STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE HOMES, )
)
Petitioner, )
)
vs. ) CASE NO. 91-7363
)
THOMAS R. ROMANO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on March 12-13, 1992, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Barbara M. Linthicum, Esquire
Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Kurt A. Streyffeler, Esq.
3440 Marinatown Lane Northwest, Suite 203 North Fort Myers, Florida 33903
STATEMENT OF THE ISSUE
Whether the allegations of the Notice to Show Cause dated September 10, 1991 are correct, and if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By Notice of Show Cause dated September 10, 1991, Thomas R. Romano was advised that an investigation by the Department of Business Regulation indicated that he had committed violations of Section 468.436(2)(e), Florida Statutes, and Rule 7D-55.007, Florida Administrative Code. The notice alleged that Mr.
Romano, as a licensed community association manager, and manager of the Sanibel Way Condominium Association, Inc., improperly utilized the association's funds. Mr. Romano requested a hearing on the allegations. The request was forwarded to the Division of Administrative Hearings which scheduled the proceeding.
At hearing, the Petitioner presented the testimony of William G. Melton, Agnes Coletto, Norma Burger, and Bill Boyce, and had exhibits numbered 1-9 admitted into evidence. Mr. Romano testified on his own behalf, presented the
testimony of Norma Burger and Bill Boyce, and had exhibits numbered 1-3 and 5 admitted into evide
No transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
At all times material to this case, Thomas R. Romano (hereinafter "Respondent") held community association manager license #2943 issued by the Department of Business Regulation.
Beginning on February 1, 1989, the Respondent assumed management responsibilities for the Sanibel Way Condominium Association, Inc. (hereinafter "Sanibel Way"), a condominium community association.
At the time the Respondent assumed the management duties for Sanibel Way, he was employed by Innovative Management Group, which had contracted with Sanibel Way to provide such management services. The Respondent subsequently left Innovative Management Group and founded Community Management Services which continued to provide association management services to Sanibel Way. At all times material to this case, the Respondent was the licensed community association manager responsible for the operation of the Sanibel Way association.
At the time the Respondent began managing the Sanibel Way community association, the association's fiscal affairs were in disarray, and the Respondent undertook and completed the audit and reorganization of the association's business affairs.
In the summer of 1989, the Respondent discussed with the Sanibel Way association's president, Bill Boyce, the feasibility of investing Sanibel Way's reserve account in a Merrill-Lynch Working Capital Management Account (hereinafter "WCMA") for the purpose of earning a higher rate of return on the association's funds. It was determined that such transfer should occur. The Respondent obtained the necessary information and completed the required Merrill-Lynch new account application.
In August, 1989, Sanibel Way secretary Agnes Coletto, received a letter from the Respondent, which stated:
Enclosed please find a copy of a corporate resolution which needs to be signed by both you and Bill Boyce.
If you could sign the resolution and seal it, then have Bill sign the resolution where marked I would appreciate it.
Enclosed also is a self addressed stamped envelope for your convenience.
The "corporate resolution" referenced in the letter sent to Ms. Coletto is a document entitled "WCMA Account Corporate Resolution". The resolution pages are numbered pages 13 and 14.
The pages executed by Mr. Boyce and Ms. Coletto, were part of the Merrill-Lynch booklet of new account information and applications obtained and completed by the Respondent.
The corporate resolution authorizes the establishment of the account and provides that the account may be accessed by checks and "plastic transaction cards". The Respondent was named as the association's representative on the account and authorized to trade in the account securities, write checks, use cards, and execute sales drafts and cash advances without additional authorization.
Mr. Boyce and Ms. Coletto testified that the only information provided to them was the two-page resolution they signed. The Respondent testified that he gave them the entire booklet. Based upon the letter accompanying the document and the recollections of Mr. Boyce and Ms. Coletto, the Respondent's testimony is not found to be credible.
Mr. Boyce, Ms. Coletto and Lois Tous (Sanibel Way association's treasurer at that time) met and discussed whether the establishment of such an account was permitted under the association's charter. Upon determining that the account was acceptable, Mr. Boyce and Ms. Coletto executed the resolution pursuant to the Respondent's request.
At no time did the Respondent and the officers or directors of the Sanibel Way association explicitly discuss whether or not a "plastic transaction card" would be issued on the account. However, the resolution, signed by the association's president and secretary, clearly provides that such card may be issued.
Ms. Coletto was aware that a credit card was available, apparently having read the document, but that since the resolution provided for completion of a separate application for a credit card and she had seen none, she signed the resolution, assuming that there would be no card issued on the account.
The Merrill-Lynch account was subsequently opened by transferring the Sanibel Way reserve account, which had previously been held at a commercial bank, into the WCMA account.
Additional funds resulting from payment of an insurance claim settlement to the association were also initially deposited into the WCMA account. Bimonthly deposits of additional reserve funds were made into the account.
At all times, the WCMA account was regarded by the officers and board members of the Sanibel Way association to be their reserve account. The Respondent, in reporting fiscal matters to the board, identified the account as the association's reserve account.
The insurance proceeds which were deposited into the WCMA account were utilized, with board authorization, to repair storage shed doors, to install a pool fence, and to perform minor paving and painting.
A second account remained at a commercial bank and constituted the operating funds of the association.
The Respondent acquired a WCMA Visa charge card from Merrill-Lynch in October, 1989. The Visa card was issued in the name of Sanibel Way Condominium
Association/Thomas R. Romano. The credit card was imprinted with both the name of the association and the name of the Respondent.
Beginning in November, 1989, the Respondent began to utilize the association's Visa card for personal expenses. The statements from the WCMA account include numerous personal charges including meals, airline tickets, auto repairs and furniture. Such charges were deducted from the association's funds.
At hearing, the Respondent admitted that such personal charges were made. Although not inclusive of all charges made, the Notice to Show Cause filed against the Respondent specifically lists a selection of such expenditures as follows:
11/11/89 | T.G.I.Fridays Restaurant | 22.24 |
11/15/89 | T.G.I.Fridays Restaurant | 44.01 |
11/21/89 | Eastern Airlines | 420.00 |
11/21/89 | Ballingers Restaurant | 27.54 |
11/21/89 | Gardner's Auto Repair | 204.74 |
11/27/89 | Midway Airlines | 485.00 |
11/27/89 | Eastern Airlines | 220.00 |
12/02/89 | Olive Garden Restaurant | 62.04 |
12/15/89 | Gardner's Auto Repair | 79.59 |
01/01/90 | Rhodes Furniture | 3,181.38 |
01/10/90 | Rhodes Furniture | 211.96 |
01/18/90 | Olive Garden Restaurant | 30.39 |
02/01/90 | Olive Garden Restaurant | 73.04 |
05/26/90 | T.G.I.Fridays Restaurant | 31.30 |
12/17/90 | T.G.I.Fridays Restaurant | 47.72 |
At no time was the Respondent authorized by any officer or director of the Sanibel Way association to utilize the Visa card to charge his personal expenditures.
The Respondent asserted that he was unaware that he had been charging personal expenses to the Sanibel Way card because he neither examined the monthly WCMA statement received from Merrill-Lynch nor performed a monthly reconciliation of the Sanibel Way WCMA account statements with his records.
The Respondent tracked the WCMA reserve account on his own personal computer. Because it did not reflect his personal charges to the account, the data generated by his computer was clearly inaccurate, but was provided to the association board to inform them of the status of their reserve funds.
Upon performing a year-end reconciliation in January of 1990, the Respondent became aware that he had charged personal expenses to the association's reserve account.
On January 26, 1990, the Respondent arranged to have a check for
$1,849.00 deposited into the Sanibel Way WCMA account to reimburse the association for the inappropriate charges and for an additional amount the Respondent calculated as lost interest due the association on the amount he had charged.
The Respondent based his reimbursement calculation on the charges reflected on the WCMA account statements. However, because the Respondent's charges to Rhodes Furniture had already occurred but had not appeared on the
WCMA statements for 1989, the Respondent owed substantially more than the amount of the reimbursement.
Based upon his failure to reimburse for the Rhodes Furniture charges, the Respondent clearly made no attempt at the time of the reimbursement to determine if there were additional outstanding un-billed charges for which reimbursement was appropriate.
At no time did the Respondent inform the association board or any individual officer that personal charges were billed to the association's WCMA account. He did not inform the board or any individual officer that reimbursement had been attempted. He took no action to prevent additional charges.
The Respondent asserted that such charges were made mistakenly because the association's Visa card was visually similar to his personal WCMA Visa card. He failed to distinguish between his personal card and the Sanibel Way WCMA card, notwithstanding the fact that the Sanibel Way card carried the association's name as well as his own imprinted on it.
At the time these charges were made, the Respondent had several WCMA Visa cards from other condominium associations he managed, and had one Visa card from his personal WCMA account. He carried all the cards in his wallet. Apparently, without regard as to which account the charge was being made, the Respondent would randomly pull a card out of his wallet and use it.
In February, 1990, Ms. Norma Burger became treasurer of the Sanibel Way association. Subsequent to assuming her duties, Ms. Burger requested that the Respondent meet with her and review the records of all association accounts. Ms. Burger met with the Respondent and reviewed his computer data.
At the time of this meeting, the Respondent was clearly aware that inappropriate charges had been made to the WCMA account. The computerized records, which did not reflect his personal activity in the association's account, were inaccurate. Ms. Burger was not shown the actual WCMA statements, and at that time did not ask to see them.
Even subsequent to discovering that he had used the Sanibel Way Visa card to charge personal expenses and making the reimbursement he believed to be necessary, the Respondent continued to carry the association card in his wallet and charge personal expenses to the association. The Respondent asserts that he was unaware that he was continuing to make personal charges to the association's account.
The Respondent claimed that he became aware for the second time, in September, 1990, that he was still using the Sanibel Way Visa card to charge personal expenses. He testified that upon discovering for the second time that was still using the association's credit card for personal expenditures, he purchased a pair of eyeglasses for himself.
The Respondent's testimony regarding the "second discovery" of his inappropriate use of the Sanibel Way's Visa card is not credible.
In December, 1990, Ms. Coletto and Ms. Burger, obtained from Merrill- Lynch, the October, 1990, WCMA statement for the association's account at which point they became aware that the Visa card was being used by the Respondent for expenses which did not appear to benefit the association.
A board meeting was called on December 10, 1990, to discuss the matter. The Respondent offered an explanation for the October charges, but did not disclose that numerous personal charges had been made or that partial reimbursement had been made the previous January. He did not offer to make additional reimbursement at that meeting.
During the December 10 meeting the board directed the Respondent to refrain from using the Visa card, a directive with which he failed to comply. Subsequent to the meeting, Ms. Burger requested that the Respondent turn the card and association checks over to her. He refused to comply with her request at that time.
The Respondent was terminated in January, 1991 as Sanibel Way association manager.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Department of Business Regulation is charged with responsibility for the licensure and regulation of community association managers. Chapter 468, Florida Statutes.
The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Notice to Show Cause by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case the Petitioner has met the burden.
The licensure of a community association manager may be suspended or revoked upon a showing that the licensee has committed acts of gross misconduct or gross negligence in the pursuit of his profession. Section 468.436(2)(e), Florida Statutes.
Rule 7D-55.007, Florida Administrative Code, sets forth standards of professional conduct applicable to community association managers. In relevant part, the rule provides:
7D-55.007 Standards of Professional Conduct.
All licensees...shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees...,into any written or oral agreement for the rendition of community association management services, the violation of which
shall constitute gross misconduct or gross negligence:
(2) Honesty. During the performance of management services, a licensee...shall not knowingly make an untrue statement of material fact or knowingly fail to state a material fact.
(4) Due Professional Care
(a) A licensee...shall exercise due professional care in the performance of community association management.
(emphasis supplied)
In failing to disclose his personal use of the association Visa card to the board or to any individual officer of the association at any time prior to the board's inquiry in December of 1990, the Respondent knowingly failed to state a material fact in violation of Rule 7D-55.007(2), Florida Administrative Code.
In continuing, subsequent to his discovery in January, 1990, that he was charging personal expenses against the association's funds, to provide inaccurate information related to the Sanibel Way WCMA account to the association board, the Respondent knowingly made an untrue statement of material fact in violation of Rule 7D-55.007(2), Florida Administrative Code.
In failing to reconcile the Sanibel Way WCMA statement on a monthly basis after becoming aware that his computer records were incorrect and did not reflect the actual status of the association's funds, the Respondent failed to exercise due professional care in the performance of community association management in violation of Rule 7D-55.007(4)(a), Florida Administrative Code.
In continuing to charge personal expenditures against the Sanibel Way WCMA account subsequent to his discovery in January 1990 that such improper charges had occurred, the Respondent failed to exercise due professional care in the performance of community association management in violation of Rule 7D- 55.007(4)(a), Florida Administrative Code.
The Respondent asserts that his conduct in this case does not constitute gross misconduct or gross negligence. In support of the assertion, the Respondent cites a Texas case, Geeslin v. McElhenney, 788 S.W.2d 683 (Tex.App., Austin, 1990) which includes a definition for gross misconduct. 1/ It should be noted that the Geeslin case does not address the issue of gross negligence, which is specifically referenced as grounds for disciplinary action under the operative statute.
However, it is unnecessary to reach a separate definition of "gross misconduct" or "gross negligence" for purposes of this Recommended Order. Violations of the referenced administrative rules are specifically defined as constituting gross misconduct or gross negligence. The Respondent's activities clearly violate the referenced rules.
The Respondent asserts that his actions were committed without specific knowledge or intent. He claims that his charges of personal expenses against the association's funds were a mistake which occurred because the cards were visually similar and his eyesight was apparently poor. He asserts that he became aware of the inappropriate charges by examining, apparently notwithstanding his poor eyesight, the association's WCMA statements in January, 1990.
The Respondent's claims related to his actions prior to January, 1990, are less than convincing. However, from the point at which the Respondent concedes he had already discovered that such charges had occurred, the Respondent clearly had knowledge of the matter. He took no action to prevent such charges from reoccurring. He made no attempt to discover the total amount
of such charges for purposes of reimbursement. He did not disclose the matter to the board or to any individual officer of the association. The monthly WCMA statements, which would have disclosed that such charges were being made, remained un-examined and un-reconciled with the computer records represented as accurate and provided to the board and officers of the association.
In December of 1990, the entire board became aware of the Visa card's use and directed him to cease using it. He ignored the board's directive and continued to charge personal expenses against the association's account.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Business Regulation enter a Final Order revoking the licensure of Thomas R. Romano as a community association manager.
DONE and RECOMMENDED this 1st day of May, 1992, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1992.
ENDNOTES
1/ The term is defined in the case to "include at minimum: (1) any willful omission to perform a legal duty; (2) any intentional commission of a wrongful act; and (3) any breach of fiduciary duty that results in actual harm to a beneficiaries interest." The court writes that the defintion is sufficient for that case, one involving a petition for removal of an independent executor of an estate.
APPENDIX
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
9. Last sentence rejected, not supported by greater weight of evidence which establishes that Boyce was aware of the card.
First sentence rejected as immaterial, refers to charges which were not alleged in the Notice to Show Cause.
Second sentence rejected as immaterial, includes charges which were not included in the allegations of the Notice to Show Cause. There is no evidence
that, at that time, Respondent was aware of the total amount of reimbursement owed, or that Respondent made any attempt to discover the amount of reimbursement owed.
Second sentence rejected as immaterial, includes charges which were not included in the allegations of the Notice to Show Cause.
Third sentence rejected, there is no persuasive evidence that Ms. Burger asked to see the statements when she met with the Respondent to review the accounts. Fourth sentence rejected, there is no persuasive evidence that Ms. Coletto repeatedly failed to request that the board receive the WCMA statements.
18. Rejected as to inference that the "Intuit" charges were necessarily for software. It should be noted that the voided check copy in Petitioner's exhibit
5 appears to have been produced by "Intuit" according to the check margin notation.
Respondent
The Respondent's proposed findings of fact are organized into two sections, undisputed facts and disputed facts. The proposed findings are accepted as modified and incorporated in the Recommended Order except as follows:
Undisputed Facts
Reference to prior management or related Departmental activity is rejected, immaterial.
Although accepted generally, the specific problems of the association at the time the Respondent began management duties are irrelevant.
Rejected, contrary to the greater weight of evidence which establishes that the discussion regarding the advisability of opening the Merrill Lynch WCMA account was with Boyce alone.
Rejected, contrary to the greater weight of evidence.
11. Rejected, comment on the evidence (minutes) not supported by credible testimony.
Rejected, comment on the evidence (cards are "almost identical in appearance") is not supported by credible testimony.
Rejected, immaterial.
Rejected, not supported by credible evidence.
Rejected insofar as implying that the Respondent was unaware of subsequent charges to the association's Visa card after his initial discovery that such charges had been made, not supported by credible evidence.
Rejected, irrelevant.
Disputed Facts
Rejected, unnecessary. Conflicting testimony, where relevant, has been resolved as set forth by the Findings of Fact in the Recommended Order.
Rejected. Not supported by the greater weight of credible evidence.
Rejected, comment on the evidence not supported by greater weight of evidence. The letter and the recollections of Boyce and Coletto are credited.
Rejected. Not supported by credible evidence. The materials shown to Ms. Burger were inaccurate and were based on the Respondent's computer data which he did not reconcile with the WCMA statements. Ms. Burger was the association's treasurer during the time subsequent to the Respondent's discovery that he was using the association's WCMA card for personal expenses. The Respondent continued to offer his own inaccurate computer records to board members, although he was aware that he was inappropriately using the association's funds for personal expenses and aware that such personal expenditures were not reflected by his computer records.
COPIES FURNISHED:
Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Donald D. Conn, Esq.
General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Henry M. Solares, Division Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Barbara M. Linthicum, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Kurt A. Streyffeler, Esq. Suite 203
3440 Marinatown Lane N.W.
North Fort Myers, Florida 33903
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 ten 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES
STATE OF FLORIDA,
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES,
Petitioner, DBR CASE NO. CC91213 DOAH CASE NO. 91-7363
v.
THOMAS R. ROMANO,
Respondent.
/
FINAL ORDER
On May 1, 1992, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes (Division), and the Respondent in this action. A copy of the Recommended Order is attached as "Exhibit A." Respondent filed numerous exceptions to the Recommended Order; the Division filed none. The matter then came before me as Director of the Division of Florida Land Sales, Condominiums, and Mobile Homes for final agency action.
RULINGS ON EXCEPTIONS
Respondent has filed twenty-nine (29) exceptions to the Recommended Order.
Division rules require that before a party may file written exceptions, the party must file a transcript. Specifically, Rule 7-4.006, Florida Administrative Code, provides as follows:
Any party may file written exceptions in response to a hearing officer's recommended order in a proceeding involving any division within the Department of Business Regulation, provided that the excepting party furnish to the division a verbatim, written transcript of the proceedings at the excepting party's expense, if no verbatim, written transcript has been previously furnished.
Therefore, Respondent's exceptions will not be addressed in this Order.
FINDING OF FACT
I have considered the Hearing Officer's Findings of Fact and am mindful of the record in this case. Because the Hearing Officer's findings are supported by competent, substantial evidence, they are approved and adopted and incorporated herein. s. 120.157(1)(b)10., Fla. Stat. (1991).
CONCLUSIONS OF LAW
The Division of Florida Land Sales, Condominiums, and Mobile Homes has jurisdiction to enter this Final Order pursuant to Section 120.57(1), Florida Statutes, and Chapter 718, Florida Statutes.
I have reviewed the Hearing Officer's analysis of the legal issues and conclusions based upon the factual findings. Because I agree with the Hearing Officer's Conclusions of Law, they are approved and adopted and incorporated herein.
PENALTY
Upon review of the complete record in this case, I have determined that the penalty recommended by the Hearing Officer is too lenient under the circumstances. The Hearing Officer recommended only that Respondent's community association manager's license be revoked. Clearly, Respondent should no longer be permitted to practice community association management. The penalty of revocation, however, is too lenient in light of the facts which show intentional wrongdoing by Respondent. Respondent should be required to suffer the maximum penalty of revocation plus a Five Thousand Dollar ($5,000) civil fine.
The record shows that this is not a case of a community association manager who bungled the management of the Association as result of error or oversight as Respondent would have us believe. Rather, it is a case of a manager skilled in business and financial matters who recognized the Board's lack of experience in these areas and responded by putting in place a scheme to systematically convert the Association's funds to his own use. The record clearly shows intentional wrongdoing on the part of the Respondent.
The Board of Directors of the Sanibel Way Condominium Association hired Respondent based on his representation that he could reorganize the association's business and financial affairs. Once he had gained their trust, Respondent convinced the Board of Directors to transfer their reserve funds from a bank to Merrill-Lynch. To accomplish the transfer, the President and Secretary of the Association had to sign a document establishing the Merrill- Lynch account. The record shows that Respondent intentionally removed the two
(2) page document from a fourteen (14) page booklet that included an application for a Visa charge card. It seems clear that Respondent removed the document entitled "Corporate Resolution" to hide from the members of the Board of Directors that he was applying for the Visa card.
Although Respondent attempted to maintain at the hearing that his uses of the Visa card were mere oversights, the record shows otherwise. The record shows that Respondent used the Visa card on at least fifteen (15) separate occasions. Respondent testified that on three (3) separate occasions during 1990, he became aware of his misuse of the card. Although aware of his misconduct, Respondent never told the Board, and he took no steps to determine the amount of the charges for the purpose of reimbursement or to avoid its continued misuse. Respondent testified that he never even opened the envelopes
from Merrill-Lynch containing the monthly statements. It seems clear that Respondent was aware of his misconduct and that he was attempting to hide from the Board.
If there is any doubt left that Respondent intended to misappropriate Association funds, his conduct at the December 10, 1990, meeting should relieve the doubt. After Ms. Coletto and Ms. Berger obtained the account records for October from Merrill-Lynch which indicated Respondent's use of the card, a Board meeting was held. They testified that when Respondent was asked to explain the three uses of the Visa card indicated on the October records which totalled One Hundred Twenty-Eight Dollars and Eighty Cents ($128.80), Respondent lied to the Board members and told them that the charges were for checks ordered for the Merrill-Lynch account. When asked to return the card, he refused to do so.
Although he was told by the Board of Directors not to use the Visa card again, he charged a meal on December 17, 1990, at T.G.I. Fridays for Forty-Seven Dollars and Seventy-Two Cents ($47.72). Only when Ms. Berger and Ms. Coletto removed Respondent's name from the account did the charges stop.
The record also shows that Respondent has been personally enriched by his misconduct. Respondent was found by the Hearing Officer to have converted at least Five Thousand One Hundred Forty Dollars and Ninety-Five Cents ($5,140.95) to his own use. The Respondent has not repaid any money to the Association since the partial reimbursement in January of 1990.
The record clearly shows that Respondent's offenses were not offenses of error or oversight. Rather, they were part of an intentional scheme to deprive Sanibel Way Condominium Association of their reserve funds that were entrusted to Respondent's care. I believe there can be no more egregious conduct by a community association manager than to misuse his position of trust for his personal gain.
For these reasons, the more appropriate penalty in this case is revocation of Respondent's community association manager's license and a civil penalty in the amount Five thousand Dollars ($5,000).
DONE AND ORDERED this 9th day of July 1992, in Tallahassee, Florida.
HENRY M. SOLARES, DIRECTOR
Division of Florida Land Sales, Condominiums, and Mobile Homes
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1030
(904) 488-1631
RIGHT TO APPEAL
THIS FINAL ORDER, WHICH CONSTITUTES FINAL AGENCY ACTION, MAY BE APPEALED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEES, AND WITH THIS AGENCY, WITHIN 30 DAYS OF RENDITION OF THIS ORDER.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Kurt A. Streyffeler, 3440 Marinatown Lane N.W., Suite 203, North Fort Myers, Florida 33903 on this day of June 1992.
CAROLYN HOWEARD, DOCKET CLERK
Copies furnished to:
Barbara Linthicum Assistant General Counsel
Faye Mayberry, Chief Bureau of Condominiums
| Issue Date | Proceedings |
|---|---|
| Jun. 01, 1992 | Respondent`s Written Exceptions to Recommended Order w/cover ltr filed. |
| May 01, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 3/12-13/92. |
| Apr. 08, 1992 | Respondent`s Proposed Finding of Facts and Recommended Order filed. |
| Apr. 02, 1992 | (Petitioner) Proposed Recommended Order filed. |
| Mar. 18, 1992 | Petitioner`s Exhibits filed. |
| Mar. 12, 1992 | CASE STATUS: Hearing Held. |
| Jan. 17, 1992 | Notice of Hearing sent out. (hearing set for 03/12/92;1:00PM;Ft Myers) |
| Dec. 18, 1991 | (Petitioner) Motion for Continuance filed. |
| Dec. 13, 1991 | Notice of Hearing sent out. (hearing set for Feb. 27-28, 1992; 9:00am; Ft Myers). |
| Nov. 26, 1991 | Response to Initial Order filed. |
| Nov. 20, 1991 | Initial Order issued. |
| Nov. 15, 1991 | Notice to Show Cause; Enforcement Report; Request for Hearing, letter form; Agency referral letter; Supporting Documents (Exhibits) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 09, 1992 | Agency Final Order | |
| May 01, 1992 | Recommended Order | Revolation warranted for repeated personal use of association credit cards without authorization. |
