09-005219PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Joaquin Inigo
 Status: Closed
Recommended Order on Wednesday, March 3, 2010.


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Summary: Respondent, representing sellers, violated Section 475.25(1)(b) by concealing from second buyers that sellers had already entered into contract to sell subject property to other buyers, which contract had priority over the second buyers' contract.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 09-5219PL

30)

31JOAQUIN INIGO, )

34)

35Respondent. )

37__________________________________)

38RECOMMENDED ORDER

40Pursuant to notice, a hearing was conducted in this case

50pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

59before Stuart M. Lerner, a duly-designated Administrative Law

67Judge of the Division of Administrative Hearings (DOAH), on

76January 14, 2010, by video teleconference at sites in Miami and Tallahassee, Florida.

89APPEARANCES

90For Petitioner: Patrick J. Cunningham, Esquire

96Department of Business and

100Professional Regulation

102Division of Real Estate

106400 West Robinson Street, Suite N-801

112Orlando, Florida 32801

115For Respondent: Steven W. Johnson, Esquire

12120 North Orange Avenue, Suite 700

127Orlando, Florida 32801

130STATEMENT OF THE ISSUE

134Whether Respondent committed the violation alleged in the

142Amended Administrative Complaint in the manner specified therein

150and, if so, what penalty should be imposed.

158PRELIMINARY STATEMENT

160On or about April 21, 2009, Petitioner issued an

169Administrative Complaint against Respondent and Mark Tenzer,

176charging each with one count of violating Section 475.25(1)(b),

185Florida Statutes. Respondent and Mr. Tenzer each requested an

194administrative hearing pursuant Section 120.57(1), Florida

200Statutes. On September 23, 2009, these matters were referred to

210the DOAH. Respondent's case was docketed as DOAH Case No. 09-

2215219PL. Mr. Tenzer's case was docketed as DOAH Case No. 09-

2325220PL.

233On September 25, 2009, Petitioner filed a motion requesting

242leave to amend the Administrative Complaint to add an additional

252count against Mr. Tenzer. The motion was granted by Order

262issued October 8, 2009. The Amended Administrative Complaint

270contains the following "[e]ssential [a]llegations of [m]aterial

277[f]act":

2791. Petitioner is a state government

285licensing and regulatory agency charged with

291the responsibility and duty to prosecute

297Administrative Complaints pursuant to the

302laws of the State of Florida, in particular

310Section 20.165 and Chapters 120, 455 and

317475, of the Florida Statutes and the rules

325promulgated thereto.

3272. Respondent Joaquin Inigo is and was at

335all times material hereto a licensed Florida

342real estate sales associate, issued license

348number 691286 in accordance with Chapter 475

355of the Florida Statutes. The last license

362issued was as an inactive sales associate at

3705410 SW 88th Path, Miami, Florida 33173.

3773. Respondent Mark Tenzer is and was at all

386times material hereto a licensed Florida

392real estate broker, issued license numbers

3983008525, 87984, and 3012867 in accordance

404with Chapter 475 of the Florida Statutes.

411The last license issued was as an active

419broker at Foreclosure Specialists Realty,

424Inc., 10745 SW 104th Street, Miami, Florida

43133176; Tenzer Realty Inc. & Associates,

43710745 SW 104th Street, Miami, Florida

44333176; and Tenzer Realty and Associates,

449Inc., 10745 SW 104th Street, Miami, Florida

45633176.

4574. At all times material, Respondent Mark

464Tenzer was the qualifying broker for Tenzer

471Realty Inc. & Associates.

4755. At all times material, Respondent Mark

482Tenzer employed Respondent Joaquin Inigo as

488a sales associate.

4916. Respondents were the listing agents for

498a property located at 14081 S.W. 166th

505Street, Miami, Florida 33177 ("Subject

511Property") owned by Wiltamar & Alessandra S.

519Mendes ("Sellers").

5237. On or about January 18, 2008, Respondent

531negotiated a sales and purchase contract

537with Mario and Sulena Hernandez for $338,640

545for the Subject Property. A copy of the

553contract is attached hereto and incorporated

559herein as Administrative Complaint Exhibit

5641.

5658. Respondent[s] concealed from Buyers that

571the sale and purchase contract was a back-up

579contract. A copy of the settlement

585statement is attached and incorporated

590herein as Administrative Complaint Exhibit

5952.

5969. Respondents concealed from Buyers that

602Respondent Tenzer had an interest in the

609Subject Property.

61110. Respondent[s] knew or should have known

618that in reliance on Respondents' full

624disclosure, the Buyers entered into a

630contract to purchase the Subject Property.

636Count I of the Amended Administrative Complaint is the only one

647of the complaint's three counts directed against Respondent. It

656alleges that, "[b]ased upon the foregoing [essential allegations

664of material fact], Respondent is guilty of fraud,

672misrepresentation, concealment, false promises, false pretenses,

678dishonest dealing by trick, scheme or device, culpable

686negligence, or breach of trust in any business transaction in

696this state, nation or territory; has violated a duty imposed

706upon her or him by law or by the terms of a listing contract,

720written, oral, express, or implied, in a real estate

729transaction; has aided, assisted, or conspired with any other

738person engaged in any such misconduct and in furtherance

747thereof; or has formed an intent, design, or scheme to engage in

759any such misconduct and committed an overt act in furtherance of

770such intent, design, or scheme in violation of Section

779475.25(1)(b), Florida Statutes."

782On October 16, 2009, DOAH Case Nos. 09-5219PL and 09-5220PL

792were consolidated at the Petitioner's request. The cases were

801subsequently severed, however, after Petitioner announced at the

809outset of the final hearing on January 14, 2010, that it was

821dismissing all charges against Mr. Tenzer.

827During the evidentiary proceedings that followed

833Petitioner's announcement, Petitioner presented the testimony of

840Felix Mizioznikov, Roger Shapiro, Jack Tenzer, and Sulena

848Hernandez. It also offered eight exhibits (Petitioner's

855Exhibits 1 through 8), all of which were received into evidence.

866Respondent testified on his own behalf. He presented no other

876evidence.

877At the conclusion of the evidentiary portion of the hearing,

887the undersigned announced, on the record, that the deadline for

897the filing of proposed recommended orders was 25 days from the

908date of the filing of the hearing transcript with DOAH.

918The hearing Transcript (consisting of one volume) was filed

927with DOAH on January 29, 2010.

933Petitioner and Respondent filed their Proposed Recommended

940Orders on February 18, 2010, and February 24, 2010, respectively.

950FINDINGS OF FACT

953Based on the evidence adduced at hearing, and the record as

964a whole, the following findings of fact are made:

9731. Respondent is now, and has been at all times material

984to the instant case, a Florida-licensed real estate sales

993associate, holding license number SL-691286.

9982. At no time during the almost ten years he has held this

1011license has any disciplinary action been taken against him. 2

10213. From August 31, 2000, to March 31, 2002, and from

1032April 16, 2002, to June 26, 2008, Respondent worked as a real

1044estate sales associate for Tenzer Realty, Inc., and Associates

1053(Tenzer Realty).

10554. Jack Tenzer is a Florida-licensed real estate broker.

1064He has owned and operated Tenzer Realty since January 30, 1990.

10755. On or about December 13, 2007, Wiltamar Mendes executed

1085a written agreement giving Tenzer Realty the "exclusive right to

1095sell" residential property, located at 14081 Southwest 166th

1103Street in Miami Florida, he and his wife owned (Subject

1113Property). Under the terms of the agreement, "Tenzer Realty

1122[was] to receive only [a] 3% commission" on the sale of the

1134Subject Property, plus a "transaction coordination fee [of]

1142$395.00 at closing."

11456. At no time has Mr. Tenzer ever had an interest in the

1158Subject Property.

11607. Respondent was the listing agent for the Subject

1169Property, and he represented the Mendeses throughout the sale

1178process.

11798. In January 2008, Sulena Hernandez and her husband were

1189looking to purchase a home in the Miami area.

11989. Roger Shapiro, a Florida-licensed real estate associate

1206then working for Coldwell Banker, was helping them in their

1216search and acting as their representative.

122210. Mr. Shapiro telephoned Respondent to make arrangements

1230for the Subject Property to be shown to Ms. Hernandez.

124011. Ms. Hernandez, accompanied by Mr. Shapiro, was

1248subsequently shown the Subject Property by the Mendeses. 3

125712. After the showing, the Hernandezes decided to make an

1267offer on the Subject Property of $338,640.00 (money they hoped

1278to obtain through a 100% financed Veteran's Administration

1286loan 4 ), with the "additional [monetary] term" that the Mendeses

1297would "contribute 2% of the sale price toward [the Hernandezes']

1307closing cost[s]."

130913. The offer was written up for the Hernandezes by

1319Mr. Shapiro on a Florida Association of Realtors (FAR)-developed

1328Residential and Sale Purchase Contract form that Coldwell Banker

1337used, on behalf of its clients, for such purposes (FAR Form).

134814. This FAR Form had eight pages, not including the "attached

1359addenda." On the bottom of each page were spaces for the buyers

1371and sellers to put their initials to "acknowledge receipt of a

1382copy of th[e] page."

138615. Page 7 of the FAR Form contained the "Addenda" and

"1397Additional Terms" provisions of the contract.

140316. The "Addenda" provision began as follows:

141020. ADDENDA . The following additional

1416terms are included in the attached addenda

1423and incorporated into this Contract (check

1429if applicable):

1431This introductory language was followed by a lettered checklist

1440of various possible "addenda" items, including "F. VA

1448Financing," "H. As is w/Right to Inspect," "I. Inspections,"

"1457P. Back-up Contract," "Q. Broker - Pers. Int. in Prop.," "V.

1468Prop. Disclosure Stmt.," and "Other." Next to (immediately to

1477the left of) each listed item was a box (to be "check[ed] if

1490applicable").

149217. On the written offer he prepared for the Hernandezes

1502(Contract Offer), Mr. Shapiro checked the "F. VA Financing,"

1511the "H. As is w/Right to Inspect," the "V. Prop. Disclosure

1522Stmt.," and the "Other" boxes, 5 and he attached an appropriately

1533initialed addendum corresponding to each of these checked items. 6

1543No other boxes were checked.

154818. Page 8 of the FAR Form was the signature page.

155919. Numbered lines 412 through 416 on page 8, as filled in

1571by Mr. Shapiro (for the Hernandezes), read as follows:

1580OFFER AND ACCEPTANCE

1583( Check if applicable : Buyer received a

1591written real property disclosure statement

1596from Seller before making this Offer.)

1602Buyer offers to purchase the Property on the

1610above terms and conditions. Unless this

1616Contract is signed by Seller and a copy

1624delivered to Buyer no later than 5 a.m.

1632p.m. on January 21, 2008 , this offer will

1640be revoked and Buyer's deposit refunded[ 7 ]

1648subject to clearance of funds.[ 8 ]

165520. On numbered lines 417 through 420 on page 8, directly

1666beneath this "Offer and Acceptance" provision, was the following

"1675Counter Offer/Rejection" provision, which contained a box for

1683the Mendeses to check if they wanted to counter the Contract

1694Offer, as well as a box for the Mendeses to check if,

1706alternatively, they wanted to reject the Contract Offer

1714outright:

1715COUNTER OFFER/REJECTION

1717Seller counters Buyer's offer (to accept

1723the counter offer, Buyer must sign or

1730initial the counter offered terms and

1736deliver a copy of the acceptance to Seller.

1744Unless otherwise stated, the time for

1750acceptance of any counteroffer shall be 2

1757days from the date the counter is delivered.

1765Seller rejects Buyer's offer.

176921. On the next numbered line (421) on page 8, in the

1781spaces provided, Ms. Hernandez signed her name and wrote in the

1792date, "1/18/08." Acting under a power of attorney, she also

1802signed (on numbered line 423) for her husband, who was on

1813military deployment in Afghanistan at the time.

182022. The penultimate numbered line (433) on page 8 provided

1830that the "[e]ffective date" of the contract would be "[t]he date

1841on which the last party signed or initialed and delivered the

1852final offer or counteroffer."

185623. Ms. Hernandez put her and her husband's initials in

1866the spaces provided on the bottom of page 8, as well as in the

1880spaces provided on the bottom of the preceding seven pages, to

"1891acknowledge receipt of a copy of th[ese] page[s]."

189924. Mr. Shapiro sent the Hernandezes' signed, dated and

1908initialed Contract Offer to Respondent (by facsimile

1915transmission) for presentation to the Mendeses for their

1923consideration.

192425. Respondent guided the Mendeses through their review of

1933the Contract Offer and provided them with advice.

194126. On January 23, 2008, after they had finished going

1951over the Contract Offer with Respondent, the Mendeses (on

1960numbered lines 427 and 428) signed and dated the document. They

1971also initialed the bottom of each of the offer's first eight

1982pages, as well as the bottom of each addendum that had been

1994attached thereto, in the appropriate spaces. This was all done

2004in Respondent's physical presence.

200827. On behalf of the Mendeses, Respondent provided (by

2017facsimile transmission) a copy of the signed, dated, and

2026initialed document (Genuine Hernandez Contract 9 ) to Mr. Shapiro.

203628. By their actions (which Respondent helped

2043orchestrate), the Mendeses signified their intent to accept the

2052Contract Offer, without revision. They checked neither of the

2061boxes in the "Counter Offer/Rejection" provision (on numbered

2069lines 417 through 420 on page 8), nor did they make any written

2082entries elsewhere on the document, or attach any appropriately

2091initialed additional addenda, reflecting a desire to accept an

2100offer from the Hernandezes only on terms different than those

2110set forth in the Contract Offer. Most significantly, for

2119purposes of the instant case, the Mendeses made no changes to

2130the "Addenda" provision. They checked no additional boxes

2138(including the "P. Back-up Contract" box), nor attached any

2147appropriately initialed addendum corresponding to an unchecked

2154item.

215529. After receiving the Genuine Hernandez Contract from

2163Respondent, Mr. Shapiro showed it to Ms. Hernandez.

217130. Ms. Hernandez, with the help of Mr. Shapiro, proceeded

2181to take those steps necessary for her and her husband to close

2193on the Subject Property on February 29, 2008, the agreed-upon

2203closing date. 10 These steps included having the Subject Property

2213inspected and securing a mortgage loan commitment. 11

222131. Respondent and Mr. Shapiro had occasion to speak with

2231one another over the telephone regarding these post-

2239contract/pre-closing matters. (There was no direct

2245communication at any time between Respondent and the

2253Hernandezes.)

225432. At no time either before or after the effective date

2265of the Genuine Hernandez Contract did Respondent advise

2273Mr. Shapiro that the Mendeses intended to treat their contract

2283with the Hernandezes as a "back-up contract," that is, a

2293contract subordinate to another contract for the sale and

2302purchase of the Subject Property.

230733. This was not information that could be gleaned from a

2318review of the Genuine Hernandez Contract. Indeed, the Genuine

2327Hernandez Contract affirmatively indicated that it was not a

"2336back-up contract," inasmuch as the "P. Back-up Contract" box

2345in the "Addenda" provision on page 7 was not checked, nor was

2357there any corresponding "Back-up Contract" addendum attached to

2365the document.

236734. Unbeknownst to Mr. Shapiro and the Hernandezes, by the

2377time the Genuine Hernandez Contract became effective (which,

2385according to numbered line 433, was January 23, 2008, "[t]he

2395date on which the last party [the Mendeses] signed or initialed

2406and delivered the final offer"), the Mendeses had already

2416entered into a contract (using the FAR Form) to sell the Subject

2428Property to another couple, Carlos and Aida Garcia, for

2437$330,000.00 (95% of which would be financed), with no seller

2448contribution toward closing costs (Garcia Contract).

245435. In the "Addenda" provision (on page 7) of the Garcia

2465Contract (as in that provision of the Genuine Hernandez

2474Contract), neither the "I. Inspections" box, the "P. Back-up

2483Contract" box, nor the "Q. Broker - Pers. Int. in Prop." box

2495was checked.

249736. Respondent was aware at the time that the Mendeses

2507executed the Contract Offer and entered into the Genuine

2516Hernandez Contract that it was the Mendeses' intention to

2525proceed with the Garcia Contract as the primary contract 12 and to

2537treat the Genuine Hernandez Contract as merely a "back-up" 13

2547(providing a ready alternative for the Mendeses, as insurance,

2556in the event their deal with the Garcias fell through). 14

256737. This was information that any reasonably prudent buyer

2576in the Hernandezes' situation would have wanted and expected to

2586have, as Respondent surely must have known. As a Florida-

2596licensed real estate sales associate representing the Mendeses,

2604Respondent had a duty, in the interest of honest and fair

2615dealing, to disclose this information to the Hernandezes

2623(notwithstanding that he was not their agent 15 ).

263238. Nonetheless, Respondent knowingly and dishonestly

2638participated in a scheme to conceal from the Hernandezes the

2648subordinate status of their contract to purchase the Subject

2657Property. 16

265939. As it turned out, the Mendeses did not need to have a

"2672back-up" buyer, as the Garcias closed on the Subject Property

2682on February 11, 2008, as scheduled. Respondent "attend[ed] the

2691closing with the Garcias."

269540. Respondent told neither Mr. Shapiro, nor the

2703Hernandezes, that the Garcias had closed on the Subject

2712Property.

271341. Mr. Shapiro found out about the Garcias and their

2723having closed on the Subject Property, not from Respondent, but

2733from a representative of Sunbelt Title (the title company). He

2743obtained this information just a few days before the

2752Hernandezes' scheduled February 29, 2008, closing.

275842. Mr. Shapiro, in turn, told Ms. Hernandez about the

2768Garcias' purchase of the Subject Property.

277443. Ms. Hernandez was "shocked" to learn that the Mendeses

2784no longer had title to the Subject Property and that therefore

2795she and her husband would not be able to purchase the property

2807from them. She had made all the necessary preparations to move

2818from the rental property she was living in with her husband to

2830the Subject Property. She even had family members who were

2840going to be "flying into town" to help her with the move.

285244. Had the Hernandezes known that their contract was only

2862a "back-up" to the Garcias', they would not have done the things

2874they did in anticipation of their scheduled February 29, 2008,

2884closing on the Subject Property.

288945. Ms. Hernandez hired an attorney, who contacted

2897Mr. Tenzer to inquire, on the Hernandezes' behalf, about the

2907situation.

290846. Mr. Tenzer had no "idea what [the attorney] was

2918talking about."

292047. Respondent was unavailable at the time inasmuch as he

2930was out of the country on vacation.

293748. Mr. Tenzer therefore went directly to the filing

2946cabinets where all of Tenzer Realty's files (both active and

2956closed) were supposed to be kept and proceeded to look for the

2968file on the Subject Property.

297349. Pursuant to established Tenzer Realty office policy

2981(with which Respondent should have been familiar), all contracts

2990dealing with the Subject Property should have been in one file

3001in these filing cabinets.

300550. Mr. Tenzer found only the Garcia Contract in the file

3016on the Subject Property. The Genuine Hernandez Contract (to

3025which the Hernandezes' attorney had referred in his conversation

3034with Mr. Tenzer) was not in the file.

304251. Unable to locate a contract for the sale of the

3053Subject Property to the Hernandezes, Mr. Tenzer left a note on

3064Respondent's desk asking Respondent to see him about the matter

3074as soon as he returned to the office from vacation. In his

3086note, Mr. Tenzer emphasized that "it was urgent" that Respondent

3096discuss the matter with him "immediately" upon Respondent's

3104return.

310552. When Respondent returned to the office, he produced

3114for Mr. Tenzer a document (Purported Hernandez Contract 17 )

3124identical in all respects to the Genuine Hernandez Contract,

3133except that three additional boxes in the "Addenda" provision on

3143page 7 were checked: the "I. Inspections" box; the "P. Back-

3154up Contract" box; and the "Q. Broker - Pers. Int. in Prop."

3166box. 18 (No additional addendum corresponding to any of these

3176items was attached to the document, however; just the boxes were

3187checked. 19 ) There were no signatures or initials next to these

3199three checked boxes. 20

320353. Respondent told Mr. Tenzer that this was a "back-up

3213contract" and that the Hernandezes had been so informed.

322254. What Respondent had done was alter the "Addenda"

3231provision of the Genuine Hernandez Contract in a weak and

3241transparent attempt to make it appear as if the "back-up" nature

3252of the contract was apparent from its face.

326055. Mr. Tenzer asked Respondent where the Purported

3268Hernandez Contract had been "all this time." Respondent

3276responded that he had kept it in his desk drawer. This response

3288drew a rebuke from Mr. Tenzer, who chastised Respondent for not

3299keeping the Purported Hernandez Contract in the file together

3308with the Garcia Contract.

331256. Mr. Tenzer then inquired, "Why do we have another

3322contract when one's already closed?" Respondent answered,

3329unresponsively (as well as untruthfully), that he had notified

3338Mr. Shapiro that the Garcias had closed on the Subject Property

3349and that therefore the Hernandezes would not be purchasing the

3359property.

336057. Upon reviewing the Purported Hernandez Contract,

3367Mr. Tenzer noticed that the "Q. Broker - Pers. Int. in Prop."

3379box was checked. When he questioned Respondent about this,

3388Respondent told Mr. Tenzer that "that was done in error." 21

339958. The Hernandezes ultimately purchased another home in

3407the Miami area. The purchase price of the home was more than

3419the amount that they had agreed to pay to buy the Subject

3431Property from the Mendeses.

343559. A complaint concerning Respondent's dealings in

3442connection with the Subject Property was filed with Petitioner.

3451The complaint was investigated by Felix Mizioznikov, an

3459investigator with Petitioner.

346260. As part of his investigation, Mr. Mizioznikov

3470interviewed Respondent, both over the telephone and "in person."

347961. During the "in person" interview, Respondent gave

3487Mr. Mizioznikov his file on the Subject Property. The file

3497contained the Garcia Contract, the Genuine Hernandez Contract, 22

3506and the Purported Hernandez Contract.

351162. Mr. Mizioznikov's investigation led to Petitioner's

3518filing the instant charge against Respondent alleging a

3526violation of Section 475.25(1)(b), Florida Statutes.

3532CONCLUSIONS OF LAW

353563. DOAH has jurisdiction over the subject matter of this

3545proceeding and of the parties hereto pursuant to Chapter 120,

3555Florida Statutes.

355764. The Florida Real Estate Commission (Commission) is

3565statutorily empowered to take disciplinary action against

3572Florida-licensed real estate sales associates based upon any of

3581the grounds enumerated in Section 475.25(1), Florida Statutes.

358965. Such disciplinary action may include one or more of

3599the following penalties: license revocation; license suspension

3606not exceeding ten years; imposition of an administrative fine

3615not to exceed $5,000.00 for each count or separate offense;

3626issuance of a reprimand; and placement of the licensee on

3636probation. § 475.25(1), Fla. Stat. In addition, the Commission

"3645may assess costs related to the investigation and prosecution

3654of the case excluding costs associated with an attorney's time."

3664§ 455.227(3)(a), Fla. Stat.

366866. The Commission may take such action only after the

3678licensee has been given reasonable written notice of the charges

3688and an adequate opportunity to request a proceeding pursuant to

3698Sections 120.569 and 120.57, Florida Statutes. See § 120.60(5),

3707Fla. Stat.

370967. An evidentiary hearing must be held if requested by

3719the licensee when there are disputed issues of material fact.

3729See Hollis v. Department of Business and Professional

3737Regulation , 982 So. 2d 1237, 1239 (Fla. 5th DCA 2008); and §§

3749120.569(1) and 120.57(1), Fla. Stat.

375468. At the hearing, Petitioner bears the burden of proving

3764that the licensee engaged in the conduct, and thereby committed

3774the violations, alleged in the charging instrument. Clear and

3783convincing evidence of the licensee's guilt must be presented for

3793Petitioner to meet its burden of proof. See Department of

3803Banking and Finance, Division of Securities and Investor

3811Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

3822(Fla. 1996); Walker v. Florida Department of Business and

3831Professional Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA

38411998)("The Department had the burden of proving fraud,

3850misrepresentation or concealment by clear and convincing

3857evidence, in order to justify revocation of Walker's license.");

3867upon a preponderance of the evidence, except in penal or

3877licensure disciplinary proceedings or except as otherwise

3884provided by statute . . . .").

389269. Clear and convincing evidence is an "intermediate

3900standard," "requir[ing] more proof than a 'preponderance of the

3909evidence' but less than 'beyond and to the exclusion of a

3920reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

39311997). For proof to be considered "'clear and convincing' . . .

3943the evidence must be found to be credible; the facts to which

3955the witnesses testify must be distinctly remembered; the

3963testimony must be precise and explicit and the witnesses must be

3974lacking in confusion as to the facts in issue. The evidence

3985must be of such weight that it produces in the mind of the trier

3999of fact a firm belief or conviction, without hesitancy, as to

4010the truth of the allegations sought to be established." In re

4021Davey , 645 So. 2d 398, 404 (Fla. 1994)(citing with approval,

4031Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983));

4043see also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

4058(Fla. 1995)("The evidence [in order to be clear and convincing]

4069must be sufficient to convince the trier of fact without

4079hesitancy."). "Although this standard of proof may be met where

4090the evidence is in conflict, . . . it seems to preclude evidence

4103that is ambiguous." Westinghouse Electric Corporation, Inc. v.

4111Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

412370. In determining whether Petitioner has met its burden

4132of proof, it is necessary to evaluate its evidentiary

4141presentation in light of the specific allegations of wrongdoing

4150made in the charging instrument. Due process prohibits the

4159Commission from taking disciplinary action against a licensee

4167based on conduct not specifically alleged in the charging

4176instrument, unless those matters have been tried by consent.

4185See Trevisani v. Department of Health , 908 So. 2d 1108, 1109

4196(Fla. 1st DCA 2005); Shore Village Property Owners' Association,

4205Inc. v. Department of Environmental Protection , 824 So. 2d 208,

4215210 (Fla. 4th DCA 2002); and Delk v. Department of Professional

4226Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

423671. Furthermore, "the conduct proved must legally fall

4244within the statute or rule claimed [in the charging instrument]

4254to have been violated." Delk , 595 So. 2d at 967. In deciding

4266whether the statute or rule claimed [in the charging instrument]

4276to have been violated was in fact violated, as alleged by

4287Petitioner, if there is any reasonable doubt, that doubt must be

4298resolved in favor of the licensee. See Djokic v. Department of

4309Business and Professional Regulation, Division of Real Estate ,

4317875 So. 2d 693, 695 (Fla. 4th DCA 2004); Elmariah v. Department

4329of Professional Regulation, Board of Medicine , 574 So. 2d 164,

4339165 (Fla. 1st DCA 1990); and Lester v. Department of

4349Professional and Occupational Regulations , 348 So. 2d 923, 925

4358(Fla. 1st DCA 1977).

436272. In those cases where the proof is sufficient to

4372establish that the licensee committed the violation(s) alleged

4380in the charging instrument and that therefore disciplinary

4388action is warranted, it is necessary, in determining what

4397disciplinary action should be taken against the licensee, to

4406consult the Commission's "disciplinary guidelines," as they

4413existed at the time of the violation(s). See Parrot Heads, Inc.

4424v. Department of Business and Professional Regulation , 741 So.

44332d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

4444bound by its own rules . . . creat[ing] guidelines for

4455disciplinary penalties."); and Orasan v. Agency for Health Care

4465Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

44751st DCA 1996)("[T]he case was properly decided under the

4485disciplinary guidelines in effect at the time of the alleged

4495violations."); see also State v. Jenkins , 469 So. 2d 733, 734

4507(Fla. 1985)("[A]gency rules and regulations, duly promulgated

4515under the authority of law, have the effect of law."); Buffa v.

4528Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

4540must comply with its own rules."); and Williams v. Department of

4552Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

4562is required to comply with its disciplinary guidelines in taking

4572disciplinary action against its employees).

457773. The Commission's "disciplinary guidelines" are set

4584forth in Florida Administrative Code Rule 61J2-24.001. At all

4593times material to the instant case, they provided, in pertinent

4603part, as follows:

4606( 1) Pursuant to Section 455.2273, F.S., the

4614Commission sets forth below a range of

4621disciplinary guidelines from which

4625disciplinary penalties will be imposed upon

4631licensees guilty of violating Chapter 455 or

4638475, F.S. The purpose of the disciplinary

4645guidelines is to give notice to licensees of

4653the range of penalties which normally will

4660be imposed for each count during a formal or

4669an informal hearing. For purposes of this

4676rule, the order of penalties, ranging from

4683lowest to highest, is: reprimand, fine,

4689probation, suspension, and revocation or

4694denial. Pursuant to Section 475.25(1),

4699F.S., combinations of these penalties are

4705permissible by law. Nothing in this rule

4712shall preclude any discipline imposed upon a

4719licensee pursuant to a stipulation or

4725settlement agreement, nor shall the range of

4732penalties set forth in this rule preclude

4739the Probable Cause Panel from issuing a

4746letter of guidance.

4749(2) As provided in Section 475.25(1), F.S.,

4756the Commission may, in addition to other

4763disciplinary penalties, place a licensee on

4769probation. The placement of the licensee on

4776probation shall be for such a period of time

4785and subject to such conditions as the

4792Commission may specify. Standard

4796probationary conditions may include, but are

4802not limited to, requiring the licensee: to

4809attend pre-licensure courses; to

4813satisfactorily complete a pre-licensure

4817course; to attend post-licensure courses; to

4823satisfactorily complete a post-licensure

4827course; to attend continuing education

4832courses; to submit to and successfully

4838complete the state-administered examination;

4842to be subject to periodic inspections and

4849interviews by a DBPR investigator; . . . .

4858(3) The penalties are as listed unless

4865aggravating or mitigating circumstances

4869apply pursuant to subsection (4). The

4875verbal identification of offenses is

4880descriptive only; the full language of each

4887statutory provision cited must be consulted

4893in order to determine the conduct included.

4900* * *

4903(c) Section 475.25(1)(b), F.S.- Guilty

4908of . . . concealment . . . .

4917* * *

4920In the case of concealment . . . , the usual

4930action of the Commission shall be to impose

4938a penalty of a 3 to 5 year suspension and an

4949administrative fine not to exceed $5,000.

4956* * *

4959(4)(a) When either the Petitioner or

4965Respondent is able to demonstrate

4970aggravating or mitigating

4973circumstances . . . to a Division of

4981Administrative Hearings [Administrative Law

4985Judge] in a Section 120.57(1), F.S., hearing

4992by clear and convincing evidence, the . . .

5001[Administrative Law Judge] shall be entitled

5007to deviate from the above guidelines

5013in . . . recommending discipline, . . . upon

5023a licensee. . . .

5028(b) Aggravating or mitigating circumstances

5033may include, but are not limited to, the

5041following:

50421. The degree of harm to the consumer or

5051public.

50522. The number of counts in the

5059Administrative Complaint.

50613. The disciplinary history of the

5067licensee.

50684. The status of the licensee at the time

5077the offense was committed.

50815. The degree of financial hardship

5087incurred by a licensee as a result of the

5096imposition of a fine or suspension of the

5104license.

51056. Violation of the provision of Chapter

5112475, F.S., wherein a letter of guidance as

5120provided in Section 455.225(3), F.S.,

5125previously has been issued to the licensee.

5132* * *

513574. The Amended Administrative Complaint issued in the

5143instant case alleges that Respondent violated Section

5150475.25(1)(b), Florida Statutes, by "conceal[ing] from [the

5157Hernandezes] that the sale and purchase agreement [concerning

5165the Subject Property that they entered into with the Mendeses]

5175was a back up contract." 23

518175. At all times material to the instant case, Section

5191475.25(1)(b), Florida Statutes, has authorized the Commission to

5199take disciplinary action against a Florida-licensed real estate

5207sales associate who:

5210[h]as been guilty of . . . concealment . . .

5221It is immaterial to the guilt of the

5229licensee that the victim or intended victim

5236of the misconduct has sustained no damage or

5244loss; that the damage or loss has been

5252settled and paid after discovery of the

5259misconduct; or that such victim or intended

5266victim was a customer or a person in

5274confidential relation with the licensee or

5280was an identified member of the general

5287public.

528876. For there to be "concealment" in violation of Section

5298475.25(1)(b), Florida Statutes, there must be wrongful intent or

5307scienter. See Munch v. Department of Professional Regulation ,

5315592 So. 2d 1136, 1143-44 (Fla. 1st DCA 1992)("It is clear that

5328Section 475.25(1)(b) Florida Statutes, which, in its first

5336clause, authorizes the Commission to discipline a licensee

5344guilty of fraud, misrepresentation, concealment, false promises,

5351false pretenses, dishonest dealing by trick, scheme or device,

5360culpable negligence, or breach of trust in any business

5369transaction is penal in nature. As such, it must be construed

5380strictly, in favor of the one against whom the penalty would be

5392imposed. . . . Reading the first clause of Section 475.25(1)(b)

5403(the portion of the statute which appellant was charged with

5413having violated in Count I of the complaint), and applying to

5424the words used their usual and natural meaning, it is apparent

5435that it is contemplated that an intentional act be proved before

5446a violation may be found."); and Morris v. Department of

5457Professional Regulation , 474 So. 2d 841, 843 (Fla. 5th DCA

54671985)(grounds of "'fraud, misrepresentation, concealment, false

5473promises, dishonest dealing by trick, scheme or device, culpable

5482negligence and breach of trust in a business transaction in

5492violation of section 475.25(1)(b) . . . alleged by the complaint

5503all require a finding of wrongful intent or scienter . . . .").

551777. The wrongful intent or scienter required to establish

5526a violation of Section 475.25(1)(b), Florida Statutes, may be

5535proven by circumstantial evidence. See Walker v. Department of

5544Business and Professional Regulation , 705 So. 2d 652, 654 (Fla.

55545th DCA 1998)("DBPR presented undisputed circumstantial evidence

5562that Walker's acts were intentional."); and Baker v. State , 639

5573So. 2d 103, 104 (Fla. 5th DCA 1994)("Intent is an operation of

5586the mind and is not subject to direct proof, however, intent can

5598be proven by circumstantial evidence."). For instance, it may

5608be inferred from the licensee's actions. See Baptiste v. State ,

5618895 So. 2d 1193, 1194 (Fla. 3d DCA 2005)("On appeal, Baptiste

5630asserts that the state failed to prove beyond a reasonable doubt

5641that he knew or intended that Scooter would shoot the victim.

5652However, where there is no direct evidence of intent, it can be

5664inferred from the circumstances and from the defendant's

5672actions."); Swanson v. State , 713 So. 2d 1097, 1101 (Fla. 4th

5684DCA 1998)("Appellant's actions are sufficient to show intent to

5694participate."); State v Breland , 421 So. 2d 761, 766 (Fla. 4th

5706DCA 1982) ("Actions manifest intent."); G. K. D. v. State , 391

5719So. 2d 327, 328-29 (Fla. 1st DCA 1980)("Appellant testified that

5730he did not intend to break the window, but the record indicates

5742that he did willfully kick the window, and he may be presumed to

5755have intended the probable consequences of his actions."); and

5765State v. West , 262 So. 2d 457, 458 (Fla. 4th DCA 1972)("Intent

5778is not usually the subject of direct proof. It is inferred from

5790the acts of the parties and from the surrounding

5799circumstances.").

580178. In the instant case, Petitioner established by clear

5810and convincing evidence that Respondent engaged in the wrongful

5819concealment alleged in the Amended Administrative Complaint and,

5827in so doing, violated Section 475.25(1)(b), Florida Statutes.

5835That Respondent acted knowingly, with the intent to deceive, in

5845concealing from the Hernandezes the "back-up" nature of their

5854contract is apparent from the totality of Respondent's actions,

5863including, perhaps most significantly, his subsequent efforts to

5871cover-up the concealment by creating a fraudulent contract

5879document (the Purported Hernandez Contract) and then lying about

5888how it was created. See Baena v. Woori Bank , 515 F. Supp. 2d

5901414, 421-22 (S.D. N.Y. 2007)("The significance of the subsequent

5911alleged lies is that they speak to whether defendants acted with

5922scienter --an intent to deceive at an earlier point in time.

5933The subsequent lies --the cover up--, if proven, would be strong

5944circumstantial evidence of a bank's state of mind and intentions

5954at the time of entry into the two sets of agreements. . . .

5968Here, it is difficult to conjure up many innocent explanations

5978for a lie about the existence of a second set of agreements.

5990One who had entered into two sets of agreements innocently and

6001without intent to facilitate the original fraud would be less

6011likely to have lied about them when inquiry was later made.");

6023In re Nature's Sunshine Products Security Litigation , 486 F.

6032Supp. 2d 1301, 1310 (D. Utah 2007)("Evidence that a defendant

6043has taken steps to cover-up a misdeed is strong proof of

6054scienter."); and Spoljaric v. Percival Tours, Inc. , 708 S.W.2d

6064432, 434 (Tex. 1986)("While a party's intent is determined at

6075the time the party made the representation, it may be inferred

6086from the party's subsequent acts after the representation is

6095made.").

609779. Florida Administrative Code Rule 61J2-24.001(3)(c) has

6104provided at all times material to the instant case that where,

6115as in the instant case, an alleged "concealment" (proscribed by

6125Section 475.25(1)(b), Florida Statutes) has been proven, the

"6133usual action of the Commission" is the imposition of "a penalty

6144of a 3 to 5 year suspension and an administrative fine not to

6157exceed $5,000."

616080. Having considered the facts of the instant case in

6170light of this rule provision and the remaining pertinent and

6180applicable provisions of Florida Administrative Code Rule 61J2-

618824.001, it is the view of the undersigned that the Commission

6199should discipline Respondent for his "concealment" by suspending

6207his license for a period of four years and fining him

6218$1,000.00. 24 The Commission should also order Respondent,

6227pursuant to Section 455.227(3), Florida Statutes, to reimburse

6235Petitioner for its reasonable investigative costs in this case.

"6244Due process considerations require, however, that Respondent be

6252given the opportunity to examine and question the reasonableness

6261of such costs before any are imposed." Department of Health,

6271Board of Nursing v. Howard , No. 02-0397PL, 2002 Fla. Div. Adm.

6282Hear. LEXIS 1310 *10 (Fla. DOAH October 30 2002)(Recommended

6291Order).

6292RECOMMENDATION

6293Based upon the foregoing Findings of Fact and Conclusions

6302of Law, it is hereby

6307RECOMMENDED that the Commission issue a Final Order finding

6316Respondent guilty of "concealment" in violation of Section

6324475.25(1)(b), Florida Statutes, as alleged in the Amended

6332Administrative Complaint and disciplining him for having

6339committed this violation by suspending his license for four

6348years, fining him $1,000.00, and requiring that he reimburse

6358Petitioner for its reasonable investigative costs in this case.

6367DONE AND ENTERED this 3rd day of March, 2010, in

6377Tallahassee, Leon County, Florida.

6381S

6382___________________________________

6383STUART M. LERNER

6386Administrative Law Judge

6389Division of Administrative Hearings

6393The DeSoto Building

63961230 Apalachee Parkway

6399Tallahassee, Florida 32399-3060

6402(850) 488-9675 SUNCOM 278-9675

6406Fax Filing (850) 921-6847

6410www.doah.state.fl.us

6411Filed with the Clerk of the

6417Division of Administrative Hearings

6421this 3rd day of March, 2010.

6427ENDNOTES

64281 Unless otherwise noted, all references in this Recommended

6437Order to Florida Statutes are to Florida Statutes (2009).

64462 From April 1, 2002, through April 15, 2002, Respondent's

6456license was "invalid [by operation of law] due to non-renewal."

64663 Respondent was not at the Subject Property during the showing.

64774 At the time, Mr. Hernandez was in the United States military

6489and on active duty.

64935 On the line next to (immediately to the right of) the "Other"

6506box, he wrote, "mold."

65106 The "H. As is w/Right to Inspect" addendum read as follows:

6522H. As Is With Right to Inspect : This

6531clause replaces Paragraphs 6 and 8 of the

6539Contract but does not modify or replace

6546Paragraph 9. Paragraph 5(a), Repair, WDO

6552and Permit Limits are 0%. Seller makes no

6560warranties other than marketability of

6565title. Seller will keep the Property in the

6573same condition from Effective Date until

6579closing, except for normal wear and tear

6586("Maintenance Requirement"), and will convey

6593the Property in its "as is" condition with

6601no obligation to make any repairs. Buyer

6608may, at Buyer's expense, by 15 ("Inspection

6616Period") (within 10 days for Effective date

6624if left blank) make any and all inspections

6632of the Property. The inspection(s) will be

6639by a person who specializes in and holds an

6648occupational license (if required by law) to

6655conduct home inspections or who holds a

6662Florida license to repair and maintain the

6669items inspected. Buyer may cancel the

6675Contract by delivering written notice to

6681seller within 5 days (within 5 days if left

6690blank) from the end of the Inspection Period

6698if the cost of treatment and repairs

6705estimated by Buyer's inspector(s) is greater

6711than $1,000.00 ($250.00 if left blank) or if

6720Buyer's inspection(s) reveal open permits or

6726that improvements have been made to the

6733Property without required permits. For the

6739cancellation to be effective, Buyer must

6745include in the written notice a copy of the

6754portions of the inspector's written report

6760dealing with the items to be repaired, and

6768treatment and repair estimates from the

6774inspector or person(s) holding an

6779appropriate Florida license to repair the

6785items inspected or any written documentation

6791of open permit(s) or permits that have not

6799been obtained if a permit is required. Any

6807conditions not reported in a timely manner

6814will be deemed acceptable to Buyer. If

6821Buyer fails to timely conduct any inspection

6828which Buyer is entitled to make under this

6836paragraph, Buyer waives the right to the

6843inspection and accepts the Property "as is."

6850Seller will provide access and utilities for

6857Buyer's inspections. Buyer will repair all

6863damages to the Property resulting from the

6870inspections and return the Property to its

6877pre-inspection condition. Buyer and/or

6881Buyer's representative may, on the day

6887before Closing Date or any other time

6894agreeable to the parties, walk through the

6901Property solely to verify that Seller has

6908fulfilled the Maintenance Requirement and

6913the contractual obligations.

69167 As part of their Contract Offer, the Hernandezes put down a

6928deposit of $3,000.00. The deposit was held in escrow by

6939Coldwell Banker.

69418 Mr. Shapiro filled in (in the spaces provided) the time and

6953date by which the Contract Offer had to be signed by the

6965Mendeses and returned to the Hernandezes. The remainder of

6974numbered lines 412 through 416 was pre-printed.

69819 The Genuine Hernandez Contract was offered and received into

6991evidence as Petitioner's Exhibit 4.

699610 Although the Hernandezes had the right (pursuant to the

"7006Offer and Acceptance" provision of the Contract Offer) to

7015revoke their offer after 5:00 p.m. on January 21, 2008, they

7026chose not to exercise this right and opted instead to go ahead

7038with their purchase of the Subject Property on the terms they

7049had offered and the Mendeses (albeit belatedly) had accepted.

7058See , e.g. , Ocean Atlantic Development Corp. v. Aurora Christian

7067Schools, Inc. , 322 F.3d 983, 997 (7th Cir. 2003)("One question

7078that we must address at the outset is whether Ocean Atlantic's

7089offer to the Koniceks is necessarily a nullity because the

7099Koniceks did not sign it until the offer, by its own terms, had

7112already expired. The offer specified that if not signed and

7122returned to Ocean Atlantic within five days, it 'shall be null

7133and void.' The offer was dated May 24, 2000, but the Koniceks

7145did not sign it and return it to Ocean Atlantic until May 31,

71582000--two days beyond the deadline for acceptance. Isenstein-

7166Pasquinelli and the Koniceks assert that this alone renders the

7176offer unenforceable. But as Ocean Atlantic aptly points out, a

7186provision of this sort serves to protect the offeror, and the

7197offeror may, should it so choose, elect to waive strict

7207compliance with the time limit. Here it would appear that

7217notwithstanding the Koniceks' failure to sign and return the

7226offer within the time provided, Ocean Atlantic was nonetheless

7235prepared to overlook their tardiness and proceed with the

7244preparation of a contract. Under these circumstances, we cannot

7253say, as a matter of law, that the offer was null and void simply

7267because the Koniceks did not sign it in a timely

7277fashion.")(citations omitted). The Hernandezes were under the

7285understandable impression at the time they made this choice to

7295proceed with the purchase that theirs was not a "back-up

7305contract."

730611 The Hernandezes obtained a loan commitment letter from their

7316lender on February 26, 2008, three days prior to the scheduled

7327closing.

732812 The Mendeses received the Hernandezes' Contract Offer before

7337the Garcia Contract was finalized. They chose to give the

7347Garcias, rather than the Hernandezes, first crack at purchasing

7356the Subject Property because of concerns they had that the

7366Hernandezes would have difficulty obtaining 100% financing to

7374make the purchase.

737713 Comment a. of The Restatement (Second) of Contracts, Section

7387146, provides that, "[w]here an owner of property makes two

7397[otherwise enforceable] agreements to sell the same property to

7406two different buyers . . . , the first in time ordinarily has

7418priority." In the instant case, as between the Garcia Contract

7428and the Genuine Hernandez Contract, the former was "first in

7438time."

743914 The Mendeses were moving to Brazil and wanted to sell the

7451Subject Property as quickly as possible. Having a "back-up"

7460contract with the Hernandezes at the ready would have minimized

7470the delay in the sales process should the Garcias for any reason

7482not have been able to close on the property. Moreover, the

7493Genuine Hernandez Contract, from a seller's perspective, was

7501slightly more attractive, monetarily, than the Garcia Contract,

7509and it would have provided Tenzer Realty (and therefore also

7519Respondent) with a larger commission payout.

752515 See Dullea v. Department of Business Regulation , 599 So. 2d

7536207, 208 (Fla. 2d DCA 1992)("It also appears that the appellant

7548would be eligible to recover based upon Waddle's violation of a

7559duty imposed upon him by law, namely the duty of honesty,

7570candor, and fair-dealing imposed upon real estate brokers and

7579salespersons, even where there is no principal-agent

7586relationship between the broker and seller."); Ellis v. Flink ,

7596301 So. 2d 493, 494 (Fla. 2d DCA 1974)("We need not decide here

7610whether the record below conclusively demonstrated a genuine

7618issue of fact as to agency, because, as a matter of law, that

7631issue could not be material. The law of Florida is very clear

7643that the defendants, as real estate broker and salesmen, owed

7653the Flinks, a duty of honesty, candor, and fair-dealing (which

7663they obviously breached) even if there were no principal-agent

7672relationship at all."); and Department of Business and

7681Professional Regulation, Division of Real Estate, v. Shad ,

7689No. 98-5636, 1999 Fla. Div. Adm. Hear. LEXIS 5799 *9 (Fla. DOAH

7701April 9, 1999)(Recommended Order)("Petitioner has proven the

7709violation by clear and convincing evidence, in that Respondent

7718intended to withhold the information concerning the findings in

7727the termite inspection report involved in the business

7735transaction. In this connection, Respondent had the duty of

7744honesty, candor, and fair dealing with the Bampings and

7753Ms. Irons, in carrying out his obligation to his client, the

7764Veteran's Administration, notwithstanding the lack of a

7771principal-agent relationship with those persons.").

777716 Contrary to the suggestion made by Respondent in his Proposed

7788Recommended Order, he did have a motive to conceal from the

7799Hernandezes that there was a pre-existing contract that had

7808priority over theirs: the elimination of the possibility that

7817the Hernandezes would reject such an arrangement and not agree

7827to be "back-up" buyers.

783117 The Purported Hernandez Contract was offered and received

7840into evidence at the final hearing as Petitioner's Exhibit 3.

785018 Although these three additional boxes in the "Addenda"

7859provision were checked, there was no checkmark in the "Counter

7869Offer" box on page 8 (to indicate that that there were "counter

7881offered terms").

788419 To the naked eye, the marks in these three boxes, compared to

7897the marks in the "F. VA Financing," the "H. As is w/Right to

7910Inspect," the "V. Prop. Disclosure Stmt.," and the "Other"

7919boxes, appear to be thicker, as if they had been written with a

7932different writing instrument.

793520 The absence of any such signatures or initials belies the

7946claim made by Respondent during his testimony at the final

7956hearing that the Hernandezes "accepted" these additional

7963contract terms.

796521 At the final hearing, Respondent testified otherwise

7973concerning the mark in this box. He claimed that the box had

7985been checked, not in error, but because Mr. Mendes had an

7996inactive real estate license. Respondent explained that he had

"8005always been trained to check that box even if the person had an

8018inactive license." If this were true, one would expect to find

"8029that box" also checked on the Garcia Contract, which it was

8040not.

8041Concerning the mark in the "I. Inspections" box on the

8051Purported Hernandez Contract, Respondent testified that the

8058Mendeses checked this box "because they wanted to make sure that

8069[the Hernandezes] couldn't come back and break the deal."

8078According to Respondent's testimony, if this box was checked,

8087the buyer (in this case, the Hernandezes) would "have a certain

8098timeframe" beyond which "they could not back out of the

8108contract" based on the results of an inspection. There was no

8119need, however, for the Mendeses to add such a provision inasmuch

8130as the "H. As is w/Right to Inspect" addendum that the

8141Hernandezes had attached to their Contract Offer already

8149provided the Mendeses with this protection. Further detracting

8157from the credibility of Respondent's testimony on this matter is

8167the fact that the "I. Inspections" addendum, which Respondent

8176claimed the Mendeses insisted on including in their contract

8185with the Hernandezes, was not included in the Mendeses' contract

8195with the Garcias.

8198Respondent evidently believed that by also checking the "I.

8207Inspections" box and the "Q. Broker - Pers. Int. in Prop." box

8219on the Purported Hernandez Contract (as opposed to just checking

8229the "P. Back-up Contract" box) he would give the document a

8240greater air of legitimacy and increase the chances that his

8250fraudulent alteration of the Genuine Hernandez Contract would go

8259undetected. As it turned out, however, this ploy only made his

8270deceit more obvious.

827322 Respondent would not have had in his possession the Genuine

8284Hernandez Contract (which was dated and signed by the Mendeses

8294on July 23, 2008, and did not have, in its "Addenda" provision,

8306a mark in either the "I. Inspections," the "P. Back-up

8316Contract," or the "Q. Broker - Pers. Int. in Prop." box) if the

8329Mendeses had checked these boxes when he had gone over the

8340Contract Offer with them on that date, as Respondent testified

8350that they had done.

835423 Although the Amended Administrative Complaint further alleged

8362that Respondent also "concealed from [the Hernandezes] that

8370[Mr.] Tenzer had an interest in the Subject Property," it

8380appears from a review of Petitioner's Proposed Recommended Order

8389that Petitioner has abandoned this additional allegation (which,

8397in any event, abandoned or not, was not proven at hearing).

840824 The undersigned has rejected, as too lenient, the six-month

8418suspension proposed by Petitioner in its Proposed Recommended

8426Order. Were the Commission to suspend Respondent for only six

8436months, it would be deviating downward from its "usual action"

8446(as established by Florida Administrative Code Rule 61J2-

845424.001(3)(c)) in "concealment" cases. The circumstances of the

8462instant case, however, do not justify any downward departure

8471from the normal penalty range established in the rule.

8480COPIES FURNISHED :

8483Patrick J. Cunningham, Esquire

8487Department of Business and

8491Professional Regulation

8493Division of Real Estate

8497400 West Robinson Street, Suite N-801

8503Orlando, Florida 32801

8506Steven W. Johnson, Esquire

851020 North Orange Avenue, Suite 700

8516Orlando, Florida 32801

8519Thomas W. O'Bryant, Jr., Director

8524Division of Real Estate

8528Department of Business and

8532Professional Regulation

8534400 West Robinson Street

8538Suite 802 North

8541Orlando, Florida 32801

8544Reginald Dixon, General Counsel

8548Department of Business and

8552Professional Regulation

8554Northwood Centre

85561940 North Monroe Street

8560Tallahassee, Florida 32399-0792

8563NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8569All parties have the right to submit written exceptions within

857915 days from the date of this Recommended Order. Any exceptions

8590to this Recommended Order should be filed with the agency that

8601will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 06/14/2010
Proceedings: Agency Final Order
PDF:
Date: 06/14/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 03/03/2010
Proceedings: Recommended Order
PDF:
Date: 03/03/2010
Proceedings: Recommended Order (hearing held January 14, 2010). CASE CLOSED.
PDF:
Date: 03/03/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/25/2010
Proceedings: (Respondent's) Proposed Recommended Order filed.
PDF:
Date: 02/18/2010
Proceedings: (Petitioner's) Proposed Recommended Order filed.
Date: 01/29/2010
Proceedings: Transcript filed.
PDF:
Date: 01/14/2010
Proceedings: Order Severing Cases and Closing File in DOAH Case No. 09-5220PL.
Date: 01/14/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/06/2010
Proceedings: Respondent's Unilateral Filing of Prehearing Stipulation filed.
PDF:
Date: 01/05/2010
Proceedings: Petitioner and Respondent Tenzer's Pre-hearing Statement filed.
PDF:
Date: 12/10/2009
Proceedings: Notice of Appearance and Substitute of Counsel (of P. Cunningham) filed.
PDF:
Date: 11/12/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for January 14, 2010; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 11/04/2009
Proceedings: Motion to Continue and Re-schedule Formal Hearing filed.
PDF:
Date: 10/19/2009
Proceedings: Petitiomer's Notice of Filing Petitioner's Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 10/16/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for December 11, 2009; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 10/16/2009
Proceedings: Order of Consolidation (DOAH Case Nos. 09-5219PL and 09-5220PL).
PDF:
Date: 10/15/2009
Proceedings: Index to Petitioner's Formal Hearing Exhibits filed.
PDF:
Date: 10/15/2009
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 10/15/2009
Proceedings: Amended Motion to Consolidate and to Order a New Hearing Date filed.
PDF:
Date: 10/12/2009
Proceedings: Motion to Consolidate and to Order a New Hearing Date filed.
PDF:
Date: 10/05/2009
Proceedings: Respondent's Compliance with Initial Order filed.
PDF:
Date: 10/05/2009
Proceedings: Order Directing Filing of Exhibits
PDF:
Date: 10/05/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/05/2009
Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 24, 2009; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 09/23/2009
Proceedings: Initial Order.
PDF:
Date: 09/23/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/23/2009
Proceedings: Election of Rights filed.
PDF:
Date: 09/23/2009
Proceedings: Agency referral filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
09/23/2009
Date Assignment:
01/12/2010
Last Docket Entry:
06/14/2010
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):