The Issue Whether proposed Rule 69O-186.013 is an invalid exercise of legislatively delegated authority as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact Pursuant to Section 20.121(3), Florida Statutes, the Financial Services Commission (the Commission) serves as the agency head for the Office of Insurance Regulation for the purpose of rulemaking. On May 26, 2006, the Office of Insurance Regulation issued a Notice of Development of Rulemaking to amend existing Florida Administrative Code Rule 69O-186.013. A workshop was held pursuant to this notice on June 15, 2006. On August 15, 2006, the Commission approved for publication a notice of proposed rule amendments to Rule 69O- 186.013. A Notice of Proposed Rulemaking was published in the Florida Administrative Weekly on October 6, 2006. A public hearing was held October 31, 2006. On November 22, 2006, a second notice of hearing was published in the "Notices of Meetings, Workshops and Public Hearings" section of the Florida Administrative Weekly, advising of "an additional public hearing on the proposed amendments to Rule 69O-186.013, Title Insurance Statistical Gathering, published on October 6, 2006, in Vol. 32, No. 40, of the F.A.W." A public hearing was conducted as noticed December 5, 2006. Petitioners filed their Petition to Determine Invalidity of Proposed Rule December 21, 2006. On June 7, 2007, the Respondent filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction. Included in its Motion are several statements relevant to the Petitioners' position regarding dismissal of these proceedings: [The December 5, 2006, hearing] of course, was not the "final public hearing," was not noticed as a hearing at which any action would be taken and never intended to be the "final public hearing" as that term is used in Section 120.56(2)(a), Florida Statutes. In fact, the "final public hearing" would have been held before the FSC as the collegial body responsible for rulemaking for the Office. When it is appropriate, the FSC will hold such a "final public hearing" prior to adoption of a proposed rule. As in every other instance in which the FSC intends to adopt a rule, notice will be provided in the Florida Administrative Weekly (sample attached as Exhibit E). In this instance, the final hearing has not yet been held, or even scheduled. * * * 11. Therefore, this case must be dismissed as the Petition to Determine Invalidity of Proposed Rule was untimely filed. The Petitioners may, if they desire, challenge the proposed rule after the final public hearing. Nevertheless, they may not maintain this action at this time. Petitioners have responded to the Motion to Dismiss by consenting to dismissal of these proceedings, "in reliance on representations made by the State of Florida, Financial Services Commission/Office of Insurance Regulation (the Respondent) in paragraphs 5, 6, and 11 of Respondent's Motion to Dismiss for Lack of Subject Matter Jurisdiction (the Motion to Dismiss) filed on June 7, 2007, that no 'final public hearing' within the meaning of Section 120.54 . . . has been held . . . and that no 'final public hearing' shall be held unless Respondent has first provided to Petitioners proper notice and an opportunity to contest the validity of the Proposed Rule." Petitioners assert, however, that the Petition should be dismissed without prejudice, and that should Respondent attempt to promulgate the Proposed Rule without first holding a "final public hearing" with proper notice, they reserve the right to reinstate this proceeding.
Findings Of Fact Respondent DeBellonia is president of Respondent CGFS, Inc. At all times material to these proceedings, the Respondents were business consultants who assisted their clients with the preparation and presentation of information for private lenders who were interested in making business loans. Their business offices were located at North Rocky Point Drive, Suite 800, Tampa, Florida. In late July or early August 1989, Constance J. Jones responded by telephone to an advertisement placed by Respondents in the Tampa Tribune newspaper. The ad communicated to her that the Respondent CGFS, Inc. was interested in providing business financing to new and established businesses. Upon receipt of the telephone call, a secretary at CGFS, Inc. scheduled an appointment for Mrs. Jones with Respondent DeBellonia for August 7, 1989. Mrs. Jones was excited about the appointment because the seller of commercial real property purchased by her and her husband had recently filed a foreclosure action to recover the property. The suit occurred because she and her husband had been unable to make the final balloon payment on the property. The seller had agreed to forebear the possibility of such a suit the year before when Mrs. Jones gave him twenty thousand dollars ($20,000.00) and the promise that she would obtain financing within a year's time and pay the outstanding balance in full. At the close of the year, Mrs. Jones had not been successful in her attempts to acquire the money to pay for the property. This appointment renewed her hopes that she could minimize her losses, settle the suit, and preserve her interest in the property. Prior to arranging her appointment with Respondent DeBellonia, Mrs. Jones had made applications for a loan at several banks. Her requests had been turned down because the banks had determined that the present value of the property was insufficient to provide the collateral needed for the secured loan she was seeking. When Mrs. Jones attended her meeting with Respondent DeBellonia, she voluntarily presented him with a copy of her agreement for deed, a property appraisal, and her owner's title insurance policy. Having submitted herself to a number of loan requests at various banks prior to this appointment, she assumed he would want to see the same documents that had been requested during those loan reviews. Respondent DeBellonia allowed Mrs. Jones to present her situation and her documentation to him in her own manner. He made copies of all of the papers offered to him and returned the originals. At the close of Mrs. Jones' presentation, Respondent DeBellonia agreed to be her business consultant and to assist her in her search for funding. Although Mrs. Jones originally stated that she needed to acquire $94,000.00, this amount was reduced to $20,000.00 when she was informed that the Respondents charge a professional service fee of ten percent of the loan amount ultimately accepted by the clients. To begin work on the funding project, the Respondents requested a non-refundable professional service fee of $1,900.00. Although Mrs. Jones did sign the business consultant agreement, she did not have the money with her to pay the non-refundable fee. When she informed Respondent DeBellonia that she did not have the money, he told her he needed the money as soon as possible so that he could go ahead and work on the transaction. He indicated that he could accomplish a fast transaction for the $20,000.00 in about three days time. According to Mrs. Jones, the seller of the commercial property was willing to forebear on the foreclosure for a while if she could give him $20,000.00 now and if she was actively pursuing a loan which would pay off the balance due. This proposal was another reason she changed her request from $94,000.00 to the $20,000.00 amount. Later that evening, Mrs. Jones telephoned Respondent DeBellonia and told him she needed a new document so that her husband could be on the agreement as well. When the second document was sent, the secretary mistakenly sent out the original agreement with a funding goal of $94,000.00 instead of the reduced request for $20,000.00. Mr. Jones' name had been placed on the document in order to obtain his signature. Both agreements given to Mrs. Jones clearly state that Respondent CGFS, Inc. is not a mortgage broker. Before Mrs. Jones returned a fully executed agreement to the Respondents with the non-refundable fee, she decided to call the Comptroller's Office in Tallahassee to get a business rating to see if this was a good-rated business for her own protection. Although nothing negative was stated by the Comptroller's Office, Mrs. Jones did not get the assurances she was seeking. After that, she decided not to retain the Respondents to provide their business consultant services. Without Mrs. Jones' presumption that the Respondents would eventually seek a mortgage on the real property she intended to purchase, there is no reliable circumstantial evidence which demonstrates that the Respondents were seeking to act as a mortgage broker under the set of facts presented at hearing. Even if the circumstantial evidence and ill-conceived presumptions were considered reliable, the evidence is outweighed by the clear statement within the consultant agreement that Respondent CGFS, Inc. is not a mortgage broker. In addition, if the Respondents had intended to see a mortgage for Mrs. Jones, they would have required her to have her husband sign the agreement because she was an equitable owner of the property in a tenancy by the entirety. Instead, it was Mrs. Jones who later requested that her husband's name be included on the agreement. Respondent DeBellonia clearly manufactured Respondents' Exhibit number E. If this proceeding had turned on his credibility versus the credibility of others, he would not have prevailed in the factual determination. Based upon the facts presented at hearing, the Department initially had reason to believe that the Respondents were violating or about to violate the law by acting as a mortgage broker and mortgage broker business without a license. However, the formal hearing process revealed that Mrs. Jones' impressions of what occurred during her meeting with Respondent DeBellonia were faulty. Documentary evidence prepared during the interview and Mrs. Jones' admissions during the cross-examination resolved the case in Respondent's favor. The actions taken by the Department in filing the Cease and Desist Order were proper, and were not harassment of the Respondents.
Recommendation Accordingly, it is RECOMMENDED: That the cease and desist order issued by the Department on February 20, 1990, be dismissed. DONE and ENTERED this 31st day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 21st day of September, 1990. APPENDIX TO RECOMMENDED IN CASE NO. 90-1720 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO number 1. Accepted. Reject the date of the interview. The rest is accepted. See HO number 2-number 6. Accepted. Accepted. See HO number 5. Accepted. See HO number 9 and number 10. Accept the first two sentences. See HO number 9. Reject the third sentence. Contrary to fact. Reject the fourth sentence. Irrelevant. 8. Accepted. See HO number 11 and number 12. 9. Accepted. See HO number 15 and number 18. COPIES FURNISHED: Stephen M. Christian, Esquire Office of the Comptroller Regional Service Center 1313 North Tampa Street, Ste. 615 Tampa, Florida 33602-3394 Michael C. Mone, Esquire 111 Eighth Street Belleair Beach, Florida 33535 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issue for determination is whether Respondents committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Helen B. Horton (Respondent Horton) was licensed in the State of Florida as a real estate broker, having been issued license number 0260577. At all times material hereto, Helen B. Horton Realty, Inc. (Respondent Horton Realty), was a corporation licensed in the State of Florida as a real estate broker, having been issued license number 0267231. At all times material hereto, Eric Carlton Brent was licensed in the State of Florida as a real estate broker. Mr. Brent is the son of Respondent Horton. On December 20, 1993, Respondent Horton ceased being the President of Respondent Horton Realty. At that time, Mr. Brent became the President, in addition to being the Secretary and Treasurer, of Respondent Horton Realty. On April 12, 1994, Mr. Brent and Respondent Horton, operating as brokers/salespersons for Respondent Horton Realty, negotiated a contract for the sale of residential property between John M. and Suzanne B. Patten (sellers) and Joseph M. Eldridge (buyer). The property was listed by Reserve Realty and Sales, Inc. (Reserve Realty). Respondents and Mr. Brent were representing the buyer. A provision of the contract provided for the buyer to pay a deposit of $1,000 to be held in escrow by Respondent Horton Realty. Also, the contract provided, among other things, that the closing was to take place on or before April 15, 1994. The buyer refused to pay the deposit without a home inspection. A satisfactory home inspection became a contingency to the contract and agreement. The home inspection was ordered and completed. The inspection contained several recommendations. Respondents notified the sellers and Reserve Realty of the recommendations. The buyer continued to refuse to pay the $1,000 deposit. Respondent Horton informed all parties, including the sellers and Reserve Realty, that the buyer had not paid and would not pay the deposit. All parties were aware that the buyer had not paid the $1,000 deposit. On the closing date of April 15, 1994, the deposit remained unpaid. As a result, Respondent Horton considered the transaction terminated. Mr. Brent made several unsuccessful requests to the buyer to pay the $1,000 deposit. At the end of April 1994, Mr. Brent was convinced that the buyer had no intentions of paying the deposit. Mr. Brent notified the buyer that neither he nor the Respondents would continue to represent him in the transaction. The buyer began to represent himself in the transaction. He dealt directly with Reserve Realty. In May 1994, Mr. Brent notified all parties, including the sellers and Reserve Realty, in writing that the transaction would not be completed due to the buyer's failure to pay the $1,000 deposit. At that time, all parties were aware that the buyer still had not paid the deposit and that the Respondents and Mr. Brent no longer represented the buyer in the transaction. In June 1994, as a result of a personal tragedy, Mr. Brent was no longer able to continue to operate Respondent Horton Realty. Finally, on or about July 15, 1994, Mr. Brent ceased operating and closed Respondent Horton Realty. At no time did Respondents or Mr. Brent receive the $1,000 deposit from the buyer. At no time did Respondent Horton Realty's escrow account contain a deposit from the buyer. At no time did Respondents or Mr. Brent receive a demand from the sellers or Reserve Realty, or any of their agents, for the deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order DISMISSING the Administrative Complaint against Helen B. Horton and Helen B. Horton Realty, Inc. DONE AND ENTERED this 2nd day of July, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, admissions made by Respondent, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida. He holds license number 0265883. In March of 1990, Ulrich Wingens, by and through his attorney, Charles Burns, entered into a written contract to purchase from Jupiter Bay Shoppes Ltd. (hereinafter referred to as "JBS") certain commercial property located in Palm Beach County. Respondent brokered the sale. The sale contract provided that JBS was responsible for payment of Respondent's broker's fee of $50,000.00 and that such compensation was to "[t]o be due and payable only if closing occur[red]." Respondent received a $20,000.00 earnest money deposit from Wingens in connection with the sale. The sale contract provided that the $20,000.00 was to be held in the Jim Towns Realty escrow account. The sale did not close. Litigation between Wingens and JBS ensued. During the pendency of the litigation, the parties instructed Respondent to continue to hold Wingens' $20,000.00 earnest money deposit in escrow until they advised him to do otherwise. Wingens and JBS settled their dispute before the case was scheduled to go to trial. On November 14, 1991, the judge assigned to the case, Palm Beach County Circuit Court Judge Edward H. Fine, entered an order directing Respondent "to immediately transfer to Fleming, Haile & Shaw, P.A. Trust Account the escrow deposit in the amount of $20,000.00 and any accrued interest thereon." Respondent did not comply with the order. He had appropriated the $20,000.00 for his own personal use and benefit and was not holding it in escrow. This was contrary to the instructions he had received from Wingens and JBS. At no time had Wingens or JBS authorized Respondent to take such action. Wingens' attorney, Burns, brought the matter to the attention of the Department. The Department assigned one of its investigators, Terry Giles, to the case. As part of her investigation, Giles interviewed Respondent. During the interview, Respondent admitted to Giles that he had closed his real estate office in October of 1991 and had not at any time prior to the interview notified the Department of the closure. At the time he closed his office, Respondent's real estate broker's license was still in active status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint and revoking his real estate broker's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE IN CASE NO. 93-1315 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 3-13. Accepted as true and incorporated in substance. 14-15. Accepted as true, but not incorporated because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Legal Section, Suite N 308 Hurston Building, North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Mr. James C. Towns 7101 Smoke Ranch Road #1007 Las Vegas, Nevada 89128 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, K-Mart Corporation, d/b/a Waldenbooks, Store 1313 (Waldenbooks), hired the Petitioner, Timothy D. Wood, as a part-time bookseller trainee in April, 1985. Wood's initial pay was $3.35 an hour. Wood completed his training period in July or August, 1985, and became a part-time bookseller. Wood suffers from epilepsy. On five different occasions during 1985, Wood suffered various kinds of seizures while on the job at Waldenbooks. Waldenbooks' manager, Jane Burke, reacted kindly to Wood, allowing him to take as much time as he needed to rest before returning to his work. When Wood went back to work, usually a matter of minutes later, he was able to function normally. Burke did not downgrade Wood's performance evaluations on account of the seizures and did not report the seizures to Waldenbooks because she did not view then as affecting his performance. Burke appraised Wood's performance in accordance with Waldenbooks' personnel policies. Based on the overall "good" evaluation she gave Wood in September, 1985, Wood got a pay increase to $3.55. However, in "Loss Prevention" Wood was rated just "marginal." On November 4, 1985, Wood got a "Performance Discussion Record" for company policy violations involving improper processing of a credit card sale. On November 14, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper handling of a cash sale and the inadvertent offending of a customer by inappropriately asking if the customer was retired. This time Burke warned Wood: "Further violations of any of the loss prevention policies and cash handling procedures could result in possible termination." On November 24, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper destruction and disposal of valuable inventory (books) resulting in a monetary loss to the company. Through March, 1986, Wood was not evaluated and received no raises or performance discussion records. Burke erroneously believed that Wood was not due for a reevaluation during this time. Actually, Waldenbooks was expecting a reevaluation for the period September 1 to December 1, 1985, and December 1, 1985, to March 1, 1986. Burke was notified of her error by April 2, 1986. Meanwhile, on Sunday, March 23, 1986, a day Wood was scheduled to work, Wood had double grand mal seizures and, in the course of the seizures, severely bit his tongue. Wood was unable to talk, much less work. Wood's mother notified Burke by telephone and advised her also that Wood would be seeing his doctor the next day. The doctor advised Wood not to work for a few days. Wood followed the doctor's advice, and his mother again called to notify Burke. Wood returned to work on Thursday, March 27, 1986. Because Wood was a part-time employee who did not get sick leave, Burke had no need to and did not report on or explain Wood's absences to Waldenbooks. On April 2, 1986, Burke completed two belated performance appraisals on Wood. Both rated Wood "good" overall, and Burke recommended Wood for pay raises to $3.66 an hour effective December 1, 1985, and to $3.77 an hour effective March 1, 1986. However, in light of the three performance discussion records Wood got in November, 1985, the performance appraisal for the period from September 1 to December 1, 1985, again rated Wood "marginal" in Loss Prevention and noted that, during the appraisal period, Wood was "on probation for violation of Loss Prevention policies." Wood commented on the appraisal: "I totally agree about the concenous [sic] of this performance appraisal." The performance appraisal for the period from December 1, 1985, to March 1, 1986, noted improvement and rated Wood "good" in the area of Loss Prevention. On April 22, 1986, Burke's assistant manager called Burke at home to tell her that $200 worth of magazines to be returned to a distributor for credit were missing. 1/ Burke went to the store and called each of the three employees on duty, one of whom was Wood, individually to the office at the back of the store to ask them whether they had thrown the magazines away. The first two denied it. Burke then confronted Wood with the situation and asked Wood if he threw away the magazines. Wood answered, "yes, I believe I did." Burke sent Wood back up front to work and consulted with some of her superiors. A short time later, Burke again called Wood back and notified him that he was being terminated because he had caused the loss of magazine credit and had "repeatedly violated loss prevention policies [the November, 1985, performance discussion records] resulting in loss to the company [the loss of magazine credit]." Burke told Wood she was sorry she had to terminate him but that she had the support of her superiors. It was not proved that Burke and Waldenbooks discriminated against Wood or terminated him on the basis of his epilepsy. For unexplained reasons, Waldenbooks did not produce the "Loss Prevention Hotline" memo which Burke testified she sent to the company to report the $200 credit loss either before or at final hearing (although she testified that a copy probably was in her office at the local store.) Nor was it explained why Waldenbooks did not produce the "return list" which Burke testified was the source of her information that the $200 worth of magazines were missing. (Burke testified that she had not retained a copy of the "return list" but that a copy might be in Waldenbooks' headquarters.) These two documents would have helped to refute Wood's argument that the loss of valuable magazines was a fabrication and pretext for his termination, and Waldenbooks' failure to produce them or explain its failure to produce them raises suspicions. But, in the end, Wood's case turns on the comparative credibility and reliability of his (and, to some extent, his parents') testimony versus Burke's testimony. Based on careful consideration of the testimony and demeanor of all of the witnesses under questioning, Burke's testimony is found to be the more credible and reliable despite Waldenbooks' failure to produce, or explain the failure to produce, the "Loss Prevention Hotline" memo and the "return list." It is found that Wood did discard magazines that would have entitled Waldenbooks to a credit on their return and that Waldenbooks, through Burke, terminated Wood based on this and other company loss prevention policy violations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Commission On Human Relations enter a final order dismissing the Petition For Relief filed by Timothy D. Wood. RECOMMENDED this 29th day of June 1988 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988.
Findings Of Fact Carmine Amato is a real estate broker holding license number 0110690, and is the broker for Wise Realty in Broward County, Florida, which he wholly owns. Amerigo DiPietro is a real estate salesman holding license number 0326813. At all times in question, DiPietro was employed by Wise Realty, and Amato was his supervising broker. In August, 1980, DiPietro took a sales contract from Charles and Jennie Conroy for the sale of their home in Broward County, Florida, described as Lot 3, Block 5 of Margate Estates, Section 3. DiPietro suggested to the Conroys that they could afford a larger home by selling their present house and using the equity to put a down payment on a new house. The Conroys subsequently contracted to buy a larger and more expensive house in Broward County from the Hocenics, said house described as Lot 13, Block 8 of Kimberly Forrest. DiPietro found buyers, the Meads, for the Conroys' house; however, the Meads were unable to qualify, and the contract did not close. The Conroys were anxious to close on the Hocenics' house and, as a result, sought a loan from Security Pacific Finance Company, said loan being referred to as a "swing" loan. The Conroys used this swing loan to close on the Hocenics' house, and this loan was secured by a security interest in their old home and the Hocenics' home. The Conroys were not induced in any manner by the Respondents to seek this swing loan. Having obtained the loan, the Conroys closed on the Hocenics' house, moved out of their old house and into the Hocenics' house, and assumed financial responsibility for both homes. Because the Conroys were short $2400, DiPietro took a note from the Conroys payable from the proceeds of the sale of their house. This represented money due DiPietro, which the Conroys could not pay at closing. DiPietro continued to attempt to sell the Conroys' old home and found another buyer, the La Serras. The La Serras qualified, but the Conroys could not raise $3400 needed to pay off their obligation at the closing of the sale of their old home. Because of this, the La Serra transaction did not close. In an effort to save the deal and close the La Serra contract, DiPietro made every effort, even agreeing to take a note for the commissions due to Wise's sales people, who represented both buyer and seller. The Conroys refused to close. With the swing loan almost due, Mrs. Conroy asked DiPietro if he and Amato would buy their old house outright. Eventually, DiPietro and Amato agreed to buy the house and accept financial responsibility for the first mortgage if the Conroys would agree to certain conditions. DiPietro indicated from the outset that neither he nor Amato had sufficient cash to purchase the house outright, and that financing would have to be arranged. DiPietro also advised the Conroys that, if this financing could not be arranged, the swing loan would have to be extended, and that it would be necessary for the Conroys to work with Amato and him to arrange for the extension of this loan. The specific conditions which the Conroys would have to meet were as follow: (a) the Conroys would give Amato and DiPietro a quit claim deed to their old house; (b) the Conroys would do those things necessary to extend the swing loan another six months; and (c) DiPietro and Amato would assume immediate financial responsibility for the house and, during the six months' period, sell it or arrange for long-term financing. The Conroys concurred in this agreement and executed a quit claim deed to their old house to the Respondents. DiPietro tried three different companies, seeking substitute financing for the house. When he failed in this, DiPietro contacted Mr. Conroy about renewing the swing loan. Mr. Conroy accompanied DiPietro to Security Pacific to renew the swing loan. DiPietro attempted to get Security Pacific to substitute any of a number of pieces of property owned by Amato and him for the Conroys' new house and to release its security interest in said house. Because of Security Pacific's excellent equity position in this new house, Security Pacific was unwilling to release its encumbrance on the Conroys' house. Security Pacific said it would release its interest in the Conroys' house only if the amount of the loan was paid down to an amount that the old house could secure. Neither Amato, DiPietro nor Conroy could afford to do this. Security Pacific said it would renew the loan only upon the Conroys' reapplication. Lastly, Security Pacific made clear that it still looked to the Conroys and to their new house as primary security on the swing loan. During all this time, the Conroys' old home was vacant. It had been vandalized and had suffered significant damage which decreased its value. In addition, no yard maintenance had been performed during the period since the Conroys had moved out. To be salable, substantial repairs and maintenance had to be performed by DiPietro and Amato. The revelation that Security Pacific looked to him and his wife for payment of the loan secured by their new house frightened Mr. Conroy. The Conroys were already financially strapped, having been responsible for the payments on both houses during this time. With the swing loan nearly due, and envisioning the loss of both houses and being left with an unsatisfied $28,000 debt, Conroy went to an attorney. The attorney advised Conroy not to join with DiPietro and Amato in extending the swing loan. When the swing loan was not extended, Security Pacific commenced foreclosure proceedings. Amato and DiPietro kept up the payments on the first mortgage, although Mrs. Conroy had to complain at first when these payments were late. The first three payments (July, August and September) were delayed following transfer from the Conroys to Amato and DiPietro. DiPietro and Amato did not promise to assume sole responsibility for the swing loan. DiPietro's representation was that they would try to refinance the property, and that if they could not refinance it they would assume primary responsibility for payment of the swing loan if the Conroys would join with them in extending the swing loan. Respondent Amato never saw or spoke to the Conroys and never made any promises which he did not fulfill. When the foreclosure action commenced, DiPietro stepped up his effort to sell the Conroys' old house and, approximately six to eight weeks later, sold it after substantial repairs were completed. The sales price was $57,000. At the time of the sale, approximately $32,000 was owed on the house to Security Pacific, and approximately $21,000 was owed to Heritage Mortgage Company on the first mortgage. Respondent Amato had put approximately $2,000 into repairs on the house, and Wise Realty was owed a note of approximately $2400 representing commission on the Hocenic/Conroy sale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the following is recommended: That the charges against the Respondent, Carmine Amato, be dismissed, it having been found that he had no contact with the Conroys, could not have made any representations to them, and is not guilty of Violating Section 475.25(1)(b), Florida Statutes; and That the charges against the Respondent, Amerigo DiPietro, be dismissed, it having been found that he made no misrepresentations to the Conroys and therefore did not violate Section 475.25(1)(b), Florida Statutes. DONE and RECOMMENDED this 14th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1983. COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Lawrence F. Kranert, Jr., Esquire 1000 South Federal Highway, Suite 103 Fort Lauderdale, Florida 33316 David F. Hannan, Esquire 3300 Inverrary Boulevard, Suite 200 Lauderhill, Florida 33319 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issues are whether the respondents violated Subsection 494.004(1), Florida Statutes (2001),1 by failing to file a written report with Petitioner that Bill Negron’s (Mr. Negron) real estate license had been permanently revoked for fraud and dishonest dealing, and, if so, what penalties, if any, should be imposed against the mortgage broker licenses of Mr. Negron and First American Mortgage & Financial Center, Inc. (First American).
Findings Of Fact Petitioner is the state agency charged with the responsibility for enforcing and administering the provisions of Chapter 494. Mr. Negron is licensed as a mortgage broker in the state. First American was licensed as a mortgage brokerage business in the state, but First American terminated its license on April 29, 2008. Mr. Negron is president, principal broker, and 100 percent owner of First American. First American is subject to disciplinary action for any statutory violations committed by Mr. Negron. On April 17, 2002, the Florida Real Estate Commission (FREC) found Mr. Negron guilty of fraud; dishonest dealing by trick, scheme or device; culpable negligence; or breach of trust in any business transaction in Final Order BPR-2002-01624. The Final Order found the licensee had failed to account or deliver funds and failed to maintain trust funds in the real estate brokerage escrow account. The FREC Final Order permanently revoked Mr. Negron’s real estate license. The Final Order found that the licensee was guilty of a course of conduct or practices that show the money, property, transactions, and rights of investors may not be safely entrusted to the licensee. Each of the respondents had a statutory duty to notify Petitioner of the revocation order issued by FREC. The duty ensures that Petitioner will have an opportunity to make an independent determination of whether a licensee is continuously qualified for licensure as a mortgage broker. Neither of the respondents notified Petitioner of the revocation order by FREC. Mr. Negron had been licensed as a mortgage broker from December 22, 2003. Professional training included specific training pertaining to the requirement to report regulatory actions for fraud, dishonest dealing, and moral turpitude to Petitioner. The licensee knew, or should have known, from pre-licensing and continuing education courses, of the requirement to notify Petitioner of the revocation of his real estate license. Petitioner did not have actual knowledge of the disciplinary action against Mr. Negron from other public records. Petitioner does not share databases with FREC. Testimony from Petitioner’s witness that it would have been virtually impossible for Petitioner’s employees to unilaterally uncover the existence of the revocation order was credible and persuasive to the trier of fact. Mr. Negron testified that he dictated a notification letter to his secretary and assumed she mailed it to Petitioner. The trier of fact finds that testimony to be neither credible nor persuasive. The record of the FREC proceeding evidences multiple offenses over a period of time that represent prior disciplinary history which preceded the revocation order by FREC. The prior disciplinary history on which FREC relied is evidenced in this record. However, no finding is made based on that evidence because the prior disciplinary history is not alleged as a factual basis for the proposed agency action in this proceeding in either the Administrative Complaint or the Amended Administrative Complaint. The only relevant finding in this proceeding, based on the prior disciplinary history in the FREC proceeding, is that neither of the respondents notified Petitioner of the prior disciplinary history with FREC. The failure to notify Petitioner of the prior disciplinary action by FREC is consistent with the failure of the respondents to notify Petitioner of the entry of a revocation order by FREC and is considered solely for the purpose of determining the credibility of the testimony presented by the respondents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order permanently revoking the mortgage broker’s license of the two respondents. DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
