STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0661

)

RALPH DE PONTE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on July 24, 1996, in Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Daniel Villazon

Senior Attorney

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Ralph De Ponte, Jr., pro se

Post Office Box 7751

Port St. Lucie, Florida 34985 STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on July 21, 1995, when the Department of Business and Professional Regulation (Department) filed an administrative complaint against the Respondent, Ralph De Ponte, Jr. Such complaint alleged that the Respondent was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device in violation of Section 475.25(1)(b), Florida Statutes. More specifically, the complaint alleged that Respondent had solicited a participant to a joint venture for the purpose of purchasing real estate parcels to resell for profit, but that Respondent had converted the funds contributed by the participant for his personal use and benefit. Further, that Respondent had failed or otherwise refused to return monies to this real estate investor. Respondent completed an election of rights which disputed all allegations, and requested a formal hearing pursuant to

Section 120.57(1), Florida Statutes. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on February 2, 1996.

At the hearing, Petitioner presented the testimony of Eugenio R. Martinez, the investor in the Respondent's real estate joint venture; and Jonathan Platt, an investigator employed by the Department. The Department's exhibits numbered 1, 2, and 3 were admitted into evidence. The Respondent testified in his own behalf. A transcript of the proceedings has not been filed. Specific rulings on the proposed findings of fact submitted by the parties are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Respondent, Ralph De Ponte, Jr., is a licensed real estate salesman, license number 0110328, in the State of Florida.

   
   

2. Petitioner is the state agency charged with the responsibility of regulating real estate licensees.

   
   

3. On or about August 25, 1993, Respondent, while licensed as a real estate salesperson, solicited and obtained a joint venture agreement between Eugenio R. Martinez and Johnco Management, Inc.

   
   

4. The purpose of the joint venture was to purchase and sell real estate lots for profit.

   
   

5. Lot Center Real Estate, the brokerage company for whom Respondent was employed at the time, was to act as the exclusive agent for the purchase and resale of all properties purchased by the joint venture.

   
   

6. Mr. Martinez entrusted $15,000 with Respondent in accordance with the joint venture agreement. Mr. Martinez, based upon the representations from Respondent, believed the money would be invested in the purchase of real estate.

   
   

7. Instead, Respondent used the $15,000 to pay off his personal debts.

   
   

8. Johnco Management, Inc. was administratively dissolved by the Secretary of State on August 26, 1994, for failure to file its annual report as required by law.

   
   

9. Mr. Martinez made repeated demands on Respondent for the return of the

   $15,000 because no effort was being made to purchase real estate and sell it for profit.

   
   

10. Respondent is unable to return Mr. Martinez' investment and claims that the lack of additional funds caused the joint venture to prove unsuccessful. Respondent considered the $15,000 from Mr. Martinez a personal loan. Mr. Martinez' version of the incident, which is also supported by the written joint venture agreement drafted by Respondent, has been deemed more credible.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

12. The Petitioner bears the burden of proof in this cause to establish, by clear and convincing evidence, the allegations of the administrative complaint.

    
    

13. Section 475.25(1), Florida Statutes, provides, in part:

    
    

    The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

    * * *

    (b) Has been guilty of fraud, misrepre- sentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negli- gence, 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 miscon- duct 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.

    
    

14. In this case, the Department has proved, by clear and convincing evidence, that the Respondent converted the funds tendered by Mr. Martinez which were to purchase real estate to his personal use and benefit. This action violated the duty imposed upon Respondent to place the funds in escrow or to otherwise invest them in real property as contemplated by the joint venture.

Mr. Martinez did not remit monies to enable Respondent to use the funds as he wished. Mr. Martinez placed his confidence in Respondent to locate and recommend purchases of lots with the hope that their joint venture would realize a profit. While Respondent disclosed that a profit could not be guaranteed, he never disclosed that the funds would be used in any manner other than to

purchase real estate. Respondent took funds belonging to an eighty-three year old retiree under false and misleading pretenses. He did not readily disclose that the funds were spent on personal debts to Mr. Martinez, nor did he make a substantial effort to repay him.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Business and Professional Regulation, Florida Real Estate Commission, enter a final order revoking Respondent's real estate license.

DONE AND ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 27th day of September, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0661

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1 through 10 are accepted.

Rulings on the proposed findings of fact submitted by Respondent: None submitted.

COPIES FURNISHED:

Henry M. Solares Division Director Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Daniel Villazon Senior Attorney

Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Ralph De Ponte, Jr.

Post Office Box 7751

Port St. Lucie, Florida 34985

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: 96-000661

Orders for Case No: 96-000661