2 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4702

) JOHN V. NINK, JR., LESLIE M. ) NINK, and GREATER BAY REALTY, ) INC., )

)

Respondents. )

)

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 December 3, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

400 W. Robinson Street Orlando, Florida 32802

For Respondent: John V. Nink, Jr., pro se

12409 Fort King Highway Thonotosassa, Florida 33592 (Mr. Nink appeared after the completion of Petitioner's case and was allowed to testify).

By Administrative Complaint filed September 28, 1987, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of John V. Nink, Jr., Leslie M. Nink and Greater Realty, Inc., Respondents, as real estate brokers. As grounds therefor, it is alleged that Respondents brokered a real estate sale without disclosing that the Ninks were part owner of the property sold and that Respondent failed to refund the escrow deposit after the sale failed to close and demand for return was made by the purchasers.

At the time scheduled for the hearing to commence Respondent was not present. At the request of the Hearing Officer the attorney for Petitioner telephoned the Respondent to inquire why he was not present and to advise him that the hearing would proceed. Some thirty minutes after the scheduled time for the hearing to commence, the hearing commenced. Thereafter, Petitioner called two witnesses and six exhibits were admitted into evidence. At the conclusion of Petitioner's case, the hearing was adjourned at 11:00 A.M.

DOAH Case No. 87-2852 involving another real estate case was scheduled to commence at 1:00 P.M., and it was believed a signed stipulation would be presented prior to that time. Accordingly, the Hearing Officer, reporter and counsel for Petitioner were present when, at 11:10 A.M., Respondent appeared. His reason for not arriving at the scheduled time was that he had received a copy of Petitioner's motion for continuance dated November 6, 1987, and assumed the motion would be granted although he had received no order ruling on that motion. Respondent was advised that Petitioner's witnesses had testified, that various documents had been admitted into evidence which would be shown to him, and that the hearing would be reopened for any evidence he desired to present. Respondent stated he wanted to present his own testimony. The hearing was reopened and Respondent was called to the witness stand. Treatment accorded proposed findings submitted by Petitioner are contained in Appendix A attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent John V. Nink, Jr., was registered as a real estate broker (Exhibit 1). Exhibit 1 contains no license record for Respondents Leslie M. Nink and Greater Bay Realty, Inc.

   
   

2. In Contract for Sale and Purchase executed April 22, 1985 (Exhibit 2), Sprinkle and Anders (sellers) agreed to sell a tract of land to Tampa Technology, Inc. (TTI) for $270,000 with $7500 down payment held by Greater Bay Realty and the contract was witnessed by John V. Nink.

   
   

3. This contract was subject to six conditions shown on "Addendum A" to the contract, the only significant one being condition 6 which provides the contract is subject to buyer receiving approval for change in zoning to allow the construction of 56 units on the site.

   
   

4. TTI is owned by Donald P. Fisher and John M. Cherry who have been partners in numerous real estate developments in the Hillsborough County area for more than 10 years. Fisher holds a license as a real estate broker and signed Exhibit 2 as President of TTI. Both of these complaining witnesses have been involved in the purchase and development of numerous tracts of land and are fully aware of the obligations of real estate contracts.

   
   

5. Although denied by Fisher, Respondent provided Fisher with a copy of the deed admitted into evidence as Exhibit 6. Respondent had obtained an option to purchase this tract of land but was unable to finance the property on his own. To assist in the financing, he entered into an agreement with Sprinkle and Anders whereby they would provide financing and receive 75 percent interest in the property. Under the terms of this agreement, the property was deeded to Nink and simultaneously a deed from Nink to Sprinkle, Anders and Nink was executed. This is the deed admitted into evidence as Exhibit 6 and which was provided to Fisher when Exhibit 2 was executed.

   
   

6. When TTI applied to the county for rezoning they learned only 52 units would be approved for building on the site to be purchased in Exhibit 2. At this time the contract was voidable by the buyer but they did not desire to void the contract. Instead, they proceeded with the rezoning and attempted to raise the acquisition and development financing needed to consummate the purchase and commence construction.

   
   

7. Some six months after first approaching the zoning authorities, TTI was successful in getting this property rezoned to authorize construction of 52

   dwellings on this property. TTI's owners requested the contract remain in effect to give them additional time to locate financing. By these acts, TTI waived the contract provision that the property be rezoned to authorize construction of 56 dwellings.

   
   

8. The principals in TTI have had numerous business relations with Leslie

   1. Nink over the past 10 years. They were aware that the Ninks were minority owners of the property for which TTI contracted to purchase and they continued to pursue the acquisition of this property until in early 1987 they concluded that they were unable to raise the necessary financing.

      
      

9. On February 19, 1987, TTI sent a letter to John Nink requesting refund of the $7500 escrow deposit, and on March 10, 1987, a similar letter was sent to Leslie Nink (Exhibit 5). Upon receipt of Exhibit 5, John Nink contacted the Florida Real Estate Commission to request adjudication of the escrow deposit of

   $7500 to determine if the seller or buyer was entitled to the deposit.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. In license disciplinary proceedings, the burden is on the Petitioner to prove the allegations by clear and convincing evidence. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. No credible evidence was presented that Leslie M. Nink or Greater Bay Realty, Inc., were licensed as alleged. Accordingly, all charges against these Respondents in Counts II, III, V, and VI must be dismissed.

    
    

13. With respect to Respondent John V. Nink, the Administrative Complaint charges violation of Section 475.25(1), Florida Statutes, which provides inter alia that administrative action may be taken against a licensee if the Commission finds the license:

    
    

    (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence of breach of trust in a business transaction in this state...

    (d) Has failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to

    such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, con- veyance, or other document or thing of value,

    ...which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circum- stances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting

    demands have been made upon him for the escrowed property, which property he still maintains in his escrow or trust account, the licensee shall promptly notify the commission of such doubts or conflicting demands and shall promptly:

    1. Request that the commission issue an escrow disbursement order determining who was entitled to the escrowed property;

    2. With consent of all parties, submit the matter to arbitration; or

    3. By interpleader or otherwise, seek adjudication of the matter by a court.

    
    

    If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may

    be filed against the licensee for failure to account for, deliver, or maintain the escrowed property.

    
    

14. Count I here charges John Nink with violation of Section 475.25(1)(b) above quoted on the allegation that he brokered property to TTI without disclosing to the buyer that he was part owner of the property. In view of the finding that Nink did disclose his interest in the property to the buyers at the time the contract to purchase was executed, this charge must fail.

    
    

15. With respect to the charge of failure to account or deliver escrow funds to the party entitled thereto in violation of Section 475.25(1)(d), Florida Statutes, this charge should never have been brought. Promptly upon receipt of TTI's request for a refund of the earnest money deposit held in escrow by Respondent, he notified the Florida Real Estate Commission of his doubts as to whom the proceeds should go and requested the issue be resolved by the Commission or arbitrated. By so doing Respondent took the action prescribed by the statute above quoted which precludes the filing of the Administrative Complaint containing this charge.

    
    

16. From the foregoing it is concluded that no evidence was submitted that Leslie M. Nink or Greater Bay Realty, Inc. were licensed by the Florida Real Estate Commission at the time of the alleged offenses and jurisdiction to take disciplinary action was not shown; that John Nink disclosed his interest in the property for which he brokered the contract to sell to TTI at the time the contract was executed and may not be found guilty of Section 475.25(1)(b) for failing to make such a disclosure; and, apart from the fact that TTI waived the only provision of the contract to purchase which gave them the option to void the contract, by promptly referring the escrow dispute to the Commission as provided by the statutory provision above quoted, this charge may not now be brought against Respondent. It is

RECOMMENDED that all charges preferred against John V. Nink, Jr., Leslie M. Nink and Greater Bay Realty, Inc., be dismissed.

ENTERED this 18th day of December, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4702

Treatment Accorded Proposed Findings Submitted By Petitioner.

1. Rejected except as for the license of John V. Nink, Jr.

2. Included in HO #2.

3. Included in HO #3.

4. Rejected as unsupported by credible evidence. Further, the parol evidence rule would preclude such evidence being considered in derogation of the terms of the contract.

5. Rejected.

6. Accepted.

7. Included in HO #6.

8. Included in HO #9.

9. Rejected.

10. Accepted insofar as included in HO #9.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Professional Regulation-Division of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

John V. Nink

12409 Ft. King Highway Thonotosassa, Florida 33592

Leslie M. Nink

12409 Ft. King Highway Thonotosassa, Florida 33592

Greater Bay Realty, Inc. 12409 Ft. King Highway Thonotosassa, Florida 33592

Darlene F. Keller

Acting Executive Director Division of Real Estate Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004702

Orders for Case No: 87-004702