drew a check from a

business account held with TD Bank in the amount of $10,000.00 and

payable to Global Business Financial Investment ( " TD Bank Check " ), which

the Sylvains delivered to Respondent.

52. Respondent took a photograph of the check and promised the Sylvains

that the check would not be cashed or deposited.

53. On or about May 6, 2019, Miledy Garcia, now known as Miledy Rivas,

Respondent ' s spouse, a Florida licensed real estate sales associate, having

been issued license number SL 3383 271, issued an escrow deposit receipt for

$10,000.00 for Contract 2 on a GREH form ( " May 6, 2019, GREH Receipt " ).

54. The TD Bank Check was never deposited or cashed by Respondent;

rather, the Sylvains immediately issued a stop payment order on the check t o

TD Bank.

55. Despite having never deposited the TD Bank Check, Respondent

communicated the May 6, 2019, GREH Receipt and a photo of the TD Bank

Check to Mrs. Mossucco and Ms. Weintraub.

56. The $10,000.00 escrow funds from Contract 1 were the escrow fund s

represented on Contract 2.

57. Respondent represented that the $10,000.00 escrow funds were

applied to Contract 2, prior to cancellation of Contract 1, and continued to

represent the same, even after Respondent knew the Breaults were making a

claim again st the funds.

58. Contract 2 failed to close.

59. After Contract 2 failed to close, the Mossuccos and Sylvains agreed to

cancel Contract 2 and release each other from liability under the terms of

Contract 2 , and further agreed that any earnest money deposi t could be

returned to the Sylvains.

60. Respondent failed to deliver the escrow funds to the Sylvains.

61. Rather, Respondent believed that the funds belonged to him (or one of

his companies) and that he was entitled to remove the escrow funds and use

the m as he (or his company) saw fit.

62. Respondent testified that he submitted a notice of escrow dispute,

dated " 9 - 30 - 2019, " to the Department, identifying the parties to the

transaction as the Mossucco s and the Sylvain s , and the subject property as

7584 Ap ache B oulevard , Loxahatchee, F lorida 33470.

63. Respondent gave conflicting testimony, including, for example:

a. F irst testifying that he believed the $10,000.00 escrow funds belonged

to him (or his company) to be spent as he saw fit; then, after a break in the

proceedings and on re - direct by his counsel, changing his story by saying that

counsel for Petitioner put words in his mouth and that he meant only that

there was a " dispute on the funds. "

b. First testifying that Mr. Avila was a signatory on the GREH " Escrow

Account , " then admitting that Mr. Avila was not a signatory on the account.

64. There was also conflicting testimony between Respondent and several

of the witnesses; however, where there were inconsistencies, Petitioner ' s

witnesses ' testimony was substantially consistent and supported by the

documentary evidence presented. Parts of Respondent ' s testimony were

inconsistent with documentary evidence admitted into evidence by

stipulation of the parties.

Facts Concerning Aggravation or Mitigation of Penalties

65. Respondent collected escrow funds and deposited them into an account

that he , only a licensed real estate sales associate, controlled , rather than one

that was controlled by the qualifying broker for GREH .

66. Respondent admittedly removed escrow funds in the amount of

$10,000.00 from the bank account in which they were deposited, without all

parties having a claim to the escrow funds executing a release.

67. Respondent testified that he believed the escrow funds belonged to

him (or one of his companies) and that he had a right to do with the funds as

he (or he through one of his companies) saw fit.

68. Respondent used vulgar language, threats , and demeaning language

toward his clients, other real estate professionals , and title agents to at tempt

to coerce those individuals in to submit ting to his demands.

69. Respondent failed and refused to comply with the direction of the

qualifying broker with supervisory responsibility over Respondent and

GREH.

70. Respondent failed to keep the qualifying broker of GREH apprised of

the real estate transactions in which Respondent was involved .

71. There was significant testimony establishing that Respondent was

performing tasks that are only allowed to be performed by a licensed real

estate broker, not a r eal estate sales associate, mortgage broker , or mortgage

loan originator .

Additional Facts Raised by Respondent

72. In his proposed conclusions of law, Respondent raises, as a matter of

fact, that the " Department failed to plead sufficient facts underpinni ng its

argument " regarding the handling of escrow funds. In paragraph 25 of his

Proposed Final Order, Respondent states:

Nowhere in the administrative complaint does the

Department allege that Mr. Rivas falsely

represented that GREH received the TD Bank

Ch eck as earnest money for Contract 2, or that he

falsely represented to the Sylvains that the

Breaults did not have a legitimate claim against

the $10,000.00 escrow funds deposited by the

Sylvains toward Contract 1, or that he

misrepresented to the Sylvains that the $10,000.00

funds from the SunTrust Certified Check could be

and were applied to Contract 2.

73. Respondent further argued that none of the " facts relevant to

aggravation or mitigation " set forth in the Department ' s Proposed Final

Order were pled in the A.C., in violation of Respondent ' s due process rights.

Both of these arguments are rejected as set forth in paragraph s 108 and 109

below.

Additional Facts Concerning Department Costs

7 4 . The Department presented competent evidence that it incurred

i nvestigative costs in the amount of $1,551.00.

C ONCLUSIONS O F L AW

7 5 . DOAH has jurisdiction over the subject matter and the parties to this

proceeding pursuant to section 120.574.

7 6 . Chapters 455 and 475 apply to real estate licensees.

7 7 . Commission rule s applicable to real estate licensees are set forth in

Florida Administrative Code C hapters 61J2 - 1 through 61J2 - 24 .

7 8 . Section 475.25(1) authorizes the Commission to impose penalties if the

Commission finds that Respondent has violated any of the provisio ns of

c hapter 475, or any lawful order or rule made or issue d under the provisions

of c hapters 455 or 475 .

7 9 . Petitioner seeks to take disciplinary action against Respondent's real

estate sales associate l icense. A proceeding to impose discipline against a

professional license is penal in nature, and Petitioner bears the burden to

prove the allegations in the A . C . 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 2 92 (Fla. 1987) ; McKinney v. Castor , 667 So. 2d 387,

388 (Fla. 1st DCA 1995) .

80 . " Clear and convincing evidence requires " :

t hat the evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remembered; the testimon y must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The

evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief 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 I n R e Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

81 . 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 20 11). Any ambiguities must be construed in

favor of the licensee. Lester v. Dep ' t of Prof ' l Reg. , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

8 2 . The undersigned ALJ , as the finder of fact, has discretion to make

" [d]eterminations regarding the weight of evid ence or the credibility of

witnesses, " which, generally, " will not be disturbed on appeal, " when

supported by competent evidence. M.A.B. v. Dep ' t of H RS , 630 So. 2d 1252,

1254 (Fla. 1st DCA 1994), citing Clegg v. Chipola Aviation, Inc. , 458 So. 2d

1186 (Fl a. 1st DCA 1984); see also Petion v. State , 48 So. 3d 726, 730

(Fla. 2010), holding, " In a non - jury trial, the factual findings of the judge are

entitled to the weight of a jury verdict. " ; Oertel v. State , 82 So. 3d 152, 156 - 57

(Fla. 4th DCA 2012), holdin g, " ' When a decision in a non - jury trial is based on

findings of fact from disputed evidence, it is reviewed on appeal for

competent, substantial evidence ' because ' the trial judge is in the best

position to evaluate and weigh the testimony and evidence ba sed upon its

observation of the bearing, demeanor and credibility of the witnesses. ' "

( quoting Acoustic Innovations, Inc. v. Schafer , 976 So. 2d 1139, 1143 (Fla. 4th

DCA 2008)); and Harrington v. State , 238 So. 3d 294, 297 (Fla. 4th DCA

2018).

8 3 . When Mr. Rivas gave conflicting testimony about entitlement to the

escrow funds, his initial testimony that he believed the escrow funds

belonged to him, or his company, to be spent as he, or his company, saw fit, is

found to be more credible than his subsequent t estimony that he meant he

believed there was a dispute.

8 4 . Contract 1 expressly noted that: " [t]ime is of the essence, " which

means that performance by one party within the time specified is an essential

element of the real estate c ontract. See Garcia v. Alfonso , 490 So. 2d 130 (Fla.

3d DCA 1986). With regard to Contract 1, the Sylvains failed to notify the

Breaults of their intent to cancel within the 20 - day L oan A pproval period ,

resulting in a waiver of the financing contingency. See Bellon v. Acosta , 1 0 So.

3d 1165 (Fla. 3d DCA 2009).

8 5 . Since the loan approval contingency was waived by the Sylvains ' s

failure to give timely notice of cancellation, the Sylvains were contractually

obligated to tender the full purchase price. Where a contract includes a " time

is of the essence " provision and the buyer fails to timely tender required

payment on the agreed upon closing date, that failure is a material breach.

See Nacoochee Corp. v. Picke t t , 948 So. 2d 26 (Fla. 1st DCA 200 6 ). The

Breaults had a valid claim fo r the $10,000.00 escrow deposit.

Count One

8 6 . The A.C. alleges that Respondent violated s ection 475.25(1)(b) by

misrepresenting the status of escrow funds purportedly held by GREH , a

company owned by Respondent. Section 475.25(1)(b) subjects a real estate

licensee to discipline for committing:

[F]raud, misrepresentation, concealment, false

promises, false pretenses, dishonest dealing by

trick, scheme, or device, culpable negligence, or

breach of trust in any business transaction in this

state or any other state, nation, or territory; has

violated a duty imposed upon her or him by law or

by the terms of a listing contract, written, oral,

express, or implied, in a real estate transaction ... .

8 7 . Petitioner proved that Respondent violated s ection 475.25(1)( b). The

facts clearly establish that Respondent transmitted , by email to Mrs.

Mossucco and Ms. Weintraub, the May 6, 2019, GREH Receipt and TD Bank

Check, falsely representing that GREH received the TD Bank Check as

earnest money for Contract 2. Additional ly, the facts clearly establish that

Respondent falsely represented to the Sylvains that the Breaults did not have

a legitimate claim against the $10,000.00 escrow funds deposited by the

Sylvains toward Contract 1. Next, t he facts clearly establish that Re spondent

misrepresented to the Sylvains that the $10,000.00 funds from the SunTrust

Certified Check could be and were applied to Contract 2. Finally, th e facts

clearly establish that Respondent violated a duty imposed by law by failing to

report the escrow dispute between the Sylvains and the Breaults to the

qualifying broker for GREH, Mr. Avila, and/or to the Department and/or to

the Commission.

Count Two

8 8 . The A.C. further alleges that Respondent violated s ection

475.25(1)(d)1., by failing to account an d deliver escrowed funds and/or by

failing to notify the Commission of conflicting demands on escrowed funds,

pursuant to that s ection. Section 475.25(1)(d)1. subjects a real estate licensee

to discipline where the licensee:

Has failed to account or delive r 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 mon ey, fund,

deposit, check, draft, abstract of title, mortgage,

conveyance, lease, or other document or thing of

value ... . However, if the licensee, in good faith,

entertains doubt as to what person is entitled to

the accounting and delivery of the escrowe d

property, or if conflicting demands have been made

upon the licensee for the escrowed property, which

property she or he still maintains in her or his

escrow or trust account, the licensee shall promptly

notify the commission of such doubts or conflictin g

demands and shall promptly:

a. Request that the commission issue an escrow

disbursement order determining who is entitled to

the escrowed property;

b. With the consent of all parties, submit the

matter to arbitration;

c. By interpleader or otherwis e, seek adjudication of

the matter by a court; or

d. With the written consent of all parties, submit

the matter to mediation È .

8 9 . Rule 61J2 - 10.032 r e quires written notification to the commission 15

days of receipt of the conflicting demands .

90 . Peti tioner proved that Respondent violated s ection 475.25(1)(d)1 . The

facts clearly and convincingly establish that Respondent received conflicting

demands from the Breaults and the Sylvains for the $10,000.00 escrow

deposit made on Contract 1. Additionally, t he facts clearly and convincingly

establish that Respondent failed to notify the Department or the Commission

of the conflicting demands between the Breaults and the Sylvains over the

escrow deposit made in relation to Contract 1. Further, regarding Contra ct 1

and , specifically, regard ing the escrow dispute between the Breaults and the

Sylvains, the facts clearly and convincingly establish that Respondent failed

to request that the Commission issue an escrow disbursement order, submit

the matter to arbitrat ion, seek adjudication of the matter by a court through

interpleader or otherwise, or submit the matter to mediation.

91 . Regarding Contract 2 and the escrow dispute between Respondent ' s

companies (GREH and Global Business Financial Investment, Inc.) , the

Mossuccos , and the Sylvains , Respondent claims to have specifically notified

the Department of an escrow dispute . However, the evidence presented at

hearing clearly and convincingly establish es that Respondent failed to

promptly do so in compliance with r u le 61J2 - 10.032 , as Respondent ' s

companies ' lawsuit was filed on August 12 , 2019, and the purported notice

was dated September 30, 2019, well past the 15 - business day requirement in

the rule .

9 2 . Finally, the facts clearly and convincingly establish that Re spondent

removed the $10,000.00 from the account where the escrow funds were to be

held in trust, under the auspices that he could do with the funds as he

pleased, failing to account for and/or deliver the funds to the Sylvains.

Count Three

9 3 . The A.C. fi nally alleges that, because Respondent, a Florida licensed

real estate sales associate, was registered as an officer and/or director of

GREH , he violated s ection 475.25(1)(e) through a violation of r ule 61J2 - 5.016.

9 4 . Section 475.25(1)(e) subjects a licen see to discipline if the licensee

" [h]as violated any of the provisions of this chapter or any lawful order or rule

made or issued under the provisions of this chapter or chapter 455. " Rule

61J2 - 5.016 provides that " [n]o sales associate or broker associate may be

registered as an officer, director of a brokerage corporation or general partner

of a brokerage partnership. "

9 5 . Respondent violated s ection 475.25(1)(e) through a violation of

r ule 61J2 - 5.016. Petitioner clearly and convincingly demonstrated tha t

Respondent, a licensed real estate sales associate, not a licensed real estate

broker, registered himself as an officer and/or director of G REH .

Other Issues Raised by Respondent

9 6 . Respondent presented testimony at the hearing that he believed the

Sylv ains and the Mossuccos were acting in bad faith with regard to

conversations relating to Contract 2. In doing so, Respondent erroneously

relied upon r ule 61J2 - 14.011 for his contention that the alleged bad faith of

the Sylvains and the Mossuccos relieved R espondent of his obligation to

comply with s ection 475.25(1)(d)1.

9 7 . Rule 61J2 - 14.011 applies to " [a] broker who receives a deposit " and

requires that, even " where the parties act in bad faith with intent to deprive

the broker of a commission, È the broke r shall proceed as provided in

s ection 475.25(1)(d)1., Florida Statutes. " Respondent is admittedly , and by

competent evidence proven that he is not a licensed real estate broker, but

rather is a licensed real estate sales associate, and, therefore, lacks s tanding

to invoke r ule 61J2 - 14.011.

9 8 . E ven if Respondent w ere a broker , he could claim that he was due any

portion of the $10,000.00 earnest money deposit , or could in any other way

rely upon r ule 61J2 - 14.011 , he still could not avoid the obligation to c omply

with section 475.25(1)(d)1., because there was an escrow dispute between the

Breaults and the Sylvains over the funds deposited pursuant to Contract 1

that preceded any disputes regarding Contract 2, and further because

r ule 61J2 - 14.011 expressly re quires compliance with s ection 475.25(1)(d)1.

9 9 . Respondent further testi fied that an alleged prior case against him

concerning alleged violations and facts relating to Count Three was dismissed

without prosecution by the Department. However, this claim w as not shown

to be relevant, as there is no evidence that any prior case, if it existed, was

dismissed with prejudice . F urther , Petitioner presented substantial evidence

that Respondent was not only registered as an officer and/or director of

GREH, but als o, acted in that capacity and held himself out to the public in

that capacity.

100. Finally, Respondent ' s allegations that the Department failed to plead

sufficient facts to support its claims that Respondent violated the numerous

statutory and rule provis ions set forth above is without merit. The

Administrative Procedure Act requires that an administrative complaint

" afford reasonable notice to the licensee of facts or conduct which warrant the

intended action. " § 120. 60 (5), Fla. Stat. Allegations in an ad ministrative

complaint :

need not be stated with the technical nicety or

formal exactness required of pleadings in the court,

[but] the charges should be specific, informing the

accused with reasonable certainty of the nature

and cause of the accusation ag ainst him so as to be

given reasonable opportunity to defend against

those charges.

Robins v. Fl a. Real Estate Comm ' n , 162 So. 2d 535, 5 37 (Fla. 3d

DCA 1964).

101. In the A .C. , the Department specifically alleges that Respondent

facilitated Contract 1 (p aragraph 9) ; collected the initial $10,000.00 escrow

deposit (paragraph 10) ; controlled the account where the funds were held

(paragraph 11) ; that the loan for Contract 1 was ultimately denied on May 2,

2019 (paragraph 12) ; that the Sylvains sought to term inate Contract 1

(paragraph 15) ; that Respondent notified the Sylvains on May 8, 2019 ; that

the Breaults (sellers under Contract 1) made a claim against the deposit

(paragraph 16) ; that Respondent failed to inform his broker or the

Department of the escrow dispute (paragraph 17) ; that Respondent failed to

account and deliver (paragraph 22) ; and that Respondent violated subsection

(1)(b) and (1)(d)1. of section 475.25 (Counts One and Two). These facts were

sufficiently specific to put Respondent on notice of the charges against him

r elating to Contract 1 .

102. The Department further alleged in the A .C. that on May 6, 2019,

Respondent received an additional $10,000.00 (paragraph 14). After it

became apparent through discovery that the second check was never

de posited , and that Respondent (inappropriately) applied the funds from

Contract 1 to Contract 2, Petitioner ' s counsel discussed this issue with

Respondent ' s counsel, who ultimately stipulated to that version of the facts,

to avoid the necessity of amending the complaint , and which was ultimately

reflected in the Joint Pre - h earing Stipulation.

103. The facts specifically mentioned in the foregoing two paragraphs, as

well as an examination of the A.C. in its totality, confirm that Respondent

was fully put on n otice of the specific charges against him. Therefore,

Respondent ' s claim that he was denied due process by not being fully

informed of the charges for which he has been prosecuted is not supported by

the evidence and testimony he presented at hearing. In f act, based upon the

foregoing, the clear and convincing evidence adduced at hearing is that

Respondent was fully noticed of the charges against him and vigorously

defended himself at hearing.

Penalty

104 . The Commission adopted disciplinary guidelines in r ule 61J2 - 24.001

for the imposition of penalties authorized by section 475.25(1). Rule 61J2 -

24.001(3)(e) provide s that a $1,000.00 to $2,500.00 administrative fine and

30 - day suspension to revocation is the appropriate penalty range for 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)(b).

105 . Rule 61J2 - 24.001(3)(e) provide s that a $250.00 to $1,000.00

administrative fine and license suspension to revocation i s the appropriate

penalty range for the first offense of committing misrepresentation,

concealment, etc. in violation of section 475.25(1)(d). Rule 61J2 - 24.001(3)(e)

also provide s that a $250.00 to $1,000.00 administrative fine and license

suspension to re vocation is the appropriate penalty range for the first offense

of violating any rule or provision under chapter 475 in violation of section

475.25(1)(e).

10 6 . Section 455.227(3)(a) provide s that, in addition to any other

discipline, the C ommission may ass ess costs related to the investigation and

prosecution of the case, excluding costs associated with an attorney ' s time.

10 7 . Rule 61J2 - 24.001(4) (b) provide s that clear and convincing proof of

aggravating or mitigating circumstances entitles the Commission or ALJ to

deviate from the penalty guidelines. The rule provide s 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 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. Viol ation 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 .

10 8 . Petitioner properly noticed and clearly demonstrated aggravating

circumstances t hat warrant deviation from the wide range of penalties

already permitted within the guidelines.

1 0 9 . Upon consideration of the foregoing Findings of Fact and Conclusions

of Law , pursuant to authority set forth in s ection 120.574, th e undersigned

ALJ finds Respondent Rivas in violation of sections 475.25(1)(b),

475.25(1)(d)1., and 475.25(1)(e), as charged in the A .C. The undersigned ALJ

further finds that t he evidence and factors set forth in this Final Order

constitute sufficient aggravating factors for which revocati on is the most

appropriate discipline ; and clearly supports fines within the guideline

amounts of $2,000.00 for Count 1, $1,000.00 for Count 2, and $1,000.00 for

Count 3 ( f or a total of $4, 0 00.00 in fines), plus assessment of the costs of the

Department ' s investigation in the amount of $1,551.00 .

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that :

1. The real estate sales associate license of Respondent, Armando Rivas, is

hereby revoked.

2. Respondent shall pay a fine of $4,000.00 to the Commission within 30

days of the date of this Final Order.

3. Respondent shall pay costs of $1,551.00 to the Commission within 30

days of the date of this Final Order.

D ONE A ND O RDERED this 31st day of March , 2021 , in Tallahassee, Leo n

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

th is 31st day of March , 2021 .

C OPIES F URNISHED :

Amanda Sampaio Bova, Esquire Dwight Oneal Slater, Esquire

Department of Business and Cohn Slater, P.A.

Professional Regulation 3689 Coolidge C ourt, Unit 3

400 West Robinson Street Tallahasse e, Florida 32311

Orlando, Florida 32801

David Axelman, General Counsel

Katy McGinnis, Director Office of the General Counsel

Division of Real Estate Department of Business and

400 W est Robinson Street, S uite N801 Professional Regulation

Orlando, Florida 32801 2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

Julie I. Brown, Secretary Nadia M. Hamade, Esquire

Department of Business and Department of Business and

Professional Regulation Profession al Regulation

2601 Blair Stone Road 400 West Robinson Street

Tallahassee, Florida 32399 - 2202 Orlando, Florida 32801

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

g overned by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be revie wed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.