STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA REAL ESTATE COMMISSION )
)
Petitioner, )
)
vs. ) CASE NO. 77-724
)
JAMES S. FORTINER and )
FORTINER REALTY COMPANY, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came on for hearing in Fort Myers, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 10, 1978, and again on May 16, 1978.
APPEARANCES
The parties were represented by counsel:
For Petitioner: Frederick H. Wilsen, Esquire
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
For Respondent: H. Stephen Frank, Esquire
Can-Am Building, Suite 202 2180 West First Street Fort Myers, Florida 33901
By administrative complaint filed January 14, 1977, petitioner alleged, in count one, that respondents failed to account for or deliver to Freda L. Hamilton, a salesperson in their employ, a share of a commission earned on account of the sale of property by the Picones to the Jenkinses, notwithstanding Ms. Hamilton's repeated demands therefor; in count two, that respondents deposited the commission earned by virtue of the Picones to Jenkinses transaction in an operating account rather than in a trust account; in court three, that respondents failed to account for or deliver to Freda L. Hamilton a share of a commission earned on account of the sale of property by the Reynoldses to the Morauskis, notwithstanding Ms. Hamilton's repeated demands therefor; in count four, that respondents deposited the commission earned by virtue of the Reynoldses to Morauskis transaction in an operating account rather than in a trust account; in count five, that respondents failed to account for or deliver to Freda L. Hamilton shares of two other commissions to which she was entitled, notwithstanding her repeated demands therefor; in count six that respondents failed to account for or deliver to Iris M. Thirtle, a real estate salesperson in their employ, a share of a commission earned on account of the sale of property by J. McCormick to one Myrick, notwithstanding Ms. Thirtle's repeated demands therefor; in counts seven and eight, that respondents failed to
deliver shares of other commissions due Ms. Thirtle, notwithstanding her repeated demands therefor; in count nine, that respondents failed to account for or deliver to Lanna E. B. McCormack, a real estate salesperson in their employ, a share of a commission earned on account of the sale of property by Jenkins to Diggans, notwithstanding Ms. McCormack's repeated demands therefor; in count ten, that respondents failed to account for or deliver to George H. Marshall, a real estate salesman in respondents' employ, a share of a commission earned on account of the sale of property by the Tenneys to the Echolses and Ms. McKelvey, notwithstanding Mr. Marshall's repeated demands therefor; in count eleven, that respondents also failed to account for or deliver to Mr. Marshall shares of other commissions; in count twelve, that respondents deposited the commission earned by virtue of the Tenneys-Echolses-McKelvey transaction in an operating account rather than in a trust account; in count thirteen, that respondents failed to pay Donald E. Swagler, a real estate salesman in their employ, salary and shares of commissions owed him; in count fourteen, that respondents have failed to pay an overdue promissory note in favor of Donald E. Swagler; in count fifteen, that respondents failed to account for or deliver to Jo Anne P. Stratton, a real estate salesperson in respondents' employ, a share of a commission earned on account of the sale of property by Mr. Motyl to Ms. Roe, notwithstanding Ms. Stratton's repeated demands therefor; in count sixteen, that respondents failed to account for or deliver to Jo Anne P. Stratton a share of a commission earned on account of the sale of property by the Boyers to the Arteses, notwithstanding Ms. Stratton's repeated demands therefor; in count seventeen, that respondents failed to pay a promissory note in favor of William
Swartz, at one time a real estate salesman in respondents' employ, which Mr. Swartz was given "in consideration of the real estate brokerage acts and services [which he] performed," notwithstanding that the note was overdue and notwithstanding Mr. Swartz' repeated demands for payment; in counts eighteen and nineteen, that respondents, on July 22, 1976, drew two checks on the Southeast Bank of Fort Myers in favor of Donald E. Swagler and failed to make the checks good after the drawee's dishonor, notwithstanding repeated demands by Mr. Swagler; in count twenty, that respondents, on August 31, 1976, drew a check on the Southeast Bank of Fort Myers in favor of Donald E. Swagler and failed to make the check good after the drawee's dishonor, notwithstanding repeated demands by Mr. Swagler; in count twenty-one, that respondents, on August 11, 978, drew a check on the Southeast Bank of Fort Myers in favor of Lanna E. B. McCormack and failed to make the check good after the drawee's dishonor, notwithstanding repeated demands by Ms. McCormack; in county twenty-two, that respondents, on August 17, 1976, drew a check on the Southeast Bank of Fort Myers in favor of Iris M. Thirtle and failed to make the check good after the drawee's dishonor, notwithstanding repeated demands by Ms. Thirtle; and in counts twenty-three and twenty-four, that respondents received two checks from Donald E. Swagler intended for payment of health insurance premiums but used the money for other purposes and failed to return the money notwithstanding Mr. Swagler's repeated demands therefor. At the close of petitioners case, petitioner's counsel abandoned counts twenty-five and twenty-six. The twenty- seventh and final count alleges that, by virtue of the previously alleged misconduct, respondents "are guilty of a course of conduct or practices which show that they are so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of investors or those with whom they may sustain a confidential relation may not safely be entrusted to them. "
FINDINGS OF FACT
For the past ten years, James. S. Fortiner, a registered real estate broker, has owned substantially all of the stock of Fortiner Realty Company, which has recently surrendered its certificate of registration to petitioner.
In the summer of 1976, Fortiner Realty Company employed 63 licensed real estate salespersons and was involved in some seventeen commercial real estate ventures, but all was not well. Work was stalled on a proposed high rise condominium in which Mr. and Mrs. Fortiner had invested substantial sums of money, including most of their available cash. On another front, of 146 units in one apartment complex controlled by the Fortiners, only 100 units were rented; the complex did not produce enough revenue to meet payments under the mortgage agreement with which the Fortiners had financed the complex. Eventually, North American Mortgage Investors, a principal creditor, filed suit against Mr. and Mrs.
Fortiner seeking ore than three million dollars. On July 24, 1976, this was reported in the Fort Myers News-Press. Other creditors pressed the Fortiners for payment. Other lawsuits were filed against Mr. and Mrs. Fortiner and Fortiner Realty Company. the Fortiners were advised to file for bankruptcy and filed personally on October 28, 1976. On November 3, 1976, Fortiner Realty Company filed its petition for bankruptcy.
Freda L. Hamilton was a real estate salesperson employed by Fortiner Realty Company in the summer of 1976. Under her agreement with the Company, she was entitled to one half of commissions the Company received as a result of real estate transactions she handled. The Company owed Ms. Hamilton a total of two thousand six hundred forty dollars and forty cents ($2,640.40) at the time of its collapse, which represented shares of commissions and forfeited deposits Ms. Hamilton had not been paid. One of the transactions on which Ms. Hamilton earned a share of a commission which went unpaid was a sale of property by the Reynoldses to the Morauskis. This transaction closed on August 31, 1976. Another such transaction closed on July 30, 1976.
At one point Ms. Hamilton loaned James S. Fortiner five thousand dollars ($5,000.00), which he repaid. On another occasion, she invested twenty thousand dollars ($20,000.00) in a limited partnership managed by respondent Fortiner. When she approached him about selling the interest in the limited partnership she had acquired, he told her he did not have twenty thousand dollars ($20,000.00) available, but agreed on behalf of the Company to buy her interest and, on behalf of the Company, signed a 90 day promissory note in her favor on March 25, 1975. Apparently unable to pay the full amount of the note when due, Mr. Fortiner on behalf of the Company agreed with Ms. Hamilton to satisfy the debt by paying her 75% of all commissions the Company received as a result of real estate transactions she handled, with the extra 25% going toward payment for her limited partnership interest and with the understanding that she need not convey her limited partnership interest to the Company until it had been paid for in full. In this fashion, the Company's indebtedness to Ms. Hamilton on account of the purchase of her limited partnership interest had been reduced to fifteen thousand six hundred twenty-eight dollars and four cents ($15,628.04) at the time the Company filed its petition for bankruptcy.
Ms. Iris Thirtle worked for respondents as a real estate salesperson in the summer of 1976. She has never been paid her share of three commissions the Company received because of transactions she facilitated, viz., McCormick to Myrick, Whidden to Harrington, and Reynolds to Morouski. Respondent Fortiner acknowledged these debts in a letter to Ms. Thirtle dated September 23, 1976. Petitioner's exhibit No. 4. On August 17, 1976, respondent Fortiner drew a check on the Company's operating account at Southeast Bank of Fort Myers in favor of Iris Thirtle in the amount of seven hundred twelve and one half dollars ($712.50). Petitioner's exhibit No. 2. Ms. Thirtle deposited the check to her account at the Lee County Bank. The check was returned to her together with a memorandum from Lee County Bank dated August 24, 1976, stating that the check had not cleared because there were not sufficient funds.
Ms. Lanna McCormack worked for respondents as a real estate salesperson in the summer of 1976. As a result of the sale of a lot, she became entitled to a three hundred eighty dollar ($380.00) share in a real estate commission. On August 11, 976, respondent Fortiner drew a check on the Company's operating account at Southeast Bank of Fort Myers in favor of Lanna McCormack in the amount of three hundred eighty dollars ($380.00). Petitioner's exhibit No. 5. Ms. McCormack deposited the check to her account at The Cape Coral Bank. The check was returned to her together with a memorandum from the Cape Coral Bank dated August 27, 1976, stating that the check had not cleared because there were not sufficient funds.
Mr. George H. Marshall worked for respondents as a real estate salesman in the summer of 1976. Because of the Tenneys' sale of a house to the Echolses, which transaction closed on September 1, 1976, Mr. Marshall was entitled to a share of the commission in the amount of nine hundred six dollars and thirty cents ($906.30). When Mr. Marshall first asked respondent Fortiner for the money, Mr. Fortiner told him that he was trying to raise the money. A week or two later Mr. Fortiner told Mr. Marshall that he did not have the money and had little prospect of obtaining it. On this occasion, respondent Fortiner told Mr. Marshall "there was no use giving [Mr. Marshall] a check because it wouldn't be any good." (T. 129) Afterwards two other sales which Mr. Marshall helped to effect closed. At Mr. Marshall's request, Mr. Fortiner wrote a letter authorizing half of the Company's commission on each of the two sales to be disbursed directly to Mr. Marshall. These dispersals were made but the Company's trustee in bankruptcy eventually recovered from Mr. Marshall the moneys that Mr. Marshall had collected directly, on the authority of Mr. Mortiner's letter.
Mr. William James Swartz worked for respondents from November or December of 1971, until October or November of 1976. On March 15, 1974, respondent Fortiner executed a 90 day promissory note on behalf of the Company in favor of Mr. Swartz, in the amount of eighty thousand dollars ($80,000.00). The note represented the partial proceeds of sales of certain limited partnership interests belonging to Mr. Swartz and shares of commissions owed to Mr. Swartz, payment of which Mr. Swartz asked to be deferred for tax reasons. Although Mr. Swartz made repeated written and oral demands for payment of the promissory note, it remains unpaid.
Mr. Donald E. Swagler began working for respondents in October of 1974, as the Company's general sales manager. At that time, Mr. Swagler was a registered real estate salesman. Shortly before Mr. Swagler left respondents' employ on September 9, 1976, he was licensed as a real estate broker and became vice-president of the Company. As sales manager, Mr. Swagler was paid a salary and also received five per cent shares of commissions earned by the Company. On July 22, 1976, Mr. Swagler received two checks drawn on the Company's payroll account, one in the amount of eighty-five and one half dollars ($85.50), and the other in the amount of sixty-two dollars and forty-four cents ($62.44). Mr. Swagler received another check from the Company, drawn on the same account, dated August 31, 1976, in the amount of nine hundred eighty-four dollars and forty cents ($984.40). On or about September 2, 1976, Mr. Swagler tried unsuccessfully to cash these checks at Southeast Bank of Fort Myers, the bank on which they were drawn. Mr. Swagler has never been paid his salary for the last two weeks of August or the first nine days of September. As late as July of 1976, Mr. Swagler gave the Company his contribution toward a health insurance premium on the Company's group policy. On the basis of hearsay, Mr. Swagler
concluded that the Company did not use his contribution as partial payment for the premium.
In June of 1976, respondent Fortiner approached a Mr. Haase and asked Mr. Haase if he would be interested in buying the Company's office furniture and leasing it back to the Company, giving the Company first refusal in the event of resale. Mr. Haase was agreeable and gave respondents seventeen thousand dollars ($17,000.00) under an arrangement calling for monthly lease payments of six hundred dollars ($600.00). after Mr. Swagler left respondents' employ to start his own office, he negotiated with Mr. Haase for some of the office furniture acquired from respondents. At that time, Mr. Swagler claimed in excess of five thousand dollars ($5,000.00) from respondents in unpaid salary and commission shares or "overrides." Mr. Haase agreed to accept three thousand dollars ($3,000.00) for the furniture Mr. Swagler agreed to buy. At the same time, respondent Fortiner executed a promissory note in favor of Mr. Swagler in the amount of three thousand dollars ($3,000.00) "in part consideration for past and present debts." Petitioner's exhibit No. 8.
Testimony from several residents of Fort Myers showed that respondent Fortiner had enjoyed a reputation as a generous and civic-minded community leader until his finances deteriorated.
Generally speaking, since the adoption of petitioner's Rule 21V-14.06, Florida Administrative Code, and even before, real estate brokers in southwest Florida have deposited funds distributed to them from another broker's escrow account, from a title company, from an attorney's escrow account or from some other similar source in their operating accounts rather than depositing such funds in their escrow or trust accounts, even when portions of the funds were owed to real estate salesmen in their employ.
In the summer of 1976, respondent Company had four checking accounts at Southeast Bank of Fort Myers, No. s 004049, 004634, 004618 and 001899. These accounts were designated leasehold, payroll, operating and trust accounts. During the same period, Southeast Bank of Fort Myers was a major creditor of respondents. According to bank records, all of respondents' checking accounts were formally "frozen" on September 10, 1976. Mr. Louis W. Woodson, who has since joined Southeast Bank of Fort Myers and is an executive vice-president of the bank, testified that an informal hold or freeze may have preceded the computer entry reflected by the bank's records.
After respondent Fortiner learned that the Southeast Bank of Fort Myers was not honoring the Company's checks, he stopped signing checks on the Company's accounts, but persons in his employ continued keeping accounts and filling out checks for signature as a matter of office routine. Eventually, Mr. Fortiner had unsigned checks stacked in piles on his desk.
The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So. 2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
CONCLUSIONS OF LAW
The evidence established that respondents failed to deliver shares of commissions and of forfeited deposits due Ms. Hamilton within four months prior to the filing of their petitions in bankruptcy; that other salespersons' commission shares also went unpaid by respondents' and that Ms. Hamilton had
reasonable cause to know respondents to be insolvent. In these circumstances, the Company's trustee in bankruptcy would have been entitled to recover as a preferential transfer any payment respondents might have made to Ms. Hamilton. Bankruptcy Act s. 60, 11 U.S.C. s. 96(b). The Bankruptcy Act defines a preferential transfer as follows:
A preference in a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition instituting a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.
11 U.S.C. s. 96(a)(1)
Since any assets available to pay the unpaid shares of commissions and forfeited deposits owed Ms. Hamilton were required by law to be delivered to the Company's trustee in bankruptcy upon his appointment, respondents were "in law . . . entitled to retain," Section 475.25(1)(c), Florida Statutes (1977), whatever assets they had for the purpose of delivering them to the Company's trustee in bankruptcy, upon his appointment, rather than transferring them to Ms. Hamilton. Counts one, three and five of the administrative complaint should be dismissed, accordingly.
The twenty thousand dollar promissory note in favor of Ms. Hamilton is a different matter, because it came due towards the end of June of 1975, but nothing respecting that transaction was alleged in the administrative complaint. For that reason, disciplinary action against respondents' licenses because of the default on the promissory note would be improper.
The evidence failed to establish into which of the Company's accounts the commission shares and subsequently forfeited earnest money were originally deposited. With respect to the latter, Ms. Hamilton testified, ". . . [t]his money has got to go into a trust account . . . Any deposit money that we take is written 'Fortiner Realty trust Account.'" T.76 Rule 21V-14.906, Florida Administrative Code, provides that:
. . . In the case of a broker receiving a commission, part of which is due to one of his registered salesmen, said broker may transfer and disburse said commission from his operating account and shall not be required to disburse to his salesmen directly from his trust or escrow account, provided, however, that said broker shall be required to account for and pay said commission to
the salesman and may properly deduct any lawful set-offs, or counter-claims due said broker from the said salesmen.
Counts two and four of the administrative complaint should be dismissed, accordingly.
The evidence established that respondents failed to deliver shares of commissions due Ms. Thirtle within four months prior to the filing of their petitions in bankruptcy; that other salespersons' commission shares also went unpaid by respondents; and that Ms. Thirtle had reasonable cause to know respondents to be insolvent. In these circumstances, any assets available for payment of the unpaid commission shares were required by law to be delivered to the Company's trustee in bankruptcy, upon his appointment. Respondents were "in law . . . entitled to retain," Section 475.25(1)(c), Florida Statutes (1977), whatever assets they had for the purpose of delivering them to a trustee in bankruptcy, upon his appointment, rather than transferring them to Ms. Thirtle. Counts six, seven and eight of the administrative complaint should be dismissed, accordingly.
The evidence established that respondents failed to deliver a share of a commission due Ms. McCormack within four months prior to the filing of their petitions in bankruptcy; that other salespersons' commission shares also went unpaid by respondents; and that Ms. McCormack had reasonable cause to know respondents to be insolvent. In these circumstances, any assets available to pay the unpaid commission share were required by law to be delivered to the Company's trustee in bankruptcy, upon his appointment. Respondents were "in law
. . . entitled to retain," Section 475.25(1)(c), Florida Statutes (1977), whatever assets they had for the purpose of delivering them to a trustee in bankruptcy, upon his appointment, rather than transferring them to Ms.
McCormack. Count nine of the administrative complaint should be dismissed, accordingly.
The evidence established that respondents failed to deliver shares of commissions due Mr. Marshall within four months prior to the filing of their petitions in bankruptcy; that other salespersons' commission shares also went unpaid by respondents; and that Mr. Marshall had reasonable cause to know respondents to be insolvent. In these circumstances, any assets available to pay the unpaid commission shares were required by law to be delivered to the Company's trustee in bankruptcy, upon his appointment. Respondents were "in law
. . . entitled to retain," Section 475.25(1)(c), Florida Statutes (1977), whatever assets they had for the purpose of delivering them to a trustee in bankruptcy, upon his appointment, rather than transferring them to Mr. Marshall. Counts ten and eleven of the administrative Complaint should be dismissed, accordingly.
The evidence failed to establish into which of the Company's accounts the commission shares owed Mr. Marshall were originally deposited. Count twelve of the administrative complaint should be dismissed, accordingly. At the hearing, petitioner's counsel conceded with commendable candor that "probably .
. . Counts Two, Four and Twelve will not stand up because of the change in the rule that allows a broker to disburse money from his operating account prior to disbursing the money." T.10.
The evidence established that respondents failed to pay Mr. Swagler's salary for the last two weeks of August and the first nine days of September, 1976, which amounted to approximately two thousand dollars ($2,000.00); that other employees of respondents went unpaid; and that Mr. Swagler had reasonable cause to know respondents to be insolvent. Inasmuch as respondent Fortiner agreed on September 29, 1976, to pay Mr. Swagler three thousand dollars ($3,000.00) on an installment basis "in part consideration for past and present debts," it is clear that Mr. Swagler's testimony that respondents owed him more than one thousand dollars ($1,000.00) in unpaid shares of commission or "overrides" should be credited. Taken as a whole, however, the evidence,
including evidence establishing that Mr. Swagler himself kept the books from which commission checks were drafted, established that Mr. Swagler did not make demand for payment of the overrides earlier than four months prior to respondents' filing of their petitions in bankruptcy. In these circumstances, any assets which might have been used to pay the unpaid salary, the unpaid overrides and to fulfill the agreement of September 29, 1976, were required by law to be delivered to the Company's trustee in bankruptcy, upon his appointment. Respondents were "in law . . . entitled to retain," Section 475.25(1)(c), Florida Statutes (1977), whatever assets they had for the purpose of delivering them to a trustee in bankruptcy, upon his appointment, rather than transferring them to Mr. Swagler. Accordingly, counts thirteen and fourteen of the administrative complaint should be dismissed.
No evidence was adduced in support of counts fifteen and sixteen of the administrative complaint and they should be dismissed for that reason.
The evidence established that respondent Fortiner, on behalf of the Company, executed a 90 day promissory note in favor of Mr. Swartz more than two and a half years before filing a petition for bankruptcy, and that the note was never paid, notwithstanding repeated demands, oral and written. This was a failure "to . . . deliver to [a] person . . . money . . . which [respondents were] not in law or equity entitled to retain, under the circumstances . . . upon demand of the person entitled to . . . delivery. . . ." Section 475.25(1)(c), Florida Statutes (1977), and constitutes grounds fro disciplinary action against respondents' licenses, for that reason.
Counts eighteen, nineteen, twenty, twenty-one and twenty-two of the administrative complaint allege the dishonor by the Southeast Bank of Fort Myers of various checks which were drawn on behalf of the Company by respondent Fortiner. Petitioner adduced no evidence to establish the balance of any of the Company's checking accounts at any time, and presented no other evidence tending to prove that respondent Fortiner knowingly wrote a single check against insufficient funds. The evidence that was adduced is consistent with respondents' contention that the Southeast Bank of Fort Myers resorted to self help when it feared for repayment of a loan it had made to respondents, freezing respondents' checking accounts without notice; and that respondent Fortiner stopped signing checks on the Company's accounts as soon as he learned of the freeze or hold on the Company's checking accounts. Because the evidence failed to establish a violation of Section 475.25(1)(e), Florida Statutes (1977), counts eighteen through twenty-two of the administrative complaint, inclusive, should be dismissed.
Petitioner also failed to prove what was alleged in counts twenty- three and twenty-four of the administrative complaint. A key allegation in these counts charges that respondents "failed to deliver . . . group health insurance premiums when due, whereupon said policy was terminated for the reason of non-payment of premiums." On this point, conflicting hearsay was adduced. Petitioner did not meet its burden to prove the allegation with competent evidence. Accordingly, counts twenty-three and twenty-four of the administrative complaint should be dismissed.
The evidence fell far short of establishing that respondent Fortiner has been "guilty of a course of conduct or practices which show [him to be] so incompetent, negligent, dishonest and untruthful that . . . money, property [etc.] . . . may not safety be entrusted to [him]," as alleged in count twenty- seven of the administrative complaint. Aside from demonstrating respondents' failure to pay the Swartz promissory note, the evidence adduced by the
Commission in support of the allegations of the administrative complaint established essentially nothing more than that respondents failed in business, after many years of success.
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner suspend respondent Fortiner's registration as a real estate broker for thirty (30) days.
DONE and ENTERED this 27th day of July, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
904/488-9675
APPENDIX
Paragraphs one, two, three, five, six, seven, thirteen, fourteen, fifteen, seventeen, nineteen, twenty, twenty-one, thirty, thirty-two, thirty-three, thirty-nine, forty-one, forty-two, forty-four, forty-six, fifty, fifty-two, fifty-three, fifty-four, fifty-five, fifty-eight, fifty-nine, sixty, sixty- three, sixty-four, seventy-two, seventy-three and seventy-seven of respondents' proposed findings of fact have been adopted, in substance, insofar as relevant.
Paragraph four of respondents' proposed findings of fact is irrelevant. In addition, it was not proven either that respondent Fortiner was discharged honorably or that he was decorated.
Paragraph eight of respondents' proposed findings of fact is substantially correct, although the Company has had other names.
Paragraph nine of respondents' proposed findings of fact has been adopted in part but has been largely rejected as not having been established by the evidence.
Paragraph ten of respondents' proposed findings of fact is irrelevant to the merits. The evidence established that respondent Fortiner served on Canterbury School's board of directors and contributed money to the School. The testimony was not clear as to whether the other charitable gifts were respondent's own property.
Paragraph eleven of respondents' proposed findings of fact is irrelevant to the merits. There was no evidence that respondent was anybody's "representative
. . . to State and Federal projects." Respondent Fortiner testified that he served on the Fort Myers Planning Board, not the Lee County Planning Board; on the Fort Myers Zoning Board, not the Fort Myers Zoning Commission; as president of the Florida chapter of the Farm and Land Institute, not as president of the Florida Institute of Farm and Land Brokers.
Paragraph twelve of respondents' proposed findings of fact is irrelevant to the merits. The evidence was that respondent Fortiner taught on the two named campuses but not under the auspices of the universities.
Paragraph sixteen of respondents' proposed findings of fact is largely irrelevant. All of the witnesses did not attest to respondent's generosity. The evidence did not establish who "the leading business man in Fort Myers" is.
Paragraph eighteen of respondents' proposed findings of fact has been adopted, in substance, insofar as relevant. The "total mortgage" figure was not proven.
Paragraph twenty-two of respondents' proposed findings of fact has not been adopted because, although not inconsistent with the evidence, it was not established by a preponderance of the evidence.
Paragraphs twenty-three, twenty-four, twenty-five, twenty-six and twenty- seven of respondents' proposed findings of fact have largely been rejected as being based on hearsay.
Paragraphs twenty-eight and twenty-nine of respondents' proposed findings of fact are wholly irrelevant and were not established by the evidence, in any event.
Paragraph thirty-one of respondents' proposed findings of fact has not been adopted because it was not established by the evidence. All the persons named did not attend. Nobody abandoned any claim to any money.
Paragraph thirty-four of respondents' proposed findings of fact is substantially accurate, but the testimony was that $900.00, not $600.00, would be the cap.
Paragraph thirty-five of respondents' proposed findings of fact is irrelevant but substantially accurate.
Paragraph thirty-six of respondents' proposed findings of fact is completely irrelevant to the merit and is almost completely inaccurate. The hearing in this case was originally set for July 19, 1977, by which time all parties should have been prepared for hearing.
Paragraph thirty-seven of respondents' proposed findings of fact is irrelevant except to the extent that the publicity bears on respondents' employees' reasonable cause to know that respondents were insolvent.
Paragraph thirty-eight of respondents' proposed findings of fact is irrelevant and was not proven, in any event.
Paragraph forty of respondents' proposed findings of fact accurately reflects the evidence adduced, except that the identity of respondent Fortiner's present employer was not established.
Paragraph forty-three of respondents' proposed findings of fact has not been adopted because the evidence did not establish that no salesperson made any written demand at any time.
Paragraph forty-five of respondents' proposed findings of fact has not been adopted because the evidence did not establish where the money was originally deposited.
Paragraph forty-seven of respondents' proposed findings of fact has not been adopted for the same reason.
Paragraph forty-eight of respondents' proposed findings of fact has not been adopted because it was not established by the evidence.
Paragraph forty-nine of respondents' proposed findings of fact has not been adopted because the evidence showed that Ms. Hamilton never relinquished her claim to the real estate commissions due her, even temporarily.
Paragraph fifty-one of respondents' proposed findings of fact has been rejected insofar as it draws legal conclusions.
Paragraphs fifty-six and fifty-seven of respondents' proposed findings of fact have been rejected for the most part as not having been established by the evidence.
Paragraph sixty-one of respondents' proposed findings of fact has been rejected as contrary to the evidence.
Paragraph sixty-two of respondents' proposed findings of fact is actually proposed conclusions of law and has not been adopted as a fact finding for that reason.
Paragraph sixty-five of respondents' proposed findings of fact has been rejected as contrary to the evidence.
Paragraphs sixty-six and sixty-seven of respondents' proposed findings of fact is actually a proposed conclusion of law and has not been adopted as a fact finding for that reason.
Paragraph sixty-eight of respondents' proposed findings of fact has been largely rejected as contrary to the evidence.
Paragraph sixty-nine of respondents' proposed findings of fact accurately reflects the evidence in reciting that the note was not renewed but otherwise amounts to a proposed conclusion of law.
Paragraph seventy of respondents' proposed findings of fact accurately reflects the evidence in reciting that respondents failed to pay Mr. Swartz but is based on hearsay otherwise.
Paragraph seventy-one of respondents' proposed findings of fact mistakes the date Mr. Swagler's employment terminated.
Paragraph seventy-four of respondents' proposed findings of fact is actually a proposed conclusion of law.
Paragraph seventy-five of respondents' proposed findings of fact puts the value of the furniture well above the highest figure mentioned in the testimony and consists in part of (a highly problematic) proposed conclusion of law.
Paragraph seventy-six of respondents' proposed findings of fact is actually a proposed conclusion of law.
COPIES FURNISHED:
Frederick H. Wilsen, Esquire
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
H. Stephen Frank, Esquire Suite 202, Can-Am Building 2180 West First Street Fort Myers, Florida 33901
| Issue Date | Proceedings |
|---|---|
| Jul. 27, 1978 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1978 | Recommended Order | Petitioner only managed to prove Respondent failed to pay a promissory note out of over 20 alleged violationsand allegations of incompetence. Suspend registration for 30 days. |
