STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES C. SAMEN, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1145

) PROGRESS DOCKET NO. 2622 SALVADOR VIZCARRA, MANUEL ) Dade County

CAJARAVILLE AND AVIZ REALTY ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The above captioned cause came on before the undersigned hearing officer, at the offices of the Florida Real Estate Commission, 921 Seybold Building, 36 Northeast First Street, Miami, Florida 33132, on September 9, 1975, at 9:00 A.M.

APPEARANCES

For Petitioner: Louis B. Guttmann, III

Florida Real Estate Commission

For Respondent: Gerald Kogan, Esquire

Salvador Vizcarra 1/ FINDINGS OF FACT

1. The case was initiated by an Information filed on January 21, 1975, alleging in pertinent part that the Defendant Vizcarra failed to immediately place with his employer an earnest money deposit entrusted to him and that the Defendants Cajaraville and Aviz Realty failed to immediately deposit an earnest money deposit entrusted to them in escrow with a title company or banking institution located and doing business in the state or to place such deposit in a trust or escrow bank account within the state. The Defendant's deny the commission of the unlawful allegations alleged. The Plaintiff prays that if the evidence warrants, the Defendant's registrations should be suspended in accord with Chapter 475, Florida Statutes. At the outset of the hearing, the parties jointly stipulated that Salvador Vizcarra, hereinafter sometimes referred to as the Defendant, was employed by Aviz Realty Corporation on July 5, 1974. That on or about July 5, 1974, the Defendant received a check from Eugene Schmale, Drawn in the amount of $100.00 as earnest money for deposit on a house located at 120 Northeast 41st Street, Miami, Florida. The proceeds were to be held in escrow by Aviz Realty Corporation. The parties further stipulated that on September 12, 1974, the Defendant, by letter dated September 12, 1974, returned the check to Mr. Schmale, enclosing therewith his original check which was made payable to Aviz Realty and given as a deposit on the above-mentioned property. The letter cites the fact that Mr. Schmale's offer was submitted and that by "pure negligence" Defendants never returned the check nor was it ever deposited in an

escrow account. Said letter noted that the Defendants apologized for any inconveniences that the delay in returning the check may have occasioned the maker, Eugene Schmale. A copy of said letter is superimposed by a check given by Mr. Schmale to Aviz Corporation which was introduced and received in evidence and marked for identification as plaintiff's Exhibit number 2. A copy of the contract which is actually a "contract to purchase" was also introduced and received in evidence and marked for identification as Plaintiff's Exhibit number

1. The parties also stipulated that during all times material herein, the Defendant, Vizcarra, was a registered-licensed real estate salesman employed by Aviz Realty and is currently so employed. The Defendant Salvador Vizcarra, was present at the hearing and testified that he received a telephone call from Eugene J. Schmale on July 4, 1974. 2/ During the course of the telephone conversation, Mr. Schmale related to Mr. Vizcarra that he had taken a look at the above described property and was interested in making an offer to purchase.

   
   

2. Mr. Vizcarra informed Mr. Schmale that the property was listed at

   $47,000. Mr. Schmale offered a purchase price of $22,000. Mr. Vizcarra testified that he explained to Mr. Schmale that his offer was "extremely low" but Mr. Schmale insisted that his offer be relayed to the property owner for consideration. Mr. Vizcarra also testified that he informed Mr. Schmale that it was highly unlikely that his offer would be accepted but that in accordance with the law, he would in fact relay his offer to the owner. Schmale's offer, according to Vizcarra, was in fact relayed on the following day, July 5, 1974.

   Mr. Vizcarra testified that Mr. Schmale's offer was summarily rejected and as best as can be determined by the record, no counter-offer was ever made. Mr. Vizcarra testified that Mr. Schmale did not give him his phone number nor did he give him an address wherein he could be contacted. Vizcarra stated that he did not deposit the check in an escrow account as the offer was summarily rejected and that to have placed the deposit in an escrow account would have caused a delay of approximately 5 days before Mr. Schmale's check could be returned to him. Vizcarra's testimony is that he immediately gave the check to his then secretary on that same day i.e., Friday, July 5, 1974, and indicated to the secretary that the check should be returned to Mr. Schmale immediately. Mr.

   Vizcarra indicated that he had no idea that the check had not been returned to Mr. Schmale until he received notice from the Florida Real Estate Commission regarding the subject action. According to Vizcarra's testimony, he then commenced to search the offices for the check and located it and immediately returned it to Mr. Schmale within 3 or 4 weeks. As the evidence indicates, the check was in fact returned with a cover letter dated September 12, 1974.

   Vizcarra indicated that he had no knowledge that the check had not been returned nor did he see any need to deposit it in the escrow account for reasons already expressed. No other witnesses were called or testified at the hearing.

   
   

3. In his closing remarks, counsel Kogan noted in the record that the Defendant Salvador Vizcarra had no evil intent when he did not in fact place the deposit in an escrow account immediately as called for by the express provisions of 475.25(1)(i), Florida Statutes. To buttress his contention that the Defendant had no evil intent in this case, attorney Kogan cites the fact that the check was never deposited and that it was through "pure negligence" that the check was not in fact immediately returned; that the earliest possible date that it could have been deposited was after Schmale's offer had already been rejected. Kogan expressed his opinion that the check was misplaced due to the fact that during the period that it was being held in the office, the Defendant, Aviz Realty Corporation, changed secretaries and that the misplacement of the check was never called to Defendant, Vizcarra's attention. In concluding, Kogan expressed his feelings that no violation had in fact occurred and requested that no severe penalty, suspension or revocation of the Defendant, Salvador

   Vizcarra's real estate license be recommended as the facts, in his opinion, do not warrant such action.

   
   

4. The undersigned is of the opinion that the record herein discloses at best, only a technical violation of Florida Statutes, 475.25(1)(i), when Defendant Salvador Vizcarra failed to immediately deposit $100.00 as earnest money into an escrow or trust account with a bank or title company doing business in the state. The undersigned is also of the opinion that there had been no prejudice shown, the money has not been misappropriated or dissipated or lost. Nor did Defendant Vizcarra, knowingly fail to deposit said deposit into an escrow account and scienter is an integral element of committing a breach of trust. See for example, Glasser v Florida Real Estate Commission et al, Florida. App. 1960, 117 So.2D761, 762. The decisional law in the cases states that the purpose in enacting Florida Statutes, 475.25 was to assure that funds were safe from dissipation by being segregated from all other personal, firm or broker operating accounts. Defendant Vizcarra testified without contradiction that the money was given to his secretary to be returned to Eugene Schmale immediately.

   
   

5. His testimony is further buttressed by the fact that the check was never deposited into any account for payment. The technical violation does not relate or tend to relate, to any dishonest acts or fraudulent acts or conduct on the part of Defendant Salvador Vizcarra's real estate dealings with the public. In these circumstances, it is doubtful that the disciplinary sections of Chapter 475, Florida Statutes, were ever intended to be used as a basis of suspension proceedings. Thus for example, the court in Horn v Florida Real Estate Commission, Fla. App. 1964, 163 So.2d 515, 517, commented that "disciplinary proceedings under this chapter are for the primary purpose of protecting the public from unscrupulous or dishonest real estate operators". Accordingly, a suspension of license or registration is not compatible with the violation as disclosed herein. I therefore recommend that the Commission issue a private written reprimand to the Defendant Salvador Vizcarra. See, e.g., Prod v. Jernigan, 188 So.2d 575. I further recommend that the allegations as set forth in count 2 of the information which list, alternatively, that the Defendants Aviz Realty Corporation and Manuel Cajaraville received a check from Eugene Schmale and failed to immediately deposit the said check entrusted in a bank, trust or escrow account with a banking institution located and doing business in the state thereby violating 475.25(1)(i), be DISMISSED for lack of proof.

ENTERED this 17th day of September, 1975, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Attorney Gerald Rogan, stated at the hearing that by letter dated April 7, 1975, attorney Stephen A. Wayner, noticed that he was representing Defendants Manuel Cajaraville and Aviz Realty Corporation. No notice of appearance forms were filed by attorney Wayner with the undersigned nor did Defendants

Cajaraville nor did an agent or counsel for the Aviz Realty Corporation appear at the hearing.

2/ The undersigned takes official notice that July 4, 1974, is as indicated by the Julian Calendar, a Thursday. Vizcarra testified that Aviz changed secretaries after Schmale's offer was rejected. No exact point in time was placed on the rehire of a new secretary.

COPIES FURNISHED:

Louis B. Guttmann, III, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Gerald Kogan, Esquire

500 Security Trust Building 700 Brickell Avenue,

Miami, Florida 33131

Docket for Case No: 75-001145

Orders for Case No: 75-001145