Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 24, 1977
Summary: Respondent was not guilty of dishonest dealing or breach of trust. The evidence shows the arrangement was agreeable to all the parties. Dismiss.
76-1218.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1218
)
THOMAS A. PONCE, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above styled cause in the offices of the Florida Real Estate Commission, 717 Ponce de Leon Boulevard, Commonwealth Building, Suite 307, Coral Gables, Florida, on September 24, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This cause arose upon the Administrative Complaint filed by the Florida Real Estate Commission against the license of the Respondent Thomas A. Ponce alleging that Thomas A. Ponce had violated Subsection 475.25(1)(a), Florida Statutes, as alleged in the Administrative Complaint filed in this case on May 17, 1976.
Thomas A. Ponce requested a formal hearing and this matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Chapter 120, Florida Statutes, and Chapter 475, Florida Statutes.
APPEARANCES
For Petitioner: Richard J. R. Parkinson, Esquire
Florida Real Estate Commission 2699 Lee Road
Winter Park, Florida 32789
For Respondent: Marshall King, Esquire
1140 West 50th Street Hialeah, Florida 33011
FINDINGS OF FACT
The parties stipulated to the admission of Exhibits 1 through 6.
Thomas A. Ponce is a registered real estate salesman holding license number 0119413 issued by the Florida Real Estate Commission.
On or about October 7, 1974, Arco Realty took a listing on a house described as 630 West 53rd Street, Hialeah, Florida from the owners of said property, the Izquierdos, through its real estate salesman, Angel J. Ferrer.
Said property was shown several times by Arco Realty between October 1974 and January 1975.
On January 28, 1975, Pedro Realty took an exclusive listing contract on said property through its agent Felix Concepcion. The Izquierdos came into Pedro Realty's office and stated that they were in financial difficulty and had to sell their property located at 630 West 53rd Street, Hialeah and 8425 N.W. 33rd Avenue, Miami, Florida. Both pieces of property were subject to a blanket second mortgage. The Izquierdos sought Concepcion's assistance in turning this property over to the bank.
Concepcion advised Thomas A. Ponce, another salesman with Pedro Realty, of the Izquierdo's problem. Concepcion sought to get Ponce to get his mother to purchase the two pieces of property such to the blanket mortgage.
Ponce inspected the property which was not in good condition and spoke with his mother about the purchase of the property. His mother indicated that she would be interested in purchasing the property and subsequently the contracts, Composite Exhibits 4 and 5, were executed by Mrs. Ponce and Thomas A. Ponce for the purchase of the property located at 531 West 53rd Street, Hialeah, Florida, and at 8425 N. W. 33rd Avenue, Miami, Florida.
Subsequent to the submission and acceptance of the contract for purchase to the Izquierdos, Pedro Realty Company was contacted by Angel Ferrer, the salesman for Arco Realty Corporation. Ferrer was referred to Thomas A. Ponce because Concepcion, who was the salesman in the matter, was out of the office.
In his conversation with Ferrer Ponce learned that the property located at 630 W. 53rd Street, Hialeah, Florida, had been previously listed on an MLS listing with Arco Realty Corporation. Later Ponce and Concepcion questioned the Izquierdos about the Arco listing and they said they had listed the property at 630 West 53rd Street, Hialeah, Florida, with another realty firm prior to the listing with Pedro Realty, but that the time had expired for that contract.
When Ponce spoke with Ferrer, he explained the financial situation of the Izquierdos and indicated to Ferrer that he and his mother had already contracted to purchase both pieces of property which were subject to the blanket mortgage. Ponce indicated to Ferrer that he was willing to go through with the contract for purchase upon waiver of Arco's commission with the understanding that having completed the purchase that Ponce would relist the property located at 630 West 53rd Street, Hialeah, Florida, with Arco.
It at this point the conflict in testimony upon which the entire case turns develops. Ferrer states that he did not accept the offer of Ponce while Ponce states that Ferrer accepted his proposal.
Ferrer advised his broker, Juan Bautista Huarte, of what had happened and Huarte contacted Pedro Hernandez, the broker for Pedro Realty, Inc. Hernandez had recognized Arco's preexisting contract and had advised Ponce that he would have to work out his own arrangement with Huarte because even though Pedro Realty had a contract, Arco Realty had a preexisting MLS contract which they would recognize. Having spoken with Ferrer, Ponce was of the opinion that the matter was settled to everyone's satisfaction.
Approximately six weeks later, Ponce and his mother closed the purchase of the property and on that day Ponce personally went to the offices of Arco Realty Corporation. He advised Angel Ferrer that they had closed on the property and were ready to list the property with Ferrer upon receipt of a copy of Izquierdo's original listing contract with Arco Realty Corporation.
Ferrer told Huarte that Ponce had closed the transaction, and Huarte called Ponce and Hernandez and complained violently about what had occurred. In a four-way conversation, Ferrer, Ponce, Hernandez and Huarte agreed that Ponce would provide certain information regarding the closing to Huarte. Arco would take Ponce's listing of the property and the commission would be waived. This did not come to pass because Huarte controverted the date submitted.
Several attempts through local realty boards and the MLS Listing Board were then made to settle the matter but these have not been successful, and the property has been sold at a loss by Mrs. Ponce.
In resolving the conflicting testimony, the Hearing Officer has considered that Ponce's offer to Ferrer was a beneficial solution to Arco, because at the very least the property would have been cleared of the blanket mortgage and they would still have the listing of a more saleable property. Furthermore, Ferrer was freed of having to arrange the details of closing this totally unprofitable listing because Ponce had undertaken to arrange for all of the closing and financing for purchase of the home. Considering the conflicts in the testimony of Ponce and Ferrer, the Hearing Officer finds that Ponce's testimony is more consistent with the other facts and the interest of parties. Ferrer either agreed to Ponce's proposal or the situation was sufficiently ambiguous that Ponce thought Ferrer had agreed to his proposal. The testimony and evidence does not support a finding that Ponce was guilty of dishonest dealing, concealment, or breach of trust.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the charges be dismissed and no action be taken.
DONE AND ENTERED this 11th day of October 1976 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 October 1976.
COPIES FURNISHED:
Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road
Winter Park, Florida 32789
Marshall King, Esquire 1140 West 50th Street Hialeah, Florida 33011
Docket for Case No: 76-001218
Orders for Case No: 76-001218
| Issue Date |
Document |
Summary |
|
Dec. 08, 1976 |
Agency Final Order
|
|
|
Oct. 11, 1976 |
Recommended Order
|
Respondent was not guilty of dishonest dealing or breach of trust. The evidence shows the arrangement was agreeable to all the parties. Dismiss.
|
