96-003814 Division Of Real Estate vs. Prudencio J. Garcia Status: Closed Recommended Order on Tuesday, March 18, 1997.

Summary: Broker, who failed to turn over cash received in connection with real estate transaction, committed violations. License suspension, probation, and fine are appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

) CASE NO. 96-3814

vs. )

)

PRUDENCIO GARCIA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on November 27, 1996, via video teleconference in Miami, Florida,

before Patricia Hart Malono, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, who was present

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Senior Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802

For Respondent: Prudencio Garcia, pro se

807 Santiago Street

Coral Gables, Florida 33136

STATEMENT OF THE ISSUE

Whether the respondent committed the acts alleged in the

Administrative Complaint dated June 21, 1996, and, if so, the

penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 21, 1996, the

Department of Business and Professional Regulation, Division of

Real Estate (“Department”), charged Prudencio Garcia with

violating section 475.25(1)(b), (e), and (k), Florida Statutes

(1995), and rule 61J2-14.009, Florida Administrative Code. The

charges are based on allegations that Mr. Garcia received $2,500

in cash in connection with a lease/purchase real estate

transaction, that he failed either to turn the $2,500 over to his

employer for deposit into its escrow account or to turn it over

to the owners of the property, and that he gave the owners $2,425

in cash only after they threatened him with legal action. Mr.

Garcia timely requested a formal administrative hearing, and the

request was forwarded to the Division of Administrative Hearings

for assignment of an Administrative Law Judge.

At the hearing, the Department presented the testimony of

Gladys Rodriguez, one of the owners of the property which was the

subject of the lease/purchase transaction, and Elana Pernas, the

broker of record of Continental Landmark Realty at the time the

events alleged in the Administrative Complaint occurred.

Petitioner’s exhibits 1 through 4 were offered and admitted into

evidence. Mr. Garcia testified in his own behalf but did not

offer any exhibits into evidence.

No transcript was filed with the Division. The parties

timely submitted proposed findings of fact and conclusions of

law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation

is a state government licensing and regulatory agency charged

with the responsibility and duty to prosecute administrative

complaints pursuant to chapters 120, 455, and 475, Florida

Statutes. The Florida Real Estate Commission operates within the

Department and is the entity directly responsible for licensing

and disciplining those licensed under chapter 475. Section

475.02, Fla. Stat. The Division of Real Estate operates within

the Department and assists the Commission in carrying out its

statutory duties. Section 475.021, Fla. Stat.

2. Prudencio Garcia is now and was at all times material to

this proceeding a licensed Florida real estate broker, having

been issued license numbered 0203682. He is currently licensed

as a broker-salesperson with Hamilton Realty, Inc. At all times

material to this proceeding, Continental Landmark Realty, Inc.,

was Mr. Garcia's registered employer.

3. Mr. Garcia has been licensed as either a real estate

salesperson or a real estate broker for eighteen years, and he

has not previously been the subject of a license disciplinary

action.

4. Either on or about November 1, 1994, or on or about

December 1, 1994, 1 a Residential Lease, an Option to Purchase,

and a Contract for Sale and Purchase were executed whereby Sergio

Montero and Mayte Rosabal agreed to lease real property owned by

Ramon and Gladys Rodriguez for a term of six months and to

purchase the property subject to the terms of the Option to

Purchase. and the Contract for Sale and Purchase.

5. Mr. Garcia solicited Mr. Montero and Ms. Rosabal for

this transaction on behalf of Mr. and Mrs. Rodriguez, who needed

to sell their house as soon as possible because they had

purchased and moved into another home and were having trouble

paying two mortgages. Mr. Garcia was acquainted with Mr. and

Mrs. Rodriguez and Mr. Montero and Ms. Rosabal.

6. The lease, option, and contract were signed at the

offices of Continental Landmark Realty. Mr. Garcia signed the

option and the contract on behalf of Continental Landmark Realty,

which was his employer at the time. Both the option and the

contract provided that Continental Landmark Realty would receive

a $6,000 commission upon the sale of the property. Neither

Continental Landmark Realty nor Mr. Garcia were to receive any

fee or commission in connection with the lease of the subject

property.

7. Mr. and Mrs. Rodriguez expected to receive $4,000 at the

time the lease, option, and contract were executed. 2 Mr. Montero

gave them $700 in cash at the time of execution and $800 in cash

the day after the documents were executed.

8. Mr. Montero gave Mr. Garcia the remaining $2,500 owed to

Mr. and Mrs. Rodriguez, in cash. Mr. Garcia did not promptly

deliver these monies to Continental Landmark Realty for deposit

in the company’s escrow account. He did not promptly deliver the

$2,500 to Mr. and Mrs. Rodriguez, despite their repeated requests

that he do so. Rather, he claimed that he was robbed and the

money taken from him. 3 After Mr. and Mrs. Rodriguez threatened

to take legal action against him, Mr. Garcia gave them $2,425 of

the $2,500 he had received on their behalf. 4

9. The broker of record for Continental Landmark Realty was

not aware of the transaction between Mr. and Mrs. Rodriguez and

Mr. Montero and Ms. Rosabal until Mrs. Rodriguez went to her

office and complained about not having received the $2,500 from

Mr. Garcia.

10. The evidence is sufficient to establish that Mr. Garcia

was acting as an agent of Continental Landmark Realty in

connection with the subject real estate transaction, that he

received monies in connection with the transaction and failed to

deliver them promptly to Continental Landmark Realty, and that he

committed a breach of trust by failing to deliver the monies

promptly to Mr. and Mrs. Rodriguez, the parties to the real

estate transaction entitled to receive them.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to section 120.57(1), Florida

Statutes (Supp. 1996).

12. The Florida Real Estate Commission ("Commission") may

deny, suspend, or revoke a license, registration, or permit

issued pursuant to chapter 475, Florida Statutes, may impose an

administrative fine, and/or may issue a reprimand. Section

475.25(1), Fla. Stat.

13. As the prosecuting agency for the Commission, the

Department seeks to have the Commission impose administrative

penalties which may include suspension or revocation of Mr.

Garcia’s license and/or the imposition of an administrative fine.

Therefore, it has the burden of proving by clear and convincing

evidence that he committed the violations alleged in the

administrative complaint. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

14. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1 st DCA 1989),

the court explained

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact the firm belief of [sic]

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker th , 429 So. 2d

797, 800 (Fla. 4 DCA 1983).

15. Section 475.25(1) authorizes the Commission to impose

administrative sanctions if it finds that a licensee

(b) Has 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 territory.

* * *

(e) Has violated any of the provisions of

this chapter or any lawful order or rule made

or issued under the provisions of this

chapter or chapter 455.

* * *

(k) . . . has failed, if a salesperson, to

immediately place with his registered

employer any money, fund, deposit, check, or

draft entrusted to him by any person dealing

with him as agent of his registered employer.

16. Rule 61J2-14.009, Florida Administrative Code, requires

that “every salesperson who receives any deposit as defined

above, shall immediately at the first opportunity deliver the

same to the broker or employer.” A “deposit” is defined in rule

61J2-14.008(1) to include monies “delivered to a real estate

licensee, as earnest money, or a payment, or a part payment, in

connection with any real estate transaction named or described in

[section] 475.01(1)(c), Fla. Stat. , . . ..” Both a sale/purchase

and a lease with option to purchase are real estate transactions

described in section 475.01(1)(c).

17. Based on the facts found herein, the Department has

proven by clear and convincing evidence that Mr. Garcia violated

section 475.25(1)(b), (e), and (k) and rule 61J2-14.009.

Accordingly, grounds exist to justify the imposition of penalties

on Mr. Garcia.

18. Based upon careful consideration of the facts of this

case, the seriousness of the violations proven, the lack of any

previous disciplinary actions against Mr. Garcia, and the

penalties which may be imposed for violations of section

475.25(1), Mr. Garcia’s license should be subject to a period of

suspension and probation, and he should be assessed an

administrative fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Real Estate Commission

enter a final order finding Prudencio Garcia guilty of violating

section 475.25(1)(b), (e), and (k), Florida Statutes (1995), and

rule 61J2-14.009, Florida Administrative Code, and

1. Suspending Mr. Garcia’s real estate broker’s license for

a period of one (1) month;

2. Following the suspension, placing Mr. Garcia on

probation for a period of one (1) year with a condition of

probation that he successfully complete a thirty-hour broker

management course during the term of probation; and

3. Imposing an administrative fine in the amount of $1,000.

DONE AND ENTERED this 18th day of March, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of March, 1997.

ENDNOTES

1 The date of execution of these documents is illegible, and it

is not possible to determine from the evidence presented the

exact date on which these documents were signed.

2 Although there is no dispute that Mr. and Mrs. Rodriguez were

to receive $4,000 when the documents were executed, it is not

clear from the record as to how this sum was allocated among the

amounts due under the three documents. The Contract for Sale and

Purchase provided that an initial deposit of $1,500 was to be

made and held by the attorney retained by Mr. and Mrs. Rodriguez;

the contract does not, however, reflect that such a deposit was

received. The consideration to be paid under the Option to

Purchase was $1,500, receipt of which was acknowledged by

execution of the option by Mr. and Mrs. Rodriguez. The lease

provided that $1,500 was to be paid to Mr. and Mrs. Rodriguez

upon execution of the lease and that a $3,000 advance payment of

rent would be paid prior to Mr. Montero and Ms. Rosabal taking

possession of the property.

3 Although Mr. Garcia testified that he reported the robbery to

the police, he could not produce either the police report or the

name of the officer who allegedly prepared the report. He

testified that he was unable to obtain the police report because

the police department told him that they had no record that a

report had been made. In the absence of any corroborating

evidence, Mr. Garcia’s testimony that he was unable to deliver

the $2,500 to either his employer or Mr. and Mrs. Rodriguez

because it was taken from him in a robbery is rejected as not

credible.

4 there is no dispute that Mr. Garcia received the Although

$2,500 in cash, the evidence is not clear as to when he received

the money or when he delivered $2,425 to Mr. and Mrs. Rodriguez.

COPIES FURNISHED:

Daniel Villazon, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Suite N-308

Orlando, Florida 32801-1772

Prudencio J. Garcia

807 Santisgo Street

Coral Gables, Florida 33134

Henry M. Solares, Division Director

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Lynda Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.