STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2805

)

VICTOR L. CONTESSA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on June 11, 1985, in Daytona Beach, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

FOR PETITIONER: James H. Gillis, Esquire

Staff Attorney

Dept. of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

FOR RESPONDENT: Victor L. Contessa, Pro Se

101 Santa Lucia Avenue

West Palm Beach, Florida 33492 ISSUE

The issue is whether Respondent, Victor L. Contessa (Contessa), is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence and breach of trust in violation of Section 475.25(1)(b), Florida Statutes.

Petitioner presented the testimony of Charles B. Hill, Donald E. Welch, Victor L. Contessa, and Gregory J. McDole. Additionally, Petitioner's Exhibits

1 through 10 were admitted into evidence. Respondent presented his own testimony and that of his son, Paul N. Contessa. Respondent's Exhibits 1 through 3 were admitted into evidence. Additionally, Respondent's Admissions to Petitioner's Request for Admissions was introduced.

The parties have filed proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have

been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808.

   
   

2. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019.

   
   

3. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation.

   
   

4. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove.

   
   

5. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras.

   
   

6. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation.

   
   

7. Contessa was not a licensed building contractor when he signed the Building Agreement.

   
   

8. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles

   B. Hill.

   
   

9. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa.

10. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch.

    
    

11. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1983).

    
    

13. Section 475.25(1)(b), Florida Statutes, provides that the Florida Real Estate Commission may suspend a license for a period not exceeding ten years; may revoke a license; may impose an administrative fine, not to exceed $1,000.00 for each count or separate offense; and may issue a reprimand, for any and all of the foregoing if it finds that the licensee:

    
    

    (b) has been guilty of fraud, misrepresenta- tion, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, . . . or has formed an intent, design, or scheme to engage in any such mis- conduct and committed an overt act in further- ance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim . . . of the misconduct has sustain- ed no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or such victim . . . was a cus- tomer or person in confidential relation with the licensee . . . .

    
    

14. It is undisputed that Contessa was a broker during the period of time in which he represented to Hill that he was a licensed building contractor. Additionally, during the time period, Contessa represented that he was a contractor when he filed the mechanics lien against Hill's property. He was, in fact, never licensed as a building contractor in the State of Florida.

    
    

15. Hill paid several thousand dollars more for the construction of his house than specified in the Building Agreement signed by Contessa.

    Additionally, Contessa told Hill that he was a licensed contractor and continued to lead Hill to believe that he was a licensed contractor until problems arose in construction and Hill found out from Welch that Contessa was not the contractor.

    
    

16. It is concluded that Contessa is guilty of fraud, misrepresentation, false pretenses, and dishonest dealings in violation of Section 475.25(1)(b), Florida Statutes. The evidence in this regard is clear and convincing. Additionally, Contessa's misrepresentations are not merely technical violations of the relevant statute, but are serious violations which had a detrimental effect on the financial positions of both Hill and Welch.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00.

DONE AND ENTERED this 13th day of August, 1985, at Tallahassee Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1985.

COPIES FURNISHED:

James H. Gillis, Esquire Staff Attorney

Department of professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Victor L. Contessa Box 566

Port Salerno, Florida 33492

Victor L. Contessa

101 Santa Lucia Avenue

West Palm Beach, Florida 33492

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 84-002805

Orders for Case No: 84-002805