Findings Of Fact Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued. DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, 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 2nd day of May, 1977. COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 Michael E. Crane, Esquire 521 Landmark Building Naples, Florida 33940 =================================================================
The Issue Whether petitioner's application for registration as a real estate salesman, pursuant to Chapter 475, Florida Statutes, should be approved.
Findings Of Fact Petitioner field applications for registration as a real estate salesman with respondent on October 10, 1977. Question 16 of the application reads as follows: 16. Have you, in this state, operated, attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so? The petitioner answered "no" to Question 16. On December 8, 1977, respondent Florida Real Estate Commission issued an order denying the application based on its determination that the applicant had operated, attempted to operate or held himself out as a real estate broker or salesman within the one year period prior to filing his application. Petitioner thereafter requested a hearing in the matter. (Exhibit 1) Petitioner is the president of Marketing Institute Corporation of the Americas, Ltd. of San Jose, Costa Rica. (MICA) The firm operates as a real estate sales organization under the laws of Costa Rica, and is owned by Insco S.A., a Costa Rican holding company. (Testmony of McIntire, Figueredo) In 1975, petitioner became associated with William W. Landa, president of Costa del Sol, a condominium project in Miami, Florida. His function was to produce sales of condominium units as a result of sales efforts in Latin America. Part of the informal arrangement was the petitioner occupied a rental villa at the condominium project. His success in producing sales was limited and, as a result, the association was terminated sometime in 1976. In a letter to Lands, dated January 21, 1977, petitioner sought an accounting of expenses incurred in the operation and stated that he had produced three purchasers for which commissions were payable at the rate of "10% for foreign sales and 5% on domestic sales." Although no explanation of the terms "foreign sales" and "domestic sales" was presented, Landa testified at the hearing that petitioner did not sell in Florida for Costa del Sol. (Testimony of Landa, Figueredo, Exhibits 2-3) On December 1. 1976, the receiver in bankruptcy of the estates of Grandlich Development Corporation and Fisher Development Corporation, Fred Stanton Smith, president of the Keyes Company, Miami, Florida, Wrote petitioner and offered to pay his firm a 10% commission on "all sales closed by you of all Commodore Club Condominiums sold to your prospects." The commission was to be payable to MICA through its agent in the United States, Transcontinental Properties, Inc. of Miami, Florida, a corporate broker, The Commodore Club is a condominium project located at Key Biscayn, Florida. Hemisphere Equity Investors, Inc. was the registered broker for the sales of the condominiums and kept sales agents on the premises. Smith instructed Hemisphere to cooperate with foreign brokers in the sales of the properties. Petitioner proceeded under this arrangement to obtain and refer prospective foreign purchasers to Transcontinental who arranged to show the condominium units to the clients and consummate any resulting sales. Although petitioner had desk space in the Transcontinental office from September, 1976, to August, 1977, he was not supposed to show properties to clients or be involve in any real estate sales functions. In September, 1976, the president of Transcontinental placed a telephone call to respondent's legal office at Winter Park, Florida and ascertained that commissions could be paid to a foreign broker. However, he was informed by the Commission representative that it was a "gray" area and, although the foreign representative could serve as an interpreter for foreign clients during transactions in the United States, he could not perform any of the sales functions himself in Florida. Sales were made in this manner and commission checks were paid to petitioner's firm during the period January - September, 1977. (Testimony of Smith, McIntire, Figueredo, Exhibits 4, 5, 12, 13, 15) On July 1, 1976, Alexander Sandru purchased a condominium at the Commordore Club through the Keyes Company as broker. He was a friend of petitioner's from Caracas, Venezuela, and the latter had recommended his purchase of the condominium. However, petitioner was not in the United States at the time Sandru viewed the property and purchased it. Petitioner claimed a commission on the sale and it was paid to his firm through Transcontinental's predecessor company. A dispute arose over the payment of the commission because a saleswoman of Hemisphere Equity Investors, Inc. had shown the property to Sandru and assumed that she would earn the commission on any resulting sale. (Testimony of Lundberg, Nelson, Murragy, Exhibits 8-11) On several occasions in 1976 and 1977, petitioner accompanied Latin American individuals to the Commodore Club where a representative of Hemisphere showed them various condominium units. During this time, petitioner would inquire concerning maintenance charges and the like and transmit such information to the individuals in Spanish. Several of these persons were connected with petitioner's foreign firm and were not prospective purchasers. (Testimony of Lundberg, Figueredo, Exhibit 7) On January 30, 1977, Insco S.A. entered into a purchase agreement for a Commodore Club condominium unit. Petitioner signed the agreement on behalf of his firm MICA as broker for the transaction. However, the deal was never consummated. (Testimony of Figeredo, Exhibit 14)
Recommendation That Petitioner's application for registration as a real estate salesman under Chapter 475, Florida Statutes, be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1978. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Richard J. Mandell, Esquire 748 Seybold Building Miami, Florida 33132
Findings Of Fact The Respondent Habitat Corporation is a corporate real estate broker holding license number 0217261, with a registered business address of 3835 North Andrews Avenue, Fort Lauderdale, Florida 33309. The Respondent James S. Shenkenberger is the qualifying broker for the corporate licensee, and holds license number 0079972. Prior to January 2, 1981, Shenkenberger was qualifying broker for American Overseas Investment Corporation, then a licensed Florida corporate real estate broker operating in Fort Lauderdale, Florida. On January 2, 1981, Shenkenberger placed the real estate license of American Overseas Investment Corporation on inactive status, and obtained an active license for the Habitat Corporation. From July of 1977, Shenkenberger had an oral agreement with Florida Hendry Land, Inc., to act as a broker in selling property belonging to Florida Hendry Land, Inc. The terms of this agreement were that Shenkenberger was to be paid on a commission basis, and that he would present sales agreements for the approval of Joe Hendry, the owner of the corporation. When a sales contract was complete, then Florida Hendry would issue the Warranty Deed and order the title insurance. In early 1980, Irvin Adams, pursuant to a newspaper advertisement advertising land for $800 an acre, contacted Jim Shenkenberger and arranged to meet with him. On February 9, 1980, Adams flew to Florida from Pennsylvania and was shown Florida Hendry land by Shenkenberger. On this date, Adams decided to purchase lots four and five for a total purchase price of $64,000. Shenkenberger told Adams that if he made all the payments within one year, the purchase price would be reduced by 10 percent. As a down payment, Adams gave Shenkenberger a check for $14,000, payable to the order of American Overseas Investment Corp., and $2,000 in cash. At no time was Adams presented with a sales contract for Lots four and five. Adams returned to Pennsylvania, and contacted Shenkenberger several times during 1980 when he became worried that he had not received any requests for further payments. Shenkenberger informed Adams that the land was tied up, that Mr. Hendry had an obligation to the State of Florida, and that the land had been put up as a bond. In December of 1980, Shenkenberger contacted Adams and told him that the property was clear. On January 10, 1981, Adams flew to Florida a second time. He met with Shenkenberger, and again viewed the Hendry property. Adams decided to change the property he was purchasing to tract 18. Adams gave Shenkenberger a check payable to the order of American Overseas Investment Corp. in the amount of $12,800, and Shenkenberger gave him a receipt reflecting that Adams had paid in full for tract 18. At no time was Adams presented with a sales contract for tract 18. On this same date, Shenkenberger showed Adams three more Hendry tracts, and Adams gave Shenkenberger a down payment for Lots six, seven and ten in the amount of $11,900. Shenkenberger made out and signed the offers to purchase the three lots in the presence of Adams, but did not give them to Adams to sign. Adams never received a receipt for deposit or a sales contract on any of the three lots. Polly Hodge, who operated Florida Hendry Land, Inc. on a day-to-day basis, was first informed in March of 1980 that Irvin Adams might be interested in purchasing certain of their properties. The first money received by Florida Hendry Land, Inc., relating to sale of property to Irvin Adams, was by a $300 check from Shenkenberger dated January 15, 1981. Shenkenberger represented that the funds were a binder for the purchase by Adams of tracts six, seven and ten. Florida Hendry Land, Inc., never received a written offer to purchase the properties. After Florida Hendry received the binder, Polly Hodge asked Shenkenberger on several occasions about the status of the sale to Adams. Shenkenberger repeatedly advised her only that Adams would be coming to Florida in the near future. After Adams returned to Pennsylvania from his trip to Florida in January of 1981, he contacted Shenkenberger and advised him that he wished to purchase one lot in full rather than Lots six, seven, and ten. On January 26, 1981, he sent Shenkenberger a check in the amount of $14,650 for payment in full of tract ten of the Hendry property. At no time did Adams receive a deposit receipt for this payment, nor did he receive a sales contract. When Adams became concerned because he had not received deeds to the two properties, he contacted Shenkenberger, and was told that the Hendry Land Office was slow in preparing the deeds. On February 26, 1981, Adams visited the offices of Florida Hendry Land, Inc., and spoke briefly with Polly Hodge. Adams informed her that he wished to purchase tract ten only, and was not pursuing the purchase of tracts six and seven. Later, Adams met with Shenkenberger, and again inquired about the deeds. Shenkenberger assured him that he would have the deeds shortly. On February 27, 1981, Shenkenberger wrote a check to Florida Hendry Land in the amount of $23,895 which, together with the binder of $300, was the full purchase price of tract ten less Shenkenberger's 10 percent commission, and the deed was sent for recordation. Polly Hodge also gave Shenkenberger the Warranty Deed to tract 18 after Shenkenberger represented to her that he would be closing the property on the weekend, and would then deliver the purchase money to her. After the Warranty Deed was given to Shenkenberger, Polly Hodge inquired several times as to the progress of the transaction, but Shenkenberger repeatedly told her that Adams had not arrived to close. After returning to Pennsylvania, Adams was contacted by Shenkenberger on or about March 12, 1981. Shenkenberger told Adams that he had talked to J.B. Hendry and that Hendry did not feel that he had gotten enough money from Adams for tract 18. Shenkenberger told Adams that he would give Adams his money back for tract 18 or that Adams would have to pay him an additional $3,600. In response, Adams sent Shenkenberger a check payable to the order of American Overseas Investment Corporation in the amount of $3,600. Adams received the recorded deed for tract 10 on March 14, 1981, and received the recorded deed for tract 18 on April 11, 1981. In total, Adams paid American Overseas Investment Corporation $32,400 for tract 18 and $26,500 for tract 10. Florida Hendry Land, Inc., received no monies from either Irvin Adams or James Shenkenberger for the purchase by Adams of tract 18. At the time tract 18, consisting of 40 acres, was conveyed to Adams, the purchase price was $72,000 less 10 per cent because it was a cash purchase. Florida Hendry Land, Inc., was entitled to $64,800 less 10 per cent for Shenkenberger's real estate commission, for a total amount due to Florida Hendry Land of $58,320. Shenkenberger was aware of the purchase price for tract 18 from his long business relationship with Florida Hendry Land, Inc., and from plat maps given to him by Hodge that showed lot prices. In 1980 and 1981, Florida Hendry Land processed sales on a "walk-in" basis, processing and completing a conveyance while the purchasers waited in the office. Florida Hendry had no problems with any governmental agencies, nor was there any other impediment, which prohibited them from conveying their properties. The checks on the account of Irvin Adams were made payable to the order of American Overseas Investment Corporation at the specific instruction of Shenkenberger. On February 11, 1980, Shenkenberger opened a bank account for American Overseas Investment Corporation in what was then the First Bank of Oakland Park, Oakland Park, Florida. This account was not an escrow account or trust account. On January 12, 1981, after American Overseas Investment Corporation had been placed on inactive status, Shenkenberger deposited two checks in the amounts of $12,800 and $11,900 in this account. On February 2, 1981, Shenkenberger deposited the check for $14,650 drawn by Adams into this account. On March 12, 1981, Shenkenberger deposited the check for $3,600 given by Adams into this account. Although Shenkenberger received payment in full for tract 10 shortly after January 26, 1981, he did not deliver the payment to Florida Hendry Land until February 27, 1981. The payments made by Adams to American Overseas Investment Corporation for the purchase of tract 18 were converted to Shenkenberger's own use. In August, 1981, when Florida Hendry Land, Inc., became aware that Shenkenberger had recorded the deed for tract 18, and that the property had in fact been conveyed to Irvin Adams, they attempted to get payment for this tract from Shenkenberger, but were unsuccessful. Thereafter, Florida Hendry filed suit against Shenkenberger and Irvin Adams. Irvin Adams employed the services of an attorney to defend him in the action which was still pending on the date of the final hearing in this case. During the course of the investigation of this matter by the Department of Professional Regulation, a Subpoena Duces Tecum was served on Shenkenberger, as President of American Overseas Investment Corporation, on January 25, 1982. This subpoena requested Shenkenberger to produce all listings, contracts to purchase, binder deposits, deposits of checks and/or monies into bank accounts, receipts, closing statements, and correspondence involving all real estate transactions between Florida Hendry Land, Inc., and Irvin Adams. The Respondent failed to honor the Department's subpoena, and never delivered the requested documents for examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, James S. Shenkenberger, and the Habitat Corporation, be revoked. THIS RECOMMENDED ORDER ENTERED this 2nd day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Owen L. Luckey, Jr., Esquire Post Office Box 865 La Belle, Florida 33935 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are as follow: 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? 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 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. 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. 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.) 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. 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. Respondent testified that Ms. Hahn never asked to rent his house. 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. Respondent testified that he was visited by the manager of the brokerage office for which he worked. 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 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. 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. 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.
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
Findings Of Fact In the fall of 1973, Mr. and Mrs. Delmar D. Carter purchased the Buccaneer Motel and Woodside Apartments [the motel] from C.E.K., Inc., whom respondents represented in the sale. Respondents agreed to accept less from C.E.K., Inc., as their commission on the sale, that they might have otherwise, because the Carters agreed to give respondents the exclusive right to resell the motel for a period of five years. Two years after they purchased the motel, the Carters asked O.B. Linkous to try to sell the motel, but the Carters sell held the motel when the resale agreement expired in late 1978. One of the obligations assumed by the Carters in exchange for the motel was secured by a mortgage that C.E.K., Inc., had executed in favor of O.B. Linkous Realty, Inc., on December 14, 1972. Petitioner's Exhibit No. 2. This assumed obligation required the Carters to make certain monthly payments to the corporate respondent including a payment of $862.19 on January 1, 1979. Under the mortgage agreement, the entire principal (originally $88,247.93) would become due if a "default continue for a space of 30 days." Petitioner's Exhibit No. 2. On January 25, 1979, Mr. Carter delivered to Mr. Linkous a check in the amount of $862.19, Petitioner's Exhibit No. 1, as payment of the amount due on January 1, 1979. When he handed the check to respondent Linkous, Mr. Carter told him that the funds in the account on which the check was drawn were insufficient for the drawee to pay the check, but that he would deposit sufficient funds on the following day. Respondent Linkous answered that he saw no problem since he intended to deposit the check in his own account in another bank and assumed it would be at least a day before the check was presented to the drawee. On the following day, Mr. Carter deposited $865.96 in the account on which the check was drawn. Petitioner's Exhibit No. 3. On January 31, 1979, the balance in the account was $1,000.32. Petitioner's Exhibit No. 3. Instead of depositing the check, respondent Linkous took the check, on the same day he received it, to the Flagship First National Bank of Ormond Beach, on which it was drawn, and persuaded a teller there to stamp it so as to indicate that it had been dishonored because sufficient funds were not on deposit. On February 7, 1979, a mortgage foreclosure complaint was filed against the Carters and C.E.K., Inc., (as holder of a junior mortgage), in which respondents' attorney alleged that the Carters had "defaulted under the note and mortgage by failing to pay the payment due January 1, 1979, and all subsequent payments." Petitioner's Exhibit No. 2. The Carters retained counsel who filed an answer and counterclaim in which it was alleged, inter alia, that Linkous "deliberately with premeditated design, deceived and tricked [the Carters]." Petitioner's Exhibit No. 2. After these pleadings had been filed, the Carters agreed to respondents' counsel's suggestion that they grant the corporate respondent the exclusive right to sell the motel for another five-year period in exchange for an end to the litigation, and executed an agreement to that effect. Petitioner's Exhibit No. 6. The parties stipulated that both respondents hold real estate licenses issued by petitioner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondents' licenses for a period of five years. DONE AND ENTERED this 10th day of June, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of June, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire 130 North Monroe Street Tallahassee, Florida 32301 Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Cindy Realty of Hernando, Inc., and William Colello as real estate brokers. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen C. Booth, Esquire 1604 U.S. Highway 19, North New Port Richey, Florida 33552
