STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-6140

)

LOUISE DIABO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the assigned Hearing Officer of the Division of Administrative Hearings, on Friday, December 21, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900

For Respondent: Louise Diabo, pro se

3015 Seville Street

Apartment 14

Fort Lauderdale, FL 33304 STATEMENT OF THE ISSUE

The issue is whether the real estate broker's license issued to respondent should be revoked or otherwise disciplined as a result of culpable negligence and breach of trust in violation of Subsection 475.25(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

At the hearing the Florida Real Estate Commission (Commission) offered in evidence: a certified copy of Respondent's licensure files; a copy of an Exclusive Right to Sell Residential Real Estate listing agreement with attached Plat of Survey; a copy of a Contract for Sale and Purchase dated March 13, 1989; a copy of Warranty Deed filed April 14, 1989; and a copy of the Buyer's Closing Statement dated April 7, 1989.

Section 20.30, and Chapters 120, 455 and 475, Florida Statutes were officially recognized pursuant to Rule 22I-6.020, Florida Administrative Code.

The Commission offered the testimony of Respondent Louise Diabo, and of Duane Lewis. The Respondent offered the testimony of Bill Coffey.

The parties were granted until January 24, 1991, to submit proposed findings of fact, proposed conclusions of law, and a proposed disposition of the matter. The transcript of proceedings was filed on January 10, 1991.

Respondent filed no proposed findings of fact; rulings on proposed findings by the Commission are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Florida Real Estate Commission is a licensing and regulatory agency charged with the duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and their implementing rules.

   
   

2. Respondent Louis Diabo is now and was at all times material hereto a licensed real estate broker holding license number 0146400. The last license issued was as a broker in limbo with a home address of Post Office Box 2386, Marathon, Florida 33050.

   
   

3. On or about July 13, 1988, Ms. Diabo solicited and obtained a one (1) year exclusive right to sell agreement from Anthony and Milagros P. Bonachea, as owners, to sell vacant land located in the Florida Keys, further described as Lot 11, Block 16, Coco Plum Beach Subdivision.

   
   

4. On or about March 13, 1989, Ms. Diabo solicited and obtained a contract for sale and purchase of Lot 11, Block 16, Coco Plum Beach Subdivision, between Duane W. Lewis and Helen F. Lewis, as buyers, and Anthony and Milagros P. Bonachea, as sellers, for a total price of $34,900.

   
   

5. Ms. Diabo drafted the contract for sale and purchase. In its paragraph VII, "Restrictions, Easements, Limitations," the buyer accepted title subject to zoning, restrictions, prohibitions and other requirements imposed by governmental authority, but Ms. Diabo added that nothing would prevent use of the property for the purpose of "single family" housing.

   
   

6. As a real estate professional and as the listing agent Ms. Diabo was aware that she was under a duty and an obligation to know the correct zoning, restrictions, prohibitions and other requirements imposed by governmental authorities on the property she listed for sale.

   
   

7. She also knew that there was uncertainty about whether county development regulations under consideration might require the buyer to obtain transferrable development rights from other property owners in the Keys to build on the vacant lot being sold to Dwayne and Helen Lewis.

   
   

8. Ms. Diabo owed Mr. and Mrs. Lewis a duty and they reasonably expected Ms. Diabo to inform them about governmental restrictions that might limit the use of the real property as a single family homesite.

   
   

9. The transaction closed on or about April 7, 1989.

   
   

10. Subsequent to closing, Mr. & Mrs. Lewis learned that they would have to purchase from $9,000 to $18,000 worth of transferable development rights (TDRs) in order to build on the vacant lot they bought through Ms. Diabo. Ms. Diabo had not explained to Mr. and Mrs. Lewis that they might be required to buy

    transferable development rights from another landowner to build on their lot, but there is no proof that such restrictions were effective at the time she dealt with the Lewises.

    
    

11. There is no evidence in the record showing when the requirement to obtain transferrable development rights went into effect. As a consequence, it is not possible to determine whether Ms. Diabo failed to disclose to Mr. and Mrs. Lewis a zoning or use restriction in effect at the time of their purchase while she had asked Mr. Lewis to check on the zoning with the county building official, this did not relieve her of her own duty to investigate under Paragraph VII of the contract, and tell the purchasers of any limitations on building a single family home on the property. Petitioner failed to demonstrate, however, that any restrictions existed as of the time of the closing.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987).

    
    

13. The Petitioner has alleged that the Respondent violated Subsection 475.25(1)(b), Florida Statutes (1987), by failing to inform the purchasers, Mr. and Mrs. Lewis, that the vacant lot sold to them was subject to the county development restrictions and might require the additional purchase of transferrable development rights.

    
    

14. Subsections 475.25(1)(b), Florida Statutes (1987) reads, in pertinent part:

    
    

    1. The Commission may . . . suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense . . . if it finds that the licensee . .

       * * *

       (b) Has been guilty of . . . culpable negligence or breach of trust in any business transaction in this state .

       
       

15. The evidence fails to show any culpable negligence on the part of Ms. Diabo. while the purchase of transferrable development rights was required by the time the Lewises attempted to build on their lot, there is no proof that the restriction was effective at the time the Lewises purchased the property. Therefore, the Commission has failed to prove that Ms. Diabo violated Subsection 475.25(1)(b), Florida Statutes (1987), by being culpably negligent or breaching a trust relationship as charged in Count I of the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued and filed by the Florida Real

Estate dismissing the Administrative Complaint

DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6140

All but proposed paragraph 12 have been accepted and used, with appropriate editing, in this Recommended Order.

COPIES FURNISHED:

James H. Gillis, Esquire Department of

Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900

Louise Diabo, pro se 3015 Seville Street

Apartment 14

Fort Lauderdale, FL 33304

Darlene F. Keller, Division Director Department of

Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802

Kenneth E. Easley, General Counsel Department of

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006140

Orders for Case No: 90-006140