Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
Findings Of Fact Angelo Ciciretti is, and at all times material to this case was, a licensed real estate broker in the. State of Florida, licenses #0262612 and #0264641, for Auction World, U.S.A. Inc., 5245 Ramsey Way #9, Ft. Myers, Florida 33907 and Shamrock Realty & Associates, Inc., 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. Shamrock Realty & Associates, Inc. is, and at all times material to this case was, a corporation registered as a real estate broker in the State of Florida, license #0264446, 1059 Northeast Pine Island Road, Cape Coral, Florida 33909. In 1989, Jerry R. Stephenson, a licensed real estate salesman employed by N. J. Prasser Realty, Inc., sold a parcel of land to Darryl and Pamela B. Atherly, who resided out of state, and intended to construct a residence on the property and move to Florida. A commission was paid on the sale of the property. Mr. Stephenson also in 1989, and subsequent to the Atherly's purchase of the property, introduced the Atherly's to Dennis A. O'Key, a builder. Mr. Stephenson was still employed by N. J. Prasser Realty at the time of the introduction. Mr. O'Key and the Atherly's discussed the costs of building a home for the couple. The evidence fails to establish the existence of any agreement between Mr. O'Key and Mr. Stephenson related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house, and further fails to establish the existence of any like agreement between Mr. Stephenson and the Atherly's, although there is some evidence that the Atherly's, longtime friends of Mr. Stephenson, did suggest that Mr. Stephenson would be compensated for his assistance. At some time subsequent to the Atherly's visit with Mr. O'Key, O'Key ceased building homes. Upon the next contact with the Atherly's, Mr. O'Key referred the couple to R. Fry Builders, Inc., another local home builder. The evidence fails to establish the existence of any agreement between Mr. O'Key, Mr. Fry or the Atherly's related to payment of any commission or referral fee based upon the proposed construction of the Atherly's house. On February 28, 1990, the Respondent applied to have Mr. Stephenson's license transferred to Two Sisters real Estate, Inc., where Respondent was employed. The licensure transfer became effective on March 8, 1990. On or about April 10, 1990, the Atherly's entered into a contract with R. Fry Builders, Inc., for the construction of the Atherly home. The contract makes no provision for the payment of any commission or referral fees. The home was built and the Atherly's took occupancy of the structure. No commission or referral fees were paid by either Mr. Fry or the Atherly's. On or about July 12, 1990, by certified letter, the Respondent contacted R. Fry Builders, Inc., and demanded payment of $4,077.50 as a referral real estate commission. The letter provided that a claim of lien would be filed if no response was received within ten days from the letter's date. The Respondent received no payment from R. Fry Builders, Inc. On or about July 27, 1990, the Respondent placed a claim of lien on the Atherly's home. The lien was recorded in the Lee County, Florida official records book. The Respondent filed the lien for the purpose of collecting the referral commission from the Atherly's. On or about April 9, 1991, the Respondent released the lien and filed the release of lien in the Lee County, Florida official records book. The lien was released after Mr. Stephenson discussed the matter with the Respondent and urged him to withdraw the lien. The Respondent collected no referral commission from the Atherly's. The Respondent has filed no civil action to collect any fees or commissions due from any of the parties material to this case. There has been no judgement entered which would entitle the Respondent to have placed a lien on the Atherly's home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the license of Respondent Angelo Ciciretti for a period of one year and imposing a fine of $1,000 to be paid within thirty days of rendition of the Final Order in this case. DONE and ENTERED this 18th day of October, 1991, 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 18th day of October, 1991. APPENDIX CASE NO. 91-3257 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esq. Department of Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 W. Robinson Street Orlando, Florida 32801-1772 Angelo Ciciretti Shamrock Realty & Associates, Inc. 812 East Cape Coral Parkway Cape Coral, Florida 33904
Findings Of Fact At all times relevant hereto, Virginia King was registered with the Florida Real Estate Commission as a real estate salesperson. She has been so licensed for at least 15 years working for Tam Bay Realty. Respondent manages the residential unit here involved for the owners to whom she has sold several properties in past years and who have been out of the country for an extended period. In renting the property the rent is paid to Respondent, deposited into her account from which various expenses associated with the rental of the property is paid, and she makes an accounting to the owners for all monies owed to them. The dwelling in question was listed with Tam Bay Realty for sale with Respondent as listing agent, but she was also renting the property on behalf of the owner. To the Tam Bay For Sale sign on the property, Respondent attached a For Rent sign. Richard D. and Linda Grey were looking for a rental and saw the For Rent sign on the property and called Tam Bay Realty where they were put in touch with Respondent who subsequently met the Greys at the residence. The Greys liked the property and gave Respondent a check for $100 as a deposit on the lease to be executed when the Grey's presented their first month's rent. The residence needed some cleaning which Respondent agreed to have done if the Grey's would have the water turned on. Grey also wanted some trimming of hedges to which Respondent agreed. The Greys later met Respondent at the dwelling before the cleaning and trimming had been done. Grey contends that he did not have the water turned on because "that was the owner's responsibility," but the water was turned on and Respondent had the dwelling cleaned and the hedges trimmed for which she paid in excess of $100. Before the time for occupancy arrived, the Greys encountered a delay in the closing on the home they were selling and called Respondent to say they no longer wanted to rent the house and demanded a return of their $100 deposit. Respondent, contending that Grey breached the agreement to rent the property, credited the $100 to the account of the owner (whose account was also charged for the cleaning and trimming), and refused to remit the deposit to Grey.
The Issue Respondents are charged with misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes; failure to account or deliver funds in violation of Section 475.25(1)(d), Florida Statutes; and failure to maintain trust funds in the real estate brokerage escrow bank account or some other proper depository until disbursement is properly authorized, in violation of Section 475.25(1)(k), Florida Statutes, as more specifically set out in the following Conclusions of Law.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints, pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. At all times material, Respondent Mary Lawhon was a licensed Florida real estate broker, issued license numbers 607847 and 3028674 in accordance with Chapter 475, Florida Statutes. Respondent Shell Point Realty, Inc., is, and at all times material was, a corporation registered as a Florida real estate broker having been issued license number 1005003 in accordance with Chapter 475, Florida Statutes. At all times material, Respondent Mary Lawhon was licensed and operating as qualifying broker and officer of Respondent Shell Point Realty, Inc. Neither Respondent has previously been prosecuted for license violations, although an Agency investigator's administrative fine of $100.00 for a minor technical violation was imposed several years ago. Between 1996 and 2002, Respondents were paid real estate commissions for the purchase or sale of several Wakulla County properties by Gerd Petrik, or his business, Stone Real Estate Holdings, Inc. For each of these transactions, there was a contract, whereby Respondents' real estate brokerage commission was based on the price of each property as disclosed before sale in the written listing agreement with the seller(s). Mr. Petrik is a foreign national residing in the United States on an investment visa. He lives in Sarasota, Florida. He "owns" several corporations,2/ and, through them, he owns at least 40 properties in the Panhandle of Florida, including a golf course and six rental houses in Wakulla County. One of these rental houses is located at 111 Razorback Road in Crawfordville. Mr. Petrik, or a corporation in which he is majority stockholder, owner-financed, by mortgage, one of the buildings from which Ms. Lawhon conducts Shell Point Realty, Inc.'s business. As an outgrowth of their real estate sales transactions, Mr. Petrik came to respect and value Ms. Lawhon's real estate skills and business acumen. He also appreciated her position and prestige in the community as the former Wakulla County Administrator. Until the incidents giving rise to this case occurred, Mr. Petrik found Ms. Lawhon to be professional and competent in real estate matters and honest and truthful. Mr. Petrik admits that he has lost no money as a result of the incidents giving rise to this license disciplinary proceeding. There has never been a written contract imposing any duty on Respondents to Mr. Petrik with regard to his six rental houses in Wakulla County, or with regard to the 111 Razorback Road property in particular. Having reconciled the witnesses' respective testimonies to the degree possible, and having assessed their respective versions upon credibility factors, it is found that Respondents were never retained or expected by Mr. Petrik to rent, lease, or manage any of his six rental houses in Wakulla County, including the 111 Razorback Road property. Respondents also did not advertise any rental properties, solicit any renters, put up any "for rent" signs, or charge any real estate or management fees to Mr. Petrik or his businesses in connection with the rentals of Mr. Petrik's properties. However, with an eye to promoting further profitable real estate sales dealings with Mr. Petrik, Ms. Lawhon gratuitously facilitated Mr. Petrik's renting his Wakulla County houses. To this end, she regularly communicated by telephone and fax with Mr. Petrik's business manager, Wendy Freed, concerning showing the properties, rent to be charged, and creation or signing of leases. At all times material, Wendy Freed worked in Mr. Petrik's office in Sarasota, as business manager for Stone Management Inc., one of Mr. Petrik's corporations. Stone Management, Inc., owns Stone Real Estate Holdings, Inc. Ms. Freed believed that Stone Real Estate Holdings, Inc., owned 111 Razorback Road, Crawfordville. Apparently no one involved in this case knew that in October 2001, 111 Razorback Road was owned by Newhouse, Inc.3/ The evidence is not clear who or what entity owned the property in March 2002. Regardless of which entity actually owned any of the rental houses, Ms. Freed, Ms. Lawhon, and Mr. Petrik all believed Ms. Freed had Mr. Petrik's complete authority to handle the rentals and to manage everything in connection with the six Wakulla County rental houses, including 111 Razorback Road. Ms. Freed possesses no real estate or other professional licenses. Her entire training for management or leasing of real estate has been "on the job" training with Mr. Petrik. As of October 2001, she possessed only about a year and a half of such training. She keeps track of multiple rentals and other property management factors without any modern property management software. She uses only an Excel spreadsheet. Despite Ms. Freed's testimony to the contrary, it is found that Ms. Lawhon is credible that Ms. Lawhon only collected rent money for Mr. Petrik, or for any of Mr. Petrik's businesses, upon Ms. Freed's specific request, until the incidents giving rise to this case; that all leases for Mr. Petrik's rental properties were usually prepared by Ms. Freed, although on occasion, Ms. Lawhon had prepared a lease for Ms. Freed to use, based on the Tallahassee Board of Realtors' Standard Form; and that usually, after one of Mr. Petrik's houses had been leased, Ms. Freed dealt directly with the lessee, unless she dealt with the lessee through Mr. or Mrs. Alward. At all times material, Kay Alward and Chris Alward, husband and wife, were employed by Mr. Petrik. They were not sure whether they were paid through Stone Management, Stone Real Estate Holdings, Inc., or Stone Management Enterprises. Mrs. Alward had been Mr. Petrik's housekeeper, and Mr. Alward had been his gardener, in Sarasota. Mr. Alward had also personally invested in Wakulla County real estate. For awhile, the Alwards assisted Ms. Freed in managing Mr. Petrik's properties in Wakulla County, by traveling to and from Wakulla County. Ultimately, they moved to Wakulla County to live and manage his properties. During the material period of time, they employed a man named "Greg" to steam clean decks, fix toilets, and be a general handyman for Mr. Petrick's Wakulla County rental properties. Before returning to Sarasota on one occasion, Mr. Alward left with Ms. Lawhon a key for 111 Razorback Road. She understood from him that workmen might need the key to get into the house for repairs and cleaning. Sometime thereafter, on or about October 12, 2001, Lorra Shepard, a local Certified Public Accountant, walked into Respondents' real estate office, because a friend of hers worked there, and asked if they had any rentals. She was shown the 111 Razorback Road property. She asked Ms. Lawhon if she could rent it, and Ms. Lawhon told her the lessor wanted $675.00 per month. Ms. Shepard asked if they could come down on the price. Ms. Lawhon testified that she telephoned Ms. Freed on October 12, 2001, and asked Ms. Freed to lower the rent for Ms. Shepard; that Ms. Freed agreed to lower the rent to $635.00 per month and agreed to draw the lease; that she, Ms. Lawhon, relayed this information to Ms. Shepard; that Ms. Shepard agreed to rent the house at that price; and that Ms. Lawhon then telephoned Ms. Freed again with this information and finally faxed written information about Ms. Shepard to Ms. Freed, so that Ms. Freed could draft the lease and collect subsequent rents. This testimony is credible.4/ Ms. Lawhon and Ms. Shepard concur that Ms. Shepard moved into 111 Razorback Road on October 15, 2001, and that day, Ms. Lawhon accepted a $450.00 cash deposit from Ms. Shepard and provided Ms. Shepard with a signed receipt, setting out the monthly rent of $635.00 per month, and signing the receipt with Ms. Lawhon's own name. Ms. Shepard is clear that at no time did Ms. Lawhon tell her 111 Razorback Road was Ms. Lawhon's house or suggest that Ms. Shepard hide her occupancy. Rather, Ms. Shepard confirms Ms. Lawhon's testimony that Ms. Lawhon told her that the lessor would be sending a lease and that the lessor was Mr. Petrik. Ms. Shepard's testimony also suggests that in October 2001, she thought Ms. Lawhon was saying that Ms. Lawhon would deliver the lease and that when Ms. Shepard signed the lease, she and Ms. Lawhon, together, would work out whether rent would be paid on the 15th or 31st of each month. Even if it were credible that Ms. Freed had told Ms. Lawhon to retain the $450.00 cash deposit, and this portion of Ms. Lawhon's testimony does not ring entirely true, there is no evidence that Ms. Lawhon timely placed the $450.00 cash in an escrow or trust account. It also was not remitted directly to Mr. Petrik or Ms. Freed in October 2001. On the other hand, there is no evidence that it was deposited into any account in Respondents' name(s). It is unclear from Ms. Lawhon's hearing testimony what, exactly, happened to the $450.00 cash deposit, but she admitted to the Agency investigator in June 2002 that she had put it in a file and forgotten about it, and this explanation is accepted. At no time material did Ms. Freed or Ms. Lawhon prepare a lease for 111 Razorback Road. At no time material did either of them send or deliver a lease to Ms. Shepard. Ms. Shepard testified credibly that several times between October 2001 and March 2002, Ms. Lawhon told Ms. Shepard that she, Ms. Lawhon, still had no lease and would call the lessor again. Ms. Lawhon did not address this aspect of Ms. Shepard's testimony in her own testimony. Ms. Lawhon testified that she thought Ms. Freed would deal directly with Ms. Shepard about all aspects of the lease and collecting rent. She also admitted that she had never discussed 111 Razorback Road with Ms. Freed in any of their frequent telephone conversations between October 15, 2001 and March 2002. Upon this evidence and Finding of Fact 24, it is found, contrary to Ms. Lawhon's hearing testimony, that Ms. Lawhon was, in fact, expecting to receive a lease from Ms. Freed and planned to then deliver that lease to Ms. Shepard for execution, but Ms. Lawhon never followed up on Ms. Shepard's request for a lease. Having no lease to guide her, Ms. Shepard did not make out checks for rent in thirty-day increments, beginning in October or November 2001. Instead, she contemporaneously made out a check dated December 21, 2001, for $1,905.00, to "Petrick" for the rent. She contemporaneously made out a check dated December 26, 2001, for $317.50, to "Petrick" for the rent. She contemporaneously made out a check dated February 7, 2002, for $952.00, to "Petrick" for the rent. She expected Ms. Lawhon to pick up these checks, but no one picked them up. Accordingly, Ms. Shepard just left these three checks, totaling $3,174.50, in her office desk drawer and went about her business until March 26, 2002. Mrs. Alward ran some advertisements for Mr. Petrik's rental houses in December 2001. Ms. Lawhon testified that she told Mrs. Alward in December 2001 not to advertise 111 Razorback Road because it was rented. Mrs. Alward was not asked to confirm or deny that conversation occurred, and Mrs. Alward's testimony at hearing does not specifically rule out that she advertised 111 Razorback Road. However, Mr. Alward's deposition and the testimony of Mr. Weltman reveal that in January 2002, the Alwards were managing all rental arrangements by referral to Ms. Freed. In January or February 2002, a maintenance person steam-cleaned the deck at 111 Razorback Road. The maintenance person was never seen by Ms. Shepard, but the maintenance person clearly knew someone was occupying the house because s/he left a note for Ms. Shepard to confine her dogs so the steam cleaning could be done the next day. Ms. Shepard assumed the steam cleaning was done at Ms. Lawhon's direction, but she did not contact Ms. Lawhon about it. Ms. Lawhon did not arrange this service and knew nothing about it. Based on the testimony of Ms. Freed, Mr. and Mrs. Alward, and Mr. Weltman, it is probable "Greg" did this steam cleaning at the Alwards' direction, but Ms. Freed takes no responsibility for it. Upon Findings of Fact 28-29, it is only reasonable to assume that the Alwards had notice that 111 Razorback Road was rented and occupied as of December 2001-January 2002, and their knowledge as of those dates can be imputed to Ms. Freed. On March 26, 2002, Ms. Shepard personally delivered to Ms. Lawhon the three rent checks she had previously written to "Petrick," on December 21, 2001, December 26, 2001, and February 7, 2002, totaling $3,174.50.5/ Ms. Shepard then returned to her office, and on March 29, 2002, she delivered to Ms. Lawhon a last check for $317.50, dated March 26, 2002, and payable to "Stone Real Estate Holdings." The undisputed evidence reveals that on March 29, 2002, Ms. Lawhon signed the first three checks as "Petrik" and deposited them under the stamped endorsement of "Shell Point Realty," into Shell Point Realty, Inc.'s, operating account. She did not deposit them into an escrow account for Mr. Petrik or into Respondents' trust account. The March 29, 2002, deposit complied with Agency rules, in that it was made "immediately" (within three business days or less) of Respondents' receipt of the funds. It did not comply with Agency rules in that it was not deposited in a trust, escrow, or other specifically designated account for Mr. Petrik's benefit. Mr. Petrik and Ms. Freed maintain that Ms. Lawhon was not authorized to endorse the checks with Mr. Petrik's name. The average daily balance of Respondents' operating account at the time Ms. Lawhon deposited Ms. Shepard's first three rent checks was over $54,000.00. There appears to be no financial motivation for Respondents to play fast and loose with the relatively minor amounts of money involved in this case. At hearing, Ms. Lawhon had several explanations for her handling Ms. Shepard's first three checks as she did: that she thought she had received permission for this procedure in a phone conversation with Ms. Freed on March 26, 2002; that Mr. Petrik had allowed herself or Mr. Alward to sign closing and disclosure documents (but not negotiable instruments or checks) for him in the past, as a matter of convenience; and that she was afraid because Ms. Shepard's checks were stale and incorrectly made out (to "Petrick" instead of "Petrik," and not to "Stone Real Estate Holdings"), they also might not be any good. She testified that her thinking was that she should run Ms. Shepard's local checks through her own local bank to be sure they were valid. She maintained that she had intended to run the checks through Respondents' trust account but deposited them into the wrong account by accident. Although Respondents' telephone records show communication with Ms. Freed's telephone on March 26, 2002, it is noted that Ms. Lawhon's explanation that she had received permission from Ms. Freed that day was never put forth prior to her testimony at the disputed-fact hearing. (See Findings of Fact 44-45 and 51-52.) March 29, 2002, was a Friday. On Monday, April 1, 2002, Ms. Lawhon telephoned her bank and verified that Ms. Shepard's three checks had cleared. That same day, Ms. Lawhon used an overnight delivery service to send Ms. Freed Shell Point Realty, Inc.'s, check for $2,355.00, made out to "Stone Real Estate Holdings." The April 1, 2002, Shell Point Realty, Inc., check specified, on its memo line, that it covered "$635/mo. Jan. 02-April 15 + 450 dep." This amount would have been correct at $635 per month for only three months' rent (January-March 2002) plus a $450.00 deposit. However, it was the wrong amount, considering the 75-day period of October 15, 2001 to January 1, 2002. This check also was $819.50 short of the total amount of Ms. Shepard's first three checks, which Ms. Lawhon had received and negotiated in the names of Petrik/Shell Point Realty, Inc. Ms. Lawhon's testimony did not address when she sent Ms. Shepard's March 26, 2002, check for $317.50, which had been correctly made out to "Stone Real Estate Holdings," to Ms. Freed. Ms. Freed believed she had received this check a week after the April 1, 2002, mailing. However, because this fourth check, received by Ms. Lawhon on March 29, 2002, is also referenced on the memo line of the April 1, 2002, Shell Point Realty, Inc., check, it may be inferred that Ms. Shepard's last check also was sent to Ms. Freed in Ms. Lawhon's April 1, 2002, overnight package. Ms. Lawhon was overwrought on April 1, 2002. She had received a telephone call to come to Louisiana to care for her grandchildren because her daughter-in-law was terminally ill. The last thing she did before leaving Crawfordville, Florida, on that date was to calculate the rents, make out the Shell Point Realty, Inc., check, and send the two checks by overnight delivery to Ms. Freed. Except for returning for less than 24 hours covering part of the following Saturday and Sunday, April 6-7, 2002, to play piano in her church on Sunday, Ms. Lawhon did not return to Florida until Friday, April 12, 2002. April 12, 2002, was Ms. Lawhon's first day in the Shell Point Realty, Inc., office since April 1, 2002. That afternoon, she received a phone call from Mr. Petrik's attorney. She told him her reasons for signing Ms. Shepard's three stale checks as "Petrik" and depositing them. He said he did not think that Ms. Freed had received the whole amount owed by Ms. Shepard. Ms. Lawhon asked him to give her until Monday to recalculate and figure out what had happened. On Monday, April 14, 2002, Ms. Lawhon telephoned Mr. Petrik's attorney and admitted that she had miscalculated the rental amounts collected on March 26-29, 2002, and that she would be sending Mr. Petrik the balance owed. At the attorney's suggestion, she wrote a letter of apology to Mr. Petrik. Ms. Lawhon's April 15, 2002, letter to Mr. Petrik reads, in pertinent part: I hardly know where to begin except to say to you 'I offer my most humble apology concerning the checks from Lorra Shepard.' . . . Since the checks were so old, I signed the back and deposited three of them to make sure they would clear the bank. There was no intention to mislead any one [sic] or to take the money. I had sent the completed lease without her signature and the deposit to your office in December. I assumed you received the lease and would follow through with notification to Ms. Shepard about payment and signature of lease. Your office apparently did not receive my letter and I failed to follow up until I got a call from Wendy a few weeks ago telling me that your office had not received any rent payments. Since the checks were so old and I had signed closing papers, applications for permits, etc. for you in the past, I signed the checks and deposited them in the Shell Point Realty account. On the date that I found out that they had cleared, I ran by the office on my way out of town to write out the check to Stone Real Estate Holdings and figured the wrong amount. Enclosed is check # 3459 for the balance of the rent and Check # 3463 for the deposit . . . . (Emphasis supplied) The emphasized portions of her letter, concerning transmittal to Ms. Freed of the $450.00 deposit, contradict each other, and the information in Ms. Lawhon's letter about her sending a blank lease to Ms. Freed in Sarasota in October 2001, is contrary to Ms. Lawhon's testimony at the disputed-fact hearing and contrary to part of Ms. Freed's deposition testimony. It is further noted that Ms. Lawhon did not mention in this April 15, 2002, letter to Mr. Petrik that she had received permission from Ms. Freed in March 2002 to endorse and deposit the first three checks. It is undisputed that Ms. Lawhon mailed to Ms. Freed a Shell Point Realty, Inc., operating account check for $820.00, dated April 14, 2002, made out to "Stone Real Estate Holdings." This was intended to make up the difference as calculated from Ms. Shepard's first three checks. (See Finding of Fact 38.) It also is undisputed that on April 15, 2002, Ms. Lawhon mailed to Ms. Freed a Shell Point Realty, Inc., operating account check for $450.00, of the same date, made out to "Stone Real Estate Holdings." Apparently, this reflected the amount of the cash deposit Ms. Shepard had given Ms. Lawhon on October 15, 2001. Ms. Lawhon's explanation at the disputed-fact hearing for sending two checks on April 15, 2002, was that she had miscalculated again. With the last check, Respondents satisfied all of what was owed to Mr. Petrik and cleared any discrepancies in their professional accounts within 30 days, as required by Agency Rule. The Agency's June 2002 audit of Respondents' accounts for the material period of time found them to be substantially in compliance with all regulations and general bookkeeping standards for real estate personnel. Ms. Lawhon did not represent to the Agency investigator in June 2002 that she had been given permission by Ms. Freed on March 26, 2002, to sign three of Ms. Shepard's checks with Mr. Petrik's name, but otherwise, her admissions to the investigator are consistent with her explanation at the disputed-fact hearing that Mr. Petrik had allowed people to sign documents (not negotiable instruments or checks) for him in the past as a matter of convenience, and that she was afraid because Ms. Shepard's three checks were stale and incorrectly made out, they also might not be any good. (See Finding of Fact 36.) Telephone bills show there was communication between Respondents and Ms. Freed on March 26, 2002. However, due to what appears to be Ms. Lawhon's recent fabrication that she received oral permission from Ms. Freed on March 26, 2002, to endorse Mr. Petrik's name on Ms. Shepard's first three checks, the portion of her testimony claiming that Ms. Freed gave her permission to endorse those checks in Mr. Petrik's name is not credible. Ms. Lawhon's April 15, 2002, letter (see Finding of Fact 44) constitutes an admission, as well as a statement inconsistent with her testimony at the disputed-fact hearing, in that her letter stated that she did not realize that she had "failed to follow up" concerning the 111 Razorback Road rental until she received a phone call from Ms. Freed. It is significant that Ms. Lawhon's letter states Ms. Freed called Ms. Lawhon first. There is no direct evidence as to why Ms. Shepard chose March 26, 2002, to deliver her three stale checks to Ms. Lawhon or why she made the last check payable to "Stone Real Estate Holdings," the Petrik corporation with which Respondents had an on-going commission sales relationship, but it may be inferred therefrom that it was on March 26, 2002, that Ms. Freed inquired of Ms. Lawhon why she was not receiving rental checks and why she had no lease if the 111 Razorback Road property were occupied. Ms. Freed testified that Respondents failed to remit any of Mr. Petrik's funds due until Ms. Freed first contacted Ms. Lawhon and requested the rent proceeds, and that when contacted by Ms. Freed, Ms. Lawhon initially told Ms. Freed that she had placed Ms. Shepard in 111 Razorback Road in January 2002. The Agency suggests that this representation to Ms. Freed by Ms. Lawhon, together with Ms. Lawhon's remitting only $2,355.00 on April 1, 2002, with the January to March memo on that check, amounts to Respondents' intentional misrepresentation of the amount due Mr. Petrik. Ms. Freed also testified that she later discovered from Ms. Shepard that, in fact, Ms. Shepard had been in possession of 111 Razorback Road since October 2001, and, therefore, Ms. Freed realized that the total amount due Mr. Petrik was higher than the amount represented and remitted by Ms. Lawhon on April 1, 2002. On this basis, the Agency asserts that Respondents remitted the additional funds on April 15, 2002, only after Ms. Freed had confronted Ms. Lawhon concerning her misrepresentation. Unfortunately, Ms. Freed's version of events is not entirely credible for the following reasons: Ms. Freed testified that she knew 111 Razorback was vacant in October 2001, but did not know from October 2001 to March 2002 that it was occupied/rented. She also testified that during this period she made no effort to rent that house. This suggests that either she was not doing her job or she knew on some level in October 2001 that the property was already rented. Ms. Lawhon's notification to Mrs. Alward that it was rented in December 2001 is unrefuted, and Mr. Alward testified that approximately January 2002, he and his wife had notified Ms. Freed that someone was living in the house. Against all this, Ms. Freed testified that she had learned of the occupancy of 111 Razorback Road from the Alwards in March 2002 and from Ms. Lawhon. She further testified that when she first talked to Ms. Lawhon in March, Ms. Lawhon said she had previously sent Ms. Freed her own check and would have to determine if that check had cleared.6/ Finally, Ms. Shepard is very clear that when Ms. Freed contacted her, Ms. Freed did not dispute the $635.00 (as opposed to $675.00) per month rental amount.7/ While Ms. Freed's accepting the lesser amount is not absolute proof, it is, with all the other evidence, an indicator that she had previously approved that amount when Ms. Lawhon telephoned her in October 2001. Given the somewhat naïve and confused property management process in Sarasota, including Ms. Freed's ignorance that Newhouse, Inc. actually held title to the property, Ms. Freed's assessment of an intentional misrepresentation by Respondents is not persuasive. It is undisputed that Ms. Lawhon did not correct the discrepancy of $1,270.00 until April 15, 2002, after Mr. Petrik's lawyer (not Ms. Freed) contacted her, but she did resolve the issue by the next business day after she was alerted that there might be an error. As to the issues of whether or not Ms. Lawhon made a willful oral misrepresentation to Ms. Freed on March 26, 2002, or on the April 1, 2002, Shell Point Realty, Inc., check as to how long Ms. Shepard had occupied 111 Razorback Road or was willfully withholding funds on April 1, 2002, it is more significant that from the very beginning of this series of events on October 15, 2001, Ms. Lawhon told Ms. Shepard to make out her checks to Mr. Petrik and that none of Ms. Shepard's checks were ever in Respondents' possession until March 26, 2002. Therefore, together with Ms. Lawhon's overwrought state of mind on April 1, 2002, it is not clear whether there was a willful misrepresentation, a misunderstanding, a miscommunication, or a miscalculation with regard to the first transmittal of only part of the rental funds on April 1, 2002, and the time line is not so clear that Ms. Freed's and the Agency's sinister construction of Ms. Lawhon's communications and calculations can be the only construction. Without the Agency's sinister construction of events, there is only clear and convincing evidence that Ms. Lawhon undertook, without expectation of a direct real estate commission, to rent 111 Razorback Road for Mr. Petrik, regardless of what entity actually held title thereto. In doing so, she undertook a fiduciary relationship with him and Ms. Shepard. In this capacity, she received a $450.00 cash deposit, which she retained for over five months without clear authority to retain it, and she did not timely deposit it in a trust or other appropriate account for Mr. Petrik's benefit. She did not follow up on getting a lease executed by the parties, which, based on hers and Ms. Freed's prior course of dealing, Ms. Freed could have reasonably expected and which Ms. Shepard clearly did expect. When Ms. Freed inquired about the matter in March 2002, Ms. Lawhon, to her credit, tried to resolve the matter quickly and appropriately. However, in the course of resolving it, she did not get an executed lease as expected; she endorsed checks made out to Mr. Petrik without clear authority to do so; she did not deposit funds from those checks into an appropriate account; and she repeatedly miscalculated amounts due and remitted incorrect amounts to Mr. Petrik, via Ms. Freed. She also did not discover her errors on her own, but had to be alerted by the lawyer on April 12, 2002. While I detect no dishonest intent, nor any intent to permanently convert any funds to her personal use, the fact that Ms. Lawhon ultimately transmitted to Mr. Petrik the full amount due is not particularly to her credit, since her actions--or lack of action--had the effect of depriving Mr. Petrik of the use of a portion of those funds for nearly six months.
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 which: Finds Respondents Mary Lawhon and Shell Point Realty, Inc., guilty of Section 475.25(1)(k), Florida Statutes, Counts III and VI, respectively, of the Administrative Complaint; Provides as a penalty for Mary Lawhon the payment of a $1,000.00 fine and five months' suspension of her licenses; Provides as a penalty for Shell Point Realty, Inc., a reprimand; and Dismisses Counts I, II, IV, and V of the Administrative Complaint. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003.
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
The Issue Whether Petitioners' rental property was licensed under Chapter 509, Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioners, Robert Meller, Jr., and Kristine M. Meller, were owners of a rental property (a house located at 4516 Bowan Bayou) in Sanibel, Florida. In addition, they owned a condominium in the same area. Respondent Cross held a valid real estate license at all times material to matters at issue. Respondent Cross had a business relationship with Petitioners, which antedated the purchase of the Bowen Bayou house as a result of being the leasing agent for a condominium association with which Petitioners were associated. Respondent DBPR is the State of Florida agency which represents the FREC in matters such as this matter. In January 2000, Petitioners purchased the house in Sanibel located at 4516 Bowan Bayou. On or about January 20, 2000, Respondent Cross mailed a Rental Property Management Agreement to Petitioners for the property located at 4516 Bowan Bayou, Sanibel, Florida. The parties to this contract were Petitioners and Properties in Paradise, Inc. Petitioner, Robert Meller, Jr., signed the contract and returned the contract to Respondent Cross. Petitioners maintain that the Rental Property Management Agreement was not signed by Petitioner, Robert Meller, Jr., and that his name is forged. He maintains that he entered into an oral agreement with Respondent Cross, individually, to manage the property. From the purchase of the house in January 2000 through April 2001, Petitioners received correspondence, including a monthly "owner statement" reflecting short-term rental income, commissions, and debits for maintenance, from Properties in Paradise, Inc., regarding all aspects of the business relationship contemplated by the Rental Property Management Agreement. By letter dated January 20, 2000, Petitioner, Robert Meller, Jr., authorized "Revonda Cross of Properties in Paradise as my agent in establishing telephone and electrical service and so forth for my property on Sanibel Island at 4516 Bowen's [sic] Bayou Road." Thereafter, Petitioners received correspondence from Respondent Cross relative to the subject property wherein she is identified as "Operations Manager, Properties in Paradise, Inc." During the relevant time period, Petitioners' property was rented at least 22 times; once for 17 days, four times for 14 days, once for nine days, thirteen times for seven days, and once for five days. The frequency and term of these rentals qualify for the statutory definition of a "resort dwelling" and transient rental dwelling. Properties in Paradise, Inc., listed the property located at 4516 Bowan Bayou in the list of properties it provided the Division of Hotels and Restaurants as licensed in accordance with Chapter 509, Florida Statutes (2005). In April 2001, Properties in Paradise, Inc., through an attorney, notified clients that it had effectively ceased doing business. At that time, Petitioners were owed $11,588.06, which went unpaid. Petitioners made a claim in July 2001, against Respondent Cross to recover their loss from the Florida Real Estate Recovery Fund. In October 2003, Petitioners' claim was denied by the Florida Real Estate Recovery Fund.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, enter a final order denying Petitioners' claim for recovery from the Florida Real Estate Recovery Fund. DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2006. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Robert L. Meller, Jr., Esquire Best & Flanagan, LLP 225 South 6th Street, Suite 4000 Minneapolis, Minnesota 55402-4690 Revonda Stewart Cross 1102 South East 39th Terrace, No. 104 Cape Coral, Florida 33904 Nancy B. Hogan, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to a discriminatory employment action on account of her race (black) and her disability ("severe asthmatic"). See, Section 760.10, Florida Statutes.
Findings Of Fact The Respondent, GAB Business Services, Inc. (GAB), is an insurance adjusting firm engaged in the business of adjusting insurance claims on a nationwide basis. At times pertinent hereto, it maintained a number of offices in Florida, also called "branches", one of which was located in Jacksonville, Florida, at which the Petitioner was employed at times pertinent hereto. The Petitioner was hired in March of 1985 and worked until May 31, 1992, when she was terminated because of a reduction in force enacted on a company-wide basis. Brian Sigman was appointed Branch Manager of the Jacksonville office, where the Petitioner was employed, on November 15, 1989 and served there in that capacity until May 1, 1991. After arriving as Branch Manager, he tried to assign the Petitioner property claim files and she told him that she did not want to do property insurance claims but never gave as a reason that she had an illness or disability which precluded her from handling such claims. Rather, she informed Mr. Sigman that she had a hard time visualizing hidden, structural elements of a building, such as what was behind a building wall, and, therefore, had a difficult time adjusting property insurance claims. Because at the time, in 1989, Mr. Sigman had six adjusters working in the office, he was able to give property insurance claim files to other adjusters to handle and let the Petitioner handle only casualty claims as she desired. She never informed him that she was unable to handle property claims because of asthma or other medical problems and never applied during that time for an accommodation for a disability. Mr. Sigman became aware at some point during his tenure that the Petitioner was being treated for allergies, but she never informed him of the effect of her allergies, as it related to the question of her handling property claims. There had been approximately six or more adjusters in the office since the Petitioner became employed there in 1985. Consequently, because of her aversion to handling property insurance claims, the Petitioner had been typically permitted to adjust only casualty claims, even before Mr. Sigman's tenure, since there were sufficient other adjusters in the office to handle the property claims. Property insurance claims generally deal with losses to a building while casualty claims most frequently involve third-party losses. Thus, the vast majority of the Petitioner's experience in working for the Respondent involved the handling of only casualty claims, with very little experience handling property insurance claims. In March 1991, Mr. Almus Shivley became the Branch Manager of GAB in Tampa, Florida. The Tampa branch included under its authority offices in Ft. Myers, Sarasota, Lakeland, Gainesville, and Jacksonville. All of the offices outside of Tampa are satellite offices, and each has a Supervising Adjuster supervising that office. A Supervising Adjuster reports directly to Mr. Shivley. Mr. Sigman was a Supervising Adjuster when Mr. Shivley became the Branch Manager in Tampa. When Mr. Shivley took over as Branch Manager working out of the Tampa branch office in 1991, he learned that the Petitioner was only handling casualty claims. He learned of this when she was asked to work property insurance claims and she declined to do so. She explained that she had asthma, and that various materials and smoke usually attendant to fire damage claims and locations, would, she feared, aggravate her asthmatic condition. Mr. Shivley accepted her representations to this effect and allowed her, for the time being, to work only casualty claims. The testimony of Sheila King establishes that as recently as February 1990, when she and the Branch Manager met with the Petitioner to ask her to handle property claims, she had made no mention of the asthma condition. Mr. George Walsh is in charge of the national operations of GAB, as they concern equal opportunity, affirmative action, salary administration and other personnel-type functions involving human resources. Mr. Walsh was involved with the hiring of the Petitioner and established that the Petitioner made no mention of the fact that she had any disability during the pre-hiring interview. The application form which the Petitioner executed and filed at the time of her hiring in 1985 contained a question concerning whether she had any disability which would restrict her ability to perform the job. She specifically answered "no" to that question. Mr. Walsh thereafter had no contact with the Petitioner until October 31, 1991, when she filed a "disability survey" form with him. A disability survey is a request by an employee for a disability accommodation, which can only be granted by the home office of the Respondent corporation. Mr. Walsh established that this was the first time he had any knowledge that the Petitioner had any sort of handicap of disability. He stated in his testimony that her job was thereupon analyzed in great detail because her request "went directly to the heart of our business". That is, the Petitioner was requesting the accommodation of not having to perform property insurance claims adjusting, which is a major portion of GAB's business since GAB is in the sole business of adjusting property and casualty insurance claims. In any event, Mr. Walsh reviewed her request under the appropriate company policies and determined that the number of casualty assignments and the work that the company was receiving was on a severely-declining trend in the Jacksonville office and, indeed, nationwide. He determined, however, to grant the accommodation to the Petitioner but informed her that "we could not guarantee that there would be enough casualty work in the future to allow her to perform only casualty work and still be a productive member of the office." In May of 1992, Mr. Shivley, the Branch Manager, made a recommendation to his superiors with the Respondent that the working force in Jacksonville be reduced because of a severe decline in business in that office. Prior to May of 1992, when the reduction in force took effect, there were already only three employees working in Jacksonville. After the reduction in force, only Mike Robinson, the Supervising Adjuster, who managed that office, remained. Almost two years after the reduction in force, at the time of the hearing, Mr. Robinson is still the only GAB employee in the Jacksonville office. The Petitioner, a black female, and Mr. Clark, a white male, were terminated as part of the reduction in force. Numerous offices of GAB, other than the one in Jacksonville, had suffered substantial reductions in force. A few years previously, the company had employed approximately 5,000 adjusters nationwide; and at the time of the hearing in this proceeding, it employed fewer than 2,000 adjusters nationwide. The Petitioner, upon being advised of her termination due to the reduction in force, was not offered a transfer nor requested to relocate by the Respondent. She was, however, offered an employment position in the company's Atlanta, Georgia, branch office. Under regular and customary company policy, when employees are transferred, the company pays relocation expenses, where appropriate. Since the Petitioner herein was terminated, the Respondent was under no obligation to pay relocation expenses if she took the offered position in the Atlanta office. Nevertheless, the Atlanta branch office offered her $3,000.00 in relocation expenses. Further, the job offered was one which accommodated her stated disability, being an "inside liability adjuster" position, handling only casualty claims. That was the type of work which she was performing in Jacksonville at her own request. The Petitioner took the position that the relocation expenses were insufficient for her to afford to move and refused the offer of employment. It was eventually accepted by a white female, who accepted the same amount of relocation financial assistance that had been offered to the Petitioner. Further, when Mike Robinson, the Supervising Adjuster in the Jacksonville office, was transferred to that office from Dallas, Texas, a much more distant location than Atlanta, he was only offered and paid $1,000.00 in relocation expenses. Mr. Robinson is a white male. In addition to Mr. Robinson, the testimony of Ms. Sheila King, the Human Resource Officer (Personnel Manager) for the Florida offices of GAB, establishes that two other employees were given only $1,000.00 for moving expenses, a black male and a white male. In conjunction with the reduction in force, the Petitioner and the white male, Mr. Clark, were terminated from the Jacksonville office because the volume of business did not justify any employees, other than the Supervising Adjuster. At the time of the hearing, some two years after the reduction in force, no employees have been hired to replace them. In fact, no employees have been hired at all, because the business volume only justifies the presence of the Supervising Adjuster and clerical staff in that office. GAB's offices in Florida, other than Tampa, are satellite offices and each has a Supervising Adjuster supervising the business and the employees of that office. Each Supervising Adjuster reports to Mr. Shivley, the Branch Manager in the Tampa office. In the summer of 1991, Brian Sigman left his position as Supervising Adjuster in the Jacksonville office, leaving an opening. The Petitioner applied for that position, among other employees who sought the promotion. Mr. Shivley recommended to his superiors that Adjuster Nan Hendricks become the Supervising Adjuster to replace Mr. Sigman. He found that Ms. Hendricks was an extremely good adjuster, being a multi-line adjuster handling a large volume of both property and casualty claims. She was a good performer at the functions of marketing, public relations, and generating new business. A multi-line adjuster is one who can handle any type of claim assigned to the Respondent's offices. The two most numerous types of claims handled by GAB are property and casualty claims, as described above. In considering who to hire for that position and ultimately deciding on Ms. Hendricks, the Respondent and Mr. Shivley determined that the Petitioner had little experience as a multi- line adjuster, even though she was so licensed, because she had handled almost entirely casualty claims, because of her own request that she not be given property damage claims. The Supervising Adjuster has to supervise the quality of the work performed by all adjusters and employees at the office. If an adjuster cannot work a property insurance claim, then the adjuster can gain no relevant experience performing such claims adjustment. A Supervising Adjuster needs to have had experience in performing such claims adjustment and performing adjustments of all types of claims. Mr. Shivley testified to this effect, saying "the Supervising Adjuster has to supervise the quality of the work that's going out of the office. If she can't work a property file, and if she can't handle a property file, then she can't supervise one". There is a regular and normally-followed company policy that, in considering who to place in supervising adjusting positions, such a person has to have had substantial experience handling all types of claims handled by GAB. The Petitioner did not have that type of experience and thus although she was considered for the position, she was found not to be qualified for it. Further, the Petitioner's performance, and evaluations of her performance, showed deficiencies over the period of time she was employed in the Jacksonville office. She was deficient in the areas of marketing, public relations, and generating new business, which, when coupled with the fact that she had no real, substantial, property claim adjustment experience, showed that she was not qualified for the promotion. Nan Hendricks left the employ of GAB after a short time as Supervising Adjuster in the Jacksonville office. When she left in 1991, she left because she was dissatisfied with the work of the office in terms of the rapidly- declining volume of business and the fact that both the Petitioner and Mr. Clark were performing their work in a sub-standard fashion. When she left the employ of GAB, Mr. Shivley recommended to his superiors that the position be awarded to Mike Robinson, who was then working in the Dallas, Texas, office of GAB. Mr. Shivley had experience with Mr. Robinson's capacity and abilities to work in a multi-line adjustment position and with the quantity and quality of his knowledge and experience at the job. He found him well-qualified for the position of Supervising Adjuster, due partially to his extensive experience in multi-line adjusting. The Petitioner was considered for the position but was not deemed to be qualified because she did not have significant experience as a multi-line adjuster and did not meet the qualifications, as explained more particularly in the above Findings of Fact, concerning the decision to promote Nan Hendricks as Supervising Adjuster. There has been no showing that the decision to terminate the Petitioner or the decision concerning the manner and amount of offered payment of her re-location expenses, had she taken the Atlanta job, was motivated by any discriminatory intent on account of her race or disability. In fact, the Respondent amply demonstrated that the termination was due to a legitimate reduction in force caused by loss of business in the Jacksonville office. The Petitioner's position was not later filled by another employee. Nevertheless, the company, without being required to do so, voluntarily offered the Petitioner a position in its Atlanta office at no reduction in salary. This position would even accommodate her disability by allowing her to only process casualty claims, even though the Respondent had a legitimate basis for terminating the Petitioner without any recourse, due to the reasons justifying the reduction in force. Further, the two promotions, one accorded to Nan Hendricks, a white female, and one to Mike Robinson, a white male, of which the Petitioner complains, were given to those two employees based upon their superior job performance and superior experience in being able to handle all types of insurance claim adjusting work. The Petitioner was shown to clearly not be so qualified. The Respondent's lack of discriminatory intent in terms of the Petitioner's race or disability was further demonstrated by the fact that a white female, a white male, and a black male were only offered and paid $1,000.00 in re-location expenses, when they moved their place of employment to distant offices in the company, especially Mike Robinson, who transferred to Jacksonville, Florida, all the way from Dallas, Texas. The Petitioner, however, was offered $3,000.00 to relocate from Jacksonville, Florida, to Atlanta, Georgia, when the company was not even obligated to offer any relocation expense, since the Petitioner's job offer in Atlanta did not involve a company- required transfer. Rather, it was a job merely offered to accommodate the Petitioner and to assist her in obtaining employment when she had to be terminated from the Jacksonville office. It has simply not been demonstrated that any of the employment actions of which the Petitioner complains and which are delineated in the above Findings of Fact were motivated by any discriminatory motive directed at the Petitioner's race or disability.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4399 Respondent's Proposed Findings of Fact 1-17. Accepted, except to the extent that they differ or are subordinate to the Hearing Officer's findings of fact on the same subject matter. Petitioner's Proposed Findings of Fact The Petitioner's proposed findings of fact are stricken and rejected on the basis that they were not timely submitted and the motion requesting extension of time for their submission was substantially late. COPIES FURNISHED: Reginald Estell, Jr., Esquire 816 Broad Street Jacksonville, FL 32202 Kalvin M. Grove, Esquire FOX AND GROVE 360 Central Avenue, 11th Floor St. Petersburg, Florida 33701 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
