STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-5282

)

MANUEL ANGEL HUERTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on March 23, 1999, at Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey Kirk, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: No appearance at the final hearing.

STATEMENT OF THE ISSUE

Whether Respondent violated Section 475.25(1)(d)1, Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 18, 1997, Petitioner, Department of Business and Professional Regulation, Division of Real Estate, filed an

Administrative Complaint against Respondent, Manuel Angel Huerta, alleging that Respondent was guilty of failure to account or deliver funds in violation of Section 475.25(1)(d)1, Florida Statutes. Respondent requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on November 10, 1997, for assignment to an Administrative Law Judge.

The final hearing was scheduled for February 20, 1998, but on February 19, 1998, Petitioner filed a Motion to Hold Case in Abeyance, representing that the parties had agreed to resolve the case by stipulated settlement, which was to be presented to the Florida Real Estate Commission at its next meeting. The Motion was granted. The parties were unable to resolve the case, and the final hearing was rescheduled for August 27, 1998. On August 26, 1998, Petitioner filed a Motion to Continue and Hold Case in Abeyance, representing that Petitioner had received an

executed stipulation which would be presented to the Florida Real Estate Commission at its next meeting. The parties were unable to resolve the case, and the final hearing was rescheduled for January 20, 1999. On January 7, 1999, Petitioner filed a Motion for Continuance, which was granted, and the case was rescheduled for March 23, 1999.

Robert Flavell, Esquire, represented Respondent during the proceedings; however, he did not appear at the final hearing.

The final hearing was to commence at 9:00 a.m. On the morning of

the final hearing, Mr. Flavell's office communicated to staff at the Division of Administrative Hearings that Mr. Flavell did not realize that the hearing location had been changed from the Dade County Courthouse to the Public Service Commission and that he had gone to the Dade County Courthouse for the hearing. His office advised that he would go to the Public Service Commission. The commencement of the final hearing was delayed, pending the arrival of Mr. Flavell. By 10:40 a.m., Mr. Flavell had not arrived and no explanation had been received from his office as to why he had not arrived. The final hearing started at 10:40

a.m. Mr. Flavell never appeared at the final hearing.

At the final hearing, official recognition was taken of Chapter 475, Florida Statutes. Petitioner called Pedro Garay and Kenneth G. Rehm as its witnesses. Petitioner's Exhibits numbered 1-4 were admitted in evidence.

A transcript was ordered. Petitioner agreed to file a proposed recommended order within ten days of the filing of the transcript. A Post-Hearing Order was issued on March 24, 1999, advising the parties that proposed recommended orders were to be filed within 10 days of the filing of the transcript. The Transcript was filed on May 24, 1999. Petitioner timely filed a Proposed Recommended Order which has been considered in rendering this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent, Manuel Angel Huerta (Huerta), was a real estate broker licensed by the Petitioner, the Department of Business and Professional Regulation, Division of Real Estate. He was the broker/officer for M A Huerta & Company, a broker corporation located in Miami, Florida.

2. M A Huerta & Company had listed a house for sale on Granda Boulevard, Coral Gables, Florida. The house was offered through multiple listing, and the advertised commission was three percent of the selling price.

3. Pedro Garay (Garay), a real estate broker with another company, showed the house to Andrew Labbie, a prospective buyer. Mr. Labbie indicated that he would make an offer for the house through his attorney. Garay was to pick up the offer when it was put together. Garay called Huerta to schedule a meeting with the sellers, but Huerta told him that he did not want Garay to present the offer to the sellers.

4. Huerta called Garay the day after the offer was presented to the sellers and told Garay that the house was being withdrawn from the market.

5. The house was later sold to Mr. Labbie on November 8, 1993. Garay learned of the sale and called Huerta, who stated that the sale had been between the sellers and buyer and that he had not been involved in the transaction. Huerta said that his

   office had received a real estate commission in the mail for

   
   

   $16,000 and that he was surprised that the commission had been sent to him. Garay demanded part of the commission.

6. Garay was a member of the Miami Board of Realtors, which had a procedure to arbitrate disputes among realtors. Garay requested that the dispute over the commission be arbitrated.

7. Garay and Huerta participated in the arbitration and were represented by counsel at the arbitration. On April 18, 1994, the Award of Arbitrators was entered, awarding $16,000 to Garay. The award was to be paid within 30 days.

8. Garay demanded that Huerta pay the $16,000, but Huerta refused. Garay retained counsel and went to circuit court to enforce the arbitration. On January 17, 1996, a final judgement was entered enforcing the arbitration award and awarding $16,800 to Garay.

9. After the final judgement was entered, Huerta still did not pay Garay. Counsel for Garay attempted to collect the judgment.

10. In October, 1996, Garay filed a complaint with Petitioner based on Huerta's failure to pay the commission. Petitioner assigned one of its investigators, Kenneth Rehm, to investigate the complaint. Mr. Rehm interviewed Huerta, who stated that he was not going to pay Garay because Garay did not deserve it and he did not care if the court had ordered him to pay.

11. Apparently Huerta changed his mind about paying because on February 10, 1998, Garay and Huerta entered into a Stipulation Regarding Execution. Huerta agreed to pay the judgment amount with interest in monthly installments of $1,056.72 for 24 months beginning February 17, 1998.

12. Huerta began making payments in February 1998 and continued to do so through December 1998. Huerta sent Garay a check for the January 1999 payment, but the check was returned for insufficient funds. As of the date of the final hearing no further payments had been made.

    CONCLUSIONS OF LAW

    
    

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

14. Petitioner has alleged that Huerta violated Section 475.25(1)(d)1, Florida Statutes, which provides that a real estate license may be disciplined if the licensee:

    (d)1. Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission if a civil judgment relating to the practice of the licensee's profession has been obtained against the licensee and said judgment has not been satisfied in accordance with the terms of the judgment within a reasonable

    time, or any secret or illegal profit, or any divisible share or portion thereof, which has come into the licensee's hands and which is not the licensee's property or which the licensee is not in law or equity entitled to retain under the circumstances. . . .

    
    

15. Huerta received a real estate commission to which Garay was entitled. Garay made a demand, and Huerta failed to deliver the commission. Garay arbitrated the dispute and was awarded the real estate commission. When Huerta failed to honor the arbitration award, Garay obtained a judgment in circuit court enforcing the arbitration award. Garay demanded that Huerta pay the judgement. Huerta refused to pay the judgment. Two years after the judgement was entered, Huerta agreed in writing to pay the judgement in monthly installments for two years. Huerta made eleven payments, gave a check with insufficient funds for the twelfth payment, and failed to make any further payments. The Department has established by clear and convincing evidence that Huerta violated Section 475.25(1)(d)1, Florida Statutes.

16. Rule 61J2-24.001(3), Florida Administrative Code, sets forth the range of penalties for a violation of Section 475.25(1)(d), Florida Statutes, from a $1,000 administrative fine to a five-year suspension. Respondent has paid a portion of the judgement; thus a reasonable penalty would be an administrative fine of $500, two years' probation, and the suspension of Respondent's license during the probation period until such time as Respondent pays Garay the portion of the judgement still outstanding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manuel Angel Huerta violated Section 475.25(1)(d)1, Florida Statutes, imposing an administrative fine of $500, placing Respondent on probation for two years, and suspending Respondent's license during the probation period until such time Respondent pays Pedro Garay the portion of the judgment still outstanding.

DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1999.

COPIES FURNISHED:

Herbert S. Fecker, Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

William Woodyard, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Geoffrey Kirk, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Robert Flavell, Esquire First Union Financial Center

200 South Biscayne Boulevard Suite 4600

Miami, Florida 33131-2310

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: 97-005282

Orders for Case No: 97-005282