STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DEPARTMENT OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3748

)

ANDREW J. JALASSOLA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 1, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Janine B. Myrick, Esquire

Senior Attorney

Florida Department of Professional Regulation, Division of Real Estate

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

For Respondent: Andrew J. Jalassola, pro se

1127 South Federal Highway Lake Worth, Florida 33460

STATEMENT OF THE ISSUES

Whether Respondent, a licensed real estate broker in the State of Florida, committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed in the State of Florida by Petitioner as a real estate broker. On May 17, 1990, Petitioner filed an Administrative Complaint against Respondent consisting of one count. The Administrative Complaint alleged that Respondent had certain dealings and that during the course of those dealings he engaged in conduct proscribed by Section 475.25(1)(b), Florida Statutes. Respondent denied the allegations and demanded a formal hearing.

At the hearing, Petitioner presented the testimony of Terry David Evans, Dawn Lee, and Lisa Barnes. Mr. Evans is one of the purchasers in the subject transaction. Ms. Lee is associated with the corporation that was identified as

the contractor in the subject transaction. Ms. Barnes is a realtor with Anderson Realty, Inc., the realtor with whom Respondent had supposedly placed his license. Petitioner offered four exhibits which were accepted into evidence. Petitioner's Exhibit 1 is a composite exhibit consisting of a certified copy of Petitioner's licensure file on Respondent. Petitioner's Exhibit 2 is a copy of certain checks Respondent allegedly received from Terry David Evans and Franci Lynn Evans. Petitioner's Exhibit 3 is a copy of the general conditions to a real estate contract. Petitioner's Exhibit 4 is a copy of a statement denying financing to the Evans for the purchase of the subject transaction. The Respondent presented no testimony or documentary evidence.

No transcript of these proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the date of the hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. Respondent filed no post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals, including real estate brokers and real estate salesmen.

   
   

2. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0430387.

   
   

3. The last license issued to Respondent was as a broker-salesman, in limbo, with a home address of 1127 S. Federal Highway, Lake Worth, Florida. At the times pertinent to these proceedings, Respondent had placed his license with Anderson Realty, Inc., Jupiter, Florida.

   
   

4. On June 15, 1989, Terry and Franci Evans met with Respondent to discuss their interest in building a house. Respondent told the Evans that he was a real estate broker and that he would negotiate the purchase of the lot the Evans had selected and would arrange for the construction of the house. On July 9, 1989, Terry and Franci Evans, entered into a contract to purchase a residential building lot and a contract to construct a house on the lot that the Evans had selected. The ADA Group, Inc. (ADA) was identified as the contractor and the Evans were identified as the purchaser/owner. Respondent signed the contract on behalf of ADA and was identified by the contract as being an agent of ADA.

   There was no explanation of Respondent's relationship with ADA. Although the contract identified the Evans as the purchaser/owner, the Evans had not purchased the subject lot. The owner of the lot was not identified by the contract, and there was no competent evidence as to who owned the lot.

   
   

5. On June 15, 1989, the Evans gave Respondent a check in the amount of

   $1,000.00. On July 9, 1989, the Evans gave Respondent a check in the amount of

   $1,500.00. Both of these checks were given to Respondent as a deposit on the purchase of the lot and construction of the house for which the Evans contracted with ADA on July 9, 1989.

6. The contract executed by the Evans was contingent upon their receiving financing for the project. The form of the contract Respondent used for the subject transaction had been used by Anderson Realty and had been developed by Anderson Realty's attorney. Article V of the General Conditions of the contract executed by the Evans and Respondent on July 9, 1989, contained the following pertinent provision:

   
   

   ... If this contract is contingent upon financing for the purchaser/owner, then the purchaser/owner understands and agrees that no work shall be commenced until the loan commitment is issued. ...

   
   

7. The Evans gave Respondent these two checks because they were lead to believe by Respondent that the checks would be refunded to them if the transaction did not close.

   
   

8. At the time these checks were given to Respondent, his licensure was officially placed with Anderson Realty. Anderson Realty had requested in January 1989 that Respondent's license be placed inactive. On July 13, 1989, Respondent's license was placed in an inactive status. At no time did Respondent deposit these checks into the escrow account of Anderson Realty or notify it of the subject transaction.

   
   

9. Respondent cashed both checks given to him by the Evans.

   
   

10. The Evans attempted to secure financing as required by the contract, but they were unable to do so. The subject transaction with ADA failed because the Evans were denied financing for the project.

    
    

11. After they had been denied financing, the Evans asked Respondent to return the money they had given to him. Respondent told the Evans that he had made expenditures from the funds the Evans had deposited with him in anticipation of the closing of the transaction. Respondent offered to return a portion of the money to the Evans, but, as of the date of the hearing, Respondent had refunded none of the money to the Evans. Respondent did not produce any verification as to how he expended the money that the Evans had left with him.

    
    

12. There was no competent evidence as to who owned the lot that the Evans had agreed to purchase, and there was no competent evidence as to Respondent's relationship with ADA.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 475.25(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The commission may ... place a licensee

       ... on probation; may suspend a license ... for a period not exceeding 10 years; may revoke a license ...; may impose an admini- strative 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 ...:

       
       

       * * *

       
       

       (b) Has been guilty of fraud, misrepresenta- tion, 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 ...

       
       

15. 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).

    
    

16. Petitioner established that Respondent engaged in conduct which violated the provisions of Section 475.25(1)(b), Florida Statutes, during the course of his dealings with the Evans. Respondent's dealings with the moneys given to him by the Evans under the circumstances of this case is a breach of the trust the Evans placed in Respondent.

    
    

17. The pertinent disciplinary guidelines adopted by the Florida Real Estate Commission may be found in Rule 21V-24.001(3), Florida Administrative Code. These guidelines provide that the minimum penalty to be imposed for a violation of Section 475.25(1)(b), Florida Statutes, is a reprimand for each count, a fine up to $1,000 per count, or both a reprimand and a fine up to

$1,000 per count. The maximum penalty for a violation of Section 475.25(1)(b), Florida Statutes, is revocation of licensure. The guidelines provide that a combination of the possible penalties is permissible pursuant to Section 475.25(1), Florida Statutes.

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 which finds that Respondent violated the provisions of Section 475.25(1)(b), Florida Statutes, which suspends all real estate licenses previously issued Respondent for a period of one year, and which imposes an administrative fine against Respondent in the amount of $1,000.

RECOMMENDED this 21st day of September, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3748

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraphs 1-14 and 18-20 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 15 and are rejected as being unsubstantiated by the evidence since these proposed findings are based exclusively on hearsay.

3. The proposed findings of fact in paragraph 16 and 21 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Janine B. Myrick, Esquire Senior Attorney

Florida Department of Professional Regulation

Division of Real Estate

400 West Robinson Street Suite N-308

Post Office Box 1900 Orlando, Florida 32802

Andrew J. Jalassola

1127 South Federal Highway Lake Worth, Florida 33460

Darlene F. Keller Division Director

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-003748

Orders for Case No: 90-003748