STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2721

)

ANTHONY JESUS TORRES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on June 5, 1991, Before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Steven W. Johnson, Senior Attorney

Department of Professional Regulation

Division of Real Estate

P.O. Box 1900

Orlando, FL 32802-1900

For Respondent: Anthony Jesus Torres, pro se

1074 Chesterfield Circle Winter Springs, FL 32768

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed February 21, 1991, Petitioner alleges that Respondent secured a contract from a buyer, failed to obtain the $1000 earnest money deposit shown as received on the contract, and failed to inform his broker, the listing broker, and the seller that the buyer had not remitted the earnest money deposit shown as received on the contract. The Administrative Complaint alleges that Respondent thereby is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme

or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes

By Election of Rights filed May 1, 1991, Respondent requested a formal hearing.

At the final hearing, Petitioner called four witnesses and offered into evidence five exhibits. Respondent called one witness and offered into evidence two exhibits. All exhibits were admitted except Respondent's Exhibit 1.

Neither party ordered a transcript. Petitioner filed a proposed recommended order. All proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed in the State of Florida as a real estate broker-salesman, holding license number 0476966.

   
   

2. On May 21, 1990, while employed as a broker-salesman by Active One Realty, Inc., Respondent obtained a contract from Steven Mead to purchase a parcel owned by Dr. Samuel Martin. The contract, which was signed by Mr. Mead on May 21, recites that Active One Realty is holding the earnest money deposit.

   
   

3. Dr. Martin signed the contract on May 26, 1990, which was four days prior to the expiration of the time for acceptance. Pursuant to the contract, closing was set for no later than June 2, 1990.

   
   

4. A day or two prior to the closing, the buyer decided not to purchase the parcel. When the deadline for closing passed without further communication from the buyer or Respondent, Dr. Martin's listing broker, Robert Martin (no relation) contacted Susan Cobb, who is in charge of Active One Realty, Inc. In response to Mr. Martin's request for information about the closing, Ms. Cobb told him that her office had no record of the contract and was holding no earnest money deposit in connection with the transaction.

   
   

5. In fact, Respondent failed to obtain the earnest money deposit from Mr. Mead prior to presenting the contract to Mr. Martin for consideration by the owner. Intending to obtain the deposit later in the day on May 21, Respondent first presented the contract to save time," according to his own testimony. Respondent did not offer to explain why, after not obtaining the deposit later in the day, he failed to inform his employing broker, Mr. Martin, or Dr. Martin of the misrepresentation contained in the contract concerning the earnest money deposit.

   
   

6. Respondent has not previously been disciplined. About six months after the events described above, Respondent, in his capacity as a broker-salesman, procured the sale of the subject parcel.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

8. The Florida Real Estate Commission (FREC) has jurisdiction over the licensing of real estate brokers and salesmen. Section 475.25.

9. FREC may place a licensee on probation, suspend a license for a period not to exceed 10 years, revoke a license, impose an administrative fine not to exceed $1000 per count or separate offense, and issue a reprimand if 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.

   
   

   Section 475.25(1)(b)

   
   

10. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v Turlington, 510 So. 2d 292 (Fla. 1987)

    
    

11. Petitioner has proved that Respondent was guilty of fraudulent misrepresentation and concealment in a business transaction.

    
    

12. Rule 21V-24.001(1)(c) provides that the recommended range of penalty for a violation of Section 475.25(1)(b) is up to five years' suspension or revocation.

    
    

13. Petitioner requests in its proposed recommended order the imposition of an administrative fine of $500 and one year's probation with the provision that Respondent complete the 45 hour salesmen's post-licensure course.

    
    

14. Notwithstanding the intentional misconduct implicit in any finding of fraudulent misrepresentation and concealment, little if any damages ensued. Though Respondent intentionally filled in the contract to show an earnest money deposit that he had not received, and then concealed this fact from the parties, he was not executing a carefully conceived fraudulent scheme designed to injure his broker, the listing broker, or the owner. Instead, Respondent was trying to save time in presenting an "offer" to an owner. By the end of the hearing, it became quite clear that Respondent does not fully comprehend what is expected of him as a broker-salesman and, from time to time, carelessly disregards what knowledge he has acquired in this regard.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(b), imposing an administrative fine of $500, and placing his license on probation for one year, during which time he shall complete successfully such additional training in ethical and other matters pertaining to his profession as the Commission shall require; provided, however, that if he fails to complete successfully the additional training that the Commission orders with the one-year period, his license shall be suspended for a period of two years, commencing with the end of the probationary period.

ENTERED this 19 day of June, 1991, in Tallahassee Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19 day of June, 1991.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, FL 32801

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Steven W. Johnson, Senior Attorney Department of Professional Regulation

P.O. Box 1900

Orlando, FL 32801-1722 Anthony Jesus Torres 1074 Chesterfield Circle Winter Springs, FL 32708

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency riles on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002721

Orders for Case No: 91-002721