The Issue The issues proposed by Respondent, and adopted here, are: Whether the Petitioners timely filed a proper petition with all required attachments stating whether the Respondent's actions were substantially unjustified and whether circumstances exist that would make the award unjust, pursuant to Rules 22I- 6.035(1), (2)(e) and (3), Florida Administrative Code. Whether the Respondent was substantially justified in bringing this action, or that special circumstances exist which would make an award of attorney's fees unjust, pursuant to Section 57.111, Florida Statutes (1985). The Respondent has not contested the Petitioners' allegations of standing as a "prevailing small business party" nor the reasonableness of the fees and costs claimed by the Petitioners.
Findings Of Fact On January 20, 1986, Elizabeth Yerkes and Pilar Montes, comprising the Probable Cause Panel of the Florida Real Estate Commission (FREC), found probable cause that the Respondents violated the real estate law. They recommended that an administrative complaint be filed. In the record before me, the only evidence of the panel's decision is a four-page transcript of the January 20, 1986, proceeding. Any written materials which may have been considered by the panel are not included. The entire proceeding consisted of a brief exchange, wherein counsel for the panel was assured that the members had the opportunity to review the agenda material, and the following: MR. WILSEN [Counsel for DPR]: Item 6 concerns a broker and a corporate broker. The Respondents have failed to pay a cooperating broker a real estate commission in the amount of thirty-seven thousand dollars. Additionally, the Respondents have failed to keep the thirty-seven thousand dollars in their trust account. The final judgement in the amount of thirty-seven thousand-dollars was obtained against the company in December of 1984. Therefore, the Respondents are charged with failure to account and deliver a share of a commission and failure to keep the share of commission in their real estate brokerage trust account. Therefore, recommend [sic] this Administrative Complaint be filed. MS. YERKES [Panel Member]: After reviewing the file, I find probable cause to exist in ... is it four counts. Okay. MS. MONTES [Panel Member]: I find probable cause, too, in four counts. (Respondent's Exhibit 4, Pgs. 3, 4) The Administrative Complaint was filed on February 11, 1986, alleging violations of subsections 475.25(1)(d) and (e), F.S. and Rule 21V-14.13 Florida Administrative Code, for failing to account for and deliver a real estate commission to a cooperating broker, and failing to place and maintain the funds in escrow. On May 20, 1986, the Florida Real Estate Commission rejected a stipulation providing for revocation of the corporate respondent's license and reprimand of the individual respondent. The proposed stipulation included these oddly conflicting provisions: Respondents neither admit nor deny the allegations contained in the Administrative Complaint. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of a violation of the Real Estate Practice Act as follows: failed to account and deliver a real estate commission as to Respondent Real Estate Services, Inc., and failed to properly supervise the activities of the corporation as to Respondent Charles A. Alario, Sr. (Respondent's Exhibit 5, pp. 1-2) The cover letter from counsel for Respondents accompanying the stipulation informed counsel for DPR that the client was entering the stipulation to save the expense of proving his innocence. (Respondent's Exhibit 5) The final hearing was held in Sarasota, Florida on July 21, 1986. Each party presented only one witness. A substantial portion of Petitioner's case consisted of the complaint and judgement in a civil case wherein the Respondents were sued for share of a commission. The Recommended Order, dated October 6, 1986, provided, in pertinent part: Findings of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario, Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issued license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a corporation licensed as a `real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,25] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January, 1979 through August, 1980. (T- 19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34). Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T-31, 32). On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd. seller, and Buck Creek Development Corporation, buyer. (Respondent's Exhibit Number 8) Respondents did not have a co-buyer* agreement with Rider and Opitz nor with Ms. Bell. (T-20, 40, 41) Charles Alario offered Phyllis Bell referral fee to be paid to her broker of record. (T-41, Respondent's Exhibit Number 6). This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18, 20, 21, Respondent's Exhibit Number 1 and Number 9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's Exhibits Number 4 and Number 5). A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the, jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's Exhibit Number 6). Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52- 54). *The context suggests this term was intended to be "co-broker". The Recommended Conclusions of Law noted that the exhibits from the civil suit were not competent evidence, in and of themselves, of violations of subsections 475.25(1)(d) and (e), F.S.: It is not possible to extrapolate from the complaints and the very briefly-worded judgement that the essential elements of those subsections were proven. The involuntary dismissal of Charles Alario and the jury award of $37,000.00 damages bear little resemblance to the relief sought and allegations made by the Plaintiff, Rider, Opitz, and Seale, Realty, Inc. Further, it was noted that the stricter standard of proof in a license proceeding effectively precluded reliance on a prior civil judgement for evidence of a license statute violation. The Department of Professional Regulation never proved an essential element of the alleged violations, that Respondents actually received their commission from the sale. Respondents were in the process of suing for that commission, a fact duly noted by counsel for DPR in his presentation of the proposed stipulation to the Commission. (Respondent's Exhibit Number 6, p. 3) On December 2, 1986, the Florida Real Estate Commission voted 3-2 to adopted the Recommended Order dismissing the charges. The members were obviously troubled by the existence of a civil judgement against the corporation that had not been satisfied. Counsel for DPR conceded, however, that the alleged violations were not failure to pay a judgement, but rather, failure to pay a commission to a real estate broker. (Respondent's Exhibit Number 7, p. 17) This distinction was also noted by Marguerite Schlitt, the Vice-chairperson. (Respondent's Exhibit Number 7, p. 20) Another member noted that he could not find, in his reading, anything specifically where the commission was paid. (Respondent' Exhibit Number 7, p. 18) As part of his argument to the Commission, counsel for DPR again made clear the essence of the case against these Respondents: [by James Mitchell, DPR staff attorney]: I think we have got to give that civil judgement some credence, some credibility, and you can do that by overruling the Hearing Officer's recommendations and going essentially with what the civil Court has done. I don't think it is necessary for us, in these proceedings, to retry a civil trial all over again. I think it is our position that the final judgement, complaint and final judgement, are sufficient to establish, in situations such as this, that a stipulation has occurred, rather than, in fact, a case like this where the judgement had to be anticipated. I think you can do that by overruling the Hearing Officer's Recommended Order. (Respondent's Exhibit Number 7, p. 15) The Commission's Final Order adopting and incorporating by reference the Recommended Order was filed on December 11, 1986. The Department of Professional Regulation appealed to the Fifth District Court of Appeal. The Final Order was affirmed, per curiam, without an opinion, on July 21, 1987. Petition for Rehearing was denied on August 17, 1987, and the appellate court's Mandate was issued on September 3, 1987. To defend against the agency action, Petitioner incurred attorney's fees and costs in the total amount of $9,190.68. This amount is not contested by Respondent.
Findings Of Fact Respondent Wayne H. Hunter is a registered real estate broker holding license number 0115637. Respondent's present address is 4780 Cove Circle, Apartment 104, St. Petersburg, Florida 33708. On April 29, 1980, and at all other times material to this proceeding, the Respondent Hunter was vice-president and director of Professional Center Realty, Inc., a Florida corporation. On April 29, 1980, Ralph Monroe, realtor, entered into a contract on behalf of Mario Sosa with Professional Center Realty, Inc. Mr. Sosa, who is also a realtor, was the owner of the acreage which is the subject of this proceeding. The Respondent Hunter negotiated the terms of the April 29, 1980 contract for sale between Ralph Monroe, realtor for Mario Sosa, and Professional Center Realty, Inc. and all oral and/or written modifications and extensions of the original contract. The contract for sale specified that Unit 114 of the French Quarter Condominiums was pledged as an earnest money deposit on Sosa's acreage subject to a $28,000 first mortgage on the condominium. This unit represented an exchange vehicle submitted to render the contract legally binding and the buyer, Professional Center Realty, Inc., agreed to produce $25,000 cash In lieu of the condominium unit prior to closing. In negotiating the contract for sale and subsequent modifications and extensions of the contract, the Respondent Hunter represented that he either owned Unit 114 of the French Quarter Condominiums or had the legal authority from the owner of record to pledge the condominium unit as an earnest money deposit. In support of this contention, the Respondent offered to produce a deed to the unit which would be placed in escrow until exchanged for the $25,000 cash. The Respondent Hunter at no time material to the negotiation, execution, modification and extension of the April 29, 1980 contract for sale either held title to Unit 114 of the French Quarter Condominiums in his own name or had the requisite legal authority to use this condominium as a deposit. The original closing date of June 13, 1980, was extended by the parties when the Respondent Hunter could not produce either the $25,000 in cash or a deed to the unit. On June 23, 1980, the Respondent Hunter informed Sosa that he did not have the cash to close the transaction. He offered, however, to pledge future commissions due to Professional Center Realty, Inc., in lieu of cash. Sosa refused this offer. The Respondent Hunter then sent Sosa a corporate note for $10,000. When Sosa learned that the assets of the corporation consisted of furnishings and future commissions, this offer was also rejected. Neither Ralph Monroe, realtor, nor Mario Sosa, the owner at the time of negotiating, executing, modifying and extending the April 29, 1980, contract for sale, knew that the Respondent neither owned nor had legal control over the condominium. The April 29, 1980, contract for sale failed to materialize and/or close as a direct result of the Respondent's misrepresentations and actions relative to Unit 114. This resulted in the loss to Sosa of all earnest monies and/or properties pledged as earnest money on the sale of the property. The Respondent Hunter knew that he did not have the appropriate legal authority to use Unit 114 as an earnest money deposit in connection with the April 29, 1980, contract for sale. The Respondent Hunter attempted to use Unit 114 for his own benefit in order to purchase the Sosa property on behalf of Professional Center Realty, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the real estate broker's registration of the Respondent Wayne H. Hunter be revoked. DONE and ORDERED this 13th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH 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 13th day of April, 1982. COPIES FURNISHED: Nork P. Kelley, Esquire FREEMAN & LOPEZ 4600 West Cypress, Suite 410 Tampa, Florida 33607 Wayne H. Hunter 4780 Cove Circle, Apt. 104 St. Petersburg, Florida 33708 Frederick H. Wilsen, Esquire Assistant General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact Mollie Lee Warrington received due and proper notice of the hearing. Mollie Lee Warrington is and was a registered real estate salesman and at the time here in question was employed by Happy Home Hunters, Inc. a real estate broker corporation. The Florida Real Estate Commission also introduced into evidence Exhibit D, a Business Information Form sent to Happy Home Hunters, Inc. by the Better Business Bureau of South Florida, signed "Mollie Lee Warrington, Treasurer," and a letter signed "Lee Warrington" to Mr. Smathers of the Better Business Bureau of South Florida, both dated April 25, 1974. - John Correia, Vice President of the Better Business Bureau of South Florida, testified that the business records of the Better Business Bureau of South Florida, to include the Business Information Form (Exhibit D), were not available to the public, but that the information contained on the Business Information Form was provided to members of the public contacting the Better Business Bureau. Specifically, Mr. Correia indicated that members of the public who contacted the Better Business Bureau would generally be referred to the individual who had provided the information contained on the Business Information Form, which in the case of Happy Hone Hunters, Inc. would be Mollie L. Warrington. The record does not reveal any specific instance in which Mollie Warrington's corporate status was provided to the public. The records does not clearly indicate whether the corporate officers as stated in the Business Information Form would be provided to members of the public. See Transcript, p. Mr. Correia did not identify the signature of Mollie Warrington on the documents and no testimony was received that the Respondent had in fact signed and sent to the Better Business Bureau either the letter or the form. The Commission failed to prove that the Respondent sent or signed the form. Further, assuming the Respondent did sign and transmit the document, there is no evidence that the information contained relating to her corporate status was given to the public by the Better Business Bureau of South Florida. Edgar M. Greene, Jr., investigator for the Florida Real Estate Commission, testified that he had served a subpoena duces tecun upon Southern Bell Telephone and Telegraph Company and Mr. P. M. King and pursuant to such subpoena received the documents marked and received into evidence as Exhibit F, Mr., Greene had no knowledge of the source of the information contained in the records, The Hearing Officer having reviewed the records (Exhibit F) finds that they do not indicate the source of the data contained therein. There is no evidence in the record that the Respondent was responsible for the representation made to the telephone company that she was a corporate officer. The Commission's position regarding the law applicable to the charges is that the Respondent held out to the public that she was a corporate officer, that corporate officers by law must be real estate brokers, therefore, the Respondent held out to the public that she was a real estate broker. See Commission Counsel's representation on p. 7 of the transcript. In reaching this interpretation of the statutes, the Commission has rea the provisions of Section 475.01(3) which defines any person who is an officer of a corporate broker as operating as a real estate broker back into the provisions of Section 475.01(2) which defines a real estate salesman or broker as anyone who advertises or holds out to the public that they are engage in the business of selling, renting, etc. real estate. Beyond the fact that these statutes involve penal sanctions and must be strictly construed, the basic premise of this interpretation is in error. Section 475.01(2) is a general definition of both salesman and broker. All the acts enumerated in Section 475.01(2) can legally be performed by either a salesman or broker except those acts enumerated in Section 475.01(3) which may only be performed by brokers. Section 475.01(3) does not concern itself with holding out to the public, but declares that corporate officers of corporate brokers operate as brokers. The record is clear that Respondent was not an officer of the corporation. See p. 85 of the transcript. Additional evidence was received at hearing that the Respondent's acts and business policies were free from direction, control or management of another person; however, violation of this specific provision of Subsection (3) of Section 475.01 is not charged in the Administrative Complaint. The Administrative Complaint limits itself specifically to the instances of the Respondent holding herself out as an officer of the corporation. While it may be argued that the niceties of pleadings do not apply to administrative proceedings, the case law clearly provides that facts in the Complaint shall be alleged in concise, simple language and shall be deemed to afford notice of the charge, if a person of ordinary understanding may reasonably be enabled to present his defense. Both the Information and Answer shall be aided and deemed amended by the proof if the opposite party shall be afforded full opportunity to meet and defend against or rebut such proof. See Thorn vs. Real Estate Commission, 146 So.2nd 907 at page 909. Under the facts of Thorn above, where the Respondent had been charged with conspiracy and found to be guilty of aiding and abetting, the court stated: "The variance in the charge in the Information and the guilty findings of the Commission, was not material since all of the facts surrounding the transaction were the same and the findings were that the acts were done by way of aiding and assisting, rather than in furtherance of a conspiracy." Unlike Thorn, in the instant case there is a substantial difference between alleging that a person has held herself out to the public to be the officer of a corporate broker and alleging that a person's business policies and acts were free from direction, control or management of another person. while it has been argued that alleging the Respondent was operating as a real estate broker as defined in Section 475.01(3), Florida Statutes, would constitute sufficient notice, the Hearing Officer having considered the acts alleged in the Complaint to have been committed by the Respondent and the provisions of Subsection (3) of Section 475.01, finds as a matter of law that the general allegation contained in paragraph 4 of the Complaint is insufficient to put the Respondent on notice of the charges. A person of ordinary understanding would not reasonably be able to prepare a defense, and meet and defend against or rebut proof of such broad allegations, but would be led solely to defend against the charges of being a corporate officer. Because the Administrative Complaint did not adequately state the factual allegations upon which the Commission presented evidence regarding the Respondent's alleged unsupervised business activities, the Complaint fails to meet the minimum due process requirements of notice to which the Respondent is entitled under Chapter 475 and 120, Florida Statutes, and the Florida and United States Constitutions. See Wood vs. Department of Transportation, Bureau of Aviation, etc. 325 So.2nd 24. Based on the foregoing conclusions of law, the Hearing Officer has not considered the evidence and testimony presented with regard to the Commission's contention that her unsupervised activities in behalf of Happy Home Hunters, Inc., and would recommend that the Commission also disregard said testimony and evidence.
Recommendation Based upon the foregoing conclusions of law and findings of fact, the Bearing Officer recommends that the Respondent's registration as a real estate salesman not be revoked or suspended. DONE and ORDERED this 6th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mollie Lee Warrington 990 Northeast 89th Terrace Miami, Florida 33138
Findings Of Fact Respondent Eugene Lay was registered as a business opportunity broker on March 15, 1982 by the Board of Real Estate (now the Florida Real Estate Commission). His registration was effective from January 5, 1982 until January 1, 1984. He was issued registration number 1800461. On February 12, 1982 Mr. Lay received $3,750 from Christopher Orthodox on a contract for the purchase of a business known as Personal Valet Services, Inc. The $3,750 were to be held in trust by Mr. Lay until the closing of the business purchase transaction. Mr. Lay did not put the money in a trust account but instead spent the money for his own personal business. When it later appeared to Mr. Orthodox that the transaction was not going to close, he demanded the return of his $3,750 deposit. Mr. Lay failed to return it to him and Mr. Orthodox was not able to purchase the business. His $3,750 has never been returned. On February 27, 1982 Mr. Lay obtained from Mr. Orthodox and Loretta Orthodox an additional $9,000 as a deposit to be held in trust pending their obtaining a Small Business Administration loan to purchase a business known as Starlight Creations, Inc. The purchase contract was conditioned upon the ability of the Orthodoxes to secure the loan for $121,500. They were unable to obtain the loan. When it appeared that the purchase transaction would not close, Mr. Orthodox demanded the return of his $9,000. Mr. Lay did not return the money because he had spent it for his own personal business. Subsequent to the Orthodoxes initial demand for the return of their money, Mr. Lay's wife returned $1,000 to them in cash. No further repayments have been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order dismissing the Administrative Complaint against Eugene Lay for lack of jurisdiction. DONE and RECOMMENDED this 29th day of February, 1984, in Tallahassee, Florida, MICHAEL PEARCE DODSON 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 29 day of February, 1984.
Findings Of Fact The Respondent is, and at all times material to this matter has been, registered with the Real Estate Commission as a real estate broker. The Respondent has been the broker in charge of Lynn Real Estate Company. From approximately January 6, 1976 until February 14, 1977, Jacqueline McNabb was associated as an independent contractor with Lynn Real Estate and with the Respondent. McNabb was at that time registered with the Real Estate Commission as a real estate salesman. She is now registered as a broker. McNabb's relationship with the Respondent is set out in a contract which was received in evidence at the hearing as Petitioner's Exhibit 1. Paragraph 6 of the contract provides: The fees usually and customarily charged by the broker shall be charged for any service performed hereunder, unless broker shall advise the salesman of any special contract relating to any particular transaction he undertakes to handle. When the salesman shall perform any service hereunder, whereby a fee is earned, said fee shall, when collected, be divided between the broker and the salesman, in which division the salesman shall receive sixty percent and the broker shall receive the balance. In the event that two or more salesmen participate in such a service, or claim to have done so, the amount of the fee over that accruing to the broker shall be divided between the participating salesmen according to agreement between them, or by arbitration. In no case shall the broker be liable to the salesman for any fee unless the same shall have been collected from the party for whom the service was per- formed. Paragraph 8 of the contract provides: This contract, and the association created hereby, may be terminated by either party hereto, at any time upon notice given to the other; but the rights of the parties to any fee, which accrued prior to said notice, shall not be divested by the termination of this contract. On February 14, 1977, the Respondent duly terminated the contract with Ms. McNabb, as the result of a conflict which is not relevant to this proceeding. The Respondent immediately wrote to the Real Estate Commission advising that McNabb was no longer associated with him. Ms. McNabb testified at the hearing that the contract was terminated on February 15, but it is clear from the evidence that she was mistaken. While she was under contract with the Respondent, McNabb obtained a listing for the Respondent for the sale of property owned by a Mr. Davidson. The property was listed on a Multiple Listing Service. No contract for the sale of the property had been obtained prior to the time that McNabb's contract with the Respondent was terminated. On February 16, 1977, Ms. Jean Krueger, a registered real estate salesman employed by Tamarac Realty obtained a contract for purchase of the property. The contract was written at approximately 4:45 P.M. on February 15, and she immediately called the Respondent's office so that they would wait for her to get there with the contract before the office was closed for the day. Ms. Krueger delivered the contract to the Respondent, Mr. Davidson accepted it, and the transaction ultimately closed. Ms. McNabb learned that a contract had been obtained on the Davidson property approximately 3 days after the contract was signed. She made both written and oral demand upon the Respondent for a share of the commission. The Respondent, after consulting representatives of the Real Estate Commission, representatives of the St. Petersburg Board of Realtors, and legal counsel, declined to give McNabb any share of the commission. The Respondent did not know at the time that he terminated his contract with McNabb that a contract would be obtained for sale of the Davidson property. Ms. Krueger, the salesman who obtained the contract had never met the Respondent prior to taking the contract for sale to him, the day after McNabb's contract was terminated. During the course of this proceeding the Respondent has been cooperative in providing copies of documents to Ms. McNabb. The Respondent has no history of complaints being made against him to the Florida Real Estate Commission, and it does not appear that he has in the past refused to pay any salesman a commission to which the salesman was entitled.
Findings Of Fact Respondent Sheldon Greene & Associates, Inc., is a corporate real estate broker having been issued license number 0133685. The Respondent Sheldon Greene is the licensed real estate broker of record for Sheldon Greene & Associates, Inc., and holds license number 0033812. Henry Berman, a registered real estate salesman was employed as an associate by the Respondents between July 10, 1980 and July 2, 1982. Shortly after commencing his employment, Berman entered into a written agreement with the Respondents which set forth the division of real estate commissions earned by Berman and the firm on future sales. The agreement covered three distinct categories and included: When Berman listed and sold property entirely by his efforts, the commission split would be 60 percent to Berman and 40 percent to the firm; When Berman either had the listing or the buyer and the firm had the other, the commission split would be 50 percent to Berman and 50 percent to the firm; When Berman listed and sold property and the firm was involved in the sale through participation in negotiations, preparation of the submittal and the like, the commission split would be 50 percent to Berman and 50 percent to the firm. During the period of Berman's employment by the Respondents, a Memorandum was circulated among all of the salespersons of Associates covering the division of commissions earned by Associates in situations in which more than one salesperson employed by Associates was involved in a single transaction. Berman was furnished a copy of this Memorandum and was aware of its contents. While in the employ of Respondents, Berman obtained a verbal open listing from Seymour Deutsch to sell the Metropole Hotel at 635 Collins Avenue, Miami Beach, Florida. Thereafter, on or about November 4, 1980, Berman procured a written sales contract for the purchase of the Metropole Hotel by Andres Herrada upon terms and conditions satisfactory to Deutsch. The sales contract between Deutsch and Herrada failed to provide, however, for the amount of the commission payable to Associates as compensation for its services as the broker in the transaction. Following unsuccessful negotiations between Greene and Deutsch, Associates commenced suit against Deutsch in the Circuit Court of Dade County, Florida, Case No. 81-5133, claiming a commission in the amount of $40,000 based upon the verbal agreement of Berman and Deutsch, which action resulted in the entry of a Final Judgment in favor of Associates and against Deutsch in the amount of $40,000 plus interest. As a result of a post-judgment settlement entered into under threat of an appeal by Deutsch, Associates agreed to accept the sum of $25,000 in cash and the sum of $17,455.28 plus interest at the rate of 14 percent per annum in 35 monthly installments of $596.59 each, commencing on July 15, 1982 and ending on May 15, 1985. Prior to instituting suit against Deutsch, Associates, through its President, Greene, entered into a verbal agreement for the purpose of rearranging the terms of the letter agreement dated July 14, 1980, for the purpose of imposing upon Associates the obligation of bearing all legal fees and litigation expenses in the event the outcome of the suit against Deutsch were unsuccessful. In consideration thereof, Berman agreed that in the event of a successful outcome (i.e., a judgment in the amount of $40,000), Associates would be entitled to retain 75 percent and Berman only 25 percent of the net commission after deducting legal fees and litigation expenses. During the pendency of the litigation involving Deutsch, on or about October 16, 1981, Berman obtained a written exclusive listing from Herrada authorizing Associates to sell the Metropole Hotel once again. Pursuant to this listing, Berman procured a written contract on behalf of Donald Mitchell to purchase the Metropole Hotel subject, however, to certain contingencies, primarily, the sale by Mitchell of another property as part of a multi-party, multi-property, tax-free exchange. Thereafter, Berman failed to participate further in performing the duties normally incumbent upon a real estate salesman between the date of contract and date of closing. During this period, it became necessary for Bernard Bastacky, another salesman employed by Associates, to perform those duties normally incumbent upon Berman in such transaction, which services proved to be instrumental in bringing the transaction to a successful conclusion. In addition, Greene, personally performed services in the preparation of the listing brochure and with respect to subsequent negotiations between the parties which led to substantial modifications in the terms of the original sales contract procured by Berman. On or about April 30, 1982, the sale from Herrada to Mitchell was closed. On or about May 15, 1982, Associates received its share of the commission from the Herrada/Mitchell sale in the approximate amount of $27,000. Thereafter, Greene asked Berman and Bastacky to meet, personally, for the purpose of reaching an amicable arrangement as to the division of the salesman's share of the commission. When Berman and Bastacky were unable to resolve their dispute, Greene deposited their share in an interest-bearing account to await a resolution of the dispute between them. Shortly thereafter, the $25,000 portion of the commission earned from the Deutsch/Herrada transaction became available as a result of the entry of the Final Judgment and post-judgment Stipulation between Associates and Deutsch, and Associates began to receive the monthly installments of the deferred portion of the commission. These sums were initially deposited to the Associates operating account from which were disbursed legal fees and litigation expenses totaling approximately $12,400. When efforts to resolve Berman's proper share of the Deutsch/Herrada commission failed, Berman instituted suit against Associates in the Circuit Court of Dade County, Case No. 82-15570, claiming 60 percent of the commissions received by Associates on each of the two sales of the Metropole Hotel. In its Answer, Associates alleged that Berman was entitled to 25 percent of the Deutsch/Herrada commission in accordance with the verbal agreement between Greene and Berman, and to 25 percent of the Herrada/Mitchell commission, based upon the involvements of Greene and Bastacky in that transaction. Associates has deposited the disputed portions of each of the commissions in controversy in special interest-bearing accounts pending a resolution of the pending civil action and has listed the amount of Berman's claim as a liability on its books. In reliance upon his attorney's advice and interpretation of the statute under which Respondents have been charged in these proceedings, Respondents did not seek to obtain a disbursement order from the Florida Real Estate Commission as to the funds in dispute between Berman and the Respondents. The civil action instituted by Berman against Associates is still pending and has not yet been scheduled for trial. Berman acknowledges that he instructed his attorney to allow that action to become temporarily inactive while the administrative action was prosecuted in hopes that it would compel Associates to enter into a favorable settlement in his favor. All issues in dispute between Associates and Berman are capable of being finally resolved in the pending civil action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Real Estate Commission dismissing the Administrative Complaint filed against the Respondents. DONE and ENTERED this day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 March, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Donald M. Klein, Esquire KLINE MOORE & KLEIN, P.A. 407 Lincoln Road Miami Beach, Florida 33139 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Carleen Chalk Lund, an active broker in Lund Realty, Inc. , a licensed corporate broker, failed to account or deliver to Daisy and Kenneth Parnell money in the form of a deposit which had come into her hands and which was not her property or which she was not in law or equity entitled to retain, under the circumstances, and at the time which was agreed upon or which was required by law or, in the absence of an agreed upon time, upon demand of the Parnells, who were entitled to such an accounting or delivery.
Findings Of Fact Carleen Chalk Lund and Norman Wayne Lund are registered real estate brokers holding current registration from the Florida Real Estate Commission and are active brokers in Lund Realty, Inc., a corporate broker registered with the Florida Real Estate Commission. On or about January 4, 1975, Daisy and Kenneth Parnell, the buyers, signed an offer to purchase the following real property from David and Wilma Hammer: East 184.5 ft. of NW 1/4 of SW 1/4 of Sec 6, Twp. 26 S, Range 29 E, N Osceola County. Said offer was accepted by the sellers. Subsequently, the buyers sent a telegraphic money order in the amount of $2,200 to Lund Realty, Inc. Therefore said money was deposited in the escrow account of Lund Realty, Inc. $2,000 as deposit on the Hammer's property and $200 to be used for closing costs. The following provisions of the Contract for Purchase between the buyers and the sellers are specifically noted and referenced: In accordance with provisions of paragraph 4, the contract was to be closed and the deed delivered on or before January 31, 1975. In accordance with the provisions of paragraph 6, the seller was to convey title to the aforesaid property to the buyer by agreement for deed. In accordance with the provisions of paragraph 7, the costs, if any, of preparation of closing documents and closing fee shall be borne equally by the seller and buyer. In accordance with the provisions of paragraph 9, all closing costs were to be divided equally between the buyer and seller including title insurance. In accordance with paragraph G of said standards, if the buyer failed to perform any of the covenants of the contract within the time specified, the deposit paid by the buyer might be retained by or for the account of the seller as consideration for the execution of the contract and in full settlement of any claims for camages and all parties would be relieved of all obligations under the contract and each party would execute a separate release of the other at that time. In accordance with the provisions of paragraph P of the standards, in the event that the buyer failed to perform and the aforesaid deposit was retained, the amount of the deposit was to have been divided equally between the realtor and the seller provided that the amount to be retained and received by the realtor would not exceed the full amount of the commission and that any excess would be paid to the seller. In accordance with the provisions of the paragraph "Commission to Realtor", the seller acknowledged the employment of Lund Realty, Inc. and agreed to pay Lund Realty a commission in accordance with the commission agreement. On January 25, 1975, copies of the articles of agreement, closing statement, and title insurance cost disclosure were sent by Chelsea Title and Guaranty Company to Mrs. Daisy Parnell at 88 North Pasack Road, Spring Valley, New York, 10977. The letter accompanying the aforementioned documents indicated that the sellers had executed the closing papers on that date. Said letter further indicated that as soon as the papers were signed by the recipient, that Dee A Burttram, manager of Chelsea Title and Guaranty Company, would record the articles of agreement and insure title to property. These papers were net signed and returned to Chelsea Title, and on February 14, 1975 a subsequent letter was addressed from Dee A. Burttram to airs. Daisy Parnell at the aforestated address indicating that Chelsea Title had not received the documents forwarded to Mrs. Parnell and offering further information if they had not been completed. See Composite Exhibit 10. Between January 25 and February 28, 1975 efforts were made by Lund Realty, Inc. to contact airs. Daisy Parnell without success. On February 28, 1975 it was determined that Frank Townsend, Attorney at Law practicing in Kissimmee, had been engaged by Sidney Schwartz, Attorney at Law practicing in New York, to review the contract entered into by Mrs. Daisy Parnell. According to his testimony, Frank Townsend recommended to Schwartz that Mrs. Parnell not go through with the contract until certain discrepancies in the contract were clarified. The discrepancies involved were the conflict between the provision of paragraph 2 stating that $8,000 purchase money note and mortgage to the seller while paragraph 6 indicated that the seller would convey title by an agreement for deed; the lack of a scribner's statement note on the papers to be filed with the Court; and a discrepancy between the amount of monthly payment as stated in the Contract for Sale and Purchase and the Agreement for Deed. However, by his letter of March 5, 1975 to Mrs. Daisy Parnell, Townsend refers only to problems involving the use of the Agreement for Deed which he concluded was not a problem if the sellers insisted on that form of conveyance, and the fact that the Agreement for Deed is unacceptable because it is unrecordable (an apparent reference to the fact that a scribner's notation was not made on the Agreement for Deed). By his letter of April 3, 1975 to Mr. Sidney Schwartz, Mr. Townsend indicates that he had completed all back ground work on the transaction and had advised Mr. Murray W. Over street, attorney for Mr. and Mrs. Hammer three weeks prior that he (Townsend) was ready to provide a note and mortgage in exchange for a Warranty Deed and had requested that Overstreet arrange a closing date. Mr. Townsend closes indicating that he had again contacted Mr. Overstreet reminding him that the Parnells wished to close. Several things are apparent from Townsend's letters of March 5 and April 3, 1975. It is apparent from the letter to Mrs. Parnell from Townsend dated March 5, 1975 that substantial concern existed on the part of Schwartz that the use of an Agreement for Deed in the transaction would provide to Mrs. Parnell less protection than she would have in a situation in which a note and mortgage was used. However, as stated above, Townsend pointed out that the use of an Agreement for Deed under the Florida Law would afford Mrs. Parnell the same protection as a mortgage. It is also clear from the April 3 letter that all problems related to the Parnell-Hammer transaction had been resolved, that they were ready to close but insisted upon a note and mortgage in exchange for a warranty deed, and their position had bean communicated to counsel for the Hammers. The demand for the use of a note and mortgage by the Parnells is contrary to the provisions of the Contract for Sale and Purchase between these parties entered into on January 4, 1975 and as of April 3, 1975 was the only reason for the Parnell's refusing to close. On April 3, 1975, Mr. Murray Overstreet attorney for Mr. and Mrs. Hammer, advised Frank N. Townsend, attorney for Mrs. Parnell, that the Hammers considered their Contract for Sale and Purchase with Mrs. Parnell to be null and void because the transaction was to be closed on or before January 31, 1975 and that as of April 3, 1975 the matter had not been completed. Mr. Overstreet further advised that his clients made no claim on the deposit made to Lund Realty and that said deposit might be returned to the buyers. A copy of this letter was sent to Lund Realty, Inc. Pursuant to the provisions of paragraph G of the Contract for Sale and Purchase referenced above, upon default of the buyer, the deposit paid by the buyer could be retained by or for the account of the sellers as consideration for the execution of the contract and in full settlement of any claims for damage. Under the provisions of paragraph P of said contract, said deposit would be divided equally between the realtor and seller; provided, however, that the amount retained or received by the realtor was not to exceed the full amount of the commission, in this instance $600. On April 4, 1975 in response to the copy of the letter from Overstreet to Townsend in which the Hammers declared the Contract for Purchase and Sale null and void, Lund Realty, Inc. wrote Frank Townsend advising him that the expenses for sales commission, cancellation fee, and termite inspection should be considered before any escrow funds were disbursed and requesting that Lund Realty be advised as to how Mrs. Parnell would like to handle the charges. Clearly, Lund Realty considered the Parnells to be in default and asserted a claim for commission. No evidence was received regarding any response from Townsend to the letter of Lund Realty, Inc. dated April 4, 1975. On May 14, 1975 Lund Realty wrote Mrs. Daisy Parnell sending her a check in the amount of $1,466, the amount of her deposit less expenses incurred by her for sales commission, cancellation fee, termite inspection, and insurance. The amounts of each of the expenses and copies of statements were enclosed. Although the check in question was retained by Mrs. Parnell, Lund Realty received a letter from Sidney Schwartz dated May 23, 1975 which states in pertinent part as follows: "I am led to believe that the seller in the proposed transaction did not perfect title and waived and/or released its interest in the contract. If this be so, the entire down pay ment of Mrs. Parnell must be returned to her imme- diately. Please inquire into this matter. You no doubt are aware that Mrs. Parnell has retained Florida counsel, namely, Frank N. Townsend, Esquire, Post Office Box 847, Kissimmee, Florida. This is further to advise that in the event there has been a wrongful retention of any of Mrs. Parnell's funds, complaints shall be lodged with all appropriate authorities including licen- sing authorities in the State of Florida." The next contact between the parties was a letter to Lund Realty from Frank Townsend dated June 19, 1975. In that letter, Mr. Townsend stated as follows: "This confirms our request in accordance with Mr. Overstreet's letter wherein no demand is made for any funds on behalf of the Hammers, the return of all funds deposited with you by the Parnells is specifically requested." A second follow-up letter was addressed to Lund Realty on July 14,1975 requesting a response to the aforementioned letter of June 19, 1975. It is clear that the basis for demand of return of the deposit receipt in its entirety was based on the statements in Overstreet's letter to Townsend dated April 3, 1975, that the Hammers made no claim to the deposit to Lund Realty, Inc. This position of the Hammers was subsequently clarified by Mr. Hammer in his letter of August 12 (Exhibit 7) and by Mr. Overstreet, who at the hearing, testified that the Hammers never intended to waive the amount of the commission and the cost. Lund Realty was entitled to its commission and the Hammers would have had a cause of action against the Parnells under the contract for the entire amount of the deposit. However, the existence of a dispute over claims to all or portions of the escrow funds developed slowly, and was based on whether the Hammers waived their rights to all or any portion of the escrow funds. In September 1975 Lund Realty requested an advisory opinion of the Florida Real Estate Commission regarding its duties. The conclusion of that advisory opinion was that disbursement should be made to the Parnells, and that the claims that Lund, Chelsea Title and any other individuals should be filed in a court of competent jurisdiction. The advisory opinion was silent, however, on Hammer's subsequent claim for the commission and cost from the deposit. As of the date of hearing, the $2,200 was on deposit in the escrow account of Lund Realty, Inc.
Recommendation The position and actions of the various individuals should also be considered in this case in arriving at a penalty because none of the parties have completely "clean hands." The Parnells precipitated the breach by insistence on a note and mortgage; the Hammers have made no attempt to clarify the situation by paying the commission and cost; and the attorneys kept Lund Realty completely in the dark about what was transpiring. The Lunds are the only ones involved in the transaction who have tried to carry out their obligation. Further, they also are the only ones who stand to lose financially without seeking judicial relief. While they have held the money, it has remained in escrow since the dispute arose. Based on the foregoing Findings of Fact, Conclusions of Law, and other factors bearing on the case, the Hearing Officer would recommend that the Florida Real Estate Commission place Carleen Chalk Lund on probation for one year. DONE and ORDERED this 28th day of January 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Carleen Chalk Lund 612 West Vine Street Kissimmee, Florida 32741
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
