STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4148

)

JAMES F. D'ALVIA and JOHN )

A. CONTI, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 13, 1989, in Tampa, Florida. Thereafter the parties requested leave to file posthearing memoranda supportive of their respective positions. Petitioner filed a proposed recommended order which was considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: James F. D'Alvia, pro se

207 Bayside Boulevard Oldsmar, Florida 34677

John A. Conti, pro se 1/ 5000 Columbus Way South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUES

Whether or not Respondent, James F. D'Alvia's real estate license should be disciplined because he accepted and thereafter failed to account and deliver a rental deposit and in connection with that transaction, operated as a broker while he was only licensed as a salesman in violation of Subsections 475.25(1)(b), (d), (e) and (k), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 22, 1989, Petitioner, Florida Department of Professional Regulation, Division of Real Estate, alleged that Respondent James F. D'Alvia, while licensed as a salesman with ERA Real Estate Emporium of Oldsmar, Florida, entered into an agreement with a landlord/owner to act as the rental agent for certain real property; that such arrangement was not communicated with Respondent's sponsoring broker and further that Respondent D'Alvia solicited and obtained a lease agreement and in connection with that agreement, Respondent received a security deposit which he improperly converted to his personal use and failed to either inform his employing broker of the transaction or to place the deposit in his broker's escrow account. It is further alleged that Respondent, at the conclusion of the lease term, failed to return the security deposit to the tenant despite the tenant's demand for it.

Respondent has contested the issues and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of landlord/owner, Mary

1. Scussle and John A. Conti. Respondent D'Alvia testified on his behalf and cross examined Petitioner's witnesses. Petitioner's Exhibits 1-5 and Respondent Exhibit 1 were received in evidence at the hearing.

   
   

   Based on the evidence presented at the hearing, the following relevant facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the Laws of Florida, in particularly, Section 20.30, Chapters 120,

      455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto.

      
      

   2. Respondent James F. D'Alvia is now, and was at all times material hereto, a licensed real estate agent in Florida, having been issued license number 0464978. The last license issued was as a salesman, c/o Conti and Associates, Inc., 135 State Street, Oldsmar, Florida 34677.

      
      

   3. During times material, Respondent James F. D'Alvia, while licensed as a salesman with ERA Real Estate Emporium, 161 West SR 584, Oldsmar, Florida, was under the supervision of John A. Conti, the qualifying broker for ERA Real Estate Emporium.

      
      

   4. During times material, Respondent leased a condominium unit from Mary Louise Scussle (Scussle) as landlord/owner, Unit B-1, located at 6306 Newtown Circle, Tampa, Florida.

      
      

   5. On or about December 7, 1986, Respondent D'Alvia sublet the condominium owned by Scussle to Robert G. Loving. In accordance with the sublease agreement between Respondent and Loving, Respondent obtained check number 200 dated December 4, 1986, payable to Respondent in the amount of $250.00 as a security deposit. Respondent thereafter cashed the check received by him on the same day, December 6, 1986. At the time of Respondent's lease of Scussle's condominium, Scussle was anxious to sell as she was sustaining a shortfall from the rent proceeds versus the mortgage payments that Scussle was obliged to pay.

   6. About May 2, 1987, sublessee Loving moved from the condominium and was unable to contact Respondent to obtain his security deposit.

      
      

   7. Respondent was not aware that Loving had made attempts to contact him.

      
      

   8. The lease agreement entered into by Respondent with Mary Louise Scussle called for Respondent to lease Scussle's condominium for a one-year period. Respondent gave Scussle a security deposit and one month's rent in advance. During December 1987, Respondent advised Scussle of his financial problems and inquired if he could sublet the condominium.

      
      

   9. Owner Mary Louise Scussle did not object to Respondent's attempt to sublet the property and in fact welcomed his attempt to do so.

      
      

   10. During times material, Respondent, Mary Louise Scussle and Robert Loving were all aware of the sublease agreement between them and none of the parties to the agreement voiced any objections to the agreement.

       
       

   11. Sublessee Loving was advised by Respondent D'Alvia that he would receive his security deposit from owner Scussle at the expiration of the lease agreement. Likewise, Respondent Conti was apprised of Respondent D'Alvia's agreement to lease Scussle's condominium.

       
       

   12. Mary Louise Scussle admits that Respondent advised her and she approved the sublease agreement between Respondent and Loving; however, Scussle's testimony is devoid of and she was not able to recall the specifics of the agreement between Respondent and sublessee Loving. As example, Scussle was unable to recall if Loving or Respondent D'Alvia was the sublessee. While Scussle "thinks" that Respondent D'Alvia was the first tenant and Loving was the sublessee, the passage of time has paled her recall as to specifics.

       
       

   13. Robert Loving did not appear as a witness to testify in these proceedings.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

       
       

   15. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

       
       

   16. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

       
       

   17. Respondent, James F. D'Alvia, as a licensed real estate salesman, is subject to the disciplinary provisions of Chapter 475, Florida Statutes.

       
       

   18. Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent, James F. D'Alvia engaged in the proscribed conduct that is alleged in the Administrative Complaint filed herein.

       
       

   19. Petitioner failed to established, by clear and convincing evidence, that Respondent engaged in conduct violative of Subsections 475.25(1)(b), (d),

(e) and (k), Florida Statutes. What the evidence shows here is that Respondent James F. D'Alvia leased a condominium from its owner and within a short period

thereafter, encountered financial difficulties and found it necessary to attempt to sublet the property to prevent a breach of the lease agreement. Respondent D'Alvia advised the landowner of his financial plight and she concurred with his offer to attempt to sublet the property. Respondent obtained a sublessee (Robert Loving) who with the owner's approval, subleased the condominium.

Respondent credibly testified that Mary Scussle was retaining a security deposit and an advance rental payment from him while he was a tenant. Under these circumstances, it was therefore not improper for Respondent D'Alvia to retain the security deposit that he in turn received from sublessee Loving. There was no clear and convincing evidence of any attempt by Respondent D'Alvia to defraud, misrepresent, conceal, or to engage in any other conduct proscribed by Subsections 475.25(1), (b), (d), (e) or (k), Florida Statutes, as alleged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended Petitioner enter a Final Order dismissing the Administrative Complaint relating to Respondent John F. D'Alvia in its entirety. 2/

RECOMMENDED this 20th day of September, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990.

ENDNOTES

1/ Respondent John A. Conti and Petitioner entered a prehearing stipulation and disposition which obviated the necessity of a formal hearing respecting the complaint allegations relating to him. For that reason, the complaint allegations relating to Respondent Conti are not at issue herein.

2/ Based on the prehearing stipulations between Petitioner and Respondent Conti which includes a recommended disposition of the John Conti complaint, that prehearing stipulation and agreed to recommended disposition is forwarded to the Petitioner for consideration and final agency action, as appropriate.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4148

Paragraph 3 rejected as not at issue herein.

Paragraph 5 rejected as unnecessary based on the issues presented.

Paragraph 6 rejected based on the determination herein that Respondent was only a tenant for owner Mary Louise Scussle.

Paragraph 10 rejected, irrelevant. Paragraph 11 rejected as hearsay.

Paragraph 12 rejected as irrelevant and unnecessary based on other credible evidence found herein and the absence of any duty to return the security deposit based on the sublease agreement.

COPIES FURNISHED:

James H. Gillis, Esquire Senior Attorney

DPR - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

James F. D'Alvia

207 Bayside Boulevard Oldsmar, Florida 34677

John A. Conti

5000 Columbus Way South

St. Petersburg, Florida 33712

Darlene F. Keller Executive Director

DPR - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-004148

Orders for Case No: 89-004148