The Issue Whether the Department of Transportation's intended action to reject all quotes and re-advertise Lease No. 550:0318 was illegal, arbitrary, fraudulent, or dishonest.
Findings Of Fact In October of 1999, the Department advertised for office space for use as the Toll Data Center - Audit Section, Office of Toll Operations (Toll Office) located in Broward County. The lease was clearly advertised as a negotiated lease. It was not advertised as a competitive bid lease. Under the negotiated lease process before letting any lease, the Department must submit to the Department of Management Services (DMS) a Request for Space Need (RSN) and Letter of Agency Staffing (LAS). From DMS the Department receives the authority to directly negotiate a lease for space under 5,000 square feet with prospective lessors. 1/ Consistent with procedure, the Department received approval of the RSN on October 18, 1999. Pursuant to statute, DMS has strongly suggested that prior to selection of the apparent successful lessor, the Department should obtain a minimum of three documented quotes for a lease that has not been competitively bid. The Department has consistently followed that suggestion in negotiated leases. Under special circumstances, where it is clear it is improbable that three quotes cannot be obtained, the Department may waive its requirement that three documented quotes be received. However, the agency must certify to DMS that attempts to receive the required number of documented quotes were unsuccessful and/or special circumstances exist to negotiate the lease with less than three quotes. In this case, no special circumstances exist. In an effort to obtain more than the minimum three documented quotes, the Department opted to advertise for lease space on the Internet. The Internet is utilized by the DMS, among other state agencies, to disseminate information provided in the RSN to the private sector. Additionally, the Internet site may also be used by the private sector to provide notice of space they have available for review by the agency seeking space. A total of three submittal packages were distributed for Lease No. 550:0318. Despite the Department's advertisement over the Internet, only two requests for quote submittal packages were received. Of the three quote submittal packages distributed, the Department received only one documented quote in response to the advertisement for the Toll Office. Atlantic Investment submitted a Quote Submittal Form to the Department in late October for office space in North Fort Lauderdale. Atlantic Investment became aware of the Department's advertisement for lease space from Sheldon M. Schermer, employed by Atlantic Investment as its real estate agent. Mr. Schermer learned of the Department's need for lease space from an advertisement placed on the Internet. On November 8, 1999, the Department informed Atlantic Investment via Sheldon M. Schermer, Real Estate Agent for Atlantic Investment, of the Department's intent to reject all quotes and re-advertise for Lease No. 550:0318. This decision was not arbitrary, capricious, fraudulent, or dishonest and well within the Department's discretion and procedures for negotiated leases. The basis for the decision was the Department's modification of the lease specifications pursuant to a recommendation by DMS to modify the lease space terms to hopefully generate more interest and more quotes. In a competitive negotiation, DMS was aware of agencies who modified leases and advertised as many as five times before three documented quotes were received. Moreover, the evidence showed that the Broward County commercial real estate market could easily generate three quotes for the space required by the Toll Office.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Petitioner's protest. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of April, 2000.
The Issue Whether Respondent's license as a real estate salesman should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, F.S., as set forth in Administrative Complaint dated September 2, 1981. At the commencement of the hearing, the parties stipulated to Paragraphs 2 and 3 of the Administrative Complaint. Although Paragraph 2 thereof indicates that Respondent is a registered real estate salesman, he testified without contradiction that he has been licensed as a broker for the past 3-1/2 years. Accordingly, that fact will be reflected in the Findings of Fact herein. Both parties called one witness each to testify at the hearing, and Respondent testified in his own behalf. No exhibits were submitted in evidence.
Findings Of Fact Respondent, John M. Bosko, of Tampa, Florida, is a registered real estate broker and was so registered at all times relevant to the matters pertinent to this proceeding. (Testimony of Respondent, Stipulation) On or about May 11, 1979, Respondent leased a house which he owned at 3105 South Adams Street, Tampa, Florida, for a term of one year, to Gregory and Cindy Morrison. The lease was payable in the amount of $265.00 per month, and a $265.00 security deposit, to ensure compliance with performance of the lease provisions, was paid at the commencement of the lease. (Testimony of G. Morrison, Respondent, Stipulation) Gregory Morrison occupied the leased premises commencing in May, 1979. His wife, Cindy, left the house in December, 1979, and the couple was divorced in January, 1980. Mrs. Morrison took most of the furniture with her upon her departure. About March 1980, Respondent advised Morrison that he intended to sell the house and would not be renewing the lease. Morrison told him than he would leave the premises at the termination of the lease, on May 10, 1980. (Testimony of G. Morrison, Respondent) During the first week of April, 1980, Morrison moved to his future place of residence and did not live any longer in the leased house. During this period there was no furniture in the house. As to those articles that remained on the premises, the testimony of Morrison and Respondent is conflicting. Morrison claimed that he left a "pile of stuff" in the living room, including cleaning items, a vacuum cleaner, and games. He also testified that he had stored power tools, a weight bench, weights, a tuxedo, and a trombone in the garage. However, Respondent took a prospective purchaser of the house to the premises at approximately this time and they observed only an old vacuum cleaner in the living room. There were no clothes in the closets, no food in the refrigerator, and only some debris in the corner of the closets. About 500 whiskey bottles were distributed throughout the house, and about 35 marijuana plants were located in the family room. Respondent testified that he saw nothing in the garage. He therefore hired someone to clean the premises and put any of Morrison's items in the garage. Respondent was of the opinion that the house had been abandoned and that Morrison had forfeited the security deposit. (Testimony of G. Morrison, Respondent, Bankston) Morrison went to the house some time thereafter, saw that his property was missing, and reported it to the police. He telephoned the Respondent who informed him that he thought Morrison had vacated the premises, and that he had secured another tenant. Respondent told him that any of his property that had been left in the house could be found in the garage. Respondent declined to return the security deposit because he believed that Morrison had breached the provisions of the lease. Although Morrison had not paid the rent when due on April 1, he had a five-day grace period and tendered the month's rent to the Respondent within that time, but Respondent refused to accept it. Respondent proceeded to lease the property to another tenant and did not issue any notices to Morrison, or initiate any judicial proceedings pursuant to Chapter 83, Florida Statutes. Respondent testified that he was unaware of the provisions of Chapter 83. (Testimony of G. Morrison, Respondent) Morrison filed a civil action against Respondent for recovery of his personal property. The parties arrived at a compromise settlement consisting of return of Morrison's security deposit and one month's rent. (Testimony of G. Morrison)
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
Findings Of Fact The Declaration of Condominium for Oaks of Broward was filed by Margen, a Florida Partnership, in May, 1974 in the Public Records of Broward County and with the Petitioner. All documents required to be filed by Margen with Petitioner were filed and the fees paid. Simultaneously a recreational lease was filed of property adjacent to the condominium in which Barnett Bank of Hollywood was named as Trustee and Lessor, and The Oaks Condominium Association, Inc. of Broward as Lessee. Between May 1974 and early 1976 Margen sold to individuals 39 condominium units at Oaks of Broward. In early 1976, Housing Investment Corporation, mortgagee, began foreclosure proceedings which resulted in title to all of the Oaks condominium property, except for the 39 units previously sold, being taken by The Oaks of Broward, Inc., Respondent. Thereby Respondent became successor in title to the previously unsold 75 units in the building and to the position of the Lessor on the long-term recreational lease. On or about August 1977, Respondent offered for sale the 75 condominium units pursuant to prospectus admitted into evidence as Exhibit 2. In addition thereto and as part of the sales effort Respondent executed and recorded the Declaration Waiving Rents, a copy of which was admitted into evidence as Exhibit Neither of these documents was filed with Petitioner. The 75 units owned by Respondent were sold with the recreational lease rents waived. Pursuant to the terms of the recreational lease the original 39 buyers pay $20 per month, either to the Association or directly to the Lessor. This lease is a net/net lease, which means the Lessor performs no services except to provide the premises themselves. The Condominium Association is responsible for and pays all maintenance, taxes, upkeep and expenses for the operation of the Recreation Area. All condominium units, the original 39 as well as the remaining 75, pay to the Association, as part of the common expenses, their pro rate share of those operating expenses. It is this disparate treatment of the two groups of unit owners with respect to the recreational lease rent payment of $20 per month that is one subject of Petitioner's request for a cease and desist order. The second subject of the Petition for a cease and desist order is Petitioner's contention that Respondent is a Developer and is required to file documents and pay a $10 filing fee for each of the 75 condominiums sold, regardless of whether fees for these 75 units were paid by Respondent's predecessor in title.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Private Money Mortgage Company (PMMC), was a mortgage brokerage business in the State of Florida holding License Number HB592732699 that had been issued by Petitioner. At all times pertinent to these proceedings, Frank Donahue was a licensed mortgage broker in the State of Florida holding License Number HA267474770 that had been issued by Petitioner. The Department of Banking and Finance, the Petitioner in these proceedings, is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 494, Florida Statutes. In 1985, Mr. and Mrs. A. Charles Cinelli bought a house in Palm Beach County, Florida, and moved from upstate New York to Palm Beach County, Florida. Respondent, Frank Donahue, assisted Mr. and Mrs. Cinelli in obtaining financing for the home the Cinellis purchased in Palm Beach, County. In connection with this 1985 transaction, Mr. Donahue forwarded to the Cinellis an "Exclusive Broker Agreement", which they executed and returned to him. Because this 1985 transaction involved a purchase, Mr. Donahue ordered an appraisal for this property and charged its cost as a part of the Cinelli's closing costs. Subsequent to that transaction, Mr. Donahue and his wife, Brenda, saw Mr. and Mrs. Cinelli at occasional social events. Franklin T. Smith is a certified public accountant who performed professional services for Mr. and Mrs. Cinelli and for Mr. and Mrs. Donahue. Mr. Smith referred the Cinellis to Mr. Donahue in 1985 and advised the Cinellis during the transaction that is the subject of this proceeding. Prior to December 2, 1988, Mr. Cinelli contacted several mortgage brokers in the Palm Beach County area to discuss the possibility of obtaining a mortgage on certain real property located in upstate New York. Mr. Cinelli contacted Mr. Donahue by telephone and discussed with him his desire to raise capital to begin a business in Florida. Mr. Cinelli estimated that he would require approximately $1,000,000 to start this business. Mr. Cinelli told Mr. Donahue that he and Mrs. Cinelli owned certain commercial real property in upstate New York and that State Farm Insurance Company held an option to purchase this property for the sum of $1,450,000. Mr. Cinelli did not want to wait to learn whether State Farm intended to exercise this option to purchase and he discussed with Mr. Donahue the possibility of obtaining the desired capital by securing a mortgage on this property. Mr. Donahue advised Mr. Cinelli that he could expect to secure a mortgage for approximately $700,000 (which was approximately 50% of the amount of the option contract) and that he would need a current appraisal. Mr. Donahue also informed Mr. Cinelli that he would require the sum of $2,500 as a non-refundable deposit to begin seeking such a commitment. On or about December 2, 1988, Mr. Cinelli provided Mr. Donahue with a copy of the option agreement with State Farm and with a copy of the agreement dated September 21, 1988, which extended the time within which State Farm could exercise its option for an additional six months. Mr. Cinelli reiterated to Mr. Donahue that the option price was for $1,450,000 and that he wanted to mortgage the property for $1,000,000. Mr. Cinelli also provided Mr. Donahue with the name, address, and telephone number of Mr. Wayne Lupe, who was represented by Mr. Cinelli to be his MAI appraiser in Schenectady, New York. On December 15, 1988, Mr. Donahue sent to Mr. Cinelli a letter which attached an "Exclusive Broker Agreement" that had been executed by Mr. Donahue on December 15, 1988. This was the same "Exclusive Broker Agreement" form that Mr. Donahue had used for the 1985 Cinelli transaction. The body of the letter provided as follows: Enclosed please find a copy of my exclusive brokers agreement detailing the probable terms of the loan which you are seeking. This agreement is the same agreement which you signed when you purchased your current resi- dence. The agreement calls for both you & Joan to sign and return along with a nonrefundable deposit in the amount of $2500.00 to Private Money Mortgage Corp. The above noted deposit shall be credited towards your closing costs at the time of closing, if a commitment is offered. I have spoken to several of my investors about your concerns and I am awaiting confirmation of their substantial interests prior to ordering the appraisal. I will contact you as soon as I have received the return of this agreement along with your deposit in order to fill you in on our efforts to secure you the most competitive loan on your desired terms. The Exclusive Broker Agreement reflected that the amount of the mortgage would be $700,000 and disclosed that the total estimated costs that would be incurred in securing the mortgage was $78,346, which included a broker's fee of $35,000 and an estimated appraisal fee of $3,500. The Exclusive Broker Agreement, signed by Mr. Donahue on December 15, 1988, contained the following provision: DEPOSIT: In consideration of the sum of $2,500, receipt of which is hereby acknowledged, and in compliance with Chapter 494, Florida Statutes, Broker accepts this application and agrees to exert his/her best effort to obtain a commitment for loan in accordance with the terms and conditions set forth herein. This deposit shall be credited toward closing costs at the time of closing the permanent loan or commitment, less Broker's expenses. Among the "Standards" which were incorporated as terms and conditions of the Exclusive Broker Agreement was the following: Deposit. Client simultaneously with execution of this agreement has deposited with broker the amounts stated in this agreement in order to secure the obligations owed by client to broker in the event of default of client as provided in the agreement and to reimburse broker of any and all expenses, including telephone charges, lodging, and administrative fees for credit checks and processing appraisals and the like, including upon any cancellation by client, reimbursement for broker's time expended incurred by broker, whether or not a loan commitment is obtained by broker. Mr. Cinelli was concerned that he would be incurring substantial fees and costs if Mr. Donahue obtained a commitment and Mr. Cinelli decided not to accept it. Mr. Smith advised Mr. Cinelli that the estimated expenses were not abnormally high, but he suggested that his liability should be limited. In response to those concerns, Mr. Donahue prepared and delivered between December 15, 1988, and the end of the year an addendum to the Exclusive Broker Agreement that would have limited Mr. Cinelli's liability to the sum of $7,500. That addendum provided, in pertinent part, as follows: It is hereby understood and agreed by the parties that in the event a loan commitment is offered to the applicants & they decide to refuse this commitment, the applicants liability will be limited to the sum of Five Thousand Dollars plus the original deposit of $2,500.00 for a total amount of $7,500.00. It is further understood that said commitment must bear approximately the same terms and conditions as the attached agreement. Mr. and Mrs. Cinelli gave Mr. Smith the sum of $2,500 in cash to deliver to Mr. Donahue, but there is conflicting testimony as to when this money was delivered to Mr. Smith for delivery to Mr. Donahue. Mr. Cinelli testified that the money was delivered before the Exclusive Broker Agreement dated December 15, 1988, was prepared. Mr. Donahue testified that the money was delivered after both the Exclusive Broker Agreement and the addendum thereto had been delivered to Mr. Cinelli. Mr. Donahue also testified that the statement contained in the Exclusive Broker Agreement that he signed on December 15, 1988, acknowledging his receipt of the $2,500 deposit was false. He did not explain why the addendum referred to the sum of $2,500 as "the original deposit". Mr. Smith did not recall when he delivered this money to Mr. Donahue, but he did recall having delivered the cash the same day he received it from the Cinellis. While his testimony is that he received the $2,500 during his initial meeting with Mr. and Mrs. Cinelli (which would be before Mr. Cinelli received the Exclusive Broker Agreement) this testimony lacks credibility because of Mr. Smith's lack of certainty as to dates. In addition, this testimony conflicts with the letter Mr. Smith wrote to Mr. Donahue at Mr. Donahue's request on August 28, 1989, which clearly indicates that the $2,500 was not paid until after the addendum to the Exclusive Broker Agreement had been prepared. This conflict is resolved by finding that the greater weight of the evidence establishes that the sum of $2,500 was delivered by Mr. Smith to Mr. Donahue after Mr. Cinelli had received both the Exclusive Broker Agreement and the addendum thereto. Mr. Donahue did not provide the Cinellis with any type of written agreement, other than his letter of December 15, 1998, the Exclusive Broker Agreement, and the addendum when he received the cash from Mr. Smith. There was no written receipt for these funds, nor was there any written memorandum of understanding between Mr. Donahue and the Cinellis as to whether payment for the appraisal that Mr. Donahue and Mr. Cinelli had discussed would be made from the $2,500. Mr. Cinelli was of the belief that $2,000 of the $2,500 deposit would be earmarked for the payment of the appraisal. Mr. Donahue was of the belief that the $2,500 was a non-refundable retainer and he treated that sum as an earned fee. There was no meeting of the minds between Mr. Cinelli and Mr. Donahue as to the nature of the $2,500 deposit, other than it was non-refundable. Specifically, there was no agreement as to what costs, if any, would be paid from that deposit. Mr. Donahue's normal business practice in transactions involving a refinance of property is different than his practice in transactions involving a purchase of property. In purchase transactions (such as the 1985 Cinelli transaction), Mr. Donahue arranges for the appraisals and treats the costs of the appraisal as an expense to be paid by the purchaser at closing. In refinance transactions (such as the 1988 Cinelli transaction), it is his practice to require his customer to deal directly with the appraiser in ordering and paying the costs of the appraisal. Respondents failed to establish that in the subject transaction, Mr. Donahue made it clear that Mr. Cinelli would be responsible for ordering and paying the cost of the appraisal. Mr. Cinelli believed that $2,000 of the $2,500 he later gave Mr. Donahue would be earmarked for the payment of the appraisal. Neither Mr. Donahue's letter of December 15, 1998, the Exclusive Broker Agreement, nor the addendum clearly resolved the dispute. There was a dispute between Mr. Donahue and Mr. Cinelli as to who ordered the appraisal. Mr. Cinelli denied that he ordered the appraisal and that his calls to his appraiser, Mr. Lupe, was only to advise him of Mr. Donahue's forthcoming call. Mr. Donahue denied that he ordered the appraisal and that his contacts with Mr. Lupe were after Mr. Cinelli had ordered the appraisal. Mr. Donahue contends that his contacts with the appraiser were merely to give the appraiser instructions as to the information that should be reflected by the appraisal. This dispute is resolved by finding that Mr. Cinelli ordered the appraisal through Mr. Lupe and that Mr. Donahue advised Mr. Lupe as to the information that should be reflected by the appraisal. It was determined from conversations between Mr. Donahue and Mr. Lupe that Mr. Lupe was not qualified to perform the appraisal and that Mr. Lupe would engage Albert L. Friedman, MAI and William J. McEvoy of Capitol Real Estate and Appraisal Company of Schenectady, New York, on Mr. Cinelli's behalf to perform the work. Messrs. Friedman and McEvoy prepared the appraisal and certified the same to Mr. Cinelli on March 13, 1989. The appraised value of the property was $2,100,000. As of the date of the formal hearing, the appraiser's bill of $2,000 had not been paid. Capitol Real Estate and Appraisal Company had billed both Mr. Donahue and Mr. Cinelli and an attorney representing Capitol Real Estate and Appraisal Company had written Mr. Cinelli a demand letter. It was the dispute over the payment of the appraiser's fee that prompted the complaint the Cinellis filed against Respondents. The Cinellis did not execute the Exclusive Broker Agreement and the addendum because they wanted to wait on the appraisal to see if the appraised value would permit them to borrow more than $700,000 and because they were not satisfied with the amount of the projected costs of consummating the transaction. Mr. Cinelli misled Mr. Donahue as to his intentions to execute these agreements. Mr. Donahue made several requests to the Cinellis that they execute the Exclusive Broker Agreement and addendum and return them to him. Despite the absence of an executed brokerage agreement, Mr. Donahue exerted considerable effort to seek a commitment consistent with the Exclusive Broker's Agreement and succeeded in securing such a commitment in April 1989. No part of the $2,500 Mr. Donahue received from Mr. Smith on behalf of the Cinellis was placed in escrow by Mr. Donahue. Respondents have made no accounting of the $2,500 and have paid no part of the appraisal bill. Mr. Donahue claims the deposit as a non-refundable earned fee, despite the absence of a written agreement to that effect. The Cinellis sold the subject property to State Farm in June 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by Petitioner which finds: that Respondents violated the provisions of Rule 3D-40.006(5), Florida Administrative Code, by accepting the $2,500 deposit from the Cinellis without a written agreement as to the disposition of those funds; that Respondents violated the provisions of Section 494.055(1)(e), Florida Statutes, and Rule 3D-40.006(6)(a), Florida Administrative Code, by failing to place said deposit in escrow; and that Respondents violated the provisions of by Section 494.055(1)(f), Florida Statutes, by failing to account for said deposit. It is further recommended that an administrative fine be levied against Respondents in the total amount of $1,000.00 for said violations. It is further recommended that the final order place the licenses of Respondents on probation for a period of one year with three special conditions of probation. The first special condition of probation would require Respondents to pay Capitol Real Estate and Appraisal Company the sum of $2,000 within sixty days of the Final Order. The second special condition of probation would terminate Respondents' probation upon timely compliance with the first special condition of probation. The third special condition of probation would prohibit Respondents from conducting any business as mortgage brokers within the State of Florida for a period of six months should Respondents fail to timely comply with the first condition of probation. RECOMMENDED in Tallahassee, Leon County, Florida, this 9th day of January, 1991. CLAUDE B. ARRINGTON 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 9th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4708 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 3-10, and 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2 and 11 are adopted in part by the Recommended Order, and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being argument. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4-6, 14, and 17 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are adopted in part by the Recommended Order. The characterization of the Cinellis having a "long standing relationship" with Mr. Donahue is rejected as being ambiguous and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9-11 are adopted in part by the Recommended Order, but are rejected to the extent that they are subordinate to the findings made. The proposed findings of fact in paragraphs 12 and 13 are rejected as being recitation of testimony or as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being subordinate to the findings made or as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in paragraph 16 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. COPIES FURNISHED: Deborah Guller, Esquire Office of the Comptroller 111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401-5293 Marie A. Mattox, Esquire Douglass, Cooper, Coppins & Powell Post Office Box 1674 Tallahassee, Florida 32302-1674 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction as alleged in the Administrative Complaint in violation of Subsection 475.25(1)(b), Florida Statutes (2006).1
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 457, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings before the Florida Real Estate Commission (FREC) and is authorized to prosecute administrative complaints against licensees within FREC’s jurisdiction. At all times material, Respondent was a licensed Florida real estate broker, license number 684990, under Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker at Florida’s Best Buy Realty & Mortgage Lender, LLC, Post Office Box 551, Winter Park, Florida 32793. On or about February 15, 2007, Respondent entered into a contract to manage the single-family dwelling owned by Jacqueline Danzer. The property is located at 2979 Krista Key Circle, Orlando, Florida 32817 (Subject Property). The agreement was for the period February 15, 2007, until February 15, 2008. Respondent was authorized, under the management agreement, to seek a tenant for the property. Said management agreement authorized Respondent to be compensated at the rate of 10 percent of the rent due during each rental period. On or about March 27, 2007, Respondent negotiated a lease agreement with Veronica Valcarcel to rent the Subject Propery. The tenant applied through the federal Section 8 program, administered by the Orange County Housing and Community Development Division (Agency), for rental assistance in order to rent the Subject Property. Section 8 assists low-income families with their rent. A tenant who qualifies for Section 8 assistance is prohibited from paying more than 40 percent of his or her income for rent and utilities. On April 26, 2007, Respondent, acting on behalf of the landlord for the Subject Property, entered into and signed a “Housing Assistance Payment Contract” or “HAP” contract with the Agency as part of the Section 8 program. The HAP contract provided that for the initial lease term for the Subject Property (for the period April 1, 2007, until March 31, 2008), the initial monthly rent was $1,150 per month. This was determined to be the maximum payment the tenant could pay without exceeding 40 percent of her income. The HAP contract explicitly provides in its terms that “[d]uring the initial lease term, the owner may not raise the rent to tenant.” Respondent knew that he was prohibited from charging more than the monthly rent stated in the HAP contract. Respondent has had experience in the past with other tenants who participated in the Section 8 program. Respondent has previously signed other HAP contracts which contained the same restrictive language. Under the lease contract that the tenant Veronica Valcarcel signed with the property owner Jacqueline Danzer, the monthly rent would be $1,150 per month. The signature page in the lease contract is not the same page on which the monthly rental amount is written. The property owner Jacqueline Danzer asserts that the initials in the lease contract reflecting a monthly rental of $1,150 were not all her initials. Under the terms of the Exclusive Property Management Agreement, Respondent was being compensated at the rate of 10 percent per month after the first month. A monthly rental amount of $1,500 indicates that the property owner would receive a net of $1,350 per month. The property management agreement provided that Respondent would make payments to the property owner by direct deposit. The property management agreement lists a 12-digit bank account number, with the last four digits of “6034,” into which Respondent was to make direct deposits. At the hearing, property owner Jacqueline Danzer testified that she had received payments from Respondent for the Subject Property to her Bank of America savings account, with the account number ending in “6034.” The last four digits of the account number on the Bank of America Statement match the last four digits on the account number found on the Property Management Agreement. According to the Bank of America records, Respondent made the following payments to the property owner: a) $1,550 on May 9, 2007 b) $1,000 on May 9, 2007 c) $850 on June 12, 2007 d) $1,350 on July 11, 2007 e) $1,350 on September 10, 2007 On September 12, 2007, property owner, Jacqueline Danzer went to see Lois Henry, the manager of the Section 8 department for the Agency. During the course of that meeting, Dnazer advised that Respondent was collecting $1,500 a month rent from the tenant instead of $1,150 a month. On September 12, 2007, during the course of a telephone conference with Jacqueline Danzer and Lois Henry, Respondent admitted that he had been collecting $1,500 monthly rent for the Subject Property, retaining a commission of $150 and depositing the balance in Danzer’s account. Respondent denied making an admission during the telephone conference on September 12, 2007. He also denied that he was collecting $1,500 from the tenant, and further denied that he was violating Section 8 regulations. Respondent’s testimony is not credible. The witness Danzer’s testimony is credible. Petitioner has proven by clear and convincing evidence that Respondent violated the Housing Assistance Payments Contract. The total amount of investigative costs for the Petitioner for this case, not including attorney’s time, were $874.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Florida Real Estate Commission, enter a final order: Finding Respondent guilty of violating Subsection 475.25(1)(b), Florida Statutes; Revoking Respondent’s license, and imposing an administrative fine of $1,000.00; and Requiring Respondent pay fees and costs related to the investigation in the amount of $874.50. DONE AND ENTERED this 26th day of August, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 26th day of August, 2009.
The Issue Petitioner and Lyell Hintz protest the Department's intent to award the bid for Lease No. 550-0209 to Southeastern Investment Properties, Inc. Issues derived from the pleadings, the joint prehearing stipulation and the evidence and argument at hearing are: Whether Petitioner has standing to protest the bid award; Whether Petitioner and Lyell Hintz have waived the right to contest evaluation criteria; If not, whether those criteria are valid; Whether the Respondent has properly applied the criteria to the bid proposals; Whether Southeastern's bid was nonresponsive; Whether Southeastern changed its bid after opening; Whether Petitioner's bid was defective for failure to include a waiver of existing lease; Whether the bid should be awarded to Lyell Hintz or Petitioner; and Whether all bids should be rejected and the lease re-bid.
Findings Of Fact The Bid Solicitation On or about January 31, 1991, the Florida Department of Transportation (DOT) advertised its request for proposals (RFP) for a full service lease for its District Five, Operations and Planning Office, Public Transportation Office and Construction Office. The RFP is identified as lease #550:0209. Specifications include net square footage of 13,640 + 3% (13,231 - 14,049), divided into 90% office and 10% storage space, to be available by July 1, 1991, or within 30 days of notice of bid award, whichever occurs last. The space is to be available in a northern section of Orange County designated on a map attached to the RFP, in the Winter Park/Maitland/Orlando area surrounding the intersection of Lee Road and I-4. The following evaluation criteria (award factors) are included in the RFP: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using total present value methodology for basic term of lease... (weighting: 15) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid (not to exceed a weight of 10 award factors). (weighting: 10) Provision of the aggregate square footage on a single floor. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two floors. (weighting: 25) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operation planned for the requested space. (not to exceed a weight of 10 award factors) (weighting: 10) Offers providing 100 s.f. of street-level secured storage. (weighting: 10) * * * [deleted criteria given 0 weight and not relevant] Option period rental rate proposed is within projected budgetary restraints of the department. (weighting: 15) Accessibility to an I-4 Interchange. (weighting: 15) total award factors = 100 (Joint Exhibit #1, p. 7 of 10) Paragraph D.1., General Provisions, includes a notice that failure to file a protest within the time prescribed in Section 120.53(5), F.S., constitutes a waiver of proceedings under Chapter 120, F.S. The notice references an attachment which includes the text of Chapter 90-224, Laws of Florida, requiring posting of a bond at the time of formal written protest. Paragraph D.6.A., General Provisions states: Each proposal shall be signed by the owner(s), corporate officers, or legal representatives(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the agent is to execute the lease, the authority must be supported by a properly executed Power of Attorney. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility, i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. If there is an existing lease extending beyond the required availability date for all or any portion of the premises being offered to the agency a release of the applicable lease must accompany the Bid Submittal. (Joint Exhibit #1, p. 8 of 10) Paragraph D.8., General Provisions, provides the Department reserves the right to reject any and all bid proposals, waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. Paragraphs D.12 and 13, General Provisions, establish a March 4, 1991 bid opening and a February 11, 1991 preproposal conference, respectively. On the RFP/Bid Proposal Submittal form, below the bidder's signature space, there is a list of required attachments and notice that failure to include such, if applicable, "...shall render the proposal nonresponsive and such proposal shall be rejected". (Joint Exhibit #1, p. 10 of 10) The relevant attachments include a map with location of the facility, photograph, floor plan, authorization as agent for bidder, and release of existing leases. The RFP/Bid Proposal Submittal Form was furnished to the DOT by the Department of General Services (DGS). As permitted, DOT made some modifications to the criteria to meet the specific needs of the agency. No protests of the bid solicitation were filed by any party. The Bid Responses Four proposals were timely received at the bid opening deadline, March 4, 1991: Clayton's Realty (Petitioner) submitted two proposals, Lyell Hintz submitted one proposal, and Southeastern Investment Properties, Inc., submitted one proposal. Clayton's bid for its building at 611 Wymore Road, Winter Park ("Clayton Bldg.") offers 13,984 square feet for $1,136,200.00 for the five-year rental period and $1,398,400.00 for the option years. Some of DOT's offices are already in this building. Clayton's bid for its building at 5600 Diplomat Circle, Orlando, ("Promenade Building") offers 14,049 square feet at $965,868.75 for the 5-year rental term, and $1,229,287.50 for the option period. Both of Clayton's buildings offer space on two floors. Lyell Hintz offers 14,049 square feet at 1241 S. Orlando Avenue, Maitland. The five year rental cost is $895,623.75, and the option period rental is $1,123,920.00. All of the space is offered on a single first floor. Southeastern Investment Properties, Inc., offers 14,049 square feet in the Adlee Building at 5151 Adamson Street, Orlando, for $1,009,139.67 for the 5- year rental term and $1,288,012.32 for the option period. Southeastern contends that it is offering 100 square feet of storage space on the first floor and the remainder of space on the second floor. Committee Analysis of the Bids An evaluation committee comprised of four DOT employees met on March 6, and March 12, 1991, to evaluate the bids. Their evaluation included a visit to each site with pre-established questions. The four employees were Nancy Houston, District Five District Director for Planning and Public Transportation; Donna Sovern, Ms. Houston's Administrative Assistant; Jim Hamelin, Resident Engineer in charge of construction in District Five; and Steven J. Nunnery, Office Manager for District Five Construction. The committee had prior experience in the leasing process on only one occasion. In November 1990, this same lease #550:0209 was bid. Lyell Hintz and Southeastern were the bidders. All bids were rejected after it was discovered that Southeastern's bids included typewritten language added by the bidder and in conflict with standard requirements. No protest was filed from that agency decision. In the November bid the committee simply utilized the criteria provided in the DGS packet. Later the Committee learned that criteria could be modified by the individual agency. With this understanding, the Committee changed the criteria for the March 1991 bids to provide that space be offered on no more than two floors, rather than two buildings; that points would be awarded for offers of 100 square feet of street level storage space, rather than all space on the street level; and that accessibility to an I-4 Interchange would be an additional evaluation factor. The committee felt these criteria appropriately addressed agency need to collocate programs and share facilities, to have ground floor storage for heavy samples and equipment, and to provide easy access by field staff and others using I-4 regularly. The committee devised a methodology for awarding points to each bidder in each category described in paragraph 3, above. The methodology is stated in the minutes of the evaluation committee meeting dated March 6, 1991. For item no. 1, the committee awarded 15 points (the highest) to the lowest bid. The percentage of difference between each bid and the lowest bid was multiplied by 15 to determine the point value. Hintz received 15 points; Clayton (Promenade Building) received 14 points; Southeastern received 13 points; and Clayton (Clayton Building) received 12 points. For item no 2, the committee stated it would take into account the design and other factors in the description of this item, including the parking requirement addressed in the invitation to bid. Southeastern received the maximum, 10 points; Hintz received 8 points; and the two Clayton buildings received 6 points each. As part of the November bid process, when the agency initially intended to make the award to Southeastern, Nancy Houston's husband, an architect in private practice, prepared without charge a layout of Southeastern's building to see if Southeastern could meet DOT's needs. At Clayton's and Southeastern's requests, that layout was provided to the bidders, except for Hintz. Since Hintz' building is basically a shell, and he assured DOT he would make the renovations they needed, Ms. Houston did not feel that he needed the floor plan. After the bids were rejected in November, the layout became a public record, available to anyone upon request. However, Ms. Houston opined at hearing that they could not get a good layout that would work for the Hintz building. This contradicts Mr. Hintz' testimony that the suggested floor plan attached to the RFP could easily fit in his building. The floor plan attached to the RFP is not the same floor plan prepared by Ms. Houston's husband for the Southeastern building and the fact that Hintz' building is a shell capable of a vast variety of layouts impeaches Ms. Houston's opinion. Item no. 3 requests aggregate square footage on a single floor, with fewer points for space on two floors. The committee methodology was to give 25 points for space on one floor and "reduction given accordingly" for two floors. (Joint Exhibit #6, attachment A, page 1) Hintz and Southeastern were each granted 25 (maximum) points. Although various committee members testified that two floors should have warranted 1/2 the points, or 13, Clayton's buildings were awarded 16 points each. Southeastern is not proposing to provide all space on one floor, as it is offering storage on the first floor and office space on the second floor. The committee considered this worthy of full points, as all of the office space is on one floor. Item no. 4 is related to environmental factors such as aesthetics of the building and surrounding areas. The committee methodology states that aesthetics of the building and area would be considered along with "...the economical factor relating to the conduct of our everyday activities from and in each space proposed." (Joint Exhibit #6, Attachment A) Southeastern was awarded 10 points (maximum); Clayton's Clayton Building and Promenade Building were awarded 6 and 8 points respectively; and Hintz was awarded 3 points. Item no. 5 relates to provision of 100 square feet of storage on the street level. The committee methodology provides that full ten points will be awarded if this is met; if not, the score would be "adjusted accordingly". Each bid was awarded the full 10 points. The committee members learned that Southeastern was willing to provide street level storage when they made their site visit and inquired. The space was not described in Southeastern's written proposal. Item no. 11 relates to rental cost for the option period. The methodology adopted by the committee for this item is the same as for item no. Hintz, the lowest bidder for the option term, received 15 points; Clayton's Promenade Building received 14 points; Southeastern received 13 points; and the Clayton Building received 12 points. Item no. 12, accessibility to an I-4 Interchange, is worth 15 points maximum. For its methodology the committee devised a formula of granting the closest building a full 15 points. The I-4/Lee Road interchange was selected as the reference hub. The Clayton Building, .2 miles from the interchange, was given 15 points. Southeastern's building .6 miles away, three times as far, was given 1/3 value, 5 points; the Promenade Building, .4 miles away, or twice as far, was given 1/2 full value, or 7.5, rounded to 8 points; and Hintz' building, 2 miles away, or 10 times as far, was given 1.5 points, rounded to 2. The total values thus awarded by the committee were: 86 points to Southeastern; 78 points to Hintz; 77 points to Clayton (Clayton Bldg.); and 76 points to Clayton (Promenade Bldg.). The committee, after meeting on March 6th and making its awards, decided to meet again on March 12th, after obtaining more information on phone service, zoning regulations, crime, and bidder's previous experience in renovations. Although some additional information was obtained and the committee did meet again, it determined that the additional information (not clearly related to any of the seven criteria above) did not warrant changing any of the scores. The committee recommended award of the lease to Southeastern. Southeastern's Bid Allegedly Defective Southeastern's bid is signed by Gilmore E. Daniel, Vice President of Southeastern Investment Properties, Inc., as agent for the owner, Cynwyd Investments, a partnership which operates under about 150 different partnerships. The building in issue is owned by an entity designated "Adlee Building, Cynwyd Investments General Partnership". Attached to Southeastern's bid is a letter on Cynwyd Investments letterhead, dated February 7, 1991, addressed to Mr. Gil Daniel, re: Adlee Building, 5151 Adamson Street, Orlando, Florida, stating: As leasing and managing agent for the above captioned property, you are hereby authorized to negotiate on our behalf with the State of Florida in order to procure the Department of Transportation as a tenant in our building. (Joint Exhibit #5) The letter is signed by Stephen Cravitz, CSM. Although the language of the letter is inartful (the agent was not "negotiating" a lease), the intent is plain on its face that the agent procure a lease. This is sufficient to convey authority for Gil Daniel to act on behalf of the owner. The requirement of the RFP, paragraph 6.A. is met. (see paragraph 5, above) There are several tenants currently occupying space proposed to be leased to DOT under lease no. 550:0209. There are three "agreements" attached to Southeastern's bid proposal for three tenants. Each agreement provides the tenant will move by April 15, 1991 "...contingent upon the landlord being the successful bidder for the State of Florida Department of Transportation lease no. 550:0209, and having an executed lease with the State." (Joint Exhibit #5) The tenants have not moved, but neither has the contingency been satisfied; and when or if it is, the tenants will move. These agreements are sufficient "release" to meet the requirements of RFP paragraph 6.A. The remaining tenant does not have a lease. Clayton's Bid Allegedly Defective Clayton's bids did not include any releases from tenants. There is a tenant currently in part of the space offered in the Clayton Building. There is also a lease agreement dated August 28, 1989, between the Claytons and Canam Steel Corporation describing a lease term of three years and termination date of September 14, 1992. Edward Fielding, Jr. is Director of Operations in the Leasing Department for Charles and Malcolm Clayton. He is well aware of the requirements for state leasing as he and the Claytons have been involved for several years in leasing space to state agencies. Canam Steel Corporation provided a letter in April 26, 1990, stating that it is closing its Orlando operation and requesting that its lease be terminated. It still occupies the space, but Edward Fielding is assured that it wishes to leave, and will do so immediately upon approval by Clayton. The lease and release was not included with the bid packet, as Fielding properly determined that it was no longer binding on the landlord. The Clayton Building bid does not violate the requirement of RFP, Paragraph 6.A. F. Alleged Bias of the Committee in Favor of Southeastern and Improper Award of Points Hintz and Clayton contend that the bid process was thoroughly tainted with a bias in favor of an award to Southeastern. Clayton did not respond to the November bid; Hintz did, and did not protest the earlier process, although he apparently brought to DOT's attention the language added to Southeastern's bid response that led to the rejection of all bids and reinitiation of the process. The committee changed its evaluation criteria when it learned that DGS's form criteria are not binding on the agency. The committee's alterations and addition of the I-4 accessibility requirement were intended to better meet the specific needs of the programs that would be using the space. The changes did not specifically benefit Southeastern; it was neither the closest nor next closest building to the I-4 interchange. For those criteria which could be objectively quantified, such as rental rate and proximity to I-4, the committee attempted in good faith to devise formulae. That the point spread for the I-4 criteria was substantially wider than for rental rates does not invalidate those formulae. For those criteria requiring a subjective analysis, the conformance/design and environmental factors, Petitioner and Hintz failed to prove the committee's point awards were patently wrong or fraudulent. One committee member, James Hamelin, admitted that Clayton should have received 13, rather than 16 points for providing space on more than one floor, but that error, if it indeed was an error, inured to the benefit of Petitioner and made no impact on Hintz, the next highest scorer. None of the floor plans presented by the bidders with their proposals are attached to the exhibits received in evidence, and those floor plans are not part of the record in this proceeding. One committee member, Donna Sovern, admitted that all of the square footage proposed by Southeastern was initially on the second floor. When the site visit was made and the committee discussed the space, Southeastern offered 100 square feet of storage on the first floor. (Transcript, pp 200-201) Because of this, Southeastern was awarded the full 10 points for Item No. 5, requiring 100 square feet of street-level secured storage. Allowing Southeastern to change its bid thus provided an advantage of 10 additional points. Assuming that the change was appropriate, Southeastern should not have also received the full 25 points for Item No. 3, provision of aggregate square footage on a single floor, since the remainder of its space is on the second floor. The award of points in these two items by the committee is inconsistent and erroneous. Page 4 of 10 of the RFP describes the space to be included in the 13,640 square feet to be leased. The description includes storage areas. (Joint Exhibit #1) The bidders were on notice that "aggregate" square footage includes storage space. The total number of points awarded to Southeastern must be reduced by either 10 (the after-the-fact storage space on the first floor) or 9 (the difference between the full 25 points and 16, the points awarded to Clayton for space on two floors). This results in a total of either 76 or 77 points for Southeastern. In either case, Hintz becomes the highest scorer, and Clayton and Southeastern are tied.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order awarding lease no. 550:0209 to Lyell Hintz. DONE AND RECOMMENDED this 12th day of June, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraphs 1 and 7. - 5. Adopted in paragraph 11. Adopted in paragraph 20. Adopted in paragraph 31. Adopted in summary in paragraph 18. Rejected as immaterial. and 11. Adopted in part in paragraph 5, otherwise rejected as immaterial. Southeastern's name is typewritten. Rejected as immaterial. Adopted in part in paragraph 31, otherwise rejected as immaterial. and 15. Adopted in part in paragraph 33, otherwise rejected as immaterial. Adopted in paragraphs 17 and 18. Rejected as immaterial and irrelevant. Adopted in paragraph 19. Rejected as immaterial. Adopted in part in paragraphs 20 and 27, otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in substance in paragraphs 21, 26 and 27. Rejected as unnecessary. Adopted in paragraph 37. Adopted in part in paragraph 29, otherwise rejected as irrelevant as points were not awarded or subtracted for the additional factors. Rejected as irrelevant. Lyell Hintz' Proposed Findings Adopted in paragraphs 1 and 2. Adopted in paragraph 11. Adopted in paragraphs 13, 15, 16 and 21. Adopted in paragraph 3. Adopted in paragraphs 17 and 18. Adopted in paragraph 5. Adopted in paragraph 8. Rejected as unnecessary. Adopted in paragraphs 31 and 32. - 11. Rejected as immaterial and contrary to the weight of evidence. The letter attached to the bid was sufficient authority. 12. Rejected as contrary to the weight of evidence. 13. and 14. 15. Adopted Adopted in in paragraph 25. paragraphs 3 and 25. 16. Adopted in paragraph 38. 17. - 21. Adopted in paragraphs 3 and 22. 22. Rejected as argument rather than finding of fact. 23. Rejected as immaterial and unsupported by the evidence. 24. Adopted in paragraph 3. 25. - 34. Adopted in summary in paragraphs 23, 14 and 16. 35. and 36. Adopted in paragraph 38. Adopted in paragraphs 3 and 24. - 50. Rejected as immaterial. According to the evidence these factors did not change the committee's evaluation. 51. - 53. Rejected as immaterial and, as to the DGS requirement, unsupported by the record. Respondent and Southeastern's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 9. Adopted in paragraph 11. Adopted in paragraph 10. Adopted in paragraph 17. Adopted in paragraphs 18 and 19. Adopted in paragraph 3. Adopted in part in paragraph 3, otherwise unnecessary. Adopted in paragraph 23. Rejected as unnecessary. Adopted in paragraph 25. Adopted in paragraph 19. Adopted in paragraph 27. Adopted in paragraph 3. Adopted in paragraph 28. Adopted in paragraph 24. Rejected as contrary to the evidence, specifically the RFP which unambiguously included all storage and office space in the "aggregate." - 19. Rejected as irrelevant or unsupported by the record. Adopted in paragraph 31. Adopted in paragraph 33. Adopted in part in paragraph 34, but the letter requesting its lease be terminated is sufficient release. Adopted in part in paragraph 12. Rejected as unnecessary. COPIES FURNISHED: Marvin L. Beaman, Jr., Esquire 605 North Wymore Road Winter Park, FL 32789 Wings L. Benton, Esquire P. O. Box 5676 Tallahassee, FL 32314-5676 Susan P. Stephens, Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Kenneth M. Meer, Esquire 423 Country Club Drive Winter Park, FL 32789 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Dept. of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Respondent is guilty of obtaining his license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes.
Findings Of Fact At all material times, Respondent has been a licensed real estate broker, holding license number 0500228. Respondent’s licensing cycle ends on March 31 every two years. He duly renewed his broker’s license prior to its expiration on March 31, 1994. During the ensuing two-year licensing term, Respondent executed on January 1, 1996, a Request for License or Change of Status and submitted the form to Petitioner. The purpose of submitting the form was to notify Petitioner that Respondent had adopted a corporate form of doing business as a real estate broker. Section A of the form contains a series of options. Respondent selected “other” and wrote in “change to corp.” Section B contains identifying information, and Respondent completed this section. Section C is irrelevant to the change that Respondent was making, and he did not fill in this section. The instructions for Section A direct the person filing the form as follows: “If this is a renewal of your license, it must be accompanied by the required fee and sign this: I hereby affirm that I have met all statutory and rule requirements regarding education for license renewal.” Respondent signed this statement even though he was not seeking a renewal of his license. The instructions for Section B told the person filing the form how to complete Section B. But these instructions required no representations. The next form generated in this case was another renewal notice, as Respondent’s license neared the end of its term, which expired March 31, 1996. This form states: “By submitting the appropriate renewal fees to the Department . . ., a licensee acknowledges compliance with all requirements for renewal.” By check dated December 30, 1995, Respondent timely submitted his license renewal fee of $95 in response to the renewal notice. He was unaware at the time that he had not met the continuing education requirement for relicensing, which called for 14 hours of education. In reliance on the implied representation that Respondent had completed the required continuing education, Petitioner renewed Respondent’s license. Later, during a random audit, Petitioner discovered that Respondent had not completed the necessary courses and commenced this proceeding. Respondent was cooperative during the audit. Upon discovering that he had not complied with the continuing education requirement, he promptly undertook the necessary coursework, which he completed by August 6, 1996.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE 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 on June 4, 1997. COPIES FURNISHED: Attorney Andrea D. Perkins Department of Business and Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Suite N-308A Orlando, Florida 32801 Frederick H. Wilsen Frederick H. Wilsen & Associates, P.A. Law Office of Gillis & Wilsen 1415 East Robinson Street Suite B Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
