STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF )
PROFESSIONAL REGULATION, )
BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 80-515
)
JOHN M. ORETO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on April 16, 1980 at New Port Richey, Florida.
APPEARANCES
For Petitioner: Salvatore A. Carpino, Esquire
Department of Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida 32301
For Respondent: Peter T. Roman, Esquire
Post Office Box 1197 Dunedin, Florida 33528
By Administrative Complaint issued pursuant to Board of Real Estate Order entered 17 October 1979 the Department of Professional Regulation, Petitioner, seeks to suspend or otherwise discipline the real estate broker's license of John M. Oreto, Respondent. As grounds there for it is alleged that Oreto stated to prospective buyers of a residence that "Everything, including appliances, were guaranteed for one year under a new Florida law", which statement induced the buyers to execute the contract to purchase and which statement was false.
It is alleged therefore that Respondent's guilty of fraud, misrepresentation, dishonest dealing and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.
At the hearing three witnesses were called by Petitioner, Respondent testified in his own behalf and one exhibit was admitted into evidence. The sole issue in dispute was whether or not Respondent made the statement regarding the guarantee of house and contents.
FINDINGS OF FACT
John M. Oreto is registered with the Florida Board of Real Estate as a broker and was so registered in February 1978 when the contract for sale and
purchase of real estate was executed by Mr. and Mrs. Zins and Mr. and Mrs. Johnson.
In February, 1978, Arthur Zins and his wife were visiting in Holiday, Florida and were in the market to purchase a residence for their pending retirement. In the course of their search, they contacted Respondent to look at a house where they had seen Respondent's FOR SALE sign.
Respondent came to the home of Carl Warner, with whom the Zinses were staying, to drive them to see the residence. Warner accompanied the Respondent and the Zinses to inspect the property. The Zinses were impressed with the cleanliness and general appearance of this property and concluded, following their inspection, that it would suit their purposes. Following the inspection, the group returned to Warner's home where further discussions were held and the Zinses decided to make an offer to purchase the home.
Respondent took a form contract and inked in the appropriate blanks at this time in accordance with the terms and conditions agreed to by the Zinses. The offer was $1,000 less than the asking price and was signed by the Zinses.
During the discussion surrounding the execution of the offer, Warner recalls commenting that when he purchased his home a year or so earlier, he received a one-year warranty on his appliances. The Zinses and Warner all testified that Respondent made the comment regarding state law providing a guarantee, but Mr. Zins was not sure if the comment was made before or after the offer was signed by him, and Mrs. Zins thought the comment was made after the offer was signed by her, but she was not sure if the comment was made before or after the Johnsons had accepted the offer. Respondent denies making this comment. In any event, the comment regarding the guarantee, whether or not made by Respondent, was not a factor in the Zins's executing the contract to buy the house. All parties agreed that Respondent explained the entire contract to them before they signed.
This is the sixth home purchased by the Zinses and in all other transactions, both of buying and selling, but one, they utilized the services of a real estate agent. They never received a guarantee on the equipment purchased in any other home, nor had they ever had serious problems following these other purchases. The inspection of this home prior to making the offer revealed no evidence of roof leaks such as water stains on the ceiling.
As soon as the Zinses signed the contract, Respondent took it to the Johnsons and induced them to accept the offer. He then returned to tell the Zinses that they had a valid contract to purchase a wonderful home.
The contract (Exhibit l) provided the buyers with the opportunity just prior to closing to "walk through" to see that all appliances were in working order. The Zinses did not return to Holiday until after the closing, but were not concerned because the house appeared so well-taken-care-of at the time of their inspection. Some two weeks after closing the Zinses returned to Florida and moved into the residence they had purchased. About two months later, following a very heavy rain, they saw evidence that the roof was leaking. They called Respondent, who advised them to get in touch with Johnson, which they did. Johnson ultimately declined responsibility for the roof. Later, several of the appliances failed and had to be replaced. The Zinses then wrote a letter to the Petitioner and these charges resulted.
At no time during the discussions surrounding the signing of the contract did the Zinses ever inquire about who would provide the guarantee they say Respondent told them covered the house and contents for one year. Their only thought appears to have been that they were well-pleased with the house they were buying.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 475.25(1)(b) , Florida Statutes, provides generally that disciplinary action against the license of a registrant may be taken if he is found 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. Implicit in such a charge is that such fraud or misrepresentation had an effect in the consummation of the business transaction. If the alleged statement about a one-year guarantee was made by Respondent, it had no effect in convincing the purchasers to make the offer to purchase. Mrs. Zins, who apparently handled most of the business transactions for the family, wasn't sure if the alleged comment was made before or after the offer had been accepted by the sellers. She was quite sure it was made after she signed the contract.
There was no dispute that Respondent, after completing the contract and before the Zinses signed it, read and/or explained to them all provisions of the contract. It is not credible that Respondent would have gratuitously offered a comment regarding a one-year guarantee. On the other hand, the fact that Warner had earlier received a one-year home warranty program when he purchased his home but didn't recall any of the details of this program such as who paid for the program, who would make repairs, etc., may well have been the source of the Zins's information.
From the foregoing it is concluded that competent substantial evidence was not presented that John M. Oreto made the statement that under Florida law everything, including appliances, was guaranteed for one year or that such a statement, if made by anyone else, had any effect in inducing Arthur and Robertine Zins to purchase a residence in Holiday, Florida. It is therefore
RECOMMENDED that the complaint be dismissed and the case closed. Entered this 30th day of April, 1980.
COPIES FURNISHED:
Salvatore A. Carpino, Esquire Department of Professional
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Regulation
2009 Apalachee Parkway
Tallahassee, Florida 32301
Peter T. Roman, Esquire
P. O. Box 1197
Dunedin, Florida 33528
Issue Date | Proceedings |
---|---|
Apr. 30, 1980 | Recommended Order sent out. CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
Apr. 30, 1980 | Recommended Order | Petitioner didn't prove Respondent guaranteed everything in house was warranteed by Florida law as fraudulent inducement. Recommend dismiss complaint. |
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