Judges: H. E. SMITHERS
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 19, 1981
Summary: Respondent was guilty of trying to sell land he only held option on and was guilty of dishonest dealing/misrepresentation/false pretenses. Recommend suspension.
80-1880.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF REAL ESTATE, )
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1880
)
ORESTES MARTINEZ, )
)
)
Respondent. )
)
RECOMMENDED ORDER
An administrative hearing was held on the above matter by H. E. Smithers on November 25, 1980 at Miami, Florida. Ralph Fetner represented the Petitioner and John S. Post the Respondent.
By Administrative Complaint filed September 30, 1980, Petitioner Board of Real Estate seeks to revoke, suspend or otherwise discipline the real estate broker's privilege of Respondent Martinez. As grounds therefor it is alleged that Respondent, in attempting to sell property which he had an option to purchase, was guilty of misrepresenting, false pretenses and dishonest dealing.
The Petitioner presented Complainant King arid Broker Balaguer, and Exhibits P-1 through 6, all received into evidence except P-5. Respondent testified and presented Exhibits R-1 through 6, received in evidence.
The Petitioner did not submit a Proposed Recommended Order. Proposed findings of fact submitted by the Respondent are included herein unless immaterial, irrelevant or conclusory statements.
FINDINGS OF FACT
Martinez is now, and was at all times rolevant to this case, the holder of Real Estate Broker's License 0056092.
On May 2, 1978 (all events in 1978) , Martinez entered a contract to purchase a certain lot in Heads Farms Subdivision in Dade County from Ramone Perez for $22,000 ($500 with contract, $5,000 at closing, assume $7,000 first mortgage and give $10,000 second mortgage to Perez). Closing was to be in 45 days, however, this was extended for 30 days on August 1st; closing was subject to receipt by Martinez of abstract (which was not received timely) and a mortgage estoppel letter (never furnished to Martinez).
Martinez assigned this contract on August 1st to Jorge Barbontin, who was to pay $30,000 cash on closing, for a profit of $8,000 to Martinez. This assignment was released August 29th.
On August 31st, Broker Balaguer negotiated a contract to sell the involved property to Complainant King for $32,500 cash, of which $2,500 was to be Balaguer's commission. Release of this contract was obtained September 30th.
Meantime, on September 21st, Perez conveyed his fee simple interest in the lot to Maryland Properties, Inc. Maryland is owned by one Blanco, who also owned and/or controlled the corporation that held Perez's $7,000 first mortgage on the lot and would not furnish the estoppel letter to Martinez (Santander Investment Corporation)
CONCLUSIONS OF LAW
Section 475.25(1), Florida Statutes (1979), provides for the revocation or suspension of a real estate broker's license, or an administrative fine or reprimand if the licensee has been guilty of misrepresentation, false pretenses or dishonest dealing even though no damage or loss was suffered by the victim. This also applies to a licensed broker's conduct of business affairs for his own account. McKnight, v. Fla. Real Estate Commission, 202 So.2d 199 (wd DCA 1967), cert. denied, 209 So.2d 672 (Fla. 1968). Here, Martinez attempted to sell property for $8,000 profit knowing that his only interest was an option to buy which may or may not have been enforceable at the time of the sale. This type activity by a broker is punishable by the Petitioner. Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (1st DCA 1980); Roberts v. Ayers, 380 So.2d 1057 (1st DCA 1980)
RECOMMENDATION
From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that real estate broker's license 0056092 held by Orestes
Martinez be suspended for a period of one year.
DONE and RECOMMENDED this 15th day of January, 1981.
H. E. SMITHERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the clerk of the Division of Administrative Hearings this 15th day of January, 1981.
COPIES FURNISHED:
S. Ralph Fetner, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
John S. Post, Esquire
1575 West 49th Street, Suite 115
Hialeah, Florida 33012
C. B. Stafford, Executive Director Board of Real Estate
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Docket for Case No: 80-001880
Orders for Case No: 80-001880
| Issue Date |
Document |
Summary |
|
Apr. 27, 1981 |
Agency Final Order
|
|
|
Jan. 15, 1981 |
Recommended Order
|
Respondent was guilty of trying to sell land he only held option on and was guilty of dishonest dealing/misrepresentation/false pretenses. Recommend suspension.
|
