STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4899

)

AMERICA CANIZALES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 19, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: John R. Alexander, Esquire

Senior Attorney

Department of Professional Regulation Division of Real Estate

400 West Robinson

Orlando, Florida 332801-1772 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed a two count Administrative Complaint against Respondent, a licensed real estate salesman, alleging that Respondent violated certain provisions of the real estate regulatory laws. The Administrative Complaint alleges certain dealings between Respondent and Elvira D. Martinez. Count I of the Administrative Complaint charged Respondent with fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes. Count II of the Administrative Complaint charged Respondent with having failed, as a real estate salesman, to immediately place with her registered employer any money, fund, deposit, check or draft entrusted to her by a person dealing with her as agent of her registered employer in violation of Section 475.25(1) (k), Florida Statutes.

Respondent disputed the factual allegations of the Administrative Complaint and timely requested a formal hearing of this matter. This proceeding followed.

At the formal hearing, Petitioner offered the testimony of three witnesses and introduced 3 documentary exhibits, which were accepted into evidence. The Notice of Hearing in this matter was mailed to Respondent's correct mailing address, and Petitioner issued a subpoena to Respondent to compel her attendance at the formal hearing. Despite these efforts, Respondent made no appearance at the formal hearing.

No transcript of the proceedings was filed. At the request of the Petitioner, the time for filing post-hearing submissions was set for more than ten days following the hearing. Consequently, the requirement that a recommended order be rendered within thirty days after the transcript is filed was waived. Rule 221- 6.031, Florida Administrative Code. Neither party filed a post-hearing submittal within the deadline set for such filings.

FINDINGS OF FACT

1. Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen.

   
   

2. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status.

   
   

3. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate.

   
   

4. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman.

   
   

5. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of

   $5,000 without the payment of interest.

   
   

6. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check.

7. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales.

   
   

8. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds.

   
   

9. Respondent made repeated promises to repay Ms. Martinez the sum of

   $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez.

   
   

10. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of

    $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her.

    
    

11. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 475.25, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission may ... place a licensee

       ... on probation; may suspend a license for a period not exceeding 10 years; may revoke a license ...; may impose an

       administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or a of the foregoing, if it finds that the licensee

       * * *

       (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 ...

       * * *

       ... [H]as failed, if a salesman, to immediately place with his registered employer any money, fund, deposit, check, or draft entrusted to him by any person dealing with him as agent of his registered employer.

14. Petitioner has the burden of proving by clear and convincing evidence' the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Culpable negligence is defined by Black's Law Dictionary, Fifth Edition, at page 931, as follows:

    
    

    Failure to exercise that degree of care rendered appropriate by the particular circumstances, and which a man of

    ordinary prudence in the same situation and with equal experience would not have omitted.

    
    

16. Petitioner has established by clear and convincing evidence the allegations of Count I of the Administrative Complaint that Respondent engaged in conduct proscribed by Section 475.25(1)(b), Florida Statutes. This violation was established by the failure of Respondent to safeguard the deposit check entrusted to her by Ms. Martinez. It was through either Respondent's dishonesty or through her culpable negligence that Ms. Martinez lost her $5,000. In view of Respondent's experience and training as a licensed real estate salesman, it is concluded that she should have taken reasonable measures to safeguard the check that had been entrusted to her care. Her failure to take such measures constitutes culpable negligence in a business transaction within the meaning of, Section 475.25(1) (b), Florida Statutes.

    
    

17. Petitioner also established that Respondent violated the provisions of Section 475.25(1) (b), Florida Statutes, by repeatedly making false promises to repay Ms. Martinez.

    
    

18. Petitioner has not established by clear and convincing evidence the allegations of Count II of the Administrative Complaint that Respondent engaged in conduct proscribed by Section 475.25(1) (k), Florida Statutes. Ms. Martinez was dealing with Respondent as an individual and not as an "agent of her registered employer" at the time Respondent was entrusted with the deposits. Such dealing is an essential element of Section 475.25(1)(k), Florida Statutes.

    
    

19. Rule 21V-24.001, Florida Administrative Code, sets forth the minimum and maximum penalties to be applied in a disciplinary case such as this and provides, in pertinent part, as follows:

(3) The minimum penalty for all below listed sections is a reprimand and/or a fine up to $1,000.00 per count. ... The maximum penalties are as listed:

* * *

(h) 475.25(l) (b)--Up to 5 years suspension or revocation

19. Rule 21V-24.001(4) permits Petitioner to deviate from the foregoing guidelines if aggravating or mitigating circumstance are demonstrated. There are no mitigating circumstances presented by this case.

RECOMMENDATION

Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real

Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales.

DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990.

COPIES FURNISHED:

John R. Alexander, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

America Canizales

158 West 10th Street Hialeah, Florida 33010

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 89-004899

Orders for Case No: 89-004899