STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE AVRACH, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2514

)

DEPARTMENT OF BANKING AND )

FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 16, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen J. Avrach, Esquire

801 Arthur Godfrey Road Miami Beach, Florida 33140

For Respondent: Randall J. Rubin, Esquire

Office of the Comptroller

401 N.W. Second Avenue Suite 708-North

Miami, Florida 33128-1796 STATEMENT OF THE ISSUES

The issue is whether Stephen J. Avrach is entitled to receive the proceeds from checks in the amounts of $30.00 issued by Flanigan's Enterprises, Inc., and

$416.00 from First Union Bank, both of which have been forwarded to the Comptroller as abandoned property.

PRELIMINARY STATEMENT

At the hearing the only witness was the Petitioner. The Petitioner also offered an exhibit and the Respondent offered a composite exhibit. Following the hearing the parties were afforded an opportunity to file proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposed findings are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On September 22, 1989, Flanigan's Enterprises, Inc., submitted a remittance report of unclaimed money items to the Department of Banking and Finance. It listed as item 0003, the amount of $30.00 owed to "Steven J. Avrach."

   
   

2. On June 30, 1986, First Union Bank of Florida submitted a remittance report of unclaimed money items to the Department of Banking and Finance. It listed Steve Avrach as payee. It listed International Monetary as Purchaser. The item in question is a cashier's check drawn on Commercial Bank and Trust Company, a bank which has since been purchased by First Union Bank of Florida. In processing the claim, the Department requested First Union Bank to provide it with a signature card for the account. First Union was unable to comply with this request.

   
   

3. Although the Department produced a copy of a cashier's check drawn on Commercial Bank and Trust Company in the amount of $700.00, it was stipulated by both parties that the Department has only received the sum of $416.00 from First Union Bank. This stipulation was without prejudice to any rights the Petitioner may have against First Union Bank.

   
   

4. The Petitioner is an attorney in Miami Beach. In the late 1970's he performed legal services for a client named International Monetary. He does not have any records or specific recollection as to why International Monetary would have drawn the subject check in his favor, but suggests that it was probably payment for legal services.

   
   

5. The Petitioner was once employed by Flanigan's Enterprises, Inc. The address shown for Petitioner on Flanigan's report is the Petitioner's former residence address.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

7. Section 716.126, Florida Statutes, states in pertinent part:

   
   

   In any proceeding for determination of a claim to property paid or delivered to the department under this chapter, the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.

   
   

8. The definition of the term "preponderance of evidence" in Black's Law Dictionary, 5th Edition, includes the following:

   
   

   Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be provided is more probable than not. Brand v. Kinchen, La.App., 310 So.2d 657, 659.

9. On the basis of the facts established in this case, it is more probable than not that the Petitioner is the person entitled to the funds claimed in this case. Particularly persuasive in this regard is the fact that the Petitioner established the existence of prior relationships with Flanigan's Enterprises, Inc., and International Monetary from which it would be logical for those entities to be indebted to the Petitioner.

RECOMMENDATION

On the basis of the foregoing, it is recommended that the Department of Banking and Finance issue a final order in this case concluding that the Petitioner is entitled to the $30.00 received by the Department from Flanigan's Enterprises, Inc., and to the $416.00 received by the Department from First Union Bank with respect to International Monetary.

RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September 1990.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2514

The following are the specific rulings on all proposed findings of fact submitted by the parties.

Findings proposed by Petitioner:

Paragraphs 1 through 6: Rejected as constituting unnecessary procedural details or statements of position.

Paragraphs 7 and 8: Accepted in substance.

Paragraphs 9 and 10: Rejected as constituting argument or ultimate conclusions, rather than findings of fact.

Findings proposed by Respondent: Paragraphs 1 through 3: Accepted.

Paragraph 4: First sentence and last sentence accepted in substance. The remainder is rejected as constituting subordinate and unnecessary details or as argument.

Paragraphs 5 through 7: Rejected as constituting subordinate and unnecessary details or as argument.

COPIES FURNISHED:

Steve Avrach, Esquire 801 Arthur Godfrey Road Suite 603

Miami Beach, Florida 33140

Randall J. Rubin, Esquire Office of the Comptroller

401 N.W. Second Avenue Suite 708-North

Miami, Florida 33128-1796

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking and Finance The Capitol

Plaza Level, Room 1302 Tallahassee, Florida 32399-0350

Docket for Case No: 90-002514

Orders for Case No: 90-002514