STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1344

)

IGNACIO J. ALVARADO, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on July 30, 1985 in Orlando, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Susan Hartmann, Esquire

Department of Professional Regulation Division of Real Estate

400 West Robinson St. Orlando, Florida 32801

For Respondent: Iqnacio J. Alvarado, pro se

5166 Glasgow Avenue

Orlando, Florida 32819

The Department of Professional Regulation, Division of Real Estate, Petitioner, has filed an Administrative Complaint against Ignacio J. Alvarado, Respondent, charging him with fraud, misrepresentation, false promises and dishonest dealing in violation of Section 475.25(1)(h), Florida Statutes, concerning a real estate transaction with Richard J. and Gav Greco. At the hearing, Petitioner called Richard J. Greco to testify and introduced nine exhibits, and Respondent testified on his own behalf. A transcript of the hearing was filed on August 9, 1985.

The parties were allowed to submit post-hearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes, and a ruling on each proposed finding of fact has been made in this Recommended Order, except where they have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a licensed real estate salesman with license number 0364554.

   
   

2. On or about August 13, 1982, Richard J. and Gav Greco entered into a lease purchase agreement with James C. and Phyllis Waid for residential property located at 1685 Markham Woods Road, Longwood, Florida. The purchase price of the Waid property was $190,000 towards which the Grecos made a $10,000 non-refundable deposit and agreed to pay a monthly rental of

   $1000.

   
   

3. On or about November 14, 1982, the Grecos executed an Agreement with Respondent and his wife by which the Grecos assigned all rights and privileges relating to the lease and purchase of the residence at 1685 Markham Woods Road to the Alvarados. The consideration to be given for this Agreement was a payment of $10,000 by the Alvarados to the Grecos, with $5000 payable upon signing of the Agreement and $5000 payable within six months. The Alvarados, as assignees, agreed to abide by all provisions of the lease purchase agreement and were to make their first $1000 monthly lease payment to the Waids on December 4, 1982.

   
   

4. Respondent gave Richard J. Greco a check in the amount of $5000 dated November 14, 1982 and requested that he hold the check for a couple of days before depositing it. Greco complied with the request, but was advised on December 3, 1982 that Respondent's $5000 check had been returned unused by Respondent's bank due to the fact that Respondent's account had been closed. Respondent has never paid the Grecos any part of the $10,000 due them under the assignment executed November 14, 1982.

   
   

5. Respondent made no monthly lease payments on the property to the Waids. By letter dated February 25, 1983, James

   C. Waid notified the Grecos and the Alvarados that the lease purchase agreement was in default and that the $10,000 deposit paid by the Grecos was being forfeited because the rent was in arrears. The Grecos paid the Waids an additional $4000 on March 1, 1983, which represented the unpaid lease payments, for a general release from all obligations under the lease purchase agreement.

   
   

6. Respondent and his wife executed a promissory note on March 1, 1983 whereby they agreed to pay the Grecos $10,000 on

   or before March 16, 1983, but no payments have ever been made pursuant to this promissory note.

   
   

7. The Grecos brought suit against Respondent and his wife for damages arising out of this transaction, and obtained a Final Judgment on June 30, 1983 in Case No. 83-1191-CA-03-P, Circuit Court in and for Seminole County, in the amount of

   $15,101.28. The Grecos have not been able to execute this Final Judgment and therefore no payments on this judgment have been made to them by the Respondent or his wife.

   
   

8. At the time of this transaction, the Alvarados were family friends of the Grecos. Richard J. Greco entered into this transaction with Respondent primarily because of the personal acquaintance and not because Respondent was a licensed real estate salesman. However, Greco knew that Respondent was licensed and therefore assumed that he was a man of integrity who would deal fairly with him in this real estate transaction.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.

   57(1), Florida Statutes.

   
   

10. Section 475.25(1)(b), Florida Statutes, provides that a real estate salesman may be disciplined when he:

    
    

    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; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the licensee that the victim or intended

    victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public. (Emphasis supplied.)

    
    

11. It has long been established that in order to hold a real estate license a person must be honest, truthful, trustworthy and of good character with a reputation for fair dealing. McKnight v. Florida Real Estate Commission, 202 So. 2d

    199 (Fla. 2d DCA 1967). Anyone who deals with a licensee may assume he is dealing with an honest and ethical person. Shelton v. Florida Real Estate Commission, 120 So. 2d 191 (Fla. 2d DCA 1960). The Grecos, as identified members of the public, made these presumptions but were sorely disappointed.

    
    

12. The evidence establishes that Respondent dealt dishonestly with the Grecos, and also made misrepresentations and false promises. Respondent testified that he executed the Agreement with the Grecos to assist them in moving out of their house due to a personal tragedy which was associated with the house that occurred to the Greco family. Rather than being of assistance to a family friend, however, Respondent failed to make any valid payments due under the Agreement, failed to make

$1000 monthly lease purchase payments, gave Greco a $5000 check which did not clear due to the account having been closed, failed to make any payments to Greco under a promissory note which he then executed, and has made no payments on an judgment in the amount of $15,101.28 which the Grecos were awarded against Respondent and his wife. Respondent acknowledges this sequence of events but urges that he was trying to help the Grecos and intends to make good on this debt. Mere promises to pay a debt which is now more than two years overdue are not a defense to the charges proven by Petitioner.

RECOMMENDATION

Based upon the foregoing, it is recommended that a Final order be issued suspending Respondent's license for a Period of one (1) Year.

DONE and ENTERED this 26th day of August, 1985, in Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Fl. 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1985.

COPIES FURNISHED:

Susan Hartmann, Esquire

Department of Professional Regulation Division of Real Estate

400 W. Robinson St. Orlando, Fl. 32802

Ignacio J. Alvarado 5166 Glasgow Avenue

Orlando, Fl. 32819

Harold Huff Executive Director

Division of Real Estate

400 W. Robinson Street Orlando, Fl. 32802

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fl. 32301

Fred Roche, Secretary

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fl. 32301

Docket for Case No: 85-001344

Orders for Case No: 85-001344