01-003128 Department Of Business And Professional Regulation, Division Of Real Estate vs. Elio M. Rodriguez And Coast To Coast Realty, Inc. Status: Closed Recommended Order on Thursday, January 31, 2002.

Summary: Real estate licensees made misleading representations and failed to timely deposit an escrow deposit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3128

)

ELIO M. RODRIGUEZ and COAST TO )

COAST REALTY, INC., )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 24, 2001, in Miami, Florida, before Claude B.

Arrington, a duly - designated Administrative Law Judge of the

Division of Admi nistrative Hearings.

APPEARANCES

For Petitioner: Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N308

Orlando, Florida 32801

For Respondents: Steven W. Johnson, Esquire

Steven W. Johnson, P.A.

1801 East Colonial Drive, Suite 10 1

Orlando, Florida 32803

STATEMENT OF THE ISSUES

Whether Respondents, a real estate broker and his

corporation, committed the offenses alleged in the

Administrative Complaint and the penalties, if any, that should

be imposed .

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondents that alleged certain facts pertaining to a

transaction involving Lepanto International as owner of a

residential building lot and CTC Development Corporation

(CTC Dev elopment) as the prospective purchaser. Respondent

Rodriguez is the sole owner of Respondent Coast to Coast Realty,

Inc. (CTC), and of CTC Development. The factual allegations

centered on a down payment that was to be placed in CTC’s escrow

account. Bas ed on those factual allegations, Petitioner charged

the following violations:

Counts I and II: Respondent Rodriguez and Respondent CTC,

respectively, failed to account and deliver funds in violation

of Section 475.25(1)(d)1, Florida Statutes;

Counts III and IV: Respondent Rodriguez and Respondent

CTC, respectively, failed to maintain trust funds in violation

of Section 475.25(1)(k), Florida Statutes;

Count V: Respondent Rodriguez is guilty of failure to

deposit money in escrow when the licensee is the p urchaser of

real estate, in violation of Section 475.25(1)(d)2, Florida

Statutes; and

Counts VI and VII: Respondent Rodriguez and Respondent

CTC, respectively, are guilty of misrepresentation, breach of

trust, or violation of duty imposed by law in any bu siness

transaction, in violation of Section 475.25(1)(b), Florida

Statutes.

Respondents requested a formal administrative hearing, the

matter was referred to the Division of Administrative Hearings,

and this proceeding followed.

Respondent Rodriguez di d not appear at the final hearing,

which was duly noticed for October 24, 2001, because he had an

automobile accident. Respondent’s counsel appeared at the final

hearing, but he was not aware of the accident until he

communicated with Respondent Rodriguez by telephone the day of

the hearing. Without objection, Petitioner’s witnesses

testified and were cross - examined, and Respondent was permitted

to testify by late - filed video deposition. The record in this

matter closed with the filing of the written tra nscript of

Respondent Rodriguez’s deposition on December 14, 2001. The

video of the deposition was filed on November 28, 2001.

At the final hearing, Petitioner presented the testimony of

John Esposito (an investigator employed by Petitioner); Ricardo

Mart inez - Cid (an attorney for the owner of the subject

property); and Angel Cabrera (the realtor for the owner of the

subject property). Petitioner's pre - marked Exhibits 1, 7, 11,

and 12 were offered and admitted into evidence. By Respondent

Rodriguez’s depo sition, Respondents offered five exhibits, pre -

marked Respondents’ Exhibits A - E. Those five exhibits have been

admitted into evidence by separate order.

A Transcript of the proceedings was filed on November 15,

2001. Each party filed a Proposed Recomm ended Order, which has

been duly - considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency

charged with the responsibility and duty to prosecute

administrative co mplaints pursuant to the laws of the State of

Florida, in particular Section 20.165 and Chapters 120, 455, and

475, Florida Statutes, and the rules promulgated pursuant

thereto.

2. At all times material to this proceeding, Respondent

Rodriguez has been a licensed real estate broker and the holder

of license number BK - 0596230.

3. At all times material to this proceeding Respondent

Rodriguez has been the sole owner and qualifying broker for

Respondent CTC, which is a real estate corporation and the

holde r of license number CQ - 1005507.

4. At all times material to this proceeding, Respondent

Rodriguez has been the sole owner of CTC Development. There was

no allegation that CTC Development was licensed by Petitioner.

5. At all times material to this p roceeding Angel Cabrera

was a licensed real estate broker affiliated with Principal

Realty, Inc.

6. At all times material to this proceeding, Mr. Cabrera

and his company represented Lepanto International, the owner of

property located at 251 North Cocon ut Lane, Miami, Florida (the

subject property). The subject property is a vacant oceanfront

residential building lot.

7. On December 3, 1999, Respondent Rodriguez presented to

Mr. Cabrera an offer to purchase the subject property. The

purchaser was to be CTC Development or assigns. 1 The offer was

memorialized in a four - page form contract copyrighted by the

Florida Association of Realtors and styled "'As Is' Sale and

Purchase Contract." 2

8. The initial offer submitted by CTC Development

contained th e material terms discussed below. The purchase

price was $500,000 with a down payment of $25,000 and the

balance of $475,000 being due at closing. Respondent CTC was

identified by the offer as being the escrow agent. The offer

reflected that Respondent CTC had received the sum of $10,000 as

part of the down payment, and Respondent Rodriguez, on behalf of

Respondent CTC, acknowledged by his signature receipt of that

deposit. 3 The remainder of the down payment, in the amount of

$15,000, was to be made on or before December 24, 1999. The

initial offer contained a clause that required the seller to

hold a second mortgage on the subject property in the amount of

$100,000. The initial offer also contained a provision that

Respondent CTC would receive a real estate commission of 3% of

the sales price.

9. Respondent Rodriguez faxed to Mr. Cabrera on December 3

or December 4, 1999, a copy of the front of check number 1076

from CTC Development to Respondent CTC in the amount of $10,000.

The check, dated Decem ber 3, 1999, reflected that it was a

deposit for the purchase of the subject property.

10. Respondent Rodriguez testified that he told

Mr. Cabrera that Respondent CTC did not have an escrow account

and that his attorney, Anibal Duarte, would serve as es crow

agent. Respondent Rodriguez testified that he faxed to

Mr. Cabrera a copy of the back of the check, which contained the

following:

DO NOT DEPOSIT: EXCHANGE CHECK FOR CASHIERS

CHECK OR MONEY ORDER. ASSIGNED TO ANIBAL J.

DUARTE, ESQ., TRUST ACCOUNT.

11. Mr. Cabrera testified that Respondent made no such

representation about the escrow agent and that he was not

provided a copy of the back of the check. Respondent

Rodriguez's self - serving testimony conflicts with the clear

language of the offer CTC D evelopment made to purchase the

subject property and with Mr. Cabrera's testimony. It is clear

from the record that the seller's agents believed that

Respondent CTC was acting as escrow agent, that Respondent CTC

had received the $10,000 deposit, and that Respondent CTC had

placed the deposit in its escrow account.

12. The representation that Respondent CTC would act as

the escrow agent was misleading. At no time material to this

proceeding did Respondent CTC have an escrow account, and at no

time did Respondent Rodriguez intend for Respondent CTC to serve

as escrow agent. Identifying Respondent CTC as the escrow agent

and representing that it had received the sum of $10,000 as part

of the down payment was also misleading because those

representations created the clear inference that the money was

being held in an escrow account. At no time material to this

proceeding did Respondents deposit, attempt to deposit, or

intend to deposit the $10,000 check from CTC Development to

Respondent CTC in an escrow account owned by Respondent CTC. 4

13. The misrepresentations as to Respondent CTC acting as

the escrow agent and as to Respondent CTC having received the

$10,000 deposit were made in an offer, not in an executed

contract.

14. After receiving the in itial offer from CTC

Development, the seller made a counter - offer. In addition to

several minor changes, the seller's agent deleted the provision

requiring the seller to hold a second mortgage, and he changed

the real estate commission for Respondent CTC from 3% to 2%.

The changes were made on the same form that CTC Development had

submitted. The provision pertaining to the second mortgage was

deleted by the use of whiteout. Before the counter - offer was

presented to Respondent Rodriguez, the seller's ag ent initialed

each change and Mr. Martinez - Cid reviewed the documents.

Thereafter, Mr. Cabrera met with Respondent Rodriguez and

presented the counter - offer to him.

15. Mr. Cabrera testified that Respondent Rodriguez agreed

to all changes, and that whe n he left Respondents' office, he

believed that the contract had been duly executed. Mr. Cabrera

testified that Respondent Rodriguez told him that everything was

okay with the contract and that Respondent Rodriguez did not

object to the terms of the contr act, including the deletion of

the provision regarding the second mortgage provision by the use

of whiteout or any other term of the contract.

16. Respondent Rodriguez testified that he agreed to the

reduced real estate commission, but that he did not a gree to the

deletion of the provision pertaining to the second mortgage.

Respondent Rodriguez initialed the change pertaining to the real

estate commission, but he did not initial the provision

pertaining to the second mortgage that had been deleted by th e

use of whiteout. 5 Respondent Rodriguez asserted that there was

no executed contract.

17. Respondent Rodriguez testified that Mr. Cabrera was

given a form styled "Miscellaneous Clauses Addendum" when he

visited Respondents' offices on or about Decembe r 4, 1999. The

Addendum, dated December 4, 1999, named Elio M. Rodriguez/CTC

Development Group, Inc., as owner, and Elio M. Rodriguez as

broker and supposedly modified CTC Development's initial offer

as follows:

1. Page 3 Additional Terms:

Buyer/broke r, & disclosure to be signed and

executed.

2. That a survey be provided, and a prior

[sic] title policy and or abstract for

title, prior to closing.

3. That Coast to Coast Realty, Inc.

holdes [sic] the check 1076 for $10,000 and

exchange for a cashie r [sic] check or money

order and assign to Anibal J. Duarte, Esq.

Trust Account once all documents are fully

executed.

4. That all contracts and addendum be

deliveryed [sic] in original signers [sic]

and that no whiteout be used.

5. That the subject lot must be buildable

for the use of a single - family residents

[sic] of no less than 3500 square feet.

6. That Coast to Coast Realty, Inc. will

receive a 3 per cent total in commission,

regardless owner/broker [sic].

18. Mr. Cabrera and Mr. Martinez - C id testified that they

never saw the addendum. The conflict in the evidence is

resolved by finding that the greater weight of the credible

evidence established that the addendum was not delivered to the

seller's agents. 6

19. Respondent Rodriguez test ified that on December 6,

1999, he faxed the following letter to Mr. Cabrera:

Please be advised that the current

contract and check 1076 for $10,000.00

DOLLARS [sic] is NOLL [sic] & VOID. Since

whiteout was used, the contract must be done

in its origina l form with out [sic]

whiteout.

Until that time no further negotiations

will take place. This is for my protection

as well as our [sic] sellers [sic].

20. Mr. Cabrera and Mr. Martinez - Cid testified that they

never saw the letter dated December 6, 19 99. The conflict in

the evidence is resolved by finding that the greater weight of

the credible evidence established that the letter was not

delivered to the seller's agents. 7

21. December 24, 1999, was the deadline for the remainder

of the down payment, in the amount of $15,000, to be deposited.

That deposit was not made. Mr. Cabrera testified that he talked

to Respondent Rodriguez several times about the deposit, and

that Respondent Rodriguez assured him that the deposit would be

made. Mr. Cabrera te stified that Respondent Rodriguez told him

that a woman from Respondents' office was sent to the bank to

make the deposit in early January 2000, but that the woman

returned without making the deposit because the lines at the

bank were too long.

22. On January 10, 2000, Kristine Acosta, an employee of

CTC Development, sent Mr. Carera the following letter regarding

the subject transaction:

Please be advised that due to

Mr. Rodriguez being hospitalized and absent

to complete the contract requirements he

hereby cancels the above mentioned contract.

Mr. Rodriguez has expressed that as soon

as he has recovered he will contact you

personally if you are still interested in

completing this transaction.

23. On January 14, 2000, Mr. Martinez - Cid faxed to

Res pondent CTC the following letter regarding the subject

transaction:

Under the contract, the second deposit is

long overdue. It was required on

December 23, 1999. Consequently, unless you

advise this office, as attorney for Lepanto

International, LC via (305)858 - 2513, of your

receipt of the second deposit, in the amount

of $15,000, by [sic] on or before 5:00 p.m.

on Monday, January 17, 2000, demand is

hereby made for the tender of the initial

$10,000 deposit, as full liquidated damages.

24. In response to letter dated January 14, 2000, from

Mr. Martinez - Cid, Respondent Rodriguez, as president of

Respondent CTC asserted the following:

Please be advised that the contract in

question was never fully executed by both

parties and or [sic] completed and the refore

this contract is not enforceable.

25. The conflict as to whether a contract did or did not

exist is resolved by finding that Petitioner failed to prove by

clear and convincing evidence that there was an executed

contract. This finding is based on the fact that the buyer did

not initial the provision pertaining to the second mortgage that

had been deleted by the use of whiteout.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

27. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994).

28. Section 475.25(1), Florida Statutes, provides, in

pertinent part, as follows:

(1) The commission may deny an

applic ation for licensure, registration, or

permit, or renewal thereof; may place a

licensee, registrant, or permittee on

probation; may suspend a license,

registration, or permit for a period not

exceeding 10 years; may revoke a license,

registration, or permit ; may impose an

administrative fine not to exceed $1,000 for

each count or separate offense; and may

issue a reprimand, and any or all of the

foregoing, if it finds that the licensee,

registrant, permittee, or applicant:

29. Counts I and II charge Respon dents with violating

Section 475.25(1)(d)1, Florida Statutes, which provides as

follows:

(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 t he

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 . . .

which has come into the licensee's hands and

which is not the licensee's property or

whic h the licensee is not in law or

equity entitled to retain under the

circumstances. . . .

30. Respondents are not guilty of the violations alleged

in Counts I and II because the contract was never fully

executed. Petitioner failed to establish by clear and

convincing evidence that Mr. Martinez - Cid, on behalf of Lecanto,

was entitled to an accounting of the $10,000 down payment that

should have been placed in Respondent CTC's escrow account.

Consequently, no violations of Section 475.25(1)(d)1, Florida

Statutes should be found.

31. Counts III and IV charge Respondents with violating

Section 475.25(1)(k), Florida Statutes, which provides as

follows:

(k) Has failed, if a broker, to

immediately place, upon receipt, any money,

fund, deposit, check, or draft entrusted to

her or him by any person dealing with her or

him as a broker in escrow with a title

company, banking institution, credit union,

or savings and loan association located and

doing business in this state, or to deposit

such funds in a trust or escrow account

maintained by her or him with some bank,

credit union, or savings and loan

association located and doing business in

this state, wherein the funds shall be kept

until disbursement thereof is properly

authorized. . . .

32. Petitioner pr oved these alleged violations by clear

and convincing evidence. Respondents had a clear duty to

promptly deposit the funds it received from CTC Development in

an appropriate escrow account, and they failed to do so.

33. Count V charges Respondent Rodrig uez with violating

Section 475.25(1)(d)2, Florida Statutes, which provides as

follows:

2. Has failed to deposit money in an

escrow account when the licensee is the

purchaser of real estate under a contract

where the contract requires the purchaser to

pl ace deposit money in an escrow account to

be applied to the purchase price if the sale

is consummated.

34. Respondent Rodriguez is not guilty of this alleged

violation because he was not the purchaser. Although Respondent

Rodriguez owns CTC Development, Petitioner presented no evidence

that would justify ignoring the fact that CTC is a separate and

distinct legal entity.

35. Counts VI and VII charge Respondents with violating

Section 475.25(1)(b), Florida Statutes, which provides as

follows:

(b) H as been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest dealing

by trick, scheme, or device, culpable

negligence, or breach of trust in any

business transaction in this state or any

other state, nation, or territ ory; has

violated a duty imposed upon her or him by

law or by the terms of a listing contract,

written, oral, express, or implied, in a

real estate transaction; has aided,

assisted, or conspired with any other person

engaged in any such misconduct and in

f urtherance thereof; or has formed an

intent, design, or scheme to engage in any

such misconduct and committed an overt act

in furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the licensee that the victim or intended

victim o f the misconduct has sustained no

damage or loss; that the damage or loss has

been settled and paid after discovery of the

misconduct; or that such victim or intended

victim was a customer or a person in

confidential relation with the licensee or

was an id entified member of the general

public.

36. Petitioner established that Respondents made

misleading statements by representing that Respondent CTC would

serve as the escrow agent and by stating that it had received

the $10,000 deposit, which infers that t he deposit would be

placed in the escrow account of Respondent CTC, which did not

exist.

37. Rule 61J2 - 24.001, Florida Administrative Code,

contains the following disciplinary guidelines that should be

applied to the violations found above:

(1) Purs uant to s. 455.2273, Florida

Statutes, the Commission sets forth below a

range of disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapters 455

or 475, Florida Statutes. The purpose of

the discip linary guidelines is to give

notice to licensees of the range of

penalties which normally will be imposed for

each count during a formal or an informal

hearing. For purposes of this rule, the

order of penalties, ranging from lowest to

highest, is: reprima nd, fine, probation,

suspension, and revocation or denial.

Pursuant to s. 475.25(1), Florida Statutes,

combinations of these penalties are

permissible by law. Nothing in this rule

shall preclude any discipline imposed upon a

licensee pursuant to a stipul ation or

settlement agreement, nor shall the range of

penalties set forth in this rule preclude

the Probable Cause Panel from issuing a

letter of guidance.

(2) As provided in s. 475.25(1), Florida

Statutes, the Commission may, in addition to

other disc iplinary penalties, place a

licensee on probation. The placement of the

licensee on probation shall be for such a

period of time and subject to such

conditions as the Commission may specify.

Standard probationary conditions may

include, but are not limit ed to, requiring

the licensee: to attend pre - licensure

courses; to satisfactorily complete a pre -

licensure course; to attend post - licensure

courses; to satisfactorily complete a post -

licensure course; to attend continuing

education courses; to submit to an d

successfully complete the state - administered

examination; to be subject to periodic

inspections and interviews by a DPR

investigator; if a broker, to place the

license on a broker - salesperson status; or,

if a broker, to file escrow account status

reports with the Commission or with a DPR

investigator at such intervals as may be

prescribed.

(3) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to paragraph

(4) The verbal identification of offenses

is descriptiv e only; the full language of

each statutory provision cited must be

consulted in order to determine the conduct

included.

38. Rule 61J2 - 24.001(3)(c), Florida Administrative Code,

provides the guideline for a violation of Section 475.25(1)(b),

Florida Sta tutes. In the case of fraud, misrepresentation, and

dishonest dealing, the usual action of the Commission shall be

to impose a penalty of revocation. In the case of concealment,

false promises, and false pretenses, the usual action of the

Commission shal l be to impose a penalty of a three to five year

suspension and an administrative fine of $1,000. In the case of

culpable negligence and breach of trust, the usual action of the

Commission shall be to impose a penalty from a $1,000 fine to a

one year susp ension. In the case of violating a duty imposed by

law or a listing agreement; aided, assisted or conspired; or

formed an intent, design or scheme to engage in such misconduct,

the usual action of the Commission shall be to impose a penalty

from a $1,000 fine to a five - year suspension.

39. Rule 61J2 - 24.001(3)(e), Florida Administrative Code,

provides the guideline for a violation of Section 475.25(1)(d),

Florida Statutes. The usual action of the Commission shall be

to impose a penalty of an administrati ve fine of $1,000 to a

five - year suspension.

40. Rule 61J2 - 24.001(3)(i), Florida Administrative Code,

provides the guideline for a violation of Section 475.25(1)(k),

Florida Statutes: a minimum of a 90 day suspension and $1,000

fine up to revocation.

41. Rule 61J2 - 24.001(4)(b), Florida Administrative Code,

provides the following may be considered as aggravating or

mitigating circumstances in determining the penalties to be

imposed for violations such as the ones found herein:

(4)(b) Aggravating or mit igating

circumstances may include, but are not

limited to, the following:

1. The severity of the offense.

2. The degree of harm to the consumer or

public.

3. The number of counts in the

Administrative Complaint.

4. The number of times the offen ses

previously have been committed by the

licensee.

5. The disciplinary history of the

licensee.

6. The status of the licensee at the time

the offense was committed.

7. The degree of financial hardship

incurred by a licensee as a result of the

imp osition of a fine or suspension of the

license.

8. Violation of the provision of Chapter

475, Florida Statutes, where in a letter of

guidance as provided in s. 455.225(3),

Florida Statutes, previously has been issued

to the licensee.

42. The recommend ed penalties that follow are based on the

findings of fact and conclusions of law contained herein,

together with Petitioner's guidelines. The undersigned has

considered the following as mitigating factors in making the

recommendations that follows: Resp ondents have no disciplinary

record and there was no harm to the public resulting from these

violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

finding Responden ts not guilty of the violations alleged in

Counts I, II, and V of the Administrative Complaint. It is

further RECOMMENDED that the final order find the respective

Respondents guilty of the violations alleged in Counts III, IV,

VI, and VII of the Administr ative Complaint. For the violations

of Counts III and IV, Respondents' licenses should be suspended

for a period of 90 days and each Respondent should be fined the

sum of $1,000. For the violations of Counts VI and VII,

Respondents' licenses should be su spended for a period of six

months and each Respondent should be fined the sum of $1,000.

It is further RECOMMENDED that the periods of suspension run

concurrently.

DONE AND ENTERED this 31st day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 31st day of January, 2002.

ENDNOTES

1/ There was no evidence that CTC Development ever assigned its

interest i n the contract to another party.

2/ Petitioner introduced the offer, as subsequently modified, as

its Exhibit 11 and Respondents introduced it as their Exhibit C.

Both Petitioner's Exhibit 11 and Respondents' Exhibit C were of

poor quality and very diff icult to read, perhaps because the

parties had faxed the form to each other after changes were made

and then duplicated what had been faxed. The original of the

form was not offered into evidence.

3/ The initial form reflected that the deposit was subje ct to

the check clearing the bank by December 7, 1999.

4/ The misrepresentations were made in an offer to purchase real

estate, which is clearly a business transaction within the

meaning of Section 475.25(1)(b), Florida Statutes. Whether the

offer ever became an executed contract is irrelevant to the

issue as to whether the misrepresentations in the offer violated

Section 475.25(1)(b), Florida Statutes.

5/ In addition, the line on the form providing the effective

date of the contract was left blank. This fact is irrelevant to

whether the offer ripened into an executed contract because the

offer defines the effective date of the contract as being the

date on which the last party signed or initialed acceptance of

the final offer or counter - offer. That date can be proven by

extrinsic evidence.

6/ In making this finding, the undersigned has considered

Respondent Rodriguez's testimony that he could not have closed

this transaction without the $100,000 second mortgage. The

addendum objects to the use of the whiteout, but it does not

object to the deletion of the second mortgage provision. The

undersigned has also considered that this addendum was not

provided to Petitioner's investigator during the investigation

stage of this proceeding.

7/ This l etter also was not provided to Petitioner's

investigator during the investigation stage of this proceeding.

Further, the conduct of the seller's agents was inconsistent

with their having received such a letter. Moreover, the letter

is inconsistent with t he letter subsequently written by Kristine

Acosta, an employee of CTC Development, which is discussed in

Paragraph 22 of this Recommended Order.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Steven W. Johnson, P.A.

1801 East Colonial Drive

Suite 101

Orlando, Florida 32803

Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower, Suite N308

Orlando, Florida 32801

Jack Hisey, Deputy Division Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building - North Tower

Orlando, Florida 32801

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

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.

1 There was no evidence that CTC Development ever assigned its interest in

the contract to another party.

2 Petitioner introduced the offer, as subsequently modifi ed, as its Exhibit

11 and Respondents introduced it as their Exhibit C. Both Petitioner's

Exhibit 11 and Respondents' Exhibit C were of poor quality and very difficult

to read, perhaps because the parties had faxed the form to each other after

changes wer e made and then duplicated what had been faxed. The original of

the form was not offered into evidence. 3

The initial form reflected that the deposit was subject to the check

clearing the bank by December 7, 1999. 4

The misrepresentations were made in a n offer to purchase real estate, which

is clearly a business transaction within the meaning of Section 475.25(1)(b),

Florida Statutes. Whether the offer ever became an executed contract is

irrelevant to the issue as to whether the misrepresentations in th e offer

violated Section 475.25(1)(b), Florida Statutes.

5 In addition, the line on the form providing the effective date of the

contract was left blank. This fact is irrelevant to whether the offer

ripened into an executed contract because the offer d efines the effective

date of the contract as being the date on which the last party signed or

initialed acceptance of the final offer or counter - offer. That date can be

proven by extrinsic evidence. 6

In making this finding, the undersigned has conside red Respondent

Rodriguez's testimony that he could not have closed this transaction without

the $100,000 second mortgage. The addendum objects to the use of the

whiteout, but it does not object to the deletion of the second mortgage

provision. The unders igned has also considered that this addendum was not

provided Petitioner's investigator during the investigation stage of this

proceeding. 7

This letter also was not provided Petitioner's investigator during the

investigation stage of this proceeding. Further, the conduct of the seller's

agents was inconsistent with their having received such a letter. Moreover,

the letter is inconsistent with the letter subsequently written by Christine

Acosta, an employee of CTC Development, which is discussed in Par agraph 22 of

this Recommended Order.