STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4413

) JANIS K. HINSCH and HUNTCO OF ) MARCO, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 22, 1985, at Naples, Florida.

APPEARANCES

For Petitioner: Susan Hartmann, Esquire

Department of Professional Regulation

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

For Respondents: John R. Dunham, 111, Esquire

Ingersoll & Block

1515 Ringling Boulevard, Suite 860

Sarasota, Florida 33577 PRELIMINARY STATEMENT

By a sixty-eight count Administrative Complaint filed December 7, 1984, Petitioner, Department of Professional Regulation, Division of Real Estate, charged Respondents, Janis K. Hinsch and Huntco of Marco, Inc., with violating the provisions of Section 475.25, Florida Statutes. At final hearing Petitioner dismissed, without prejudice, all counts except 5, 7, 9, 11, 13, 15, 17, and 39. The pending counts charge that Respondents breached their agreement with eight prospective purchasers of real property, by failing to record a deed within one year of the date of execution of the eight purchase agreements, and that such failure constitutes a violation of Section 475.25(1)(b), Florida Statutes.

At final hearing Petitioner called no witnesses. Petitioner offered Exhibits 1-10, and they were received into evidence. Respondents called Janis

1. Hinsch and Donald D. Hunt, as witnesses. Respondents offered no exhibits.

   The transcript of the proceedings was filed June 3, 1985. The parties were granted leave until June 13, 1985 within which to file proposed findings of fact and conclusions of law. No proposed findings of fact and conclusions of law have been filed.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Janis K. Hinsch (Hinsch), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license No. 0350063. Hinsch was the vice president and sole qualifying broker of Respondent, Huntco of Marco, Inc., a Florida corporation, licensed as a real estate broker in the State of Florida, license No. 0222987.

      
      

   2. During all times material hereto Huntco was the owner of the Sea Oats Beach Club, a condominium located in Charlotte County, Florida. Huntco marketed the Sea Oats Beach Club under a time-share plan.

      
      

   3. The gravamen of the complaint in this case involves the sale of eight time-share units during the period of April 9, 1983 through August 11, 1983.

      The purchase agreements executed by the eight purchasers in question provided in pertinent part:

      
      

      8. CLOSING AND TITLE

      At closing, . . . Seller shall deliver its warranty deed conveying fee title to the Unit Week(s) to Buyer under a plan of Interval Ownership as defined in the Declaration of Condominium . . . . The closing will be . . . not later than one (1) year from the date of this Agreement.

      
      

      Petitioner contends Hinsch and Huntco are guilty of violating Section 475.25(1)(b), Florida Statutes, because the deeds for the eight units were not delivered to the clerk of the court for recording within one year of the date the purchase agreements were executed. Petitioner's assertion is ill-founded.

      
      

   4. The deeds for each of the units in question were executed within 30 days of the date the purchase agreements were executed. The deeds, together with other pertinent documents, were delivered to a title company for closing and for issuance of an owner's title insurance policy. The title company, subsequent to closing, was to have forwarded the deed to the clerk for recording and, upon return of the recorded deed by the clerk, to have delivered the deed to the purchaser(s). However, the title company, through a clerical error, failed to deliver the deeds for these eight units to the clerk for recording.

      
      

   5. Respondent, upon receiving notice that purchasers had not received their deeds, immediately inquired of the title company to discern the reason, the error was discovered, and the deeds were promptly recorded. Admittedly, the deeds were not recorded within one year of the date the purchase agreements were executed, but the purchase agreements only required that the closing be held within one year. There is no evidence to suggest that the deeds in question were not delivered to the title company, or that these transactions were not closed, within one year of the date the purchase agreements were executed.

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. The allegations in the case are that Respondents violated Section 475.25(1)(b), Florida Statutes.

      
      

   8. Section 475.25(1)(b), Florida Statutes, provides, in pertinent part, that the Florida Real Estate Commission may discipline a licensee when that licensee

      
      

      Has been guilty of fraud, misrepresentation, concealment, false promise, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in

      any business transaction in this state or any other state, nation, or territory; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction. . . .

      
      

   9. The record is devoid of proof that Respondents engaged in any conduct which constitutes a violation of Section 475.25(1)(b), Florida Statutes.

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Counts 5, 7, 9, 11, 13, 15, 17, and 39 of the

Administrative Complaint be dismissed with prejudice.

DONE AND ENTERED this 26th day of June, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 June, 1985.

COPIES FURNISHED:

Susan Hartmann, Esquire Department of Professional

Regulation

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

John R. Dunham, III, Esquire Ingersoll & Block

1515 Ringling Boulevard

Suite 860

Sarasota, Florida 33577

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-004413

Orders for Case No: 84-004413