96-000038
Division Of Real Estate vs.
Antonio Prado And Bayside International Realty, Inc.
Status: Closed
Recommended Order on Wednesday, May 15, 1996.
Recommended Order on Wednesday, May 15, 1996.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF REAL ESTATE, )
21)
22Petitioner, )
24)
25vs. ) CASE NO. 96-0038
30)
31ANTONIO PRADO AND BAYSIDE )
36INTERNATIONAL REALTY, INC., )
40)
41Respondents. )
43________________________________)
44RECOMMENDED ORDER
46Pursuant to notice, the Division of Administrative Hearings, by its
56designated Hearing Officer, Joyous D. Parrish, held a formal videoconference
66hearing in the above-styled case on March 28, 1996, with the parties located in
80Miami, Florida.
82APPEARANCES
83For Petitioner: Theodore R. Gay
88Senior Attorney
90Department of Business and
94Professional Regulation
96Division of Real Estate
100Rhode Building Phase II
104401 Northwest Second Avenue N607
109Miami, Florida 33128
112For Respondent: Antonio Prado, pro se and as President of
122Bayside International Realty, Inc.
1261390 Brickell Avenue, Suite 230
131Miami, Florida 33131
134STATEMENT OF THE ISSUE
138The central issue in this case is whether the Respondents committed the
150violation alleged in the administrative complaint; and, if so, what penalty
161should be imposed.
164PRELIMINARY STATEMENT
166This case began on August 18, 1995, when the Department of Business and
179Professional Regulation, Division of Real Estate (Department) issued an
188administrative complaint against the Respondents that alleged four violations of
198law. More specifically, the complaint alleged that Respondent, Antonio Prado,
208individually, and through his business, Bayside International Realty, Inc., had
218been guilty of culpable negligence or breach of trust in a business transaction
231in violation of Section 475.25(1)(b), Florida Statutes. Further, the complaint
241claimed Respondents had placed more that $200.00 of personal funds in an escrow
254account in violation of Section 475.25(1)(e), Florida Statutes and Rule 61J2-
26514.010(2), Florida Administrative Code.
269The Respondents timely disputed the allegations of fact and requested a
280hearing. The matter was forwarded to the Division of Administrative Hearings
291for formal proceedings on January 5, 1996.
298At the hearing, the Respondent, Antonio Prado, testified on behalf of the
310Respondents. Petitioner relied on the responses to the request for admissions
321and interrogatories which have been filed in this cause. Petitioner's exhibit 1
333was received into evidence without objection.
339A transcript of the proceeding has not been filed. Specific rulings on the
352Respondents' proposed findings of fact are included in the appendix at the
364conclusion of this order. Petitioner has not filed a proposed recommended
375order.
376FINDINGS OF FACT
3791. At all times material to this case, Respondent, Antonio Prado, has been
392a licensed real estate broker in the State of Florida, license no. 0138312.
4052. Respondent, Antonio Prado, is the President and qualifying broker for a
417real estate company called Bayside International Realty, Inc.
4253. Respondent, Bayside International Realty, Inc., has been issued real
435estate license no. 1001760.
4394. The Department is the state agency charged with the responsibility of
451regulating real estate licensees.
4555. On January 13, 1995, an investigator employed by the Department
466conducted an office inspection and audit of the Respondents' place of business.
4786. During the course of the audit, the investigator discovered that the
490escrow account for the business contained $1,000.00. None of the $1,000.00 was,
504in fact, "trust funds" owed or belonging to a third party as Respondents have
518not held "trust funds" since August, 1990.
5257. The investigator advised Respondent that he was not allowed to hold
537personal funds in excess of $200.00 in the company escrow account. Based upon
550that information, Respondent immediately, on January 13, 1995, removed $800.00
560from the escrow account leaving a balance of $200.00.
5698. The purpose of holding $1,000.00 in the account related to a Barnett
583Bank policy which required the minimum balance of $1,000.00 to avoid service
596charges on the account.
6009. Respondent, Antonio Prado, has not been active in the real estate
612practice for several years and was unaware of changes to the escrow policy
625dating back to December, 1991, which prohibit more than $200.00 of personal
637funds in an escrow account.
64210. Respondent, Antonio Prado, has been licensed for 19 years and has
654never been disciplined for any violations of the real estate law.
665CONCLUSIONS OF LAW
66811. The Division of Administrative Hearings has jurisdiction over the
678parties to, and the subject matter of, these proceedings.
68712. The Department bears the burden of proof to establish, by clear and
700convincing evidence, the allegations of this case.
70713. Section 475.25(1), Florida Statutes, provides, in pertinent part:
716The commission may deny an application for
723licensure, registration, or permit, or re-
729newal thereof; may place a licensee,
735registrant, or permittee on probation; may
741suspend a license, registration, or permit
747for a period not exceeding 10 years; may
755revoke a license, registration, or permit;
761may impose an administrative fine not to
768exceed $1,000 for each count or separate
776offense; and may issue a reprimand, and any
784or all of the foregoing, if it finds that the
794licensee, registrant, permittee, or applicant:
799* * *
802(e) Has violated any of the provisions of
810this chapter or any lawful order or rule made
819or issued under the provisions of this chapter
827or chapter 455.
83014. Rule 61J2-14.010(2), Florida Administrative Code, provides:
837A broker is authorized to place and maintain
845up to $200 of personal or brokerage business
853funds in the escrow account for the purposes
861of opening the account, keeping the account
868open and/or paying for ordinary service charges.
87515. Rule 61J2-24.001, Florida Administrative Code, sets forth the
884guidelines regarding recommended penalties in this type of case. As to a
896violation of Section 475.25(1)(e), Florida Statutes, the rule provides for a
907penalty ranging from a reprimand and/or a fine up to $1,000.00 per count to up
923to 8 years suspension or revocation. Such rule also provides for mitigating and
936aggravating circumstances which may be considered. They are:
9441. The severity of the offense.
9502. The degree of harm to the consumer or public.
9603. The number of counts in the Administrative
968Complaint.
9694. The number of times the offenses previously
977have been committed by the licensee.
9835. The disciplinary history of the licensee.
9906. The status of the licensee at the time the
1000offense was committed.
10037. The degree of financial hardship incurred by
1011a licensee as a result of the imposition of a
1021fine or suspension of the license.
10278. Violation of the provision of Chapter 475,
1035Florida Statutes, where in a letter of guidance
1043as provided in Sec. 455.225(3), Florida
1049Statutes, previously has been issued to the
1056licensee.
105716. In this case, the Department has established that the Respondent,
1068Antonio Prado, maintained in excess of $200.00 of his personal funds within a
1081company escrow account. Mr. Prado did not, however, maintain trust funds in the
1094account and did not "commingle" personal funds with trust funds. In fact, when
1107he was advised that he was not required to have an escrow account, the account,
1122which had been long inactive, was closed. At best this was a technical
1135violation of a specific rule due to an inadequate understanding of provisions
1147related to escrow accounts.
115117. When confronted with the problem during the office audit, Mr. Prado
1163took immediate corrective action. No customer, licensee, or other third party
1174has been adversely impacted by this technical violation. Moreover, the
1184Department has not established that the account was maintained in such a manner
1197as to constitute fraud, misrepresentation, concealment, false promise, false
1206pretenses, culpable negligence or any other act listed in Section 475.25(1)(b),
1217Florida Statutes.
121918. Finally, it is concluded that the acts or omissions of Respondent,
1231Antonio Prado, are solely responsible for the technical violation in this cause.
1243Additional disciplinary action against the corporate licensee serves no purpose.
1253RECOMMENDATION
1254Based on the foregoing, it is, hereby,
1261RECOMMENDED:
1262That the Florida Real Estate Commission enter a final order determining the
1274Respondent, Antonio Prado, committed only a minor technical violation of Section
1285425.25(1)(e), Florida Statutes, and, in recognition of Respondent's exemplary
1294record as a broker, which, along with his willing, immediate action to correct
1307the error, demonstrates sound judgment, issue a letter of reprimand and guidance
1319regarding escrow account rules and regulations. All other allegations against
1329these Respondents should be dismissed.
1334DONE AND ENTERED this 15th day of May, 1996, in Tallahassee, Leon County,
1347Florida.
1348___________________________________
1349JOYOUS D. PARRISH, Hearing Officer
1354Division of Administrative Hearings
1358The DeSoto Building
13611230 Apalachee Parkway
1364Tallahassee, Florida 32399-1550
1367(904) 488-9675
1369Filed with the Clerk of the
1375Division of Administrative Hearings
1379this 15th day of May, 1996.
1385APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0038
1392Rulings on the proposed findings of fact submitted by Petitioner:
1402None submitted.
1404Rulings on the proposed findings of fact submitted by Respondent:
14141. Paragraphs 1 and 2 are rejected as statements of fact as they are
1428restatement of argument or comment made at the hearing.
14372. Paragraphs 3 through 6 are accepted.
1444COPIES FURNISHED:
1446Henry M. Solares
1449Division Director
1451Division of Real Estate
1455Department of Business and
1459Professional Regulation
1461Post Office Box 1900
1465Orlando, Florida 32802-1900
1468Lynda L. Goodgame
1471General Counsel
1473Department of Business and
1477Professional Regulation
1479Northwood Centre
14811940 North Monroe Street
1485Tallahassee, Florida 32399
1488Theodore R. Gay
1491Senior Attorney
1493Department of Business and
1497Professional Regulation
1499Division of Real Estate
1503Rhode Building Phase II
1507401 Northwest Second Avenue N607
1512Miami, Florida 33128
1515Antonio Prado, pro se and as President
1522of Bayside International Realty, Inc.
15271390 Brickell Avenue, Suite 230
1532Miami, Florida 33131
1535NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1541All parties have the right to submit written exceptions to this Recommended
1553Order. All agencies allow each party at least 10 days in which to submit
1567written exceptions. Some agencies allow a larger period within which to submit
1579written exceptions. You should contact the agency that will issue the final
1591order in this case concerning agency rules on the deadline for filing exceptions
1604to this Recommended Order. Any exceptions to this Recommended Order should be
1616filed with the agency that will issue the final order in this case.
1629=================================================================
1630AGENCY FINAL ORDER
1633=================================================================
1634STATE OF FLORIDA
1637DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
1643FLORIDA REAL ESTATE COMMISSION
1647DEPARTMENT OF BUSINESS
1650AND PROFESSIONAL REGULATION,
1653DIVISION OF REAL ESTATE
1657Petitioner
1658vs. CASE NO. 95-80228
166295-82153
1663ANTONIO PRADO and BAYSIDE DOAH NO. 96-0038
1670INTERNATIONAL REALTY, INC.
1673Respondents
1674______________________________/
1675FINAL ORDER
1677On July 16 1996 pursuant to s.120.57(1), Florida Statutes, the Florida Real
1689Estate Commission heard this case to issue a Final Order.
1699Hearing Officer Joyous D. Parrish of the Division of Administrative
1709Hearings presided over a formal hearing on March 28 1996. On May 15, 1996 she
1724issued a Recommended Order, a copy of which is attached hereto as Exhibit A and
1739made a part hereof.
1743The Petitioner filed Exceptions to the Conclusions of Law and Penalty in
1755the Recommended Order. A copy of these Exceptions is attached hereto as Exhibit
1768B and made a part hereof.
1774After completely reviewing the record and being otherwise fully advised,
1784the Commission accepts Petitioner's Exception #1 which addresses Conclusions of
1794Law in paragraph 18 of the Recommended Order. The Commission finds that Antonio
1807Prado and Bayside International Realty Inc. are one in the same entity and
1820therefore both Respondents should be disciplined.
1826The Commission therefore adopts the Hearing Officer's Findings of Fact and
1837the Conclusions of Law except for paragraph #18. The Commission adopts the
1849Petitioner's Exception in place of paragraph #18. The Commission adopts the
1860Hearing Officer's Recommended Penalty as to Antonio Prado. Based on the
1871acceptance of the Petitioner's Exception the Commission finds Bayside
1880International Realty, Inc. guilty of violating s.475.25( 1 )(e) Florida
1890Statutes.
1891The Florida Real Estate Commission therefore ORDERS that Antonio Prado and
1902Bayside International Realty, Inc. be reprimanded. The Commission finds that
1912the Hearing Officer overlooked the rule on maintaining $200.00 in the escrow
1924account. Therefore the Commission Orders that the Respondent Bayside
1933International Realty, Inc. pay a $1000.00 administrative fine.
1941This Order shall be effective 30 days from date of filing with the Clerk of
1956the Department of Business and Professional Regulation. However, any party
1966affected by this Order has the right to seek judicial review, pursuant to
1979s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate
1990Procedure.
1991Within 30 days of the filing date of this Order, review proceedings may be
2005instituted by filing a Notice of Appeal with the Clerk of the Department of
2019Business and Professional Regulation at Suite 309 North Tower, 400 West Robinson
2031Street, Orlando, Florida 32801. At the same time, a copy of the Notice of
2045Appeal, with applicable filing fees, must be filed with the
2055appropriate District Court of Appeal.
2060DONE AND ORDERED this 16th day of July 1996 in Orlando, Florida.
2072__________________________
2073Henry M. Solares, Director
2077Division of Real Estate
2081CERTIFICATE OF SERVICE
2084I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S.
2098Certified Mail to: Antonio Prado, c/o Bayside International Realty, Inc., 1390
2109Brickell Avenue Suite 230 Miami, Florida 33131; by U.S. Regular Mail to Hearing
2122Officer Joyous Parrish, Division of Administrative Hearings, 1230 Apalachee
2131Parkway, Tallahassee, Florida 32399-1550; and a copy provided to Steven D.
2142Fieldman, Esquire, DBPR, Post Office Box 1900, Orlando, Florida 32801,this 27th
2154day of September, 1996.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 10/07/1996
- Proceedings: Final Order filed.
- Date: 09/30/1996
- Proceedings: Final Order filed.
- Date: 07/08/1996
- Proceedings: Letter to S. Fieldman from A. Prado Re: Notice of Hearing for Final Order filed.
- Date: 04/04/1996
- Proceedings: Respondent`s Proposed Recommended Order filed.
- Date: 04/02/1996
- Proceedings: Petitioner`s Hearing Exhibit #1 filed.
- Date: 03/28/1996
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/13/1996
- Proceedings: Notice of Hearing sent out. (Video Hearing set for 3/28/96; 1:30pm; Miami & Tallahassee)
- Date: 03/07/1996
- Proceedings: Letter to A. Prado from T. Gay Re: Telephone conference filed.
- Date: 02/20/1996
- Proceedings: Petitioner`s Motion for Relinquishment of Jurisdiction filed.
- Date: 02/16/1996
- Proceedings: Petitioner`s First Request for Admissions and Interrogatories filed.
- Date: 02/08/1996
- Proceedings: Order sent out. (Respondents` Motion to Dismiss or quash the administrative complaint is denied)
- Date: 02/08/1996
- Proceedings: Notice of Hearing sent out. (hearing set for 3/27/96; 9:30am; Miami)
- Date: 01/25/1996
- Proceedings: Respondent`s Motion to Dismiss Or Quash the Administrative Complaint;Petitioner`s Response to Initial Order; Petitioner`s First Request for Admissions And Interrogatories filed.
- Date: 01/22/1996
- Proceedings: Ltr. to HO from Antonio Prado re: Reply to Initial Order; Respondent`s Motion to Dismiss or Quash the Administrative Complaint filed.
- Date: 01/22/1996
- Proceedings: Letter to HO from Frederick H. Wilsen Re: No longer representing Mr. Pardo and Bayside International Realty, Inc. filed.
- Date: 01/10/1996
- Proceedings: Initial Order issued.
- Date: 01/05/1996
- Proceedings: Agency referral letter, (Exhibits); Administrative Complaint; Election of Rights filed.