STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2994

)

ALLAN R. HEUTON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 27, 1982, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint served on the Respondent, Allan R. Heuton, seeking to take disciplinary action against his real estate license for alleged violations of Section 475.25(1)(b) and (d), Florida Statutes.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Allan R. Heuton, pro se

6891 Forrest Street

Hollywood, Florida 33024 STATEMENT OF CASE

In an Administrative Complaint dated October 30, 1981, the Board of Real Estate (now Florida Real Estate Commission) charges that Respondent has violated Section 475.25(1)(b) and (d), Florida Statutes, for which disciplinary action should be taken against his real estate license. It is alleged that Respondent has been guilty of misrepresentation, false promises and culpable negligence, and that he is guilty of failure to deliver documents. Respondent disputed these allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

ISSUE

The issues in this case are as follow:

1. Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981?

   
   

2. Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?

FINDINGS OF FACT

1. At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339.

   
   

2. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month.

   
   

3. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.)

   
   

4. Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing.

   
   

5. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house.

   
   

6. Respondent testified that Ms. Hahn never asked to rent his house.

   
   

7. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week.

   
   

8. Respondent testified that he was visited by the manager of the brokerage office for which he worked.

9. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house

   
   

10. Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms.

    
    

11. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale.

    
    

12. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Real Estate (now Florida Real Estate Commission) has authority to discipline its licensees pursuant to Chapter 475, Florida Statutes.

    
    

14. The Board has charged the Respondent, Allan R. Heuton, with violating Section 475.25(1)(b), Florida Statutes, in three counts by alleging that Respondent:

    
    

    1. Represented to Laverne Hahn that he would rent his house to her if she sold her own house;

    2. Represented to Ms. Hahn that the closing on her house would not occur until after February 15, 1981; and

    3. Represented to Ms. Hahn that he would deliver abstracts, insurance documents and similar papers to her attorney.

       
       

15. The Board also charges Respondent with violation of Section 475.25(1)(d), Florida Statutes, by failing to deliver or account for the papers he was to deliver.

    
    

16. The burden of proof rests upon the Board to prove the allegations of its complaint. The sole evidence produced was the deposition of Ms. Hahn. Her deposition was uncorroborated by testimony of other real estate salesmen of Respondent's employer or the closing agent.

    
    

17. In her deposition, Ms. Hahn states that Respondent represented the closing would not be until after February 15, 1981. However, the contract for

    sale originally established December 29, 1980, as the closing date. At some point this was amended to January 15, 1981. Ms. Hahn is deemed to have known and understood these terms. Respondent's representation that it is not unusual for closings to be delayed is not a misrepresentation nor in conflict with the established closing date. Ms. Hahn had no basis to use Respondent's comments to plan her move in the fact of the contractual obligation to close on January 15, 1981.

    
    

18. The Administrative Complaint alleges that Respondent denied rental of his house to Ms. Hahn by virtue of her inability to locate him. Respondent's corroborated testimony was that he was hospitalized for more than one week from January 14, 1981, and that his brokerage office knew where he was. It is not credible that Ms. Hahn could not have found him under the circumstances.

    
    

19. The last allegation relates to the documents Respondent allegedly failed to deliver. Again, the stories conflict, and the Respondent's is deemed more credible. It is the Board's obligation to carry its burden of proof. It has failed to do so.

    
    

20. The Hearing Officer finds that the allegations that Respondent violated Section 475.25(1)(b) and (d), Florida Statutes, were not proven.

RECOMMENDATION

Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed.

DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of July, 1982.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Allan R. Heuton 6891 Forrest Street

Hollywood, Florida 33024

C. B. Stafford, Executive Director

Florida Real Estate Commission

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

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002994

Orders for Case No: 81-002994