STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION )

(formerly Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2911

)

ARLEN G. STEINKE, )

)

Respondent. )

)

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 January 14 and November 29, 1982. Transcripts of the proceeding were received on December 13, 1982. The parties waived the time requirement that a Recommended Order be entered herein within 30 days of receipt of the transcript.

APPEARANCES

For Petitioner: James H. Gillis, Esquire, and

Tina Hipple, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Arlen G. Steinke, pro se

35 Northeast 44th Street

Fort Lauderdale, Florida 33334 ISSUE

The issue posed for decision herein is whether or not the Respondent, Arlen

1. Steinke, filed a Notice of Lis Pendens for the purpose of collecting a commission and/or to coerce payment of money to him in violation of Section 475.42(1)(j), Florida Statutes (1979).

   
   

   FINDINGS OF FACT

   
   

   1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, including the Petitioner's proposed findings of fact and conclusions of law, 1/ the following relevant facts are found.

   2. By its two-count Administrative Complaint filed herein, the Petitioner, Board of Real Estate (herein sometimes referred to as the Board or the Commission) seeks to take disciplinary action against the Respondent and his license based on allegations that he caused to be placed a Notice of Lis Pendens on a parcel of property for the purpose of collecting a real estate commission in violation of Section 475.42(1)(d) and (j), Florida Statutes (1975), and Section 475.25(1)(e) and (j), Florida Statutes (1979). 2/ The credible evidence adduced herein reveals that Respondent 3/ was involved in a business transaction with Johnny Shaw, Jr., involving purchasing houses in distress situations and thereafter to resell by securing new buyers. There was no written contract between Johnny Shaw, Jr., and the Respondent evidencing the terms of their agreement.

      
      

   3. On October 20, 1976, Respondent, as purchaser, entered into a contract to purchase real property from Luleen Holthoefer (Respondent's Exhibit 3). At the time Respondent entered into the above contract, he was undecided as to whether he would in fact purchase the property. (Tr. 24 ) 4/ Shortly after entering into the contract, one Johnny Shaw, III, a salesman employed by Respondent, informed Respondent that Mr. Shaw's father, Johnny Shaw, Jr., had some funds he would like to invest. (Tr. 24.)

      
      

   4. As stated, Respondent's agreement with Johnny Shaw, Jr., was verbal. Shaw, Jr., purchased the Holthoefer property solely with his own funds. (Tr.

      28-29.) Respondent, in furtherance of the agreement, initially located property for sale and, after the property was purchased, would attempt to resell it. The agreement provided further that the profits realized from the resale of the property would be split equally between Respondent and Shaw, Jr. (Tr. 29.)

      
      

   5. The Holthoefer property was conveyed by warranty deed exclusively to Johnny Shaw, Jr., on November 3, 1976. (Petitioner's Exhibit 7.)

      
      

   6. Respondent thereafter retained legal counsel to represent him in his effort to secure his entitlement to his claimed one-half interest in the Holthoefer property. To that end, on or about May 27, 1977, a Notice of Lis Pendens was recorded in the public records of Broward County, Florida. (Testimony of Respondent and Petitioner's Exhibit 4; Tr. 23-24.) The property to which the Notice of Lis Pendens was filed was the Holthoefer property. The property was, at the time, still owned by Johnny Shaw, Jr.

      
      

   7. After the Notice of Lis Pendens was filed, Johnny Shaw, Jr., filed a suit in the Circuit Court for Broward County, Florida, alleging that the Respondent had filed a Notice of Lis Pendens knowingly, wrongfully and maliciously. (Petitioner's Exhibit 5.)

      
      

   8. In response to the complaint, Respondent, by and through counsel, filed a counter claim, alleging that the Respondent was due a real estate sales commission in the aforesaid transaction because he was a real estate broker, worked for a living on a real estate commission basis, and had not been paid any commission for securing the ultimate sale of the property to Johnny Shaw, Jr. The counter claim demanded judgment for a sales commission, plus interest. (Petitioner's Exhibit 5.)

      
      

      THE RESPONDENT'S DEFENSE

      
      

   9. The Respondent contends that his former attorney, Clyde Manspeaker, filed the Notice of Lis Pendens out of negligence; that Shaw, Jr., and his former counsel (Manspeaker) were in collusion and had ulterior motives in filing

      the subject Notice of Lis Pendens. He contends further that Shaw, Jr., hired his former attorney to represent him and that there was a conflict of interest between counsel based on the fact that Shaw, Jr., was providing him with much more lucrative legal defense work than himself.

      
      

   10. Respondent further contends that the Notice of Lis Pendens was filed for a share of the profit and not for a real estate commission as alleged herein.

       
       

   11. Respondent admits that there was no written agreement between himself and Shaw, Jr., and that he did not advance any money to purchase the property. He states, however, that he intended to purchase the property, and, as far as he was concerned, the purchase was handled as a joint venture.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

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

       
       

   15. The Respondent, a licensed real estate broker, is subject to the disciplinary guides of Chapter 475, Florida Statutes.

       
       

   16. Section 475.25(1)(e), Florida Statutes (1979), provides that a licensee may be subject to disciplinary action for violating any of the provisions of Chapter 475, Florida Statutes.

       
       

   17. Competent and substantial evidence was offered herein to establish that the Respondent placed, ore caused to be placed, a Notice of Lis Pendens on the public records of Broward County, Florida, which purports to effect a title of, or encumber, real property belonging to Johnny Shaw, Jr., and was not authorized by Johnny Shaw, Jr., to be placed of record. 5/ Respondent, by causing to be filed a Notice of Lis Pendens on the subject property for the purposes, at least one of which was to collect a commission, engaged in conduct in violation of Section 475.42 (1)(j), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's Arlen G. Steinke, real estate broker's license number 0084541 be suspended for a period of one (1) year.

RECOMMENDED this 18th day of March, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1983.

ENDNOTES

1/ The Petitioner, on January 3, 1983, filed proposed findings of fact, conclusions of law and a recommended order herein. Said proposed findings, etc., were considered by me in preparation of this Recommended Order. To the extent that they are not incorporated in this Recommended Order, they were deemed irrelevant, immaterial or not otherwise supported by record evidence.

2/ At the hearing herein on November 29, 1982, Petitioner moved to withdraw Count One of the Administrative Complaint filed herein, which withdrawal was granted, with prejudice.

3/ The parties stipulated that during times material herein, the Respondent was a registered real estate broker and has been issued license number 0084541.

4/ Unless otherwise indicated, all references to the transcript refer to the transcript of proceedings conducted on November 29, 1982.

5/ In this regard, consideration was given to Respondent's position, as advanced herein, to the effect that he was simply attempting to secure his one- half interest in the subject property. However, other documentary evidence herein reveals that Respondent was attempting to secure, inter alia, a real estate commission.

COPIES FURNISHED:

James H. Gillis, Esquire, and Tina Hipple, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Arlen G. Steinke

35 NE 44th Street

Fort Lauderdale, Florida 33334

Harold Huff, Executive Director Florida Real Estate Commission

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

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William F. Furlow, Esquire Florida Real Estate Commission

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

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. PD 16415

DOAH NO. 81-2911

ARLEN G. STEINKE,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on April 19, 1983 to issue a Final Order.

Hearing Officer James E. Bradwell of the Division of Administrative Hearings presided over a formal hearing on both January 14, 1982 and November 29, 1982. On March 18, 1983 he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact and Conclusions of Law. A copy of this Order is attached hereto as Exhibit A.

However, as to the Recommendation, after a complete review of the record the Florida Real Estate Commission hereby ORDERS:

That the Respondent's real estate license be suspended for one year. The Commission further ORDERS that upon payment to the Department of Professional Regulation of a $1000 administrative fine, nine months of the said suspension shall be suspended. The Respondent is prohibited from resuming real estate activity until his petition for reinstatement is approved by the Florida Real Estate Commission.

This Order shall be effective thirty (30) days from the date of filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 19th day of April 1983 in Orlando, Florida.

Howard C. Babcock, Jr., Chairman Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U.S. Mail to: Arlen G. Steinke, 35 NE 44th Street, Ft. Lauderdale, Florida 33334; to Tina Hipple, Staff Attorney, Dept. of Professional Regulation, Post Office Box 1900, Orlando, Florida 32802; and to Hearing Officer James E. Bradwell, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301, this 29th day of April 1983.

Harold R. Huff, Director

Docket for Case No: 81-002911

Orders for Case No: 81-002911