STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 02-4437PL

)

ENRIQUE SALDANA, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on February 14, 2003, at sites in West Palm Beach and Tallahassee, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lorenzo Level, Esquire

Department of Business and Professional Regulation

400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900

For Respondent: Enrique Saldana, pro se

7560 Gilmour Court

Lake Worth, Florida 33467 STATEMENT OF THE ISSUES

At issue is whether Respondent committed the violations set forth in the Administrative Complaint dated October 17, 2002, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 17, 2002, Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate (Petitioner or Division) charged Respondent, Enrique Saldana (Respondent or Saldana), with various acts of dishonesty in his dealings with three real estate clients. Respondent timely requested a formal hearing.

At the hearing, Petitioner called eight witnesses and submitted 36 exhibits, which were admitted into evidence. Respondent testified on his own behalf and offered one composite exhibit.

The identity of the witnesses and exhibits and attendant rulings are set forth in the transcript of the hearing filed on April 4, 2003. Petitioner's timely filed Proposed Recommended Order has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency responsible for the regulation and discipline of real estate licensees in Florida pursuant to Section 20.125, Florida Statutes (2000).

2. At all times material to this case, Respondent is a licensed real estate broker and holds license number 0349967.

3. In the summer of 2001, Jose Diaz (Diaz) met Saldana at a seminar. The seminar was aimed at persons seeking to participate in federally financed programs designed to assist them in financing home purchases.

4. At the seminar, Diaz was referred to Saldana and described as a person who could assist Diaz in finding a home which could be financed with government funds.

5. Diaz sought Saldana's help in good faith, but Saldana abused Diaz' trust and took advantage of his lack of sophistication in the field of real estate. Specifically, Saldana told Diaz that in order to be eligible for a government financed loan, it would be necessary to pay off certain of Diaz' debts. Saldana instructed Diaz to provide him with blank money orders and represented to Diaz that the money orders would be used by Saldana to pay off the debts so as to facilitate Diaz' receiving a government loan.

6. Saldana failed to deposit the funds with his broker or in an escrow account, and failed to use them for the purposes for which they were intended, that is, to pay off Diaz' debts in order to satisfy government requirements for loaning Diaz funds toward a home purchase. Instead, Saldana converted the funds to his own use.

7. Diaz sued Saldana for civil theft in Palm Beach County Court. On June 19, 2002, a final judgment was entered in Diaz' favor for the full amount of the funds converted, plus interest.

8. As of the date of the final hearing, Saldana had failed to satisfy Diaz' judgment, and had no plans to do so.

9. In early 2001, Rafael Alcocer (Alcocer) met Saldana in a social club and asked him to assist him and his wife in purchasing a home. Saldana agreed, but did little on Alcocer's behalf. Eventually, Alcocer found a home he liked and asked Saldana to present an offer to the homeowner, Diane Dorish (Dorish). Dorish accepted the offer, which included a

   $500 deposit.

   
   

10. However, Saldana falsely told Alcocer that Dorish required a $2,500 deposit, and obtained funds in that amount which Alcocer thought would be used for a deposit required by the homeowner. In fact, Saldana converted those funds to his personal use, although Alcocer was eventually able to recoup

    $1,500. In addition, Saldana forged Alcocer's signature on a contract which provided for additional terms which had not been authorized by either Alcocer or Dorish.

11. The Division also charged Saldana with collecting a

    
    

    $320 mortgage application fee, plus a $1,000 earnest money deposit from a third client. The Administrative Complaint

    alleges that Saldana failed to deposit these funds into a trust or escrow account, but instead converted the funds to his own use. However, no evidence was presented in connection with this transaction, and it has not been considered in the disposition of this case.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding.

13. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Section 475.25(1)(b), Florida Statutes (2000), provides, in relevant part, that the Florida Real Estate Commission (the Commission) can place a licensee on probation, suspend or revoke a license, revoke the licensee's license, and/or impose a fine of up to $1,000 for each count in an administrative complaint, if the Commission finds that the licensee is guilty of, among other things, fraud, misrepresentation, or breach of trust in any business transaction.

15. Plainly, the conduct described above can only be seen as breaches of trust. See Florida Bar v. Schilling, 486 So. 2d 551 (Fla.1986).

16. Respondent admits the dishonest conduct set forth in the Diaz and Alcocer transactions, and has suggested no mitigating circumstances.

RECOMMENDATION

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

RECOMMENDED that the Division enter a final order revoking Respondent’s real estate license.

DONE AND ENTERED this 24th day of April, 2003, in Tallahassee, Leon County, Florida.

___________________________________ FLORENCE SNYDER RIVAS

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 24th day of April, 2003.

COPIES FURNISHED:

Lorenzo Level, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite N308 Orlando, Florida 32801-1900

Enrique Saldana 7560 Gilmour Court

Lake Worth, Florida 33467

Nancy P. Campiglia, Acting Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street, Suite 802N

Orlando, Florida 32801-1900

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 02-004437PL

Orders for Case No: 02-004437PL