10-007449PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Alix Aldonis Status: Closed Recommended Order on Wednesday, February 2, 2011.

Summary: DBPR didn't prove by clear and convincing evidence that Respondent altered sales contract, failed to place deposit in escrow, or failed to obtain verification of placement; offenses cannot be based on facts and charges not in the Administrative Complaint.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

) Case No. 10 - 7449PL

Petitioner , )

)

vs. )

)

Alix Aldonis , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on November 12 , 2010, by video teleconference at sites

in Fort Lauderdale and Tallahassee, Florida.

APPEARANC ES

For Petitioner: Nicole McLaren, Senior Attorney

Division of Real Estate

Department of Business and

Professional Regulation

40 0 West Robinson Street, Suite N 801

Orla ndo, Florida 32801

For Respondent: Alix Aldonis , pro se

1739 Northwest 80 th Avenue

Margate, Florida 33063

STATEMENT OF THE ISSUES

The issues in this case are:

1. Did the Respondent, Alix Aldonis (Mr. Aldonis) , com mit

fraud ; misrepresenta t ion ; concealment ; false promises ; false

prete n se ; dishonest dealings by trick, scheme or devi c e,

culpable negligence ; or breach of trust in a business

transaction by: (a) misrepresenting the sales price of real

estate in a sale an d purchase contract, (b) misrepresenting a

commission amount in a sales and purchase contract, and (c)

misrepresenting receipt by an escrow agent of a $5,000 deposit?

2. Did Mr. Aldonis fail to obtain and retain written

confirmation from the escrow agent of delivery of the Buyer's

funds for purchase of the property?

PRELIMINARY STATEMENT

The Petitioner, Florida Department of Business and

Professional Regulation, Division of Real Estate (D epartment ),

issued a two - count Administrative Complaint (Complaint) a gainst

Mr. Aldonis on June 1, 2010. Mr. Aldo nis disputed the facts

alleged in the Complaint and requested a formal hearing . The

Department referred the case to the Division of Administrative

Hearings (DOAH) on August 12, 2010. DOAH scheduled the

request ed hearing for November 12, 2010. The undersigned

conducted the hearing as scheduled.

The parties waived opening statements. The Department

presented the testimony of Lawrence Ligonde, Cheryl Phen, and

Jennif er North. It offered Exhibits one through six .

Mr. Aldonis did not object to the exhibits. All were receive d

into evidence. Mr. A ldonis did not present evidence. The

parties waived making closing arguments.

At the hearing's conclusion, the Department moved to extend

the time period during which p roposed recommended orders may be

filed to thirty days after filing of the transcript.

Mr. Aldonis agreed . The motion was granted .

The court reporter filed the transc r i pt on December 6,

2010 . The Department filed a Proposed Recommended O rder on

December 27, 2010. Mr. Aldonis did not file a proposed

recommended order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

licensing and regulation of the real estate industry in the

State of Florida, under the autho rity of s ection 20.165 , Florida

Statutes (2010) , and c hapters 455 and 475, Florida Statutes

(2010) .

2. At all times material to this proceeding, the

D epartment licensed Mr. Aldonis as a State of Florida real

estate sales associate. He holds License Numbe r SL - 3117116,

which is in effect until March 31, 2011.

3. At all times material to this proceeding, Total Stop,

Inc., d/b/a Total Stop R e al Estate (Total Stop Real Estate) ,

contracted with Mr. Aldonis to affiliate with it as a sales

associate . At all t imes material to this proceeding, Lawrence

Ligonde , of Total Stop Real Estate , was the licensed real estate

broker with whom Mr. Aldonis was affiliated . Mr. Ligonde did

not employ Mr. Aldonis. Currently , Mr. Aldonis is affiliated

with Tropical Springs Re alty, Inc.

4 . The agreement between Mr. Aldonis and Total Stop Real

Estate did not provide for Total Stop Real Estate or

Mr. Ligonde 's receiving a percentage commission based on the

price of sales that Mr. Aldonis made. Mr. Aldonis paid a flat

fee of $ 495 to be affiliated with Mr. Ligonde .

5 . In 2006, Joseph Phen and Cheryl Phen listed a home that

they owned, located at 3500 S.W. Viceroy Street, Port St. Lucie,

Florida, for sale. They listed the property for $330,000.

Ms. Phen was a real estate sale s broker . She was the listing

agent for the property .

6 . Mr. Aldonis represented a buyer in the sale of the

Viceroy Street property. The buyer, Manuela Celestin, signed a

Residential Sale and Purchase Contract for the p roperty on

August 2, 2006. Mr. a nd Ms. Phen signe d the contract on

August 3, 2006 . They also initialed each page.

7 . The contract set forth a purchase price of $272,000.

The contract also indicate d that the b uyer was providing a

$ 5,000 deposit. Mr. Aldonis sent Ms. Phen a copy of t he

contract and a copy of a deposit check by facsimile

transmission. The record does not reveal the sequence of

contract signing , contract transmission, check transmission , the

date of the check transmission , or whether the contract was

transmitted more t han once to Ms. Phen .

8 . Due to conversations with Ms. Augustine at Premier

Choice Title & Escrow , the escrow agent identified in the

contract, Ms. Phen grew concerned about whether the deposit had

been placed in escrow. She spoke to Ms. Augustine about her

concerns. Ms. Phen also told Mr. Aldonis she was concerned that

the deposit check may not have been d eposited in an escrow

account.

9. After the conversation, Mr. Aldonis sent Ms. Phen a

copy of a check payable to Total Stop Real Estate from

Charassa rd & Associates, P.A., for $5,000. "Phen/Celestin" is

written in the "Memo" section of the check. The check bears the

date August 6, 2006. Persuasive evidence does not establish if

this was a copy of a second check or another copy of the check

Mr. Aldon is transmitted earlier.

10 . Ms. Phen requested and received a copy of the

Residential Sale and Purchase contract from the t itle c ompany.

The first page of this copy listed the sale price as $330,000.

1 1 . Although Ms. Phen testified about two HUD closing

statements, the Department did not offer a copy of a HUD closing

statement into evidence.

12. The sale of the property occurred. The closing sale

price was $272,000.

1 3 . The Department entered a second copy of the contract

signed by the Phens and Ms. C elestin into evidence . The first

page of the second contract reflected a sales price of $330,000.

The initials at the bottom of the first page are not the

initials of the Phens. The rest of the contract is identical to

the contract signed by the Phens o n August 3, 2006. Nothing in

either contract provides for a four percent commission to be

paid to any person or entity.

1 4 . There is no persuasive evidence indicating who created

the second contract or how the title company obtained it.

1 5 . Mr. Ligonde testified that the contract with the

higher purchase price "looks like" the one Mr. Aldonis provided

him. The contracts "look" the same. Only a very close

examination would identify the differences in the initials on

the first page. The difference in a mounts is more obvious , b ut

it still requires a reading of the contract , not just looking at

it , to note the different amount .

1 6 . Mr. Ligonde did not testify that the second contract

entered into evidence came from his files . He also did not

provide a ny information about how files a r e maintained at his

business or who has ac c ess to them. He did not know when the

contrac t arrived at his office or how. In addition ,

Mr. Ligonde 's statement that a document "looks like" one

provided him by Mr. Aldonis doe s not equate to testimony that

the document is in fact the document Mr. Aldonis provided.

1 7 . At some point in the transaction, the employees of

Mr. Ligonde's office, the employees of a title insurance

company, and the employees of a mortgage broker had possession

and control of the sales contract or a copy of it. The

Department did not present credible , persuasive evidence that

rule d out any of those individuals having creat ed the new page

one with the $330,000 sales price.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to thi s

action in accordance with s ections 120.569 and 120.57(1),

Florida Statutes (2010) .

1 9 . The Department seek s to take disciplinary action

against Mr. Aldoni s . It bears the burden of pro ving the

Complaint 's allegations by clear and convincing evidence . Dep't

of Banking & Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20 . As stated by the Florida S upreme Court:

[ 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

testimony 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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983) ) .

2 1 . Count I of the Complaint charges Mr. Aldonis with

violating section 475.25(1)(b), Florid a Statutes (2006) . That

section , among other things, makes fraud, mis representation ,

concealment , false promises, false pretenses, negligence , or

breach of trust in any business transaction a disciplinary

offense. The Department maintains that Mr. Aldonis committed

the offense by (1) misrepresenting the sales price of the

Viceroy Street house in the second sales and purchase contract,

(2) misrepresenting in the second contract that Mr. Ligonde

would receive a four percent commission based on a sales price

of $330,000 1 instead of a sales price of $272,000, and (3)

misreprese nting that the escrow agent had received the $5,000

d eposi t.

2 2 . Clear and convincing evidence establishe d that someone

created a second first page for the contract showing a sales

price of $330,000. Clear and convincing evidence also

establishe d that so meone other than Mr. and Ms. Phen initialed

the new first page. But there was no clear and convincing

evidence that Mr. Aldonis was the person who created the page

with the $330,000 price or that he was the person who wrote the

Phens' initials on that pag e .

2 3 . There is no direct evidence that Mr. Aldonis changed

the first page. The circumstantial evidence does not support a

finding that Mr. Aldonis made the change.

2 4 . The evidence does not credibly establish where the

second contract that was rece ived into evidence came from or who

changed it . The facts show that individuals working for at

least three different businesses had the opportunit y to make the

change. The se facts do not support a conclusion that of all the

individuals with an opportunit y to change the contract,

Mr. Aldonis was the person who changed it.

2 5 . N either version of the contract represents that an

employer of Mr. Aldonis or any other person or entity would

receive a four percent commission.

26. There is no clear and convinci ng evidence that

Mr. Aldonis misrepresented placing the $5,000 deposit with an

escrow agent. The only evidence on this subject is Ms. Phen's

testimony about a conversation with a title company

representative and an e - mail from the representative. It is

h earsay that would not be admissible over objection in a civil

proceeding. The hearsay evidence is not sufficient to support a

finding of fact. Wark v. Home Shopping Club , 715 So. 2d 323,

324 (Fla. DCA 2d 1998) . In addition , the testimony and e - mail

by t hemselves are not clear and convincing evidence that

Mr. Aldonis did not submit the deposit.

2 7 . Count II charges Mr. Aldonis with violating section

475.25(1)(e) , Florida Statutes (2006) by violating the 2006

version of Florida Administrative Code Rule 61J2 - 14.008. That

rule created definitions of "deposit," "trust account," "escrow

account," and "immediately." The definit i on of "trust" or

"escrow" account included the following provision.

When escrow funds are placed with a title

company or an attorne y, the licensee shall

indicate on the sales contract the name and

address of said entity. The licensee shall

obtain and retain written verification of

said deposit upon delivery of the funds to

the title company or attorney.

Fla. Admin. Code R. 61J2 - 14.0 08(2)(b).

2 8 . Assuming, without deciding, that a rule definition

alone can create a disciplinary offense, Count II fails for

simple lack of proof. There is no clear and convincing evidence

that Mr. Aldonis did not obtain and retain written verification

o f depositing the $5,000 with a title company or attorney.

2 9 . In its P roposed R ecommended O rder , the Department

argues for the first time that Mr. Aldonis committed a

disciplina ble offense by not including the address of the escrow

agent, Premier Title Company, in the contract. The Complaint

does not allege that Mr. Aldonis did not include the address of

the escrow agent in the contract. Count II does not assert

failure to include the address as a basis for discipline. Count

II assert s only failure to obtain and retain written

verification of depositing the $5,000 with a title company or

attorney as a basis for discipline .

30 . An agency may not base disciplinary action against a

licensee on conduct never alleged in an administrative complaint

or simil ar pleading. Cottrill v. DepÓt of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996) . Just as in Cottrill , the

Complaint here refers to the statute and rule relied upon. But,

just as in Cottrill , the Complaint does not allege the act or

omission the Depart ment now relies upon to support disciplinary

action.

31 . The evidence does not create a firm or unhesitating

conviction that Mr. Aldonis committed any of the offenses

charged .

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law re ached, it is RECOMMENDED t hat the Florida Real Estate

Commission enter a Final Order dismissing the Administrative

Complaint.

DONE AND ENTER ED this 2nd day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

Joh n D. C. Newton, II

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 Cler k of the

Division of Administrative Hearings

this 2nd day of February , 2011 .

ENDNOTE

1 Paragraph 26(b) of the Administrative Complaint refers to a

sales price of $337,000. This appears to be scriven e r's error.

The rest of the Administrative Complaint and the evidence

establish that the second con tract reflected a sales price of

$330,000.

COPIES FURNISHED :

Nicole McLaren, Senior Attorney

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Buil ding - North Tower, Suite N801

Orlando, Florida 32801

Alix Aldonis

1739 Northwest 80th Avenue

Margate, Florida 33063

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

H urston Building - North Tower, Suite N801

Orlando, Florida 32801

Reginald Dixon, Gen eral Co unsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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.