STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT W. LOFTUS, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 75-149

)

REALTY OF HOMESTEAD, and )

MATTHEW A. CIVILETTE, )

)

Respondents. )

)

RECOMMENDED ORDER

This cause came on for final hearing on May 21, 1975 at 9:30 in room 921 of the Seybold Building, 36 North East First Street, Miami, Dade County, Florida before the undersigned Hearing Officer. Realty of Homestead, Inc., and Matthew

A. Civilette were not present or represented by counsel. The following appearance was made:

Mr. Charles E. Felix, Associate Counsel Florida Real Estate Commission,

State Office Building West Morse Boulevard

Winter Park, Florida 32789

Because of the absences of Matthew A. Civilette and a representative of Realty of Homestead, Inc., prior to the taking testimony the issues of proper notice and a letter of Matthew Civilette requesting a continuance of the hearing were considered.

The Commission's record and the testimony of Albert W. Loftus, Jr. indicated that notice of this hearing had been given to Matthew A. Civilette and Realty of Homestead, Inc. by registered mail on May 6, 1975; and further said notice had been hand delivered to Mr. Civilette on May 1, 1975 by Mr. Loftus. A copy of said notice is attached as Exhibit A and made a part of this recommended order. Said notice meets the essential requirements of Chapter 120 and the attached return receipt indicates that it was received by Matthew Civilette on May 9, 1975.

Also considered was the letter requesting continuance of the hearing (Exhibit 1) of Matthew A. Civilette. This letter reflects that Mr. Civilette had actual knowledge of the date of the hearing. The grounds asserted for requesting the continuance was the need to subpoena witnesses and to further prepare a defense against the allocations contained in the Commission's Information. The record reflected that said Information had been presented to Civilette and Realty of Homestead, Inc. on or about March 6, 1975 and further reflected that an Answer had been filed by Civilette in an earlier preceding before the Commission for Emergency Suspension of Broker's Registration.

Civilette was therefore aware of the allegations upon which the instant hearing was grounded approximately ten weeks prior to the scheduled date for final

hearing, and was also aware of his rights pursuant to Chapter 20, Florida Statutes. See attached notice. The requested continuance was without merit based upon the facts asserted in the letter in light of the facts revealed by the record in this cause. However, without regard to the merits of the requested continuance, this hearing having been duly noticed and continuance not having been granted prior to the commencement of the hearing, the parties Civilette and Realty of Homestead, Inc. should have been present at the hearing and having elected not to appear they waived their right to present matters in their defense, to cross examine witnesses against them and to present any argument in their behalf. It appearing on the face of the record that proper notice had been given, the Commission was permitted to present its case based upon the 19 counts contained in the Information heretofore described. The Commission introduced into evidence Exhibits 1 through 25 which were admitted and are a part of the record in this cause.

Samuel Benson, Attorney at Law, and officer of Meridian Land Development Corp. testified that he had contacted Matthew A. Civilette to act as an agent for Meridian Land Development Corp., hereinafter referred to as Meridian, to negotiate the purchase of certain real property belonging to the University of Florida Foundation, Inc. While Civilette was acting in this capacity for Meridian, Civilette contacted Rivas Realty and divulged certain details regarding the proposed Meridian purchase then under negotiation under such circumstances and conditions that Civilette's actions caused the negotiations between Meridian and the University of Florida Foundation, Inc. to fail. Mr. Benson further testified that Mr. Civilette had told him that the basis for his having contacted Rivas Realty was that Civilette could earn a greater commission if he negotiated a purchase for Rivas Realty of the property in question.

Mr. Benson further identified a contract between Meridian Land Development Corp., as purchaser, and Realty of Homestead, Inc., and Matthew A. Civilette, as broker, introduced as Exhibit 3. Although Exhibit 3 is in fact a contract for the sale of property to be acquired by Meridian Land Development Corp. by Matthew A. Civilette as broker, it recites that the broker had introduced the purchaser to certain properties owned by the University of Florida Foundation, Inc. and that the purchaser would become obligated for a brokerage commission under a deposit receipt agreement for the purchase of said property from the University of Florida Foundation, Inc. The recitations contained in Exhibit 3 substantiated the testimony of Benson regarding the agreement between Meridian and Civilette. Benson further testified that the actions of Civilette became the basis of a civil action against Realty of Homestead, Inc. and Matthew A. Civilette in which a final judgment in the amount of $80,000 was granted by the Dade County Circuit Court against Realty of Homestead, Inc., Matthew A. Civilette having dismissed because there was no satisfaction of judgment. Copy of said judgment was introduced by the Commission as Exhibit 4.

Mr. Benson further testified that he had engaged Mr. Civilette as agent for Marigold Land Corporation to purchase certain real property owned by persons named Burrichter. Mr. Benson testified that he gave Mr. Civilette $5,000 deposit as escrow agent and signed the contract between himself and Mr.

Burrichter. A contract between Marigold and Civilette was never executed, however, the $5,000 became the issue of litigation requiring specific performance of Civilette to produce said monies. A copy of the court's judgment against Matthew A. Civilette was late filed Exhibit 26, and Exhibit 23, which is a check in the amount of $5,000 payable to the order of the Clerk of the Circuit Court from Matthew A. Civilette for Burrichter-Benson, was introduced by the Commission and substantiated the testimony of Benson. The hearing officer notes

that no allegations based upon failure to produce the $5,000 at closing were made in the Information, and no findings in this cause are made.

Subsequently in a related transaction, Benson testified that Civilette failed to meet his obligations as broker for the sale of portions of the Burrichter parcel for Marigold Land Corporation in that he failed to tender at closing deposits which he (Civilette) had received from two prospective purchasers, Rodriguez and Fick. With regard to the same transaction, Civilette having learned of a pending contract between Marigold and a Mr. Diaz for the sale of the remaining 40 acres, recorded deposit receipt contracts from Jacqueline Articola and Heremaneguildo Ruano and Elda Ruano and Jose Vera and Barbara S. Vera which became a cloud on the title of the 40 acres. The filing of these deposit receipt contracts and the resulted cloud caused Marigold Land Corporation, according to Benson, to file a civil action to quiet title on this property. Final judgment in that action was introduced as Exhibit 7. Paragraph eight of the findings contained in Exhibit 7 indicate that the signature of "Samuel Benson" appearing on the deposit receipt of Articola was not a true signature and was, in fact, a forgery, and paragraph ten of Exhibit 7 indicates the signature of "Samuel Benson" appearing upon the deposit receipt contract of Vera was not the true signature of Samuel Benson, but was also a forgery. The deposit receipt contract of Articola was introduced as Exhibit 5, and the deposit receipt contract of Ruano and Vera was introduced as Exhibit 6. On both Exhibits 5 and 6 the signature of Matthew A. Civilette appears as a witness to the signature of Samuel Benson as officer of the Marigold Corporation with whom Civilette was well acquainted. Further, in the instance of Exhibit 5, it appears that Matthew A. Civilette notarized the deposit receipt of Samuel Benson.

The Commission then called Mrs. Phyllis Davis Creighton who testified Civilette negotiated a contract for the sale of certain real property listed with Keyes Company Realty to Mr. and Mrs. Joseph Borek. In accordance with the contract with the Boreks, Civilette was to split the commission with Keyes Company Realty and its agent, Mrs. Phyllis Davis Creighton. Mr. Civilette issued a check on a Matthew Anthony Civilette Trust Account in the United National Bank of Miami payable to The Keyes Co. for $2,343.75 which check was returned because of insufficient funds upon presentment on May 30, 1973 and again on June 6, 1973. This testimony was substantiated by the testimony of Mr. Richard C. Pollack, Comptroller of Keyes Company Realty who testified that the check had never been honored and that all attempts to obtain payment from Mr.

Civilette had failed. His testimony was further substantiated by the introduction of the records of Civilette's trust account (Exhibit 22) which indicates that payment of a check in the amount of $2,343.75 was refused on May

30 and again on June 6, 1973.

Mrs. Phyllis Davis Creighton further identified Exhibit 12, a letter and envelope postmarked March 16, 1975 and signed "Matt" which recites that the writer had received a notice from the Real Estate Commission of a hearing and alleges that the writer had paid money in cash to Phyllis Creighton a few days after the closing. The letter also contained references to a romantic liason with Mrs. Davis - Creighton, however, due to the date of the letter and the testimony of Mrs. Davis - Creighton that she had only seen Civilette once and that at the Borek closing, the letter appears to be an attempt to implicate Mrs. Davis - Creighton in some "secret" transaction excusing Civilette's nonpayment of the commission due Keyes Company Realty.

Mr. John Gilbride testified that he and his wife had contracted with Civilette to purchase real property and had paid to and received receipts from

Civilette for $4,700, $12,000, $5,000, and $3,000 as evidenced by Exhibit 16. The Gilbrides had received for the total of $24,700 paid to Mr. Civilette one second mortgage from a Mr. Munson in the amount of $5,000 and another second mortgage from a Mr. Honderick in the amount of $10,000. The remaining $9,700 had been left with Civilette to purchase other properties in their behalf. Of the $9,700, $6,500 was to constitute the full purchase price of a tract of real property purchased from A. K. Darling McNab. The witness identified Exhibit 14 as the contract for the purchase of the "McNab" property. Thereafter Mr.

Gilbride testified that Mr. Civilette was unable to complete the McNab transaction as evidenced by Exhibit 17 which Gilbride identified. Mr. Gilbride testified that when Mr. Civilette was unable to close the McNab deal that it became necessary for the Gilbrides to find Civilette which they undertook to do in early 1974 when they arrived in Florida. It was apparent from Mr. Gilbride's testimony that Mr. Civilette was not maintaining regular office hours at his office and was avoiding contact with the Gilbrides. According to Mr. Gilbride's testimony, it was only with considerable difficulty that they were finally able to meet with Mr. Civilette and to discuss with him an accounting of their monies. Mr. Civilette admitted to Mr. Gilbride that he did not have Mr.

Gilbride's money and had no idea when he would have it. Mr. Gilbride had Mr. Civilette call Mr. Carl Webber, Jr., Mr. Gilbride's attorney. Mr. Carl Webber, Jr. testified that he had spoken with Mr. Civilette, and that Mr. Civilette had admitted to him, in the presence of the Gilbrides, that he did not have their money, and that he had spent the Gilbride's money, and he did not know how he would repay it. As of the date of the hearing Mr. Civilette had not made an accounting or returned the Gilbride's funds to them.

Mr. Gary Fine and his wife, Veronica, then testified regarding a real estate transaction which they had had with Mr. Civilette in which they had contracted to purchase a piece of property described in part in Exhibit 18 identified by the Fines as a contract entered into between them and Matthew A. Civilette as 29120 South West 152nd Avenue, Leisure City, Florida. Although Exhibit 18 was undated, Mrs. Fine identified the Exhibit 19 as a check dated September 8, 1973 made payable to Matthew Civilette Trust Account in the amount of $500 which was given to Mr. Civilette by Mrs. Fine at the time the contract, Exhibit 18, was signed. On or about September 26, 1973, according to the testimony of Mrs. Fine, Mr. Civilette advised the Fines that the purchase could not be completed because the seller was an alcoholic and incompetent.

Thereafter the Fines went to another realtor in order to further attempt to purchase the property. The second realtor reported to the Fines that Mr.

Civilette's office had reported to them that the property had, in fact, been sold. Mr. Richard Hinton testified that he had contracted Mr. Civilette for the purchase of real property identified in part as 29120 South West 152nd Avenue, Leisure City on August 22, 1973 having paid a deposit of $1,500. The contract between Mr. Hinton and Mr. Civilette was identified by Mr. Hinton and introduced as Exhibit 20. Mr. Hinton also identified a closing statement dated October 18, 1973 which was introduced as Exhibit 21, and which Mr. Hinton testified was the closing statement on the property described Exhibit 20. The Fines further testified that Mr. Civilette returned their deposit check to them twice, both times after September 26, 1973.

1. With regard to the numbered counts contained in the information against Matthew A. Civilette and Realty of Homestead, Inc. which is a part of the Florida Real Estate Commission's file made part of the record of this, the following findings are made:

1. Count One

   
   

   Insufficient evidence was presented to show that Matthew Civilette failed to deposit the Gilbrides funds given to him in a trust account as required by law.

   
   

   The Commission failed to present testimony supporting Paragraph one of Count One, that Matthew A. Civilette is and was a registered real estate broker, and was president and active member of Realty of Homestead, Inc. However, with regard to the charges generally against Realty of Homestead, Inc. as contained in Counts One through Nineteen of the Information, an examination of Exhibits 3, 5, 6, 8, 11, 15 and 16 reflect that Realty of Homestead, Inc. was involved in the transactions with Meridian Land development Corporation, Marigold Land Development, The Keyes Company Realty, and John and Nora Gilbride through it's agent and broker, Matthew A. Civilette. The Findings of Fact and Conclusions of Law regarding Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 15, 16, 17, 18 and 19 contained in the Information relating to Matthew A. Civilette are also findings against Realty of Homestead, Inc. for which Civilette was the broker and agent.

   
   

2. Count Two and Three

The Gilbrides gave Matthew A. Civilette $24,700 with which Civilette was to purchase real property in second mortgages. The Gilbrides received $15,000 in second mortgages from Civilette and thereafter, upon demand, Civilette did not properly account for or refund the remaining $9,700, or deliver to the Gilbrides any property purchased with these funds. Civilette, in front of the Gilbrides, admitted to their attorney, Mr. Webber, on the phone that he (Civilette) had spent the money and did not know when he could refund the money. This statement, together with the fact that Civilette had not refunded the money or delivered anything of value purchased therewith to the Gilbrides, substantiates the fact that Civilette had failed to maintain the monies in a trust account, had removed the monies from a trust account without the Gilbrides' authorization, and used it for purposes other than to purchase property for the Gilbrides. Civilette's conduct in this matter constitutes a violation of Sub- Section 475.25(1)(c) and Sub-Section 475.25(1)(i), F.S., as alleged in Counts 2 and 3 of the information.

1. Count Four

   
   

   Based upon the findings of fact and conclusions of law above, one must conclude Gilbride's money was dissipated either dishonestly or as the result of culpable negligence on the part of Matthew A. Civilette; however, in either case, Matthew A. Civilette's conduct violated the trust relationship existing between the Gilbrides and Civilette and constitute a violation of Sub-Section 475.25(1)(a), F.S., as alleged in Count 4 of the information.

   
   

2. Count Five, Eight, and Nine

   
   

   Mr. Richard Pollack testified and identified a check payable to The Keyes Co. dated May 11, 1973 from Mr. Matthew A. Civilette as a check received by The Keyes Company in payment of the commission due The Keyes Company under a contract for sale introduced as Exhibit 11. Mr. Pollack testified that the check had been presented for payment on two occasions and had been refused in both instances because of insufficient funds in the Matthew Anthony Civilette Trust Account. The records of the account which were later introduced as Exhibit 22 reveal that a check in the amount of $2,343.75 was refused for insufficient funds on May 30, 1973 and again on June 6, 1973 thereby

   substantiating the testimony of Mr. Pollack. Mr. Pollack and Mrs. Phyllis Davis Creighton both testified that the check had never been honored and that payment was never made of the commission due The Keyes Company as a result of the Borek sale. Further examination of Exhibit 22 reveals that the balance of the Matthew Anthony Civilette Trust Account number 103 6094 was continually diminished during the period subsequent to May 8, 1973 and at no time subsequent to May 29, 1973 were there sufficient funds in said account to honor the check payable to The Keyes Co. It is clear from the records of the account that monies deposited to said account and payable to The Keyes Company as a commission on the Borek contract were used for purposes other than those of paying said commissions.

   Mr. Civilette's conduct in failing to maintain monies in said account payable to The Keyes Co. as a commission constitutes a violation of Sub-Section 475.25(1)(a), F. S., as alleged in Count Five of the Information; Mr.

   Civilette's failure to deliver the commission due under the contract after the check was returned for insufficient funds constitutes a violation of Sub-Section 475.25(1)(c), F.S. as alleged in Count Eight of the Information; and the dissipation of funds from said trust account in such a manner that the check issued payable to The Keyes Co. in payment of the commission could not be paid shows the misuse of trust account funds in violation of Sub-Section 475.25(1)(a), F.S., as alleged in Count Nine of the Information.

   
   

3. Count Six

   
   

   The records of the trust account of Matthew A. Civilette, Account Number

   103 6094 identified by Raymond Duke and introduced as Exhibit 22 reveal that on May 4, 1973, $6,250 was deposited to said account in the United National Bank of Miami. The contract (Exhibit 11) existing for the sale of property to Joseph Borek and his wife, Helen, called for a deposit in the amount of $6,250. Therefore, contrary to the allegations contained in Count Six of the Information, Matthew A. Civilette did in fact deposit the monies to his trust account as required by law.

   
   

4. Count Seven

   
   

   Exhibit 10 was identified by Mr. Richard Pollack as a check payable to The Keyes Co. and dated May 11, 1973 three days after the Borek closing as revealed in the closing statement, Exhibit 13. The issuance of said check in payment of the commission due The Keyes Company was therefore authorized under the contract contrary to the allegations contained in Count Seven of the Information.

   
   

5. Count Ten

The testimony of Richard Hinton clearly developed that Matthew A. Civilette entered into a contract (Exhibit 20) with Hinton on or about August 22, 1973 for the purchase of certain real property described as 29120 SW 152 Avenue, Leisure City, Section 1; and the testimony of Gary and Veronica Fine indicated that Matthew A. Civilette entered into a contract (Exhibit 18) on or about September 9, 1973 for the sale of the same real property described as 29120 SW 152 Avenue, Leisure City, Florida. The testimony of Richard Hinton and the Fines, together with Exhibits 18, 19, and 20 indicate that Matthew A. Civilette had accepted deposit receipt contracts from both Richard Hinton and Gary and Veronica Fine for the same property. A review of the contract between Matthew A. Civilette and the Fines (Exhibit 18) reveals that it is not contingent upon the non-sale of the house on the first contract (Exhibit 20) entered into by Civilette with Hinton. Matthew A. Civilette's conduct in this transaction violated Sub-Section

1. (1)(a), F.S., as contained in Count Ten of the Information.

   1. Count Eleven

The testimony of Veronica Fine was that Civilette returned to her the $500 check which she had given him as a deposit on the contract, Exhibit 18, on two occasions subsequent to September 26, 1973. The return of the deposit check indicates that Mr. Civilette had failed to deposit the $500 entrusted to him as a broker in an escrow account as required by law in violation of Sub-Section 475.25(1)(i), F.S. as alleged in Count Eleven of the Information.

1. Count Twelve

   
   

   Mr. Samuel Benson testified that Civilette divulged information regarding a real estate transaction to other parties under such circumstances and under such conditions that this caused the negotiations for the purchase of property belonging to the University of Florida Foundation, Inc. by his company, Meridian Land Development Corporation, to fail; and that Civilette had stated to him that the purpose of his attempting to negotiate the purchase of the subject property by another buyer was to receive a larger commission than that agreed upon in the contract with Meridian. Such conduct was a violation of his implied obligation to Meridian for whom Civilette was acting as broker, and violates the provisions of Sub-Section 475.25(1)(a), F.S., as alleged in County Twelve of the Information.

   
   

2. Count Thirteen and Fourteen

   
   

   With regard to the same transaction, having learned of the potential sale of the remainder of the 60 acre plot under such conditions which would have deprived him of his commission, according to the testimony of Benson, Civilette caused to be filed against said property deposit receipt contract executed by Vera and Articola. The filing of these contracts had the effect of clouding the title of the property being sold by Marigold Land Corporation to Diaz. In a quite title suit brought by Marigold, the court subsequently held that Benson's signature which Civilette had witnessed and in one instance notarized, was a forgery. It was clear, from Benson's testimony, that Civilette was well acquainted with Benson. Civilette's actions in preparing and recording these contracts constitutes a violation of Sub-Section 475.25(1)(a), F.S., as alleged in Counts Thirteen and Fourteen of the Information.

   
   

3. Count Fifteen

   
   

   The only evidence presented with regard to Count Fifteen was the testimony of Mr. Samuel Benson which was unsupported hearsay and which cannot support the allegations contained in Count Fifteen.

   
   

4. Count Sixteen and Seventeen

   
   

   Mr. Benson further testified that in a related transaction in which Civilette was acting as broker for Marigold Land Corporation, Civilette failed to tender at closing deposits which he had received from two prospective customers, Rodriguez and Fick. The failure to present said monies was a violation of Sub-Section 475.25(1)(c), F.S., as alleged in Counts Sixteen and Seventeen of the Information.

   
   

5. Count Eighteen

Exhibit 24 introduced by Commission's Counsel substantiates the allegations contained in Count Eighteen that Civilette and Realty of Homestead, Inc. had had

their registration suspended for misconduct for 60 days effective December 6, 1972.

0. Count Nineteen

The foregoing Findings of Fact and Conclusions of Law relative to Counts One through Eighteen against Matthew A. Civilette and Counts 1, 2, 3, 4, 5, 8,

9, 12, 13, 14, 16, 17, and 18 against Realty of Homestead, Inc. substantiates the allegations contained in Count Nineteen of the Information that Matthew A. Civilette and Realty of Homestead, Inc. are guilty of a course of conduct of practices which show that they are so incompetent, negligent, dishonest, and untruthful that money, property, transactions and rights of investors or those with whom they may sustain a confidential relationship may not be safely entrusted to them in violation of Sub-Section 475.25(3), Florida Statutes.

RECOMMENDATI0N: It is recommended, based on the findings above, that the registration of Realty of Homestead, Inc. and Matthew A. Civilette be revoked by the Florida Real Estate Commission.

ENTERED this 11th day of July, 1975 in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1975.

Docket for Case No: 75-000149

Orders for Case No: 75-000149