STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-409

) PROGRESS DOCKET NO. 3119

DONALD H. JANDRO, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in this case in the Conference Roam 250-A, Hillsborough County Courthouse, Jefferson Street at Kennedy Boulevard, Tampa, Florida, at 1:00 P.M. on May 13, 19 77, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case came on to he heard upon an Administrative Corn plaint filed against Donald H. Jandro by the Florida Real Estate Commission alleging that Jandro had violated Rule 21B- 14.06, Florida Administrative Code, by failing to place monies received by him under the terms of a lawful contract which were to be shared, divided or paid over to Dale Mabry Realty, Inc., in trusts and failing to pay said monies to Dale Mabry Realty, Inc., upon demand. Donald H. Jandro requested a formal hearing on the allegations against him, and this case was referred for formal hearing to the Division of Administrative Hearings by the Florida Real Estate Commission pursuant to the provisions of Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Joseph A. Doherty, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Donald H. Jandro appearing in

his own behalf.

FINDINGS OF FACT

1. Prior to the commencement of the hearing the parties stipulated to the factual allegations contained in paragraphs 1 through 12 of the Administrative Complaint and to the introduction of Exhibits 1 through 17. The facts stipulated to in the Administrative Complaint are made a part of these findings of fact and this Recommended Order.

   
   

2. Donald Jandro on or about January 2, 1975, sold a home located on Landsdale Circle, Tampa, Florida, which had been listed for sale by Dale Mabry Realty, Inc. Jandro paid to Dale Mabry a 50 percent commission based upon the policy of Jandro Realty as a cooperating broker in the multiple listing service.

3. On or about February 9, 1975, Dale Mabry Realty, Inc., sold a home located on Wallace Circle, Tampa, Florida, which had been listed for sale by Jandro Realty. Dale Mabry Realty, Inc., paid to Jandro Realty a 30 percent commission as stated on the multiple listing service card. The 30 percent commission was a lower percentage than that paid by Jandro Realty to Dale Mabry Realty, Inc., less than a month before.

   
   

4. At this time the Tampa multiple listing service had a policy which had been adopted on October 2, 1972, and further defined on March 15, 1973, as follows:

   
   

   "Selling realtor shall pay the listing realtor the highest listing commission which either office offers on its current listings which are required to be filed in MLS." See late filed Exhibit 18.

   
   

5. Jandro, pursuant to the aforestated policy, demanded from Dale Mabry Realty, Inc., a 50 percent commission on the Wallace Circle transaction. This demand was not honored and on April 25, 1975, Donald Jandro filed a complaint with the Professional Standards Committee of the Tampa Board of Realtors which as of the date of the formal hearing had not ruled on the dispute.

   
   

6. On or about May 26, 1975, Jandro sold a home located at Anita Boulevard, Hillsborough County, which Dale Mabry Realty, Inc., had listed for sale. Both parties agreed that the commission provided on said sale called for a 50/50 split of commission. However, Jandro held back Three Hundred Fifty Dollars ($350.00), the amount he alleged was due Jandro Realty on the Wallace Circle transaction, tendering Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to Dale Mabry Realty, Inc., by check.

   
   

7. The reciprocal arrangement within the multiple listing service was repealed effective April 1, 1975. See Exhibit 18.

   
   

   CONCLUSIONS OF LAW

   
   

8. As stated above in the findings of fact, the highest listing commission payable between Jandro Realty and Dale Mabry Realty was 50 percent. Under the reciprocal agreement, Dale Mabry Realty, Inc., would have been obligated to pay to Jandro Realty a 50 percent commission on the Wallace Circle transaction. Donald Jandro asserted a claim for a 50 percent commission and when his demand was not met by Dale Mabry Realty, Inc., he filed a complaint with the Professional Standards Committee of the Tampa Board of Realtors. Subsequently, Jandro withheld Three Hundred Fifty Dollars ($350.00) from monies due Dale Mabry, Inc., tendering to Dale Mabry, Inc., Five Hundred One Dollars and

   Seventy-Nine Cents ($501.79), the remainder of the commission due on the Anita Boulevard transaction.

   
   

9. Rule 21V-14.06, Florida Administrative Code, provides that a registrant must hold in trust monies received under any lawful contract which are to be shared or divided with any registrant or person and pay or deliver said monies to the registrant or person who is entitled to receive them upon demand. However, Rule 21V-14.06 clearly provides that a registrant may deduct any lawful setoffs or counterclaims as he might have at the time due and owing him by the registrant or person entitled to receive said monies.

10. Clearly, in the instant situation Jandro had a lawful counterclaim in the amount of Three Hundred Fifty Dollars ($350.00) against Dale Mabry Realty, Inc. Therefore, Jandro's refusal to pay the Three Hundred Fifty Dollars ($350.00) is not a violation of Rule 21V-14.06, Florida Administrative Code. Jandro did technically violate said rule by failing to deposit the total commission due Dale Mabry Realty, Inc., in his escrow account and drawing the check payable in the amount of Five Hundred One Dollars and Seventy-Nine Cents ($501.79) on the escrow account. However, this is a highly technical violation considering the fact that the Three Hundred Fifty Dollars ($350.00) withheld was deposited to the escrow account and the remaining amount was tendered in fact to Dale Mabry Realty, Inc.

    
    

11. The nature of the situation existing between Jandro Realty and Dale Mabry Realty, Inc., is one of a mutual dispute over the distribution of commissions. This is demonstrated by the fact that had Jandro complained to the Florida Real Estate Commission, as opposed to Tampa Board of Realtors, the Real Estate Commission under its theory in the instant case would have brought charges against Dale Mabry Realty, Inc., for withholding the commission due Jandro Realty on the Wallace Circle transaction. Rule 21V-14.06 by the addition of the language, "provided, however, that such registrant may deduct such lawful setoffs, or counterclaims as may at the time be due and owing to him by the registrant, or person, entitled to receive such funds." recognizes that such disputes are not the proper subject of disciplinary action but should be resolved by the governing bodies of local multiple listing services or courts of appropriate jurisdiction.

RECOMMENDATION

Based on the foregoing findings of facts and conclusions of law, the Hearing Officer would recommend that the Florida Real Estate Commission direct Donald H. Jandro to deposit Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to his escrow account so that all funds related to the transaction in question are in escrow as required by the rule, and further that the Florida Real Estate Commission issue a letter of reprimand for failing to deposit the Five Hundred One Dollars and Seventy-Nine Cents ($501.79) to his escrow account upon Dale Mabry's refusal of Jandro's check.

DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph A. Doherty, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Mr. Donald H. Jandro 4007 Wisconsin Avenue

Tampa, Florida 33616

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Plaintiff,

vs. PROGRESS DOCKET NO. 3119

CASE NO. 77-409

DONALD H. JANDRO, HILLSBOROUGH COUNTY

Defendant.

/

FINAL ORDER

This matter came on for Final Order upon the Plaintiff's Administrative Complaint, the Defendant's Election of Rights, the Recommended Order of the Hearing Officer and Plaintiff's Exceptions thereto, together with the record and oral argument of counsel for the Plaintiff and the Commission having fully reviewed the entire record, the Findings of Fact and Conclusions of Law and the Recommended Order, and the Commission being fully advised in the premises, finds:

1.

According to the records of the Commission the Defendant is presently registered with the Commission as a broker-salesman, c/o Bob Hatton Realty, Inc., 3678 Gandy Boulevard, Tampa, Florida 33611.

2.

That Findings of Fact set out in the Hearing Officer's Recommended Order are supported by competent substantial evidence in the record. Only so much of the Hearing Officer's Conclusions of Law that the Defendant had lawfully counterclaimed in the amount, of $350 against Dale Mabry, Inc., and that therefore the Defendant was not in violation of Rule 21V-14.06, Florida Administrative Code, is adopted by the Commission. The Recommended Order of the Hearing Officer is not adopted by the Commission.

3.

The Commission finds that the Defendant, Donald H. Jandro, has shown mitigating circumstances sufficient to satisfy the Commission he was not in

violation of the Florida Real Estate License Law as alleged in the Administrative Complaint.

IT IS THEREFORE ORDERED that the Administrative Complaint against the Defendant Donald H. Jandro be dismissed.

DONE AND ORDERED at Winter Park, Florida, this 8th day of August, 1977.

MAGGIE S. LASSETTER

Vice-Chairman

LEVIE D. SMITH, JR.

Member

I CERTIFY that I mailed a copy of the foregoing Final Order to Defendant Donald H. Jandro, c/o Bob Hatton Realty, Inc., 3678 Gandy Boulevard, Tampa, Florida 33611.

Executive Director

JAD:bsm

Docket for Case No: 77-000409

Orders for Case No: 77-000409