Judges: MICHAEL P. DODSON
Agency: Department of Business and Professional Regulation
Latest Update: May 11, 1983
Summary: Respondent didn't turn over condominium to client, which resulted in caterial harm and breach of trust and is a clear violation of statute. Recommend suspension.
82-3390.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, (Florida Real Estate ) Commission), )
)
Petitioner, )
)
vs. ) CASE NO. 82-3390
)
ISABEL A. TAQUECHEL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on March 31, 1983, in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Bruce D. Lamb, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Isabel A. Taquechel, pro se
2125 Southwest 97th Avenue Miami, Florida 33165
BACKGROUND
These proceedings began on October 7, 1982 when Petitioner served an Administrative Complaint on Respondent. The Complaint alleged violations of Chapter 475, Florida Statutes and sought the revocation of Respondent's license as a real estate salesman. By an Election of Rights dated November 1, 1982 Respondent requested a formal hearing on the allegations of the Complaint. On December 15, 1982 the case was forwarded to and docketed in the Division of Administrative Hearings. By a Notice of Hearing dated January 19, 1983 the case was scheduled for final hearing in Miami, Florida, on March 31, 1983.
At that date and place Petitioner and Respondent appeared for the final hearing. Prior to the commencement of the hearing Respondent moved ore tenus for a continuance of the hearing. As grounds therefor she stated that approximately three to four weeks prior to March 31, 1983 she left Miami, Florida, to attend her father, who was then seriously ill. She did not return to Miami until March 30, 1983. Because of her absence from the city she was unable to adequately prepare her defense to the charges in the Administrative Complaint. The Motion for Continuance was opposed by Petitioner because it had prepared for the hearing as noticed and had secured by subpoena the presence of
witnesses including one expert. At no time during Respondent's absence from Miami did she attempt to make contact with either the Hearing Officer or counsel for Petitioner to give advance notice that she would be unprepared for the final hearing as noticed. It was therefore ordered that Respondent's Motion for Continuance was denied. However, the Hearing Officer provided at the final hearing and memorialized in an Order dated April 4, 1983, that the record of the proceedings would remain open in order to allow Respondent to consult with counsel and determine how she wished to proceed in defending against the allegations of the Administrative Complaint. Once she had made that decision she was to communicate it to the Hearing Officer and to Petitioner's counsel and request leave to proceed and present such evidence in such form as she deemed necessary. That opportunity was offered without prejudice to any objection the Petitioner might make to Respondent's request for further proceedings. If Respondent requested any additional proceedings she was to make such request within twenty (20) days from April 4, 1983. Absent such a request, the record in the case would be deemed closed and the parties were given fifteen (15) days subsequent to the closure date in order to file their post-hearing submissions.
On April 26, 1983, two days subsequent to the closure of the record in this case, Respondent called the office of the Hearing Officer to leave the following message: Her father had died on Wednesday, and she just returned home last night. A letter concerning the hearing would be mailed on the day of the call. Since that time nothing further has been received from Respondent.
Petitioner has filed a proposed Recommended Order containing proposed findings of fact. To the extent that those proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.
Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).
FINDINGS OF FACT
Respondent Isabel A. Taquechel is licensed by the Florida Real Estate Commission as a real estate salesman with license number 0126307. At all times material to these findings of fact she has been so licensed.
In August of 1978 Ms. Taquechel, as a real estate salesman, entered into a condominium purchase agreement with Half Moon Towers of Miami, Inc. to purchase unit G-110.
On September 12, 1978 she entered into an agreement with Mr. Vincente Alessandro which provides as follows:
September 8, 1978
To whom it may concern:
Let it be known by the present document that in the apartment acquired by me, Isabel A. Taquechel, it has been bought by Mr. Vincente Alessandro with a personal identity Argentinian number 684559 with the
address or domicile on the street Corrientes, 1132 in Buenos Aires, the Argentina Republic. Said apartment located in a project, Half Moon Towers, number G-110 on 5055 N.W. 7th
Street will be transferred to the name of Mr. Alessandro after this operation is ac cepted on behalf of the financing bank of the operation.
Sincerely,
/s/ Isabel A. Taquechel Her signature was notarized on September 12, 1978.
The purpose of the agreement was for Ms. Taquechel to purchase the referenced condominium unit in her own name in trust for Mr. Alessandro. He is an Argentinean national and a resident of Argentina. If he purchased the unit in his own name, the bank financing the purchase would have required a larger down payment than if the unit were purchased by Ms. Taquechel who is a resident of Dade County, Florida.
On December 14, 1978 Ms. Taquechel took title by a warranty deed from Half Moon Towers of Miami, Inc. to unit W-110 at 5055 N.W. 7th Street, Miami, Florida. There is no explanation in the record for the discrepancy in the unit numbers between G-110 for the unit Ms. Taquechel originally contracted to purchase and unit W-110 which she actually purchased. Throughout the course of these proceedings the parties have ignored this discrepancy. It is therefore not considered material here.
Despite her agreement to take title to the condominium unit in trust for Mr. Alessandro, Ms. Taquechel has refused to convey title to him. Repeated demands for such a conveyance have been made on her by Mr. Alessandro's agents, but at the time of the final hearing she still had not executed a quit claim deed to him.
All the funds for the purchase of the condominium unit have been paid by Mr. Alessandro.
The agreement between Ms. Taquechel and Mr. Alessandro for her to purchase the unit in trust on his behalf was made in the course of Ms. Taquechel's practice as a real estate salesman. She has broken that agreement.
During the time when Ms. Taquechel was refusing to execute a deed conveying the unit to Mr. Alessandro, she filed a Petition for Bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. She listed the condominium unit as "property held for another person in her bankruptcy Statement of Financial Affairs for Debtor not Engaged in Business. The filing of her bankruptcy proceedings stayed a pending suit by Mr. Alessandro in circuit court against Ms. Taquechel for the imposition of a constructive trust over the condominium unit. Subsequently the trustee in bankruptcy conveyed a deed to Mr. Alessandro for the condominium unit. Its title is clouded by the status of bankruptcy proceedings due to the United States Supreme Court decision of Northern Pipeline Construction Company v. Marathon Pipe Line Company, U.S.
, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Because of the title cloud Mr. Alessandro may not sell the condominium unit for full value at the present time.
On June 17, 1979 Ms. Taquechel drew a bank check on her own account payable to Jose Lococo in the amount of $1,000. That amount represented a loan to her from Mr. Lococo as a personal favor. There is no evidence in the record of when Mr. Lococo presented the check for payment. 1/ The record does reflect
a debit memorandum made by the drawee bank, Republic National Bank of Miami. That memorandum is dated December 21, 1979. The memorandum reflects that the check was not paid because Ms. Taquechel had closed the account on which it was drawn. The record does not reflect when she closed her account.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 455.225(4), Florida Statutes (1981).
The Administrative Complaint filed against Ms. Taquechel alleges a violation of Section 475.25(1)(b) and (d), Florida Statutes (1981). Section 475.25(1)(b) provides that the Florida Real Estate Commission may suspend or revoke a real estate license if the 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 in this state or any other state, nation, or territory;
Section 475.25(1)(d) further provides that discipline may be taken if the licensee has:
Failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check,
draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of real estate commission, which has come into his hands and which is not his property or which he is not in law or
equity entitled to retain under the circumstances.
In proceedings of this type where a regulatory agency seeks to discipline a person in a manner substantially affecting the practice of her business or profession, the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Gans v. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3d DCA 1980); Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). But see Steadman
v. Securities and Exchange Commission, 450 U.S. 91 (1981) construing the Federal Administrative Procedure Act (5 U.S.C. s554). The evidence must be as substantial as its consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). The Petitioner has more than met its standard of proof with respect to the condominium unit transaction on behalf of Mr. Alessandro. Respondent's persistent refusal to convey legal title to Mr. Alessandro subsequent to her purchase of the condominium unit pursuant to their trust agreement is a "breach of trust in any business transaction in this state". That refusal has resulted in considerable harm to Mr. Alessandro as he
had to file an action in circuit court for the imposition of a constructive trust and further had to finally seek relief from the trustee in bankruptcy.
With respect to the allegations of Count II in the Administrative Complaint which concern the lean transaction with Mr. Lococo, Petitioner has failed to adduce clear and convincing evidence of a violation of the foregoing statutory provisions. No evidence was introduced as to the agreement of the parties in Mr. Lococo's purported loan to Ms. Taquechel. Without such evidence it is impossible to determine that she breached any agreement between them. There is no proof of when Ms. Taquechel closed her account, either before or after issuing the check. There is no evidence that the loan concerned Ms. Taquechel's practice of real estate in this state or any other state.
While it is recognized that a real estate licensee may be disciplined for her dishonest conduct of business affairs on her own account, Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1980), 2/ no nexus has been shown here between the simple fact that a check drawn by Ms. Taquechel was returned without payment because the account was closed and her fitness as a real estate salesman. Had it been proven that she engaged in dishonest or fraudulent conduct in issuing the check, this conclusion of course would be different.
Penalty. In mitigation of an appropriate penalty the record does not disclose any prior discipline against Ms. Taquechel as a real estate licensee. That fact is overwhelmed by the serious harm that her breach of trust has brought to Mr. Alessandro. Absolutely no explanation appears in the record for her failure to convey title to the Half Moon Towers condominium unit to him as required by their trust agreement. This is a very serious violation which calls in to question Ms. Taquechel's ability to deal with the public in a trustworthy manner.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Florida Real Estate Commission enter a Final Order finding Ms. Isabel A. Taquechel guilty of a breach of trust in a business transaction and suspending her license as a real estate salesman for a period of five (5) years.
DONE and ENTERED this 11th day of May, 1983, in Tallahassee, Florida.
MICHAEL PEARCE DODSON
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1983.
ENDNOTES
1/ This information probably appears on either the front or back of the original check. However, Petitioner's Exhibit 4, which is a microfilm copy of the check, is illegible.
2/ See also McKnight v. Florida Real Estate Commission, 202 So.2d 199 (Fla. 2d DCA 1967). There the licensee issued checks on an account which did not exist.
COPIES FURNISHED:
Bruce D. Lamb, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Isabel A. Taquechel
2125 Southwest 97th Avenue Miami, Florida 33165
William M. Furlow, Esquire Department of Professional
Regulation - Legal Section
400 West Robinson Street Orlando, Florida 32801
Frederick Roche, Secretary Harold Huff,
Executive Director Department of Professional Florida Real Estate Commission Regulation
Post Office Box 1900 130 North Monroe Street
Orlando, Florida 32802 Tallahassee, Florida 32301
Docket for Case No: 82-003390
Orders for Case No: 82-003390
| Issue Date |
Document |
Summary |
|
May 11, 1983 |
Recommended Order
|
Respondent didn't turn over condominium to client, which resulted in caterial harm and breach of trust and is a clear violation of statute. Recommend suspension.
|
