Findings Of Fact In the beginning of the hearing, proof was made that the Respondent, William W. Buchanan, was a licensed real estate salesman in the State of Florida, in an active capacity from June 18, 1973 thru March 31, 1976. This proof was established through Petitioner's Exhibit no. 1, which is a certification and copies of the real estate registration document. The Respondent, while employed by Joe Z. Lovingood, Inc., his corporate broker employer, took checks from the corporate check book. Three of the checks that were taken from that checkbook were forged by making the Respondent the payer and showing the signature of Joe Z. Lovingood. These checks were dated May 7, 1974, and May 31, 1974. There were two checks of May 7, 1974 for $600 and 2,500 respectively and the May 31, 1974 check was for $500. The Petitioner's Exhibit no. 2 is a xerox copy of the aforementioned checks. The originals of the checks were not produced because they are in the care and custody of the State Attorney's Office for Sarasota County, Florida. The owner of Joe Z. Lovingood, Inc., Mr. Joe Z. Lovingood, did not allow these acts, nor allow any employee within his employ to authorize the Respondent to take the checks from the check book to make the checks payable to the Respondent nor to forge Mr. Lovingood's signature. Furthermore, neither Mr. Lovingood nor any employee of his corporation who was acting upon his authority allowed the Respondent to negotiate these checks, although the Respondent did negotiate them and expend the funds for his own personal use. The exhibits which show the Respondent's negotiation of the checks are Petitioner's Exhibits no. 3 and no. Petitioner's Exhibit no. 3 is a copy of a bank statement of the Joe Z. Lovingood corporation which indicates debits placed against the corporate bank account in the amount of the aforementioned checks. The Petitioner's composite Exhibit no. 4 shows copies of the forged checks with the endorsement signature on the back together with deposit credits, found in the bank statement on the Respondent's account. In addition, the testimony of the bank official of the Respondent's bank indicated a partial cash withdrawal from the amount of the $600 and $500 checks which were negotiated through the Respondent's bank. Joe Z. Lovingood, Joan Lovingood, his wife, and Harold Merritt, the former accountant for Joe Z. Lovingood, Inc., established that the Respondent had told them about taking the checks from the corporate checkbook, and forging the signature of Joe Z. Lovingood after practicing to sign the signature. They also testified that the Respondent told them that he had intercepted bank statements at the post office in order to cover up the theft of the checks and subsequent forgery. After the discovery of Mr. Buchanan's acts, Mr. Lovingood notified the Petitioner. In addition after consultation with his legal adviser and the prosecutors of the jurisdiction, he determined to give the Respondent an opportunity to reimburse Joe Z. Lovingood, Inc. To accomplish this end, Mr. Lovingood co-signed a note in the amount of $3,000 which the Respondent took out in order to improve Mr. Buchanan's financial position. The Respondent agreed to pay back the $3,600 that he had taken from the corporation together with interest and also to repay the $3,000 loan with interest. A statement of his agreement can be found in his letter of July 8, 1974, addressed to Joe Z. Lovingood, as President of Joe Z. Lovingood, Inc., which is Petitioner's Exhibit no. 5 and in his letter of July 8, 1974, addressed to the National Bank of Sarasota which is Petitioner's Exhibit no. 6. Through the date of the hearing, these funds had not been paid to the National Bank of Sarasota. In August of 1974, the Respondent entered into discussion with one Walter E. Lingard about the purchase of real estate. Out of the conversation a deposit was made in the amount of $200 and a receipt for deposit, offer to purchase and contract for sale was entered into by the Respondent and Mr. Lingard. Mr. Lingard was approached by Mr. Buchanan on the question of the purchase of property and informed him that a better piece of property was available in another location and the $200 deposit would be allowed as a partial deposit on the substituted parcel. The contract document on the first parcel contemplated for purchase is Petitioner's Exhibit no. 9. Petitioner's Exhibit no. 10 is a copy of the check from Mr. Lingard and Petitioner's Exhibit no. 11 is a copy of the contract pertaining to the substituted parcel of land. The deposit check was written to William Buchanan at the request of William Buchanan who told Mr. Lingard that he would see that it was placed with his employer, Joe Z. Lovingood, Inc. In September of 1974, the Respondent entered into a conversation with one Hans Hellmann. The nature of this conversation concerned the investment of Mr. Hellmann's money in a real estate purchase. To this end, Mr. Hellmann deposited $2,500 with the Respondent through a check made out to William W. Buchanan. Again, this check was made out to Mr. Buchanan at his request with an assurance to Mr. Hellmann that the deposit would be placed with Joe Z. Lovingood, Inc. The Petitioner's Exhibit no. 7, is a copy of a contract document and Petitioner's Exhibit no. 8 is a copy of the deposit check. Neither Mr. Joe Z. Lovingood nor any employee within his corporation knew of the negotiations, contracts or deposit checks which had been entered into between Mr. Lingard and the Respondent and Mr. Hellmann and the Respondent. Mr. Lovingood found out about these matters when his office was contacted about the status of one of the contracts. Joe Z. Lovingood, Inc. did not receive the deposit checks, at any time. The proceeds of the deposit checks that have been mentioned, were appropriated to the use of the Respondent, without the knowledge and authority of Mr. Joe Z. Lovingood or any employee within his corporation. Restitution for the amounts of the deposit checks has never been made to Mr. Lingard or Mr. Hellmann. The details of the contracts and the fact that the money was appropriated to Mr. Buchanan's use, were related by the Respondent, to Mr. Joe Z. Lovingood, his wife and Mr. Merritt.
Recommendation It is recommended that the registration of the registrant, William W. Buchanan, be revoked. DONE and ORDERED this 18th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William W. Buchanan 503 North Brink Avenue Sarasota, Florida 33577 Charles C. Felix Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue An administrative complaint dated May 19, 1992, alleges various violations of the Florida Insurance Code, Chapter 626, F.S., predicated on the assertion that Respondent received a premium check, added his own name, and deposited it to his own personal bank account without forwarding the premium to an insurer or returning the premium to the customer. The issue in this proceeding is whether those violations occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Currently, and at all times relevant to the incidents which are the subject of this proceeding, Respondent is and has been licensed in Florida as a life agent and as a life and health agent. On or about December 7, 1990, Suzanne Paul, a licensed insurance agent, went to Baker's Garage, Inc., in Jacksonville, Florida, in response to a lead card given to her by Respondent, her regional manager. She spoke with Mr. and Mrs. Baker and solicited and procured an application for health insurance to be issued by Fidelity Security Life Insurance Company through AMS Administrators. Suzanne Paul at the same time obtained from Judy Baker a premium check in the amount of $864.02 for three months' premiums, paid to the order of "AMS Administrators." Mrs. Baker is secretary and treasurer of Baker's Garage, Inc., and handles the company's insurance. Suzanne Paul turned the check over to her manager, Respondent. She never received a commission or a policy. She became concerned, and after she was called by Mrs. Baker, she contacted Respondent in Arizona to see what was going on. He told her he was going to place the insurance with another company. The Bakers never received the policy they requested, nor any other policy from Respondent. Instead, Respondent added his own name to the payee line of Judy Baker's check and deposited it to his personal account number 14166402473 at the First Union National Bank in Maitland, Florida. Upon demand by Mrs. Baker, and without knowledge of Respondent, the bank returned the $864.02 to Baker's Garage. Respondent claims that he had authority from Mrs. Baker to add his name to the check and deposit it to his own account. He contends that he found a policy for the Bakers with better coverage and told Mrs. Baker he would remit payment with his personal check for that coverage. Allegedly, the company returned Respondent's check and the application to him and he lost them. He produced no evidence that he had ever submitted an application on the Bakers' behalf. Mrs. Baker did not give Respondent permission to add his name to her check and she has no recollection of his speaking to her about a substitute policy. When she tried to reach his office in Jacksonville, the telephone had been disconnected.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations of Chapter 626, F.S., as charged, and revoking his licensure as an insurance agent in Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of October 1993. 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 21st day of October 1993. COPIES FURNISHED: John R. Dunphy, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Robert Greenwald 274 Altamonte Bay Club Circle, Suite 202 Altamonte Springs, Florida 32701 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue Whether the Respondent, Sevalp Corporation, committed an unlawful act of discrimination as alleged by the Petitioner.
Findings Of Fact The Petitioner contacted the Respondent regarding the possible rental of an apartment on or about February 5, 2004. At that time, according to the Petitioner, she was approximately 8.5 months pregnant. Whether or not the Petitioner’s pregnancy was obvious is unknown. Petitioner claims her state was self-evident. Mr. Intriago claims he did not notice that she was pregnant. Mr. Intriago is the apartment manager for the buildings owned by the Respondent at 915 Palermo Avenue, Miami, Florida. It is undisputed that Mr. Intriago showed the Petitioner an apartment at the cited address and that Petitioner expressed an interest in leasing the unit. The Petitioner did not, however, fill out an application for the apartment, did not pay a deposit to hold the apartment, and did not have approval from the Respondent to rent the apartment. The Petitioner believes that the Respondent violated Florida law by refusing to rent to a pregnant female. The Respondent did not have an application from the Petitioner to consider. Had the Petitioner filled out an application, however, the Respondent would have rejected the Petitioner as a tenant based upon a history of misadventures with the Petitioner. The Respondent accepts applications from all ethnic and familial groups. The complex Petitioner desired does have family residents. It is not a “singles only” or a “no children” complex. The primary reason the Respondent would not rent to Petitioner (had she filed an application and paid the deposit) is that the Petitioner had broken a lease with the Respondent in the past. Additionally, the Petitioner on yet a second unit had failed to take occupancy when she was supposed to causing the Respondent to lose rental income. In addition to the foregoing, on at least one occasion in their prior business dealings the Petitioner gave the Respondent an insufficient funds check.
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 Petitioner’s claim. S DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 2nd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Celeste Montalvo 2851 Southwest 38th Avenue Miami, Florida 33134 Arthur Ross Sevalp Corporation 923 Catalonia Avenue Coral Gables, Florida 33143
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent's real estate license should be disciplined because the Respondent failed to account and deliver funds in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Joyce A. Wolford is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0313643 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Blue Ribbon Realty, 1400 N. Semoran Boulevard, Orlando, Florida 32807. As To Counts I and II Diane Ortiz was employed by Respondent Joyce Wolford to perform various duties, including operating the computer and taking messages. During her employment with Respondent, Diane Ortiz completed a contract for sale and purchase of certain real property which was signed by Jane Evers as buyer. In conjunction with the Evers contract, Ortiz did receive an earnest money deposit in the form of a cashier's check for the sum of $1000 and made payable to Blue Ribbon Realty. The earnest money deposit check given by Evers was turned over to Respondent by Ortiz. The endorsement on the Evers deposit check was Blue Ribbon Realty. The sale was contingent on Evers' assumption of the existing mortgage. The mortgagee did not approve Evers, and the transaction did not close. Evers contacted Ortiz and Respondent on several occasions and demanded return of her $1,000 deposit. Evers met personally with Respondent and demanded return of the $1,000 deposit. Evers sent a written demand for the return of the deposit by certified mail to Respondent on August 9, 1989. Despite Evers repeated demands for return of the $1000 deposit, Respondent has not returned any money to Evers. Jane Evers filed a lawsuit against Respondent Joyce Wolford in the County Court for Orange County, Florida, for the sum of $1,000 and court costs. A Final Judgment in the civil lawsuit was rendered for Jane Evers against Joyce Wolford for $1,000 principal plus $73 in court costs on March 15, 1990. Respondent has not satisfied the Final Judgment awarded to Evers or any portion thereof. As To Counts III and IV Anthony Pellegrino did enter a contract to purchase certain real property known as Lakefront Motel near Clermont, Florida. Respondent Joyce Wolford did negotiate the contract. Pellegrino did give Respondent a $5,000 earnest money deposit in the form of a cashier's check to secure the contract for purchase of Lakefront Motel. The cashier's check given as a deposit by Pellegrino was endorsed to Blue Ribbon Realty account #0880510063. The Lakefront transaction did not close, and Pellegrino demanded that Respondent return the $5,000 earnest money deposit on several occasions. Respondent has not returned the $5,000 deposit or any portion thereof to Pellegrino. The $5,000 earnest money deposit for the Lakefront contract was transferred to a mortgage company for a transaction involving a condominium that Pellegrino sought to purchase. Said condominium transaction did not close. In neither case did Respondent request the Florida Real Estate Commission to issue an escrow disbursement order. On July 2, 1990, the Florida Real Estate Commission entered a Final Order in the case of Department of Professional Regulation v. Joyce Wolford, finding Respondent guilty of failure to account and deliver a commission to a salesman and imposing a reprimand and an administrative fine of $1000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of having violated Subsections 475.25(1)(b) and (d), Florida Statutes (1989), as charged in Counts I, II, III and IV of the Administrative Complaint. It is further recommended that Respondent's real estate license be suspended for two years, imposing an administrative fine in the amount of $1,000 and, upon completion of the suspension period, placing Respondent on probation for a period of two years with such conditions as the Commission may find just and reasonable. DONE AND ENTERED this 8th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,9,10,11,12,13,14,15,16,1,7,18,19,20,21,22,24 (in part), 25 Rejected as cumulative or irrelevant: 7,8,23,24 (in part) Respondent's proposed findings of fact: Accepted in substance: Paragraph 1 Rejected as against the greater weight of the evidence: Paragraph 2,3 COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Raymond Bodiford, Esquire 47 East Robinson Street Orlando, FL 32801 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
The Issue Whether Respondents violated the statutes and rules alleged in the Second Amended Administrative Complaint; and, if so, what is the appropriate penalty to be imposed against Respondents.
Findings Of Fact OFR is the state agency charged with administering and enforcing chapter 560, Florida Statutes, including part II related to money services businesses. At all times material hereto, Payservices has been a foreign corporation and part II licensee pursuant to chapter 560, specifically a "money services business," as defined in section 560.102(22), and "money transmitter," as defined in section 560.102(23).4/ At all times material hereto, Mr. Danenberg has been the chief executive officer, compliance officer, and an owner of Payservices. As such, Mr. Danenberg is an "affiliated party" and a "responsible person" as defined in sections 560.103(1) and 560.103(33). Count I Licensees, such as Payservices, are required to annually file a financial audit report within 120 days after the end of the licensee's fiscal year. The financial audit report is prepared by a certified public accountant and is used to demonstrate to OFR that the licensee has the financial health to conduct its business and transmit funds within the State of Florida. Payservices' fiscal year ends December 31st. Respondents were required to provide Payservices' 2016 financial audit report to OFR by no later than May 1, 2017. On December 20, 2017, William C. Morin, Jr., OFR's Chief of the Bureau of Registration, contacted Payservices by email with regard to Payservices' failure to timely file a financial audit report within 120 days after the 2016 fiscal year ended. Mr. Danenberg responded by email that same day, telling Mr. Morin that Payservices' accountant had prepared a financial audit report "many months ago," and that it was his "impression" that it had been uploaded to the REAL system "at some point when we filed the quarterly reports." Mr. Danenberg attached to his December 20, 2017, email what OFR accepted as the financial audit report that same day. Notably, the document indicated it was prepared by a certified public accountant on June 15, 2017, after the May 1, 2017, deadline. In any event, Mr. Morin reviewed the REAL system regarding Payservices and determined there were no problems with the REAL system's ability to accept uploaded documents. Mr. Morin testified that he could see on the REAL system that Payservices successfully uploaded a quarterly report and Security Device Calculation Form on January 26, 2017, which created a transaction number. Mr. Morin also observed that Payservices started to upload its financial audit report, which would create a transaction number, but no financial audit report was actually attached and uploaded to the REAL system on January 26, 2017, under that transaction number. According to Mr. Morin, Payservices may have attempted to start to file a financial audit report on January 26, 2017, but it did not complete the transaction because no financial audit report was attached. At hearing, Mr. Morin acknowledged that: "When I looked at the Financial Audit Report transaction, nothing was attached. And I also know that the functionality of the REAL system will kind of allow for the transaction to be completed and nothing attached." Tr. p. 100. Mr. Morin testified that Mr. Danenberg was cooperative when he was contacted on Decemeber 20, 2017, and submitted the financial audit report. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not submit their financial audit report to OFR until December 20, 2017, almost eight months after the May 1, 2017, deadline. Count II Licensees, such as Payservices, are required to annually file Form OFR-560-07, Security Device Calculation Form, by January 31st of each calendar year for the preceding calendar year. The Security Device Calculation Form requires licensees to report to OFR the dollar amount of transactions with Florida consumers. The dollar amount of transactions identified in the form is then utilized by OFR to determine if additional collateral is necessary to protect Florida consumers in the event a claim is made against the collateral for monies that were not properly transmitted by the licensee. Andrew Grosmaire, OFR's Chief of Enforcement in the Division of Consumer Finance, acknowledged at hearing that a licensee has 60 days to amend the face value of its surety bond, should an increase be required, and that at all times material hereto, the value of Payservices' surety bond has been correct for the minimum amount required. Nevertheless, Mr. Morin testified that Respondents did not file Form OFR-560-07, Security Device Calculation Form, until February 10, 2018, ten days late. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not file Form OFR-560-07, Security Device Calculation Form, until February 10, 2018, ten days late. Count III Licensees, such as Payservices, are required to update information contained in an initial application form, or any amendment to such application, within 30 days after the change is effective. In Payservices' initial application dated September 25, 2015, Respondents identified Corporate Access, Inc., as its registered agent with an address for service of process at 236 East 6th Avenue, Tallahassee, Florida 32303. According to the Department of State, Division of Corporation's records, on January 10, 2017, Mr. Danenberg was appointed as Payservices' registered agent with a new address for service of process at 300 West Palmetto Park Road, A210, Boca Raton, Florida 33432. Respondents filed an amended license application with OFR on August 28, 2017, which still listed Corporate Access, Inc., as the registered agent for service of process. On February 26, 2018, Respondents amended their registered agent information with the Department of State listing a new address for Mr. Danenberg at 14061 Pacific Pointe Place, No. 204, Delray Beach, Florida 33484. Mr. Morin testified that at no time have Respondents updated their initial application with OFR to reflect Mr. Danenberg as the registered agent for Payservices and his address as the registered agent.5/ Mr. Morin and Mr. Grosmaire testified that the reason a licensee needs to update a change in the registered agent's name and address is so that OFR may effectuate service of process against the licensee. Yet, Mr. Grosmaire acknowledged that OFR has access to the Division of Corporation's records. Nevertheless, the persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondents did not update their initial application with OFR to reflect Mr. Danenberg as the registered agent for Payservices and his address as the registered agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that OFR impose an administrative fine against Respondents in the amount of $6,000. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 16th day of December, 2019.
The Issue The issue for consideration in this hearing is whether the Petitioner, Lee C. Smith, was unlawfully discriminated against by the Respondent, Food Lion, Inc., on the basis of his marital status.
Findings Of Fact At all times in issue, Respondent, Food Lion, Inc., operated its food supermarket, No. 728, in Tampa, Florida. Petitioner, Lee C. Smith, was employed by Respondent as manager. Petitioner was discharged from employment with the Respondent on December 2, 1990. The "constructive advice memo" supporting the discharge indicated the action was being taken because of "dishonesty - fraud - reputation of manager." The background to the charge related that 9 checks, totalling $1,100.00 were cashed by Petitioner's wife and "possibly endorsed or OK'd by Mr. Smith." The memo went on to further state that the decision [to discharge] was based on current evidence "and also failure to maintain mgt. role." The memo further indicated that while in management training, Mr. Smith had a problem with returned checks and "was documented on same." The memo was signed by Mr. Legett and was also signed by the Petitioner on December 5, 1990. Petitioner claims that when he first learned of the check situation, during the period March through June, 1990, when he was a management trainee, on his own initiative and without prompting by anyone in authority, he notified his store manager and assistant manager of the situation and suggested they call in a tel-alert advising all Food Lion stores in the area not to cash any checks for his wife. He was not discharged at that time. He also claims that after he was promoted to manager, his wife again started passing bad checks without his knowledge. When he found out about them, in October and November, 1990, before he was discharged, he paid some of them off. He also instituted another tel-alert through the Dunedin store, where some of the checks had been written, but he did not alert the people in his own store not to cash them. Apparently, Mrs. Smith cashed some checks in Store 728 but only one was approved by Petitioner. An area-wide listing of dishonored checks shows some that were cashed by Mrs. Smith. This listing is sent to each store and probably came to Petitioner's store. Petitioner admits he may have seen it but most of the checks written by Mrs. Smith were approved by the assistant manager. Whenever he saw a check listing with his wife's name on it, he redeemed that check, but the listing he saw was for his store only. He claims not to have seen listings from other stores, but from time to time, the manager of other stores would call him to ask if they could take her checks. He claims always to have said no. None of the checks relied upon by Respondent in the discharge action were admitted in evidence. Petitioner claims that at the time in issue, he had no knowledge his wife was writing the bad checks. During this period, he and his wife were having domestic difficulties. Some of the time they were living together and some of the time they were separated. Even when they were separated, she continued to come into the store for purchases and to cash checks. Petitioner claims that as a result of his discharge by the Respondent he has been damaged in a total amount of between $452,122.55 and $518,122.55, including legal fees. These sums are based on his salary at the time of his discharge, modified by certain assumptions regarding sick pay, bonus, profit sharing and holiday pay. At the time of his discharge, Petitioner was earning $550.00 per week and claims he was due an increase to $610.00 per week. Therefore, he claims, his base salary for December, which he was not paid, would have been $2,440.00. Added to that, he claims is 2 percent for sick pay totalling $572.00, a 2 percent bonus of $572.00, a 15 percent profit sharing pay out of $4,290.00 and holiday pay for 6 days at $110.00 per day, for $660.00. This additional amount totals $6,094.00 which, when added to the base salary claimed due amounts to $8,534.00 for December, 1990, not paid to him because of his termination. His base salary of $610.00 per week for calendar year 1991, would have totaled $31,720.00 and his insurance benefit would have been an additional $1,242.60. This totals $32,962.60. Added to that, he claims are the bonuses, sick pay, profit sharing, profit forfeiture, holiday pay at $122.00 per day for 6 days, and two weeks vacation ($1,220.00) for a subtotal of $9,566.00. When this figure is added to his base for 1991, he claims his total income from Respondent would have been $42,528.60 for the year. However, when his actual earnings from Kash & Karry, with whom he found employment after he was discharged by Respondent, in the amount of $13,941.58 are deducted, his actual loss for calendar year 1991 is, he claims, $28,587.60. Following the same formula, using identical factors but with slightly different amounts for each due to a projected increase in weekly salary, the net loss to Petitioner is claimed to be $19,903.32 for calendar year 1992, and through March 5, 1993, the date of the hearing, his calendar year 1993 loss is claimed to be $6,474.39. The sum total of the yearly losses is $71,109.77 to which Petitioner has added a 1 percent per month interest figure which totals $19,910.73 for the 28 months in issue. The sum of these figures is $91,020.50. To this Petitioner has also added a 4 year loss of projected profit sharing pay outs had he stayed with Food Lion which he estimates at between $30,000.00 to $45,000.00 per year. At $30,000.00 the total would be $120,000 to which Petitioner has added an unexplained $200,000.00. Adding this to the $120,000.00, and the $91,020.50 amounts to $411,020.50 to which Petitioner has added 10 percent legal fees of $41,102.05 for a grand total of $452,122.55. Applying the same calculations to a loss of profit sharing figure of $45,000 per year for 4 years, and the unexplained $200,000.00 addition, with similar 10 percent legal fees and the actual claimed out of pocket loss described above, his claim amounts to $518,122.55. In support of his claim of Food Lion earnings, Petitioner submitted only one pay slip, for the period ending 12/01/90 which showed his regular earnings to be $1,100.00 and special earnings of $650.00 for the period. The evidence he presented is insufficient to support his monetary claim. His earnings at Kash and Karry are not questioned. Petitioner's wife's bad check activity first came to light when he was a manager trainee and he paid those checks off immediately. However, in the latter part of 1990, a loss prevention investigation was initiated into alleged cash shortages and bad checks at Petitioner's store. Mr. Satterfield, the Area Perishable Supervisor was told by the investigator that Petitioner was aware of his wife's passing of bad checks. Mr. Satterfield also talked to other employees. One of these, Mr. Koonce, cashed several checks for Mrs. Smith which had been approved by one of the managers. Petitioner was one of those approving managers on only one occasion. Based on that one approval, which he does not know to have been for a subsequently dishonored check, he merely assumed the Petitioner approved the others. An unsworn written statement to the investigator, Mr. Greer, by Kimberly Lantrip, an employee of another Food Lion store, indicates that Petitioner told the grocery manager it was OK to cash his wife's checks and hid the bad check register bearing his wife's name for several weeks when it came in. This evidence is clearly double and even triple hearsay evidence, however, and though admissible here, is of minimal probative value. Furthermore, neither were the checks themselves nor photocopies thereof were offered. Mrs. Smith, by sworn affidavit, also hearsay, indicated that at no time did Petitioner have any knowledge she had written checks in Food Lion stores, nor did he ever approve any for her or tell anyone else to cash them. This statement carries little evidentiary weight. Petitioner clearly had knowledge of his wife's prior check writing activity and, in fact, paid off several. He obviously failed to take appropriate action to correct her activity or to preclude her writing other checks at Food Lion stores. After the investigation, Satterfield met with Petitioner and other supervisors, and as a result of that meeting, where at least one supervisor recommended termination, Mr. Satterfield, who had observed Petitioner over the months in both training and as assistant manager and saw him do nothing wrong, nonetheless decided to put the Petitioner on indefinite suspension with pay pending further investigation. Mr. Satterfield then notified the Regional Supervisor and Mr. Legett, the Area Supervisor, of what he had done. The next he heard about it was when the constructive advice memo terminating Petitioner was issued. He thereafter had nothing more to do with the matter. Mr. Legett was satisfied at the way Petitioner took care of the first series of bad checks written by Petitioner's wife in the Spring of 1990. However, based on what he was told by Mr. Satterfield, and the information contained in the loss prevention investigation, he concluded that Petitioner was aware of the second series of bad checks his wife was writing and did not attempt to stop them. Based on this, which he found showed fraud and dishonesty on Petitioner's part, he decided to discharge Petitioner Before doing so, however, he discussed the matter with Food lion's Vice President for Personnel who agreed with the decision to discharge. While Petitioner's failure to take corrective action to preclude his wife from cashing any further checks at Food Lion stores reflects on his management ability and may support termination for that reason, absent a clear showing of his conspiracy with her, his encouragement of her actions, or his knowing acquiescence in her misconduct, it does not rise to the level of fraud or dishonesty. Regarding Petitioner's claim for damages, Mr. Legett indicates a proposed raise of $60.00 per week in 1990 is not justified. A maximum raise is $20.00 per 6 month increment based on performance. Not all managers get raises each year. In addition, continuing employees do not get paid for holidays they don't take off. If the time is not taken, it is lost. However, if a person is terminated, any unused accrued vacation time for that year is paid. By the same token, sick days are not compensated. Employees receive 2 percent of salary as a sick pay bonus at the end of the year unless too much sick leave is taken. In general, a sick day taken once a week results in a net loss, not earned bonus. Also, profit sharing is not a constant but varies year by year. In 1990 and 1991, the amount was 15 percent. The amount for 1992 had not been determined as of the hearing, but 15 percent is a maximum. In any case, employees do not become eligible to participate in the profit sharing plan until they have been with the company for 5 years. If the employee leaves before the five years are up, the accrued but unpaid profit sharing maintained in his name is forfeited and paid on a pro rata basis to other employees. The most Mr. Legett, an individual relatively high up in management, ever got was 2 percent. He has never received anywhere near 5 percent of his salary. Effective January 1, 1993, employees contribute $21.00 per month for insurance. Prior to that time, there was no contribution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Lee C. Smith's Petition for Relief from Unlawful Discrimination based on marital status, relating to his discharge from employment by Respondent, Food Lion, Inc., be dismissed. RECOMMENDED this 13th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of April, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6047 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: Respondent's counsel submitted Proposed Findings of Fact but failed to number them. They will be treated paragraph by paragraph, however, in this appendix. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and, except for references to hearsay evidence, incorporated herein. Mr. Koonce, the only individual interviewed by the investigator who appeared at hearing indicated he had seen Petitioner approve only one check for his wife and assumed from that, he had approved others. The balance of the hearsay evidence, though admissible for a limited purpose, is considered of minimal probative value. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Not a Finding of Fact but more a comment on the state of the evidence. Accepted only as to the showing that the issue of Petitioner's knowledge of his wife's check writing activities was a part of the related case involving discrimination based on race. Irrelevant to the issues herein. COPIES FURNISHED: Lee C. Smith P.O. Box 260922 Tampa, Florida 33685-0922 Steven C. Ellingson, Esquire Arnold & Anderson 1200 Peachtree Center Cain Tower 229 Peachtree Street, N.W. Atlanta, Georgia 30303 Margaret Jones Clerk Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Vickie Ann Hay is, and at all times material to this case was, a licensed real estate broker in the State of Florida, license #1483791. The most recent license was issued as a broker-salesman to AAIM Realty Group, Inc., 38 Homestead Road, Lehigh Acres, Florida 33936-6646. In or about March of 1990, Respondent Hay, while licensed and operating as a real estate salesman in the employ of C. Bagins First, Inc., was contacted by Vicki Wright, daughter of Respondent Regas. Ms. Wright told Respondent Hay that Ms. Wright had referred buyers interested in purchasing numerous vacant lots. During March and April of 1990, Respondent Hay used her father's name as a "straw buyer" and prepared approximately 173 contractual offers to purchase vacant lots from various owners at various prices. The offers recited that the "straw buyer' had placed in escrow a $100 deposit with Fleetwood Title Corporation with each offer to purchase. There were no such deposits made. Some of the offers were accepted verbally and others were accepted in writing by the sellers. With 173 offers being made, there should have been a total escrow deposit of $17,300 made in connection with the offers to purchase. There were no deposits made. Respondent Hay knew or should have known that no deposits were made. Respondent Hay failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order reprimanding Respondent Vickie Ann Hay, placing the licensee on probation for a period of one year, imposing a fine of $1,000, and requiring Respondent Hay to complete a 45 hour salesman's postlicensing course. DONE and ENTERED this 2nd day of December, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent Vickie Ann Hay did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order, except as follows: 3. At hearing, the Petitioner amended the allegation to state that Ms. Wright "referred" buyers interested in purchasing the lots. 6-7. Rejected, irrelevant. The allegations related to Respondent Regas were severed and are not relevant to this Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire P. O. Box 1900 Orlando, Florida 32802-1900 (407) 423-6134 Ms. Vickie Ann Hay 811 Fireside Court Lehigh Acres, Florida 33936 (813) 368-6444 Robert L. Ratliff, III, Esq. 2359 Periwinkle Way Sanibel Island, Florida 33957
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact At all times pertinent to this case, Respondent was employed by Petitioner as a food service worker in the cafeteria at Ballard Elementary School. Respondent was hired by Petitioner on November 5, 1998. Prior to the incidents giving rise to the Complaint, Respondent had a relatively good employment record, with two disciplinary matters documented in her personnel file. On September 17, 2001, Respondent was given a written reprimand for refusing to follow her supervisor's directions and giving inappropriate verbal responses. More recently, on April 16, 2012, Respondent received a verbal reprimand for not properly accounting for student meals. Just days after Respondent received a verbal reprimand related to accounting for student meals, a vehicle in which Respondent was a passenger was stopped by a police detective. As described below, this traffic stop ultimately led to Respondent's arrest and subsequent third-degree felony charge for engaging in a scheme to defraud in an amount less than $20,000, in violation of section 817.034(4)(a)3., Florida Statutes (2011).1/ On February 21, 2013, Respondent pled nolo contendere to the charge. Adjudication was withheld, pending Respondent's successful completion of a five-year term of probation with specified conditions. The circumstances giving rise to the criminal charge against Respondent were described in detail by the City of Bradenton Police Department detective who arrested Respondent. The detective testified that on April 20, 2012, he pulled over a vehicle for failing to stop at a stop sign. The detective approached the passenger side of the vehicle, where Respondent was seated. The detective observed a laptop computer on Respondent's lap, open and in use with a portable internet access device, but Respondent quickly shut the laptop as the detective approached. For reasons that are not germane to the Complaint in this case, the detective instructed Respondent to exit the vehicle, and he placed her in handcuffs. The detective asked for identification, and Respondent told him it was in her purse, which she had placed on the passenger seat when she exited the vehicle. The detective retrieved Respondent's purse and looked inside for her identification. In addition to Respondent's identification, the detective also found several Visa debit cards with different people's names on them. Also in the purse were written instructions for filing tax returns through TurboTax, along with ledgers containing names, social security numbers, dates of birth, and other personal identification information. Some of the names on the ledgers matched the names on the debit cards found in Respondent's purse. Respondent was arrested for an unrelated matter and transported back to the police station for questioning. At the police station, Respondent was given her Miranda rights and then questioned about the laptop and material found in her purse. In her post-Miranda interview, Respondent told the detective that the laptop was hers, but she had sold it to a woman she knew only as "Tiffany" for $200. Respondent told the detective that she and Tiffany entered into an arrangement whereby Respondent would assist Tiffany in a scheme to file tax returns in other people's names using TurboTax. The TurboTax filings would direct that the tax refunds, issued on debit cards, be sent to Respondent's residence. For each debit card received pursuant to this scheme, Tiffany would pay Respondent $500, with one exception: Respondent admitted to the detective that she gave her mother's personal information to Tiffany, who filed a tax return in Respondent's mother's name; for this debit card, the deal was that Respondent and Tiffany would split the amount of the tax refund 50-50. Respondent gave information to the detective regarding where "Tiffany" could be found, but there was no "Tiffany" at the place Respondent identified. The detective determined through a search of Respondent's laptop that Turbotax had been in use when he approached the vehicle and saw Respondent quickly closing the computer. However, Respondent admitted that she had already filed her own tax return, so there would be no reason for her to be using Turbotax, except in furtherance of the scheme to secure other people's tax refunds. The detective traced the individuals whose names were on the debit cards found in Respondent's purse, and he discovered that they all were residents of a nearby retirement community. He interviewed the residents, who reported to the detective that they did not know Respondent and that they had not authorized Respondent or "Tiffany" to file tax returns on their behalf. Respondent admitted to the detective that she knew what she was doing was wrong and illegal. At the hearing, Respondent provided only vague, general, and somewhat contradictory testimony regarding the circumstances giving rise to the criminal charge to which she pled no contest. On the one hand, she claimed that although she was charged, she "didn't have nothing to do with what went on[.]" She later admitted that she was wrong, but took the position that she already had been punished for her wrongdoing and deserved a second chance. The only specific fact Respondent disputed regarding her role in the debit card scheme was whether she was the one who actually filed the tax returns. Respondent did not deny that she took part in the scheme to defraud vulnerable people out of their tax refunds for her own financial gain. Respondent did not deny that she used her own mother's personal information for Respondent's financial gain. Overall, Respondent's testimony lacked credibility and did not effectively refute the detective's more credible testimony. Respondent's court appearance at which her plea was made was on February 21, 2013, at 11:00 a.m. That day was a work day for Respondent, and the hours she was supposed to work were 7:00 a.m. to 9:45 a.m., and 10:15 a.m. to 1:30 p.m. Respondent acknowledged that she left the cafeteria sometime between 10:00 a.m. and 10:30 a.m. for her court appearance and did not return to work that day. However, Respondent filled out her semi-monthly payroll sheet form to reflect that she was present and working from 7:00 a.m. to 9:45 a.m. and from 10:15 a.m. to 1:30 p.m., on February 21, 2013. Respondent signed the payroll sheet that she filled out to falsely reflect that she was working and should be paid for time that she was not actually at work. Petitioner's food services department informed its employees that it considers the accurate completion of time records on the payroll sheet to be very important. A June 2012 written policy was circulated to food service employees to emphasize that each employee must take care to ensure that the time records are accurate, including "[a]ctual start and [a]ctual end times," verified by the employee's signature. As emphasis, a text box on the written policy contained the message that "[p]utting false or incorrect information on your timesheet is Time Card Fraud and is grounds for disciplinary action up to and including recommendation for termination." Respondent acknowledged that she is aware that Petitioner expects employee time records to be accurate and truthful, and that falsification of a time sheet is considered time card fraud. Respondent also acknowledged that it was her signature on the payroll sheet that was filled out inaccurately for February 21, 2013. Respondent testified that she did "not remember" putting down the wrong hours or signing the payroll sheet, but the fact remains that the record was submitted with her signature verifying that she worked hours that she admittedly did not work on February 21, 2013. The result of Respondent's signed submission was that she was paid for hours that she knows she did not work. The credible evidence established that Respondent filled out her time records on the payroll sheet form to reflect that she worked a full day on February 21, 2013, which she knew was not true. Respondent signed the payroll sheet form, vouching for the false information that she knew would be used to pay her for hours she did not work. Respondent did not dispute Petitioner's authority to terminate her for just cause, nor did Respondent dispute most of the facts alleged as the basis for establishing just cause. Instead, Respondent's position was that despite her wrongdoing, she should be given a second chance, having worked for Petitioner for 15 years. Essentially, then, Respondent's defense was an argument for mitigation of the penalty to be imposed. In furtherance of her position, Respondent presented testimony from two character witnesses, but the witnesses knew little to nothing about the nature of the criminal charge to which Respondent pled no contest. Neither witness offered any information about Respondent for the time period at issue in this case. One witness was a neighborhood acquaintance who has only known Respondent for three months. The other witness was a former cafeteria supervisor who was terminated by Petitioner five years ago. The former supervisor testified that during the time she and Respondent worked together, Respondent was a hard worker who had her difficult moments, but who complied with and followed instructions "most of the time." When Respondent asked her former supervisor whether she believed that everyone deserves a second chance, the witness responded as follows: "I believe everyone should have a second chance. Some people need more than two chances, and [Respondent] might be that person. There's been times that maybe she hadn't followed the rules entirely, but who does?" Petitioner advocated against leniency based on the unrefuted evidence that a cafeteria worker, such as Respondent, has access to personal and financial information about students and their families. Accounts are established for students to draw on for their cafeteria purchases. Student account funds are deposited, withdrawn, and accounted for by food service workers. Family names, phone numbers, and addresses are included with the student account records. In addition, many account records reflect personal financial information of the student's family, including information on applications submitted to qualify students for free or reduced-cost lunches and information from governmental programs that provide aid to students, such as the state-federal program to provide temporary assistance for needy families (TANF).2/ It is reasonable for Petitioner to be concerned with the risk that would be presented by allowing Respondent to continue in her position where she has access to individual financial information of students and their families. It is not unreasonable for Petitioner to be unwilling to take that risk, given Respondent's very recent involvement in a scheme to defraud vulnerable people, including her own mother, for Respondent's financial gain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order terminating the employment of Respondent, Nikki M. Brydson. DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 5th day of December, 2013.
