STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3777

) MORTGAGE REFUNDS RESEARCH AND ) CONSULTING, RICHARD VIDAIR, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on October 18, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Florida Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent conducted "private investigations" in Florida from August, 1990, to May 2, 1991, without a Class "A" Private Investigative Agency License and without a Class "C" Private Investigator License in violation of Section 493.6101(17), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner served Respondent with an Administrative Complaint on May 21, 1991. Respondent requested a formal hearing by Request For Formal Hearing served on June 11, 1991.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on June 18, 1991, assigned to Hearing Officer Michael M. Parrish on June 24, 1991. The formal hearing was scheduled for October 16, 1991, pursuant to a Notice of Hearing issued on July 2, 1991, and transferred to the undersigned prior to the formal hearing.

At the formal hearing, the parties entered into a Pre- Hearing Stipulation which was admitted in evidence as Petitioner's Exhibit 2. Petitioner called no witnesses and submitted two exhibits which were admitted in evidence without objection.0 Respondent testified in his own behalf and submitted no exhibits for admission in evidences.

A transcript of the record of the formal hearing was not requested by either party. Proposed findings of fact and conclusions of law were timely filed by Petitioner on October 28, 1991. Respondent did not file proposed findings of fact and conclusions of law. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the administrative agency charged with responsibility for administering and enforcing the provisions of Chapter 493, Florida Statutes. Respondent, Mortgage Refunds Research and Consulting ("Mortgage"), is a Florida corporation that is wholely owned by Respondent, Richard Vidair.

   
   

2. Respondent has sole responsibility for the direction, control, operation, and management of Mortgage. Respondent is not licensed as a private investigator and Mortgage is not a licensed private investigative agency.

   
   

3. Respondent is considered by the United States Department of Housing and Urban Development to be a third party tracer. Respondent and his agency locate persons who may be owed refunds for mortgage insurance premiums. From sometime in August, 1990, through May 2, 1991, Respondent contacted individuals who may be owed mortgage insurance refunds by the federal government. Respondent solicited a fee contingent upon actual receipt of the mortgage refund from the federal government.

   
   

4. Respondent obtained from the United States government a list of persons owed mortgage refunds. Such lists are available to anyone for a nominal processing fee. Respondent determined the whereabouts of persons named on the list.

   
   

5. Respondent either telephoned or mailed a letter to the person named on the list and informed that person of the

   service offered by Respondent. Respondent included in the letter sent to the person a finder's fee agreement to be signed by the person on the list. Once the contract was signed and returned to Respondent, Respondent provided the person on the list with additional documents to be filled out for the purpose of filing a claim with the federal government. Government refunds were mailed directly to the person on the list.

   
   

6. The terms of the finder's fee agreement required the person on the list to pay Respondent's fee within three days of the date the person received his or her money from the government. The agreement further provided that if Respondent's fee was not paid within 30 days, Respondent was entitled to a fee equal to 50 percent of the government refund. Finally, the agreement provided that all collection and legal expenses incurred by Respondent in collecting the finder's fee must be paid by the other party.

   
   

7. Respondent received a letter in March, 1991, from the Division of Licensing notifying Respondent that his activities required licensure. After

   conferring with his attorney, Respondent terminated his activities in Florida but continued his activities outside the state.

   
   

8. On October 14, 1987, an attorney for the Division of Licensing issued an internal legal opinion to then Division Director Dave Register. The opinion concluded that persons who engage in the business of locating individuals to whom mortgage insurance premium refunds are due from the federal government are not required to be licensed pursuant to Chapter 493, Florida Statutes. On October 30, 1987, Ken Rouse, General Counsel, Department of State, issued a legal opinion which rescinded the prior internal opinion and concluded that such activities must be licensed.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof is on Petitioner in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the allegations in the Administrative Complaint, and, if so, what disciplinary action should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Section 493.6101(17), Florida Statutes, defines private investigation to include:

    
    

    . . . the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

    * * *

    (d) The whereabouts of missing persons, owners of abandoned or escheated property or heirs to estates.

    
    

12. Section 717.113, Florida Statutes, provides:

    
    

    All intangible property held for the owner by any court, government or governmental subdivision or agency, public corporation, or public authority that has remained unclaimed by the owner for more than 1 year after it

    became payable or distributable is presumed abandoned.

    
    

13. Respondent conducted investigations from August, 1990, to May 2, 1991, for the purpose of obtaining information with reference to the whereabouts of missing persons or with reference to the owners of abandoned or escheated property in the form of unrefunded mortgage premiums. Such activities constitute investigations within the meaning of Section 493.6101(17), Florida Statutes. Respondent conducted such activities without appropriate licenses in violation of Chapter 493.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 493.6118(1)(g), Florida Statutes, and Florida Administrative Code Rule 1C-3.122(1), imposing an administrative fine of $500 pursuant to Florida Administrative Code Rule 1C-3.113(1)(a)2, imposing an administrative fine of $150 pursuant to Florida Administrative Code Rule 1C- 3.113(1)(b)2, and ordering Respondent to cease all investigative activities until Respondent is properly licensed in accordance with Chapter 493.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23 day of January 1992.

DANIEL MANRY

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 23th day of January 1992.

ENDNOTES

1/ Petitioner's Exhibit 1 is the licensure file for Respondent. 2/ Petitioner's Exhibit 1 is the licensure file for Respondent.

3/ Respondent's proposed findings of fact and conclusions of law were inadvertently misfiled when the original Recommended Order was entered. Subsequently, Respondent filed a Motion For Remand Of Jurisdiction on January 30, 1992. Respondent's motion was granted without objection by Order Granting Motion For Remand entered on February 13, 1992.

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Respondent did not submit proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 3

2. Accepted in Finding 4

3. Accepted in Finding 5

4. Accepted in Finding 6

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol

Tallahassee, Florida 32399-0250

Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Case No. 91-3777

(continued)

Michael J. Cohen, Esquire

517 S.W. First Avenue

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003777

Orders for Case No: 91-003777