STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1080

)

ANTONIO NAVARRA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 14, 1982, in Deland, Florida.

APPEARANCES

For Petitioner: John G. DeLancett, Esquire

Post Office Box 6171-C Orlando, Florida 32803

For Respondent: Joseph A. Scarlett, Esquire

The Whitehair Building, Suite 300

104 East New York Avenue Deland, Florida 32720

BACKGROUND

In this proceeding Petitioner, Department of Professional Regulation, Florida Real Estate Commission, seeks to take disciplinary action against the real estate salesman license of Respondent, Antonio Navarra, for allegedly violating Chapter 475, Florida Statutes. In summary, Petitioner contends that Navarra, while employed as a salesman for Developers Realty Corporation in Kissimmee, Florida, negotiated a contract with Danilo and David Santiago whereby the Santiagos agreed to purchase a lot in Buenaventure Lakes Subdivision, in Osceola County; that Respondent represented to the Santiagos that a drainage ditch immediately behind their property would be converted into a lake; that such conversion has never taken place; and that Respondent was accordingly guilty of fraud, misrepresentation, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in the State within the purview of Subsection 475.25(1)(b), Florida Statutes.

Respondent disputed these allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by Petitioner to the Division of Administrative Hearings on April 20, 1982 with a request that a Hearing Officer be assigned to conduct a hearing. By notice of

hearing dated May 28, 1982 the matter was scheduled for final hearing on August 9, 1982, in Deland, Florida. At the request of Petitioner, the final hearing was rescheduled to October 14, 1982 at the same location.

At the final hearing Petitioner presented the testimony of Thomas Franklin, Pedro Fernandez, Danilo Santiago, David Santiago, Jr., Kenneth G. Phem, Ellis A. Payne, Sr., Linda K. Miller and Albert E. Maxwell, and offered Petitioner's Exhibits 1-17; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Richard Mikell.

The transcript of hearing was filed on November 3, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner on November 15, 1982 and have been considered by the undersigned in the preparation of this order.

Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether the allegations in the administrative complaint are correct.

Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Antonio Navarra, held real estate salesman license number 0063446 issued by Petitioner, Department of Professional Regulation, Florida Real Estate Commission.

   
   

2. On or about June 9, 1978 Respondent became associated as a salesman with Developers Realty, Inc., (Developers) in Kissimmee, Florida. He remained with that firm until August 2, 1979.

   
   

3. In 1975 or 1976 the Real Estate Corporation of Florida (REC) began construction of a planned unit development in Osceola County, Florida, known as Buenaventure Lakes. The concept plan was approved by the Osceola County Planning Commission on June 3, 1976.

   
   

4. In 1978, REC began marketing lots and homes within an area of the project known as Landstar. To assist it in sales, REC hired Developers to act as broker for the project. Pedro Fernandez was active broker for the firm.

   
   

5. In 1975 or 1976, REC prepared colored brochures of Buenaventure Lakes which included, inter alia, a colored map of the development showing lots, streets and water bodies. The map reflected a water body behind Azalea Drive within the Subdivision. The brochures were still used when Developers began selling homes and lots in Landstar in 1978, and salesmen for Developers continued to use them until 1979. Developers' sales office also had a large map posted on the wall which reflected a lake or water body behind Azalea Drive. This map was shown to prospective customers by Respondent and other salesmen. Although the broker and project manager claimed the brochures and map should not have been used after 1977, they failed to instruct Respondent and other salesmen to discontinue their use. They also failed to advise Respondent that the lake behind Azalea Drive as shown on the brochure and map was incorrect, and that the owners had abandoned their plan to construct a lake.

   
   

6. On or about December 13, 1978, Landstar Homes entered into an agreement for the sale and purchase of a lot and home on Azalea Drive with Danilo and

   David Santiago. The total price was $34,896 including a $500 premium because the lot would front a lake.

   
   

7. The sale was negotiated by Respondent and another salesman. Prior to the sale, the Santiagos discussed their purchase with Pedro Fernandez, the broker. He told them a drainage ditch behind the lot would be converted into a lake. After the Santiagos signed the contract, Respondent also told them that a lake would be built in the near future. To date a lake has never been constructed and only a small drainage ditch lies behind the property.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. It is charged that 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 the Santiago transaction. The basis for the charge is the allegation that "during precontract negotiations Respondent told Santiago that the drainage ditch located immediately behind Unit number 2 Buenaventure Lakes would be converted into a lake."

   
   

10. The evidence discloses that the broker, and not Navarra, told Santiago during pre-contract negotiations that a lake would be constructed behind their home. Respondent did not confirm this fact until after the contract had been signed. Even though he conveyed this information to the Santiagos, he was merely stating what he believed to be true, since neither the broker, project manager or owners ever advised Navarra to the contrary. Under these circumstances, it cannot be concluded that Navarra was culpably negligent in failing to verify whether a lake would be built. In the absence of any evidence that Navarra was aware of the owners real intentions, or that he knowingly misrepresented the true facts, the allegations in the complaint must fail. Cf. Wood v. Barksdale, 309 So.2d 187 (Fla. 1st DCA 1975). 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against Respondent be

DISMISSED.

DONE and ENTERED this 24th day of November, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1982.

ENDNOTE

1/ The buyers of the property have a legitimate complaint concerning the failure of the developers to build a lake; however, their efforts should be directed against someone other than Respondent.

COPIES FURNISHED:

Mr. Antonio Navarra

1200 Beville Road, Apt. 52 Daytona Beach, Florida 32014

John G. DeLancett, Esquire Post Office Box 6171-C Orlando, Florida 32803

Joseph A. Scarlett, Esquire

The Whitehair Building, Ste. 300

104 East New York Avenue Deland, Florida 32720

William M. Furlow, Esquire Department of Professional

Regulation - Legal Section

400 West Robinson Street Orlando, Florida 32801

Carlos B. Stafford, Executive Director Florida Real Estate Commission

Post Office Box 1900 Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional

Regulation

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001080

Orders for Case No: 82-001080