STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3727

)

IGNACIO J. DULZAIDES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 31, 1984, in Miami, Florida. 1/ Thereafter, the parties were afforded leave to submit post-hearing memoranda supportive of their respective positions. Petitioner's counsel has submitted a proposed recommended order which was considered by me in preparation of this Recommended Order. 2/

APPEAFANCES

For Petitioner: James Mitchell, Esquire

Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Manuel E. Oliver, Esquire

195 Southwest 15 Road, Suite 403 Miami, Florida 33129

ISSUE

The issue presented for decision herein is whether or not Respondent's real estate salesman's license should be disciplined because he engaged in acts and/or conduct amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust and for failure to account and deliver monies entrusted to him while acting as a salesman in violation of Section 475.25(1)(b) and (d), Florida Statutes.

BACKGROUND

By Administrative Complaint filed July 26, 1983, Petitioner, Department of Professional Regulation, charged that Respondent, Ignacio Dulzaides, violated subsections 475.25(1)(b) and (d), Florida Statutes.

Specifically, Petitioner alleges that the Respondent agreed to manage a certain duplex for the owner, Augustin Leon Padron (Leon). During the course of managing the duplex, it is alleged that Respondent failed to account for or

deliver to Leon $6,065 in rental money collected by Respondent. Further, it is alleged that Leon gave Respondent $10,000 to make repairs to the duplex but that said repairs were never done and the Respondent utilized the funds for his own use and benefit and has failed to account or deliver said funds. Additionally, it is alleged that Respondent gave Leon a check for $10,000 but said check was returned for insufficient funds. Finally, Leon obtained a civil judgment against Respondent for $26,065 and Respondent has failed to satisfy that judgment.

Respondent has disputed the charges and requested a hearing pursuant to Section 120.57(1), Florida Statutes. A formal hearing was initially set for March 27, 1984 but was continued based on a request by Petitioner. The hearing was reset for September 26, 1984 but was continued upon a motion by Respondent. The hearing was reset for and held on October 31, 1984.

At the hearing, Petitioner called Charles Durkin, Enrique Barbuzano Reinaldo Blanco, and Augustin Leon Padron via deposition. Petitioner's Exhibits

1 through 18 were received into evidence. Respondent called Herminio Sanchez and himself. Respondent's Exhibits 1 through 5 were received into evidence.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a review of the entire record compiled herein, I hereby make the following relevant factual findings.

1. During times material herein, Respondent was, and is, a licensed real estate salesman in Florida and has been issued license number 0128100. (Petitioner's Exhibit 1)

   
   

2. Augustin Leon Padron is a resident of Caracas, Venezuela and is a part- time resident of Miami, Florida.

   
   

3. During 1978, Leon was interested in purchasing property in the Miami area so he contacted a distant cousin, the Respondent, to help in the acquisition and management of any property be purchased.

   
   

4. On November 9, 1978, Leon executed a power of attorney appointing the Respondent as his attorney-in-fact in regard to the acquisition and management of properties that Leon may purchase. (Petitioner's Exhibit 5)

   
   

5. On November 17, 1978, Leon wired to the Pespondent $20,000 to be held for the acquisition of property by Leon. (Petitioner's Exhibit 6)

   
   

6. On August 31, 1979, Leon, through the assistance of Respondent, purchased a duplex located at 43-45 NW 44 Avenue, Miami, Florida. Of the

   $20,000 sent to Respondent by Leon, $17,194.35 was used for the purchase of the duplex, leaving a balance of $2,805.65. (Petitioner's Exhibits 4 and 6)

   
   

7. The balance of $2,805.65 was never accounted for by Respondent or delivered to Leon.

   
   

8. Pursuant to the power of attorney, Respondent assumed the duties of manager of the duplex for Leon, which duties included the collection of rent, making repairs and the payment of the monthly mortgage to Atlantic Federal Savings and Loan Association in Ft. Lauderdale, Florida.

9. On or about April 1, 1981, Leon gave a $10,000 check to the Respondent for the purpose of making certain repairs and additions to the duplex. (Petitioner's Exhibit 7) Respondent never made repairs or additions as requested and has failed to account for or deliver, to the present time, any of the $10,000, although demands have been made by Leon for the return of the money.

   
   

10. On or about May 24, 1981, Leon issued two checks, each in the amount of $10,000. One check was issued to Arango and Galarraga, a law firm, as a deposit towards the purchase of the Kasbah Bar. The second check was issued to the Respondent to he used as a deposit on the purchase of property in Kendall. (Petitioner's Exhibit 8)

    
    

11. Both of the above-referred transactions bailed to materialize. On July 7, 1981, the law firm of Arango and Galarraga issued a check payable to Leon in the amount of $10,000 representing a return of the deposit. (Petitioner's Exhibit 9) This check was tendered to the Respondent. Respondent took this check plus the $10,000 deposit as to the Kendall property and had a

    $20,000 certified check drawn and made payable to Leon. (Petitioner's Exhibit

    10) On November 19, 1981, at Leon's request, Respondent issued a check to Leon in the amount of $10,000 representing a part payment of monies owed to Leon by Respondent. (Petitioner's Exhibit 11)

    
    

12. Leon attempted to cash this check hut was told that there were insufficient funds in the Respondent's bank account to cover such an amount. (Petitioner's Exhibit 12) Leon has made numerous demands upon Respondent for the payment of the $10,000 but Respondent has failed to pay over to Leon the $10,000 or to make good on the check he issued.

    
    

13. During 1980 and 1981, Respondent failed to make at least five (5) mortgage payments causing the mortgage loan on the duplex, referred to above, with Atlantic Federal Savings and Loan Association to become delinquent and foreclosure proceedings were instituted. (Petitioner's Exhibit 3) The evidence is undisputed that Atlantic Federal notified Respondent on at least two occasions that the loan was delinquent and, if not brought current, foreclosure proceedings would result. (Petitioner's Exhibits 15, 16, 17, and Respondent's Exhibit 1) Respondent failed to advise of the nonpayment of the mortgage and the impending foreclosure. Additionally, at no time did Respondent advise Leon that be did not have sufficient funds to make the mortgage payment as scheduled.

    
    

14. On November 19, 1981, Leon discovered through the public records of Dade County and Atlantic Federal, that his duplex was about to be foreclosed. Leon brought the mortgage payments current and paid the attorneys fees and costs involved amounting to $5,281.47. (Petitioner's Exhibit 13)

    
    

15. Based on the above-referred events, Leon revoked the Respondent's power of attorney effective that day, November 19, 1981. (Petitioner's Exhibit 14)

    
    

16. Subsequent to November 19, 1981, Leon attempted to work out arrangements whereby Respondent would repay to Leon all monies owed by Respondent to Leon. These attempts failed and Leon filed suit against Respondent in Dade County Circuit Court for $26,065. On July 24, 1992, Leon secured a final judgment against Respondent for the amount requested, i.e.,

    $26,065 plus interest and costs. (Petitioner's Exhibit 2) To this day, Respondent has failed and refused to satisfy the judgment and Leon has been unsuccessful in his attempted collection on that judgment.

17. Respondent contends that the $10,000 check that gas issued him by Leon was for the payment of services performed on behalf of the Respondent. Evidence in that regard reveals that Respondent was not charging Leon a commission on any real estate transactions. A review of Respondent's testimony herein reveals that in addition to the acquisition and management of the duplex referred to herein which is located at 43-45 NW 44 Avenue in Miami, Respondent only picked up and forwarded goods and merchandise to Respondent in Caracas, Venezuela which had either been purchased by or shipped to Respondent from New York and other places. Apart from the time involved in the reshipping of those goods and merchandise, Respondent only paid nominal shipping charges.

    
    

18. It is true that Respondent attempted to negotiate for the sale and purchase of the Kasbah Bar for Leon; however, his efforts in that regard were unsuccessful. Based on all of the evidence herein, including the testimony of Leon and the documentary evidence received, Respondent's contention that Leon owed him in excess of $10,000 is not credible and is rejected. This is especially so in view of the fact that Respondent issued a check in the amount of $10,000 to Leon which was returned for insufficient funds. For all these reasons, Respondent's testimony is incredible and is rejected in those instances wherein it differs from the version offered by the deposition testimony of Augustin Leon Padron.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

20. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes (1983).

    
    

21. The Petitioner's authority is derived from Chapter 475, Florida Statutes (1983).

    
    

22. Section 475.25(1)(b) , Florida Statutes, authorizes the Petitioner to suspend or revoke a real estate license, or impose an administrative fine not exceeding $1,000 for each separate offense if it finds that a licensee 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..."

    
    

23. Section 475.25(1)(d), Florida Statutes, authorizes the same penalties if the licensee is found to have failed to account or deliver monies which have come into his hands and the licensee

    is not entitled to retain said monies.

    
    

24. Competent and substantial evidence was offered herein to establish that the Respondent, in his management of property for Augustin Leon Padron, failed to make certain repairs and additions even though he was paid and/or given monies to do so; failed to make mortgage payments on the duplex causing foreclosure proceedings to be instituted; failed to account for and deliver rental monies received from the tenants; issued a check to Leon which was not honored due to insufficient funds in his (Respondent's) bank account; and failed to satisfy a judgment entered against him based on a civil suit filed by Leon against the Respondent.

25. Based thereon, Respondent entered into a course of conduct amounting to fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of subsections 475.25(1)(b) and (d), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED:

That the Respondent, Ignacio Dulzaides', license as a real estate salesman (number 0128100) be revoked.

DONE and ORDER of this 11th day March, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.

ENDNOTES

1/ The parties waived the requirement that a recommended order be entered within thirty days following receipt of the transcript.

2/ The petitioner has submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

COPIES FURNISHED:

James Mitchell, Esquire Division of Real Estate

400 W. Robinson Street Orlando, Fla. 32801

Manuel E. Oliver, Esquire

195 SW 15 Road, Suite 403 Miami, Fla. 33129

Salvatore Carpino General Coumsel

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fla. 32301

Harold Huff Director

Division of Real Estate

400 W. Robinson St.

Orlando, Fla. 32802

Docket for Case No: 83-003727

Orders for Case No: 83-003727