STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2697

)

ALVIN D. HESTEKIND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 7, 1983, at New Port Richey, Florida.

APPEARANCES

For Petitioner: John Huskins, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

For Respondent: Alvin D. Hestekind, pro se

135 Oakridge Avenue

New Port Richey, Florida 33552

By Administrative Complaint dated July 26, 1983, the Department of Professional Regulation, Florida Real Estate Commission, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Alvin D. Hestekind, Respondent, as a real estate salesman. As grounds therefor it is alleged Respondent, while licensed and operating as a real estate salesman in the employ of a real estate broker, took a $100 earnest money deposit from Peter Maranda with an offer to purchase a piece or real property, failed to place this deposit in escrow with his broker; and, when the offer was rejected by the seller, failed to return the deposit to Maranda after demand there for was made.

At the hearing Petitioner called two witnesses, Respondent testified in his own behalf, and four exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times relevant hereto Alvin D. Hestekind was licensed as a real estate salesman in Florida and was employed by a licensed real estate broker, Phillip W. Cunnagin, in his Palm Harbor office.

   
   

2. In September, 1982, Peter Maranda, a friend of Respondent, was visiting in Florida and was looking for property to purchase. Respondent's office had a

   listing on property at 40 North Louisiana Court. Respondent heard the owner would take less than the asking price and suggested Mr. Maranda submit an offer

   $4,000 under the asking price. Respondent typed up the offer, Maranda gave him

   $100 deposit for which Respondent wrote a receipt; and Respondent forthwith presented the offer, which was immediately rejected. At this time Respondent tore up the contract but did not refund the deposit to Maranda or place it in escrow with Respondent's broker.

   
   

3. A few days later Respondent drove Maranda to the airport and Maranda returned to Minnesota. Respondent testified that Maranda stayed with him while he was in New Port Richey and never asked for the return of the deposit. Respondent told Petitioner's investigator that he retained the $100 deposit for the week's room and board he provided Maranda.

   
   

4. After waiting a few weeks for the return of his deposit, Maranda sent a memo (Exhibit 1) to the Cunnagin real estate office demanding return of his $100 deposit. When Cunnigan questioned Respondent about the transaction, Respondent told him that Respondent had given the deposit back to Maranda and had torn up the offer and thrown it in the wastebasket. Cunnagin wrote on December 20, 1982 (Exhibit 2), to tell Maranda Respondent had been fired from his real estate office, that Respondent said he returned the deposit to Maranda, and that, if he had not returned the deposit he could be in danger of losing his real estate license. Maranda responded by letter dated December 30, 1982 (Exhibit 3), again stating that Respondent had not returned the deposit and all he wanted was his

   $100 "no more, no less."

   
   

5. Respondent acknowledged receiving the $100 deposit and writing a receipt from his personal receipt book; and further testified that he himself typed up the contract at his home, that there was nobody at the office to whom the deposit could be given, and that, when the offer was summarily rejected, he tore up the contract. He further testified Maranda never asked him for return of the deposit, that he understood Maranda was still interested in buying property in Florida after he departed, and that he was holding the money to use as a deposit for other property Maranda would be interested in buying. He testified that if Maranda wanted his $100 back all he had to do was ask him and he would return it.

   
   

6. Respondent has been licensed since 1979 but has been actively associated with a real estate office for only six months. His license is currently inactive.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 475.25(1)(d), Florida Statutes, provides the Board [of Real Estate] may revoke, suspend, or assess an administrative fine against a licensee who fails to account or to deliver to any person, upon demand, funds in his possession to which the demanding person is entitled to an accounting or delivery. Section 475.25(1)(k), Florida Statutes, provides similar disciplinary action may be taken against a salesman who fails to immediately place with his registered employer any money entrusted to him by any person dealing with him as agent of his registered employer. Respondent violated both of these provisions.

9. In his testimony Respondent exhibited a cavalier attitude regarding the sanctity of an earnest money deposit. This indicates he neither appreciates nor understands the fiduciary responsibilities imposed on a real estate transaction.

   
   

10. From the foregoing it is concluded Respondent violated the real estate license law as alleged. It is

RECOMMENDED that the license of Alvin D. Hestekind, as a real estate salesman, be suspended for a period of two (2) years.

ENTERED this 26th day of October, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 26th day of October, 1983.

ENDNOTE

1/ That complaint charging violations of Subsection 475.25 (1)(b), Florida Statutes (1979), as well as Subsection 475.25 (1)(f), was dismissed essentially because the evidence in that case established that the Respondent had no intent to defraud any prospective purchaser or to deal dishonestly with them or commit any other intentional acts for purposes of the above authority and had no knowledge that any representation made was false. Further in that case, it was concluded that, although the Respondent was charged with using the mails or written literature to defraud prospective customers, that the evidence established that no communications were made to prospective purchasers through the mails and indeed the Respondent had not been found guilty in federal court of the original charge related to mail fraud. Concomitantly, it was concluded that no conviction of a crime of moral turpitude had been established involving fraudulent or dishonest dealing. Finally in that case, the Respondent was absolved of charges of being guilty of a crime which directly relates to the activities of a licensed broker or salesman, since the crime of which he was convicted was not the crime upon which the charge in the administrative complaint was based, which he was thereby put on notice to defend against. See, DOAH Case No. 81-1916 (Final Order entered October 1, 1982).

COPIES FURNISHED:

John Huskins, Esquire Department of Professional Regulation - Legal

Post Office Box 1900 Orlando, Florida 32802

Alvin D. Hestekind

135 Oak ridge Avenue

New Port Richey, Florida 33552

Randy Schwartz, Esquire 400 Assistant Attorney General Department of Legal Affairs Suite 212

400 West Robinson Street Orlando, Florida 32801

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street Orlando, Florida 32801

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 0032799

DOAH NO. 83-2697

ALVIN D. HESTEKIND,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on February 21, 1984 to issue a Final Order.

Hearing Officer K. N. Ayers of the Division of Administrative Hearings presided over a formal hearing on October 7, 1983. On October 26, 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 Recommended Order is attached hereto as Exhibit A and made a part hereof.

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

1. That the real estate license of Respondent be suspended for two (2) years.

   
   

2. That if restitution of $100 is paid to Peter Marando within thirty (3O) days of the effective date of this Order, then one year of said suspension shall be suspended.

Respondent is required to file a petition for reinstatement with 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 21st day of February 1984 in Orlando, Florida.

Brian J. Ladell, 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: Alvin D. Hestekind, 135 Oakridge Avenue, New Port Richey, Florida 33552; to K.N. Ayers, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to John Huskins, Staff Attorney, Dept. of Professional Regulation, Post Office Box 1900, Orlando, Florida 32802, this 7th day of March 1984.

Harold R. Huff, Director

LG:pep

Docket for Case No: 83-002697

Orders for Case No: 83-002697