Arias v. State, Dept. of Business and Professional Regulation, Div. of Real Estate, 97-576
| Decision Date | 22 April 1998 |
| Docket Number | No. 97-576,97-576 |
| Citation | 710 So.2d 655 |
| Parties | 23 Fla. L. Weekly D1026 Silvia M. ARIAS, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, and the Florida Real Estate Commission, Appellees. |
| Court | Florida District Court of Appeals |
Stephen T. Maher, Miami, for appellant.
Laura McCarthy, Orlando, for appellees.
Before SCHWARTZ, C.J. * , and NESBITT and GODERICH, JJ.
A real estate agent appeals a final order of the Department of Business and Professional Regulation, Division of Real Estate, finding that the agent had violated section 475.25(1)(b), Florida Statutes (1995), suspending her real estate license for two years, sentencing her to one year of probation, and fining her $1000. On the following analysis we reverse.
In the aftermath of Hurricane Andrew, Steve Ellis Times and Betty A. Brinson sought to rent a place to live. The Banais own a house in Hollywood, which they rented to others with the assistance of Manhattan Group Real Estate, Inc. (Manhattan). On September 30, 1992, Times responded to a newspaper advertisement for the Banais' house. Licensee Sylvia M. Arias, a real estate agent employed by Manhattan, showed Times the house. Times indicated that he wanted to rent the property. Arias told Times she had to call the Banais prior to finalizing the rental. Arias telephoned Ms. Banai, and told her she found a nice couple to rent the house. The conversation that followed included, in part,:
Ms. Banai: Are they Hispanic?
Ms. Arias: No.
Ms. Banai: Are they Black?
Ms. Arias: Yes.
Ms. Banai: No, I cannot rent the house to black people because I live in part of the house and because of what the neighbors will say about something like that.
Ms. Arias: We [are] not supposed to discriminate that way.
Ms. Banai: Look for someone else.
Arias then called Brinson, and stated that she was sorry but the couple would not be able to rent the property because the owners "didn't want persons of color in their house." Brinson related the information to Times. When Times called Arias, she also told Times that the owner did not want "someone of a different race" in the house. Arias offered to help the couple find other housing, and recommended that Times hire a lawyer.
In February 1995, a HUD administrative law judge issued an order requiring the Banais to pay a $10,000 civil penalty to HUD and compensatory damages of $35,000 each to Brinson and Times. The HUD judge found Arias in violation of federal housing law, 1 and required her to attend fair housing training, and fined her $100.
In November 1996, the Department of Business and Professional Regulation, Division of Real Estate, filed an administrative complaint against Arias, claiming a violation of section 475.25(1)(b) Florida Statutes (1995) 2. The administrative complaint alleged that Arias violated a duty imposed on her by federal and Florida law by facilitating and participating in a lessor's refusal to rent to prospective lessees, thereby making a dwelling unavailable to prospective lessees because of their race and color.
Arias did not dispute the allegations of fact contained in the complaint. An informal hearing was conducted. Arias was not represented by counsel. The Commission issued a final order finding that Arias had violated section 475.25(1)(b), suspending her real estate license for two years, sentencing her to one year of probation, and fining her $1000. This appeal followed.
Because we find one issue raised by Arias to be correct and dispositive, we will address only that point. The statute at issue, section 475.25(1)(b) provides:
(1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; 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 $1,000 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) or of s. 475.42.
(b) 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 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; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public. (Emphasis added.)
Section 455.2273, Florida Statutes (1997), provides:
1) Each board, or the department when there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department when there is no board, pursuant to this part, the respective practice acts, and any rule of the board or department.
(2) The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses, it being the legislative intent that minor violations be distinguished from those which endanger the public health, safety, or welfare; that such guidelines provide reasonable and meaningful notice to the public of likely penalties which may be imposed for proscribed conduct; and that such penalties be consistently applied by the board.
(3) A specific finding of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such guidelines. If applicable, the board, or the department when there is no board, shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.
(4) The department must review such disciplinary guidelines for compliance with the legislative intent as set forth herein to determine whether the guidelines establish a meaningful range of penalties and may also challenge such rules pursuant to s. 120.56.
(5) The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based. (Emphasis added.)
Arias maintains that the agency failed to comply with the legislative requirement that there be penalty guidelines in place, so as to alert licensees of proscribed actions and so as to ensure consistency in penalties imposed. We agree.
Through section 455.2273, the legislature has acknowledged the importance and necessity of disciplinary guidelines. Florida Administrative Procedure Section 61J2-24.001 provides the guidelines for disciplinary action by the Real Estate Commission. Disciplinary Guideline 6IJ2-24.001, provides in pertinent part:
VIOLATIONS RECOMMENDED RANGE OF PENALTY
....
(c) 475.25(1)(b) Guilty of fraud, (c) In the case of fraud
misrepresentation, misrepresentation and dishonest
concealment,false promises,false dealing, the usual action of the
pretenses, dishonest dealing by Commission shall be to impose a
trick, scheme or device, culpable penalty of revocation. In the case of
negligence or breach of trust. concealment, false promises and false
pretenses, the usual action of the
Commission shall be to impose a
penalty of a 3 to 5 year suspension
and an administrative fine of $1,000
In the case of culpable negligence and
breach of trust, the usual action of
the Commission shall be to impose a
penalty from a $1,000 fine to a 1 year
suspension
Clearly, no guidelines have been established for instances of violation of "a duty imposed ... by law."
In Morey's Lounge, Inc. v. Department of Business and Professional Regulation, 673 So.2d 538, 540 (Fla. 4th DCA 1996) the Fourth District observed:
State criminal statutes may be held void for vagueness under the due process clause where they either: (1) fail to give fair notice to persons of common intelligence as to what conduct is required or proscribed; or (2) encourage arbitrary and erratic enforcement. State v. Moo Young, 566 So.2d 1380, 1381 (Fla. 1st DCA 1990); See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).
The court in Morey's concluded that a statute authorizing the revocation of a liquor license for violation of any laws of the state or the United States was not unconstitutional for failure to give fair notice, and was not so vague as to deprive notice of proscribed conduct to persons of ordinary intelligence, and did...
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