STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD L. MYERS, INVESTIGATOR, ) FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1137

) PROGRESS DOCKET NO. 2649 VICTOR HUGO HERNANDEZ AND ) Dade County

ELISA HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on October 1, 1975, at 10:30 a.m. at the offices of the Florida Real Estate Commission, 921 Seybold Building, 36 N.E. First Street, Miami, Florida.

APPEARANCES

For Petitioner: S. Ralph Fetner, Jr., Esquire For Respondent: Mark R. Rubin, Esquire

ISSUES

1. Whether Defendants breached an oral contract with their employer.

   
   

2. Whether the Defendants, both of whom were registered salesmen employed by Rivas Realty, Inc., conducted themselves in such a manner that the sellers of a certain parcel of real estate suffered a loss of a substantial profit from their property.

   
   

3. Whether the licenses of the Defendants should be revoked.

FINDINGS OF FACT

1. Defendants Victor Hugo Hernandez and Elisa Hernandez, husband and wife, were registered real estate salesmen employed by Rivas Realty, Inc., a corporate broker, with offices located at 2341 N.W. 7th Street, Miami, Dade County, Florida.

   
   

2. Defendants were employed by Rivas Realty, Inc., a corporate broker, under an oral employment agreement whereby real estate transactions entered into by them or either of them as registered salesmen or personally or jointly for their own account were to be handled through said broker's office; that all details of any such real estate transaction were to be available in open files in said office; that they were to identify themselves as salesmen for Rivas Realty, Inc.

3. On or about December 20, 1973, Defendant Victor Hugo Hernandez individually and for the benefit of himself and his wife jointly contracted to buy the residence at 526 E. 44th Street, Hialeah, Florida, from Frank J. Crawford, Jr., and Alexis Jo Crawford, his wife, for the sum of approximately

   $27,000. The transaction closed on or about January 3, 1974, and conveyance by warranty deed was made by the Crawford to Paul G. Block, Trustee. The property was soon resold.

   
   

4. The Real Estate Commission contends:

   
   

   1. That the Defendants represented themselves as individuals desiring to purchase the home from the Crawfords for their son;

      
      

   2. That the Defendants had no intention of purchasing said property for the son and in fact, soon thereafter resold the property at a substantial profit to themselves;

      
      

   3. The Defendants through their misrepresentation defrauded the Crawfords of a substantial profit;

      
      

   4. They did not inform the Crawfords that they were in fact salesmen for Rivas Realty, Inc.;

      
      

   5. That the Defendants violated the oral agreement they had with the employer, Rivas Realty, Inc., when they failed to process the purchase and the resale of the Crawford property through the Rivas Realty, Inc.;

      
      

   6. That the Defendants are guilty of misrepresentation, concealment, dishonest dealing, trick, scheme or device and breach of trust in a business transaction, all in violation of Section 475.25(1)(a), Florida Statutes;

      
      

   7. That the registrations of Victor Hugo Hernandez and Elisa Hernandez should be suspended or revoked.

      
      

5. The Defendants contend:

   
   

   1. That at the time of the sale and the purchase of the home from the Crawfords they had secured permission from the Rivas Realty, Inc. to purchase a home for their son;

      
      

   2. That the employer, Mr. Anthony Rivas, had given permission to the Defendants, as long time and effective salesmen, to purchase the property inasmuch as it was for the benefit of the son;

      
      

   3. That the son did not want the property after it was bought and therefore the property was immediately placed for sale;

      
      

   4. That the Defendants shortly after the purchase and sale of the property in question did in fact buy for their son a home in another location;

      
      

   5. That they in no way planned to trick the Crawfords into the sale of their home by not representing themselves as real estate agents;

      
      

   6. That in fact they did so represent themselves as real estate agents and placed the sign of Rivas Realty, Inc. in front of the Crawford home before the resale;

   7. That it was generally understood by the owners and among the long time employees of Rivas Realty, Inc. that they could at times buy and sale for their own personal benefit properties that members of their family might desire without processing the sale through the business office of Rivas Realty, Inc. or dividing the profit with the corporation.

      
      

   8. That they did not breach the oral contract between themselves and the employer.

      
      

6. The Hearing Officer finds:

   
   

   1. That the Defendants, Victor Hugo Hernandez and Elisa Hernandez, bought the home of Mr. and Mrs. Crawford under circumstances which tended to deceive the purchasers but without actual misrepresentation;

      
      

   2. That there was no showing of an actual loss by the Crawfords;

      
      

   3. That the oral agreement between the Defendant salesmen and the employer, the Rivas Realty, Inc., was at times waived by the owner, Mr. Rivas or his brother, as special favors to their salesmen;

      
      

   4. That the Defendants acted under a waiver of the oral agreement between themselves and the Rivas Realty, Inc. when they purchased and resold the home of Mr. and Mrs. Crawford, or their acts were approved or condoned by the employer;

      
      

   5. That the evidence received and the testimony taken do not show that the Defendants, Victor Hugo Hernandez and Elisa Hernandez, breached the fiduciary relationship with their employer, Rivas Realty, Inc.;

      
      

   6. That the evidence received and the testimony taken do not prove the Defendants to have been guilty of misrepresentation, concealment, dishonest dealing, trick, schemes or device and breach of trust in a business transaction in violation of Section 475.25(1)(a), Florida Statutes.

      
      

      CONCLUSIONS OF LAW

      
      

7. The evidence submitted and the testimony taken do not show that the Defendants have violated Section 475.25(1)(a), Florida Statutes, or that there are grounds for annulment, revocation or suspension of the licenses held by Defendants.

RECOMMENDED ORDER

Dismiss the Petition.

October 30, 1975 DATE DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

S. Ralph Fetner, Jr., Esquire Associate Counsel

Florida Real Estate Commission State of Florida Office Building West Morse Boulevard

Winter Park, Florida 32789

Mark R. Rubin, Esquire Weiner and Rubin

Suite 600C, Office in the Grove 2699 South Bayshore Drive Miami, Florida 33133

Docket for Case No: 75-001137

Orders for Case No: 75-001137