10-000389PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Heriberto Alonso
 Status: Closed
Recommended Order on Tuesday, June 8, 2010.


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Summary: Respondent found guilty of "concealment" for failing to inform sellers of properties that selling price had been increased significantly over their asking price and agreed-contract price.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 10-0389PL

30)

31HERIBERTO ALONSO, )

34)

35Respondent. )

37)

38RECOMMENDED ORDER

40Pursuant to notice, a formal hearing was held in this case

51before Larry J. Sartin, an Administrative Law Judge of the

61Division of Administrative Hearings, on April 2, 2010, by video

71teleconference between Lauderdale Lakes and Tallahassee,

77Florida.

78APPEARANCES

79For Petitioner: Jennifer Blakeman, Senior Attorney

85Department of Business and

89Professional Regulation

91400 West Robinson Street, Suite N-801

97Orlando, Florida 32801

100For Respondent: Heriberto Alonso, pro se

10611336 Southwest 75th Terrace

110Miami, Florida 33173

113STATEMENT OF THE ISSUE

117The issue in this case is whether Respondent, Heriberto

126Alonso, violated Section 475.25(1)(b), Florida Statutes (2005-

1332006), as alleged in a one-count Administrative Complaint filed

142with the Petitioner, Department of Business and Professional

150Regulation, and, if so, what disciplinary action should be taken

160against his Florida real estate associate license.

167PRELIMINARY STATEMENT

169On March 17, 2009, a one-count Administrative Complaint,

177issued in FDBPR Case No. 2007038214, was filed with Petitioner,

187Department of Business and Professional Regulation, against

194Respondent, Heriberto Alonso, who holds a Florida real estate

203associate license. It is alleged in the Administrative

211Complaint that Respondent violated Section 475.25(1)(b), Florida

218Statutes (2005-2006).

220On or about January 26, 2010, Respondent filed an Election

230of Rights form disputing the material facts of the

239Administrative Complaint and requesting a formal administrative

246hearing.

247On January 26, 2010, Petitioner filed the Administrative

255Complaint, Respondent’s Election of Rights form, and a letter

264requesting that an administrative law judge be assigned to hear

274the matter. The request for hearing was designated DOAH Case

284No. 10-0389PL and was assigned to the undersigned.

292A Notice of Hearing by Video Teleconference was entered

301February 4, 2010, scheduling the final hearing for April 2,

3112010.

312At the final hearing, Petitioner presented the testimony of

321Mark Saracino, Suzanne Lloyd, Yvette Murphy, Esquire, Victor

329Ulloa, and Doug Dewitt. Petitioner also had admitted

337Petitioner’s Exhibits 1 through 17. Mr. Dewitt, Mr. Saracino,

346and Ms. Lloyd were also called in rebuttal.

354Respondent presented the testimony of Mr. Ulloa and

362testified on his own behalf.

367The Transcript of the final hearing was filed with the

377Division of Administrative Hearings on May 5, 2010. The same

387day, a Notice of Filing Transcript was entered informing the

397parties of the filing of the Transcript. The parties were also

408informed, consistent with their agreement at hearing and the

417undersigned’s order, that proposed recommended orders were to be

426filed on or before May 21, 2010.

433Petitioner filed Petitioner’s Proposed Recommended Order on

440May 17, 2010. Respondent filed a one-page letter on April 15,

4512010, and on May 24, 2010, filed another one-page letter

461suggesting that Petitioner’s post-hearing submittal was filed

468late. Respondent’s suggestion is, based upon a review of the

478Transcript, incorrect. Accordingly, Petitioner’s Proposed

483Recommend Order and Respondent’s first letter have been fully

492considered in preparing this Recommended Order.

498The events at issue in this case took place throughout

5082006. Therefore, the 2005 and 2006 editions of Florida Statutes

518apply. There being no material difference between those

526editions, all further references to the Florida Statutes in this

536Recommended Order are to the 2006 edition, unless otherwise

545noted.

546FINDINGS OF FACT

549A. The Parties .

5531. Petitioner, the Department of Business and Professional

561Regulation, Division of Real Estate (hereinafter referred to as

570Section 20.165, Florida Statutes. The Division is charged with

579the responsibility for the regulation of the real estate

588industry in Florida pursuant to Chapters 455 and 475, Florida

598Statutes.

5992. Respondent, Heriberto Alonso, was at the times material

608to this matter, the holder of a Florida real estate associate

619license, license number 3037527, issued by the Division.

6273. At the times relevant, Mr. Alonso was an active sales

638associate with The Keyes Company, 690 Lincoln Road No. 300,

648Miami Beach, Florida 33139.

652B. The “Frow Avenue Property” Listing Agreement .

6604. On or about March 9, 2006, Mr. Alonso entered into a

672listing agreement with Mark Saracino and Suzanne Lloyd, husband

681and wife, whereby Mr. Alonso agreed to list property they owned

692located at 106 Frow Avenue, Coral Gables, Florida (hereinafter

701referred to as the “Frow Avenue Property”).

7085. Pursuant to the listing agreement for the Frow Avenue

718Property, the property was to be listed by Mr. Alonso on the MLS

731for $359,000.00.

7346. Consistent with the listing agreement for the Frow

743Avenue Property, the property was listed on the MLS on March 10,

7552006, for $359,000.00.

759C. The “Thomas Avenue Property” Listing Agreement .

7677. On or about March 14, 2006, Mr. Alonso entered into a

779listing agreement with Mr. Saracino and Ms. Lloyd, whereby

788Mr. Alonso agreed to list property they owned located at 3837

799Thomas Avenue, Miami, Florida (hereinafter referred to as the

808“Thomas Avenue Property”).

8118. Pursuant to the listing agreement for the Thomas Avenue

821Property, the property was to be listed by Mr. Alonso on the MLS

834for $350,000.00.

8379. Consistent with the listing agreement for the Thomas

846Avenue Property, the property was listed on the MLS on March 21,

8582006, for $350,000.00.

862D. Sale of the Frow Avenue and Thomas Avenue Properties .

87310. In June of 2006, Ms. Lloyd entered into a sale and

885purchase contract with Reinaldo Gonzalez whereby it was agreed

894that the Frow Avenue Property would be sold to Mr. Gonzalez for

906$329,000.00. At the same time, Mr. Saracino entered into a sale

918and purchase contract with Mr. Gonzalez, whereby it was agreed

928that the Thomas Avenue Property would be sold to Mr. Gonzalez

939for $325,000.00.

94211. Without the knowledge or permission of Mr. Saracino

951and/or Ms. Lloyd, on July 26, 2006, Mr. Alonso raised the

962listing price on each property to $450,000.00.

97012. Mr. Saracino and Ms. Lloyd first learned of the

980increased listing price when they appeared at the scheduled

989closing on the properties and were presented with closing

998documents with a sales price on each property of $450,000.00.

1009On the advice of counsel, Mr. Saracino and Ms. Lloyd refused to

1021complete the sale of the properties.

102713. Mr. Alonso’s testimony to the effect that he disclosed

1037the increase in the sales price of the properties prior to the

1049aborted closing is rejected as inconsistent with the credible

1058testimony of Mr. Saracino and Ms. Lloyd.

1065E. Cost of Investigation .

107014. The cost of investigating this matter totaled

1078$1,551.00.

1080CONCLUSIONS OF LAW

1083A. Jurisdiction .

108615. The Division of Administrative Hearings has

1093jurisdiction over the subject matter of this proceeding and of

1103the parties thereto pursuant to Sections 120.569 and 120.57(1),

1112Florida Statutes (2009).

1115B. The Burden and Standard of Proof .

112316. The Division seeks to impose penalties against

1131Mr. Alonso, pursuant to the Administrative Complaints, that

1139include the suspension or revocation of his real estate

1148associate license. Therefore, the Division has the burden of

1157proving the specific allegations of fact that support its

1166charges by clear and convincing evidence. See Department of

1175Banking and Finance, Division of Securities and Investor

1183Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

1195Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

1207Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

1218DCA 1998).

122017. What constitutes "clear and convincing" evidence was

1228described by the court in Evans Packing Co. v. Department of

1239Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

1250(Fla. 1st DCA 1989), as follows:

1256. . . [C]lear and convincing evidence

1263requires that the evidence must be found to

1271be credible; the facts to which the

1278witnesses testify must be distinctly

1283remembered; the evidence must be precise and

1290explicit and the witnesses must be lacking

1297in confusion as to the facts in issue. The

1306evidence must be of such weight that it

1314produces in the mind of the trier of fact

1323the firm belief or conviction, without

1329hesitancy, as to the truth of the

1336allegations sought to be established.

1341Slomowitz v. Walker , 429 So. 2d 797, 800

1349(Fla. 4th DCA 1983).

1353See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

1366Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

1377Department of Business and Professional Regulation , 705 So. 2d

1386652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

1393C. The Charges of the Administrative Complaint .

140118. Section 475.25, Florida Statutes, authorizes the

1408Division to discipline any Florida real estate licensee who

1417commits any of a number of offenses defined therein. In this

1428case, the Division has charged Mr. Alonso with having violated

1438Section 475.25(1)(b), Florida Statutes, which defines the

1445following offense:

1447(b) Has been guilty of fraud,

1453misrepresentation, concealment, false

1456promises, false pretenses, dishonest dealing

1461by trick, scheme, or device, culpable

1467negligence, or breach of trust in any

1474business transaction in this state or any

1481other state, nation, or territory; has

1487violated a duty imposed upon her or him by

1496law or by the terms of a listing contract,

1505written, oral, express, or implied, in a

1512real estate transaction; has aided,

1517assisted, or conspired with any other person

1524engaged in any such misconduct and in

1531furtherance thereof; or has formed an

1537intent, design, or scheme to engage in any

1545such misconduct and committed an overt act

1552in furtherance of such intent, design, or

1559scheme. It is immaterial to the guilt of the

1568licensee that the victim or intended victim

1575of the misconduct has sustained no damage or

1583loss; that the damage or loss has been

1591settled and paid after discovery of the

1598misconduct; or that such victim or intended

1605victim was a customer or a person in

1613confidential relation with the licensee or

1619was an identified member of the general

1626public. [Emphasis added].

162919. In the Administrative Complaint, it has only been

1638alleged that Mr. Alonso violated the portion of Section

1647475.25(1)(b), Florida Statutes, highlighted in paragraph 17.

165420. In Petitioner’s Proposed Recommended Order, the charge

1662against Mr. Alonso is further limited; it is argued by

1672Petitioner that the evidence proved that Mr. Alonso is guilty of

1683“misrepresentation, concealment and breach of trust” by raising

1691the listing price of the Frow Avenue and Thomas Avenue

1701Properties.

170221. For there to be “misrepresentation, concealment and

1710breach of trust” in violation of Section 475.25(1)(b), Florida

1719Statutes, there must be wrongful intent or scienter. See Munch

1729v. Department of Professional Regulation , 592 So. 2d 1136, 1143-

173944 (Fla. 1st DCA 1992); and Morris v. Department of Professional

1750Regulation , 474 So. 2d 841, 843 (Fla. 5th DCA 1985).

176022. The wrongful intent or scienter required to establish

1769a violation of Section 475.25(1)(b), Florida Statutes, may be

1778proven by circumstantial evidence. See , 705 So. 2d at 654; and

1789Baker v. State , 639 So. 2d 103, 104 (Fla. 5th DCA 1994).

180123. In the instant case, the Division established by clear

1811and convincing evidence that Mr. Alonso engaged in “concealment”

1820as alleged in the Administrative Complaint. Mr. Alonso, by his

1830failure to disclose the change in listing price for the

1840properties, concealed pertinent facts from Mr. Saracino and

1848Ms. Lloyd, facts they did not learn of until the aborted

1859closing, and, in so doing, violated Section 475.25(1)(b),

1867Florida Statutes. Respondent acted knowingly, with the intent

1875to deceive, in concealing the increase in the sales price of the

1887Frow Avenue Property from $329,000.00 to $450,000.00 and the

1898increase in the sales price of the Thomas Avenue Property from

1909$325,000.00 to $450,000. The Division, however, failed to prove

1920that Mr. Alonso made any “misrepresentation” to Mr. Saracino or

1930Ms. Lloyd, or that he committed a “breach of trust.”

1940D. The Appropriate Penalty .

194524. The only issue remaining for consideration is the

1954appropriate disciplinary action which should be taken by the

1963Florida Real Estate Commission (hereinafter referred to as the

1972“Commission”), against Mr. Alonzo for the violation proved by

1981the Division. To resolve this issue it is necessary to consult

1992the "disciplinary guidelines" of the Commission set forth in

2001Florida Administrative Code Chapter 61J2-24. Those guidelines

2008effectively place restrictions and limitations on the exercise

2016of the Commission’s disciplinary authority . See Parrot Heads,

2025Inc. v. Department of Business and Professional Regulation , 741

2034So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency

2045is bound by its own rules . . . creat[ing] guidelines for

2057disciplinary penalties."); and § 455.2273(5), Fla. Stat.

206525. The penalty guideline for “concealment” committed in

2073violation of Section 475.25(1)(b), Florida Statutes, is a three

2082to five year suspension and a fine of $1,000.00. Fla. Admin.

2094Code R. 61J2-24.001(3)(c).

209726. Florida Administrative Code Rule 61J2-24.001(4)

2103provides for the consideration of certain aggravating and

2111mitigating circumstances.

211327. In Petitioner’s Proposed Recommended Order, it has

2121been suggested that the recommended penalty should be the

2130revocation of Mr. Alonso’s license and the payment of a fine of

2142$1,000. It is argued in Petitioner’s Proposed Recommended Order

2152that revocation is appropriate due to the apparent “fraudulent”

2161nature of the matter, of which the increase in the sales price

2173of the properties was an important step. While it is likely

2184that fraud was involved, considering this possibility is not

2193proper for two reasons: Mr. Alonso was not put on notice that

2205he was being charged with doing anything improper other than

2215changing an agreed listing price without permission or knowledge

2224of the sellers; and the evidence was insufficient to prove that

2235Mr. Alonso was aware of any fraudulent activity.

224328. Based upon the foregoing, a suspension of one year,

2253the payment of a fine of $1,000.00, and payment of the

2265Division’s cost of investigation, are adequate penalties.

2272RECOMMENDATION

2273Based on the foregoing Findings of Fact and Conclusions of

2283Law, it is RECOMMENDED that a final order be entered by the

2295Commission:

22961. Finding that Heriberto Alonso, by his failure to

2305disclose the change in listing price for the properties, did

2315conceal pertinent facts from Mr. Saracino and Ms. Lloyd and, in

2326so doing, violated Section 475.25(1)(b), Florida Statutes; and

23342. Suspending his real estate associate’s license for a

2343period of one year, requiring the payment of a fine of

2354$1,000.00, and requiring the payment of the Division’s cost of

2365investigation.

2366DONE AND ENTERED this 8th day of June, 2010, in

2376Tallahassee, Leon County, Florida.

2380LARRY J. SARTIN

2383Administrative Law Judge

2386Division of Administrative Hearings

2390The DeSoto Building

23931230 Apalachee Parkway

2396Tallahassee, Florida 32399-3060

2399(850) 488-9675

2401Fax Filing (850) 921-6847

2405www.doah.state.fl.us

2406Filed with the Clerk of the

2412Division of Administrative Hearings

2416this 8th day of June, 2010.

2422COPIES FURNISHED :

2425Heriberto Alonso

242711336 Southwest 75th Terrace

2431Miami, Florida 33173

2434Jennifer Leigh Blakeman, Esquire

2438Department of Business &

2442Professional Regulation

2444400 West Robinson Street, Suite N-801

2450Orlando, Florida 32801

2453Thomas W. O’Bryant, Jr., Director

2458Division of Real Estate

2462Department of Business and

2466Professional Regulation

2468400 West Robinson Street

2472Hurston Building-North Tower, Suite N802

2477Orlando, Florida 32801

2480Reginald Dixon, General Counsel

2484Department of Business and

2488Professional Regulation

2490Northwood Centre

24921940 North Monroe Street

2496Tallahassee, Florida 32399-0792

2499NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2505All parties have the right to submit written exceptions within

251515 days from the date of this recommended order. Any exceptions

2526to this recommended order should be filed with the agency that

2537will issue the final order in these cases.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/14/2010
Proceedings: Agency Final Order
PDF:
Date: 10/14/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 06/08/2010
Proceedings: Recommended Order
PDF:
Date: 06/08/2010
Proceedings: Recommended Order (hearing held April 2, 2010). CASE CLOSED.
PDF:
Date: 06/08/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/24/2010
Proceedings: Letter to Judge Sartin from Heriberto Alonso regarding proposed court order filed.
PDF:
Date: 05/20/2010
Proceedings: Petitioner's Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 05/17/2010
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 05/05/2010
Proceedings: Notice of Filing Transcript.
Date: 05/05/2010
Proceedings: Transcript filed.
PDF:
Date: 04/15/2010
Proceedings: Letter to Mr.Sartin from H.Alonso regarding final statement filed.
Date: 04/02/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/24/2010
Proceedings: Petitioner's Supplemental Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 03/24/2010
Proceedings: Supplemental Index to Petitioner's Formal Hearing Exhibits filed.
PDF:
Date: 03/18/2010
Proceedings: Designation of Petitioner's Expert filed.
PDF:
Date: 03/04/2010
Proceedings: Index to Petitioner's Formal Hearing Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 03/04/2010
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 02/04/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/04/2010
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 2, 2010; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 02/02/2010
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 01/27/2010
Proceedings: Initial Order.
PDF:
Date: 01/26/2010
Proceedings: Election of Rights filed.
PDF:
Date: 01/26/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 01/26/2010
Proceedings: Agency referral filed.

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
01/26/2010
Date Assignment:
01/27/2010
Last Docket Entry:
10/14/2010
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

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