STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0135

)

JORGE RIVERA, JR., )

)

Respondent. )

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on March 20, 1997, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Jorge Rivera, Jr., pro se

6752 Longmeade Lane

Orlando, Florida 32822

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 475.25(1)(b), Florida Statutes (1995) (hereinafter, "Florida Statues"), by engaging in dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on July 19, 1996. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted four exhibits for admission in evidence. Respondent testified in his own behalf, called one witness, and submitted three exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript filed on April 9, 1997. Petitioner timely filed its proposed recommended order ("PRO") on April 22, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate sales person pursuant to license number 0590475. Respondent was last licensed as an inactive sales person located at 6752 Longmeade Lane, Orlando, Florida 32822.

2. In 1993, Mr. Efrain and Mrs. Luz Rivera (the "Riveras") approached Respondent to represent them in purchasing a house. Respondent agreed to represent the Riveras as a buyer's agent. The Riveras are not related to Respondent.

3. While Respondent was representing the Riveras as a buyer's agent, Respondent asked the Riveras for a loan. Respondent wanted the loan to assist him in the establishment and publication of a real estate magazine entitled, La Casa.

4. Respondent had gained the Riveras' trust while representing them as their real estate agent. The Riveras loaned Respondent $2,500 from the money they needed for a down payment on the house they sought to purchase.

5. Respondent published La Casa for a brief period. Then the business closed.

6. Respondent paid the Riveras $250 as a partial payment on the loan. Respondent has not paid the Riveras any other amounts. The Riveras were unable to purchase a house without the $2,500 they loaned to Respondent.

7. In January 1995, the Riveras filed suit to recover the money they loaned Respondent. The court entered a final judgment of $3,598.98. Respondent has not satisfied any portion of the final judgment against him.

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

9. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

10. Petitioner satisfied its burden of proof. Petitioner showed that Respondent is guilty of culpable negligence and breach of trust under Section 475.25(1)(b).

11. Section 475.25(1), in relevant part, authorizes the Florida Real Estate Commission (the "Commission") to impose various penalties, including revocation, suspension, or an administrative fine on any licensee who:

    . . . [h]as been found guilty of . . . culpable negligence . . . or breach of trust in any business transaction in this state. .

12. Respondent knew, or should have known, that it was negligent to create a conflict of interest with clients and to cause them to incur a financial risk to their ability to purchase a house. Respondent breached the trust of his clients by incurring the loan and by failing to repay it.

13. The harm to the Riveras was significant. As a result of Respondent's culpable negligence and breach of trust, the Riveras have been unable to purchase a house. Respondent has not made restitution and his only attempt at restitution was de minimis.

14. There are mitigating factors in this case. Respondent has no prior disciplinary history. The offense committed is limited to one incident in one transaction.

15. Respondent was not dishonest or unscrupulous. He engaged in the loan transaction for a bona fide business purpose and fully intended to repay the loan. His inability to repay the loan is a function of his financial difficulties and not a function of his unscrupulous intent or his dishonesty.

16. Revocation of a license under Section 475.25 should be aimed at the dishonest and unscrupulous. Cf. Dreyer v. Florida

Real Estate Commission, 370 So.2d 95, 100 (Fla. 4th DCA 1979);

Brod v. Jernigan, 188 So.2d 575, 581 (Fla. 2d DCA 1966); Rivard

v. McCoy, 212 So.2d 672, 674-676 (Fla. 1st DCA 1968). Petitioner failed to show by clear and convincing evidence that Respondent was dishonest or unscrupulous in his dealings with the Riveras.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b) and suspending Respondent's license for three years from the date of this Recommended Order.

RECOMMENDED this 5th day of May, 1997, in Tallahassee, Florida.

COPIES FURNISHED:

Henry M. Solares, Director Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1997.

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

Daniel Villazon, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Jorge Rivera, Jr., pro se 6752 Longmeade Lane

Orlando, Florida 32822

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000135

Orders for Case No: 97-000135