Findings Of Fact The Department rules on the Proposed Findings of Facts and Exceptions, submitted by the parties as follows: APPLICANT'S PROPOSED FINDINGS AND CONCLUSIONS Applicant's Proposed Findings numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28, and 29 are accepted to the extent that they are not inconsistent with the Findings of Fact rendered by the Hearing Officer. Applicant's Proposed Finding number 22 is accepted to the extent that factual matters are discussed. However, to the extent that it suggests that "public convenience and advantage" will be promoted by establishment of the trust company, the Department rejects this conclusionary statement as inconsistent with the Department's conclusion as to this criterion based on the reasons as discussed in paragraph three (3) contained in the Conclusions of Law of the Final Order. Applicant's Proposed Finding number 25 concerning the telephone survey has been dealt with in the Hearing Officer's Finding number 13, as adopted by the Department. Applicant's Proposed Finding number 26 concerns several counter- arguments addressing contentions proposed by the Protestants. As to (1) "Concentration", (2) "Dual Banking", and (3) "Siphoning of Capital". To the extent that no significant findings of fact, if any, were premised on these contentions, there is no necessity to respond. A portion of the Hearing Officer's Finding of Fact number 10, was excepted to, concerning the "concentration" argument, and will be treated below in paragraph 9. Number 4 concerning injury to existing institutions has been dealt with in the Final Order in paragraph 4 of the Conclusions of Law, as to the "reasonable promise". The Applicant's Conclusions of Law numbers 1, 4, 5, 6, 7 are accepted. Numbers 2, 3, and 8 are rejected as contrary to the Conclusions of the Final Order. PROTESTANT'S (FLORIDA BANKERS ASSOCIATION) PROPOSED FINDINGS Protestant's Proposed Findings numbers 1, 2, 3, 4, 5, 13, 18, 19, 20, 21, 23, 29, 30, 34, and 35 are accepted to the extent that they are generally consistent with the Hearing Officer's Findings or with the Final Order. Protestant's Proposed Findings numbers 6, 7, 8, 9, 10, 12, 14, 15, 16, 17, 22, 24, 25, 26, 27, 28, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47 are rejected to the extent that they are inconsistent with the Hearing Officer's Findings or with this Final Order, or are otherwise irrelevant or immaterial. APPLICANT'S EXCEPTIONS The Applicant's Exceptions numbers 1, 2, 3, 4, 5, 6, and 10 concern Proposed Findings that were not specifically referenced in the Hearing Officer's Report. However, they are generally consistent with the Hearing Officer's Findings and have been accepted by the Department to the extent that they are consistent with the Final Order. Exception 7, concerning Proposed Finding number 18, has been discussed above in paragraph 1. Exception 8, concerning Proposed Finding number 22, has been discussed above in paragraph 2. Exception number 9, concerning objection to portions of Finding of Fact number 10, is rejected. The first sentence of the Finding may speak in terms of "national trust business", but is viewed in terms of trust business throughout the nation. In no wise does it imply that there is a national market for personal trust business. The language should be viewed in the context of the overall finding. Exception number 10 is duly noted and reflected in the Final Order. Exception number 11 has been addressed in the Final Order in paragraph 4 of the Conclusions of Law as to "resonable promise." CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing was filed with the Clerk of the Department of Banking and Finance and that a true and correct copy of the foregoing was sent by Certified U.S. Mail, Return Receipt Requested, to: Thomas J. Cardwell, Esquire, Post Office Box 231, Orlando, Florida 32802; Robert A. White, Esquire, Aubrey Kendall, Esquire, and Paul Brenner, Esquire of the firm Mershon, Sawyer, Johnston, Dunwoody and Cole, 1600 Southeast First National Bank Building, Miami, Florida 33131; Howard A. Setlin, Esquire, 1111 Lincoln Road Mall, Suite 600, Miami Beach, Florida 33139; Bruce Culpepper, Esquire, 350 East College Avenue, Tallahassee, Florida 32301; Robert Asti, Esquire, 2400 First Federal Building, Miami, Florida 33131; Richard R. Paige, Esquire, Alfred I. DuPont Building, Miami, Florida 33131; Charles Cane, Esquire, 801 Hallandale Beach Boulevard, Hallandale, Florida 33009; and G. Kenneth Kemper, Esquire, 9999 N.E. 2nd Avenue, Suite 200, Miami Shores, Florida 33138, on this 24 day of January, 1980. FRANKLYN J. WOLLETT Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 (904) 488-9886
Findings Of Fact On August 15, 2007, Respondent, Department of Financial Services (DFS) entered a Notice of Intent (the agency's proposed final agency action) to the effect that it proposed to enter a final order approving the claim for unclaimed property filed by “Christine Margrave and Anthony Richard Margrave as Trustees of the Florence Alice Cassidy Trust for the benefit of Peter Cassidy” and to withhold no amount on behalf of Petitioner. The certificate of service of that Intent is dated August 16, 2007, as evidenced by its attachment to the Department's Motion to Dismiss. The Notice of Intent was received by Petitioner on August 20, 2007, as evidenced by a signed "return receipt requested" form, a copy of which is attached to the Department's Motion to Dismiss. On September 11, 2007, Petitioner filed its Petition with DFS. The date of receipt by the Agency is evidenced by the Agency’s date stamp on the Petition, a copy of which is attached to the Department's Motion to Dismiss. On or about September 24, 2007, the cause was referred to the Division of Administrative Hearings and assigned to the undersigned. Enclosed in the referral packet was Respondent Agency's timely Motion to Dismiss with all attached exhibits. On October 3, 2007, an Order was entered, pointing out (to Petitioner) that Respondent Agency's Motion to Dismiss had been incorporated in the Agency referral packet received at the Division on or about September 24, 2007, and that, in an abundance of caution, Petitioner was being granted 12 days from October 3, 2007 (that is, until October 15, 2007), to file any response in opposition to the Agency’s Motion to Dismiss. Petitioner filed no timely response. On October 25, 2007, an Order was entered taking the Agency’s Motion to Dismiss under advisement. On September 28, 2007, the “Response of Jennifer Christine Margrave and Anthony Richard Margrave” was filed. This item has been treated as the Trust’s motion to intervene. By another October 3, 2007 Order, Petitioner and Respondent were granted the time provided in Florida Administrative Code Rule 28-106.204, in which to respond in support or opposition to the Trust’s motion to intervene. This would have been 12 days from the date of the October 3, 2007, Order. Respondent Agency filed a timely response in support of the Trust’s intervention. Petitioner has filed nothing to date. On October 11, 2007, the Trust filed a Motion to Dismiss, incorporating by reference Respondent's Motion to Dismiss and relating that the Trust had declined to sign a power of attorney to Petitioner which would have required it to pay more than 40 percent of the value of the unclaimed asset here at issue. Petitioner filed no timely response. Because it appeared that the Trust had served its two motions upon Petitioner by e-mail and to a street address which was not Petitioner’s street address of record before the Division of Administrative Hearings, the undersigned, in an abundance of caution, utilized the following procedure to ensure that Petitioner would have every opportunity to respond to those motions or object to any of the exhibits attached to any motion. By attachments to an Order entered October 25, 2007, the Trust’s Motion to Intervene and Motion to Dismiss were re-served upon Petitioner by U.S. Mail at the Petitioner’s correct street address of record before the Division. The Order further invited a timely response per rule. A timely response would have to have been filed with the Division on or before November 6, 2007. Petitioner filed no timely response in opposition, and has filed nothing to date. On November 6, 2007, an Order was entered, granting the Trust’s motion to intervene and taking the Trust’s Motion to Dismiss under advisement. This Recommended Order of Dismissal is entered without oral argument, as permitted by Florida Administrative Code Rule 28-106.204. The pleadings of record show that on or about April 12, 2006, "P. (Peter) Cassidy" had executed a written power of attorney to Petitioner Corporation restricted to authorizing Petitioner to effect distribution of assets legally belonging to the estate of his father, Jerome G. Cassidy, to which Peter was legally entitled as sole legal beneficiary. The agreement specified a fee of $6,845.57 to Petitioner and a net of $10,000.00 to Peter. However, Peter, in proper person, was not the legal owner of the asset. The Florence Alice Cassidy Trust for the benefit of Peter Cassidy, is the beneficiary. Oral agreements are recognized by the Florida Statutes as follows: Section 717.1381 Any oral or written agreement or power of attorney for compensation or gain or in the expectation of compensation or gain, that includes an unclaimed property account valued at more than $250 which was made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. Any oral or written purchase agreement that includes an unclaimed property account valued at more than $250, owned by another and made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. (2) A person may not enter into a power of attorney or an agreement, or make solicitation to enter into a power of attorney or an agreement, that is void under this section. However, there is nothing in Chapter 717, Florida Statutes, that makes the Department or the Division the determinor of such oral agreements. The Petition herein represents that an oral agreement existed between Petitioner and Intervenors (the Trust), whereby the Trust as "Claimant" agreed to pay Petitioner a "fee" or "costs" (the Petition uses both terms) for the Petitioner's services for locating the account (asset) at issue; for obtaining the necessary documents to successfully claim the account; and by Petitioner doing any and all other acts necessary in the procurement of any additional items as might be required for Petitioner to file a complete claim on Intervenors' behalf. Petitioner bases the instant claim on a February 9, 2007, e-mail transmission from Intervenors to Petitioner and the circumstances surrounding it, the most notable circumstance being that prior to the February 9, 2007, e-mail, Petitioner had advised Intervenors that all necessary documents had been secured and would be forwarded to them. The Trust's February 9, 2007, e-mail reads: I can confirm however that I have now obtained a certified death certificate for Mr. Cassidy which has a similar seal to that which you describe. All the documents I shall be sending you, including the death certificates for Mr. & Mrs. Cassidy, will be copies of the originals and which will have been certified and sealed by a Notary Public. You have confirmed that the copy [sic] driving licenses of Mr. & Mrs. Margrave which I will provide as proof of identity do not need to be certified. Perhaps you would kindly confirm that all the above will be in order and on receipt of the document by mail you will be able to complete the claim. Perhaps you could also let me know how long completion of the claim and issue of the funds will take. On a final note I, like you, have been christened with the male version of my name but am in fact Mrs. Gabriel Gray! Petitioner also relies on its own February 12, 2007, e-mail transmission to Intervenors, which sets forth as follows: As a reminder, the Limited Powers of Attorney must also accompany the documents . . . Upon receipt of the documents and Limited Powers of Attorney the claim will be submitted for approval. Intervenors/Trustees and their English solicitor never executed a written power of attorney on behalf of the Trust. On or about March 19, 2007, Intervenors filed their own claim, as Trustees of the Florence Alice Cassidy Trust for the Benefit of Peter Cassidy, for the unclaimed property of Jerome G. Cassidy. Intervenors have presented documentation to satisfy the Agency that Jerome Cassidy pre-deceased his spouse, Florence Alice Cassidy, who is also deceased; that both Jerome and Florence died in England; that Ms. Margrave is the personal representative of the estate of Florence Alice Cassidy for the benefit of Peter Cassidy, who is the son of the decedents. Ms. Margrave and Anthony Richard Margrave are trustees of the discretionary trust. The Petition represents that it would have been impossible for Intervenors to have obtained the necessary origination of the asset (bank account) in question using the Respondent Agency's database alone. Upon the foregoing and other information, Respondent Agency has determined that Petitioner has no standing and that disbursement of the asset should be made exclusively to the Trust/Intervenors.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007. COPIES FURNISHED: Paul C. Stadler, Jr., Esquire Department of Financial Services 200 E. Gaines Street Tallahassee, Florida 32399-0333 Gerald E. Daugherty Worldwide Research Services Corporation 3221 Hansen Court Tallahassee, Florida 32301 Anthony Richard Margrave Jennifer Christine Margrave Courtyard Entrance, the Old Post Office 130 Epsom Road, Merrow, Guildford, Surrey GU1 2PX Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether or not the Petitioner is liable for tax, penalties and interest under the authority of Chapter 212, Florida Statutes, on certain purchases, rentals/leases and repairs to capital equipment made by the Petitioner on paging equipment, for the audit period October 1, 1974 through September 30, 1977. The audit also considers the purchase of office supplies in the aforementioned period, but for the purposes of this hearing the Petitioner is not contesting the imposition of tax, penalty and interest on those items. Furthermore, the Petitioner does not contest the mathematical calculations in arriving at the tax as set forth in the Notice of Proposed Assessment; instead, it is an attack on the right of the Respondent to affect such a tax against the Petitioner on the items in dispute.
Findings Of Fact This cause came on for consideration based upon the Petition filed by Gabriel Communications Corporation protesting a proposed deficiency of sales tax liability asserted by the Respondent, the Florida Department of Revenue, by its 1st Revised Notice of Proposed Assessment of Tax, Penalties and Interest Under Chapter 212, Florida Statutes. The contents of that 1st Revised Notice of Proposed Assessment, to include the worksheets of the Respondent's Tax Examiner, may be found as the Respondent's Composite Exhibit No. 1 admitted into evidence. The proposed assessment contains claims for tax, penalties and interest on the Petitioner's purchase, rentals/lease and repair to capital equipment; to wit, pagers made by the Petitioner. The purchases and rentals/leases were involved in transactions between the Petitioner and certain suppliers to the Petitioner and the repairs pertain to materials necessary to keep the pagers in working order. There are additional items in the audit which concern certain office supplies purchased by the Petitioner for which sales tax was not paid; however, for the purposes of this proceeding those items are not contested by the Petitioner. Moreover, Gabriel Communications Corporation does not contest the amount of the assessment, assuming that the Respondent is entitled in law to make the assessment on the matters in dispute. Gabriel Communications Corporation is a Florida corporation and a holder of a Certificate of Public Convenience and Necessity issued by the Florida Public Service Commission, which certificate authorizes Gabriel to provide radio, telephone and paging services to the public in certain areas in Florida. The Petitioner's corporate office is in Fort Lauderdale, Florida. Gabriel Communications Corporation is one of forty-three organizations licensed by the Public Service Commission of the State of Florida as a radio common carrier. (The conclusion is borne out in the late-filed exhibit of the Petitioner, which is Exhibit No. 5, admitted into evidence, being a statement from the Commission Clerk for the Florida Public Service Commission.) The tax that the Respondent is attempting to impose in this matter is a tax on the pagers which the Petitioner has purchased or rented/leased from suppliers to be provided to the Petitioner's customers to assist in establishing the paging services which the Petitioner offers to those customers. The proposed tax also involves a tax asserted against the Petitioner on those items of inventory which the Petitioner purchases from its suppliers for purposes of making repairs to the equipment its customers are utilizing. The focus of the Petitioner's argument in support of this Petition is centered on the provision of Rule 12A-1.46(8) (i), Florida Administrative Code, which in discussing taxation involving telephone, telegraph and other communication services by radio common carrier states as follows: "(8) Radio Common Carriers. * * * The charge by the radio common carrier for one-way pocket pager service is exempt." In the view of the Petitioner this means that the entire transaction between the Petitioner and its customers involving paging services, to include the initial purchase or rental/lease of pagers from its suppliers and repairs thereto, would be exempt from any tax under Chapter 212, Florida Statutes. The Petitioner supports its argument in this vein by citing Attorney General's Opinion 68-62, dated 1968, dealing with an interpretation of Section 212.05(5), Florida Statutes, and the subsequent Florida Revenue Commission ruling No. 068-56 of June 27, 1978. That section, 212.05(5), Florida Statutes, states: (5) At the rate of 4 percent on charges for all telegraph messages and long distance telephone calls beginning and terminating in this state; on recurring charges to regular subscribers for local telephone service and for wired television service; on all charges for the installation of telephonic, wired television, and telegraphic equipment; and, at the same rate, on all charges for electrical power or energy. Telephone and telegraph services originating within this state and completed outside this state or originating outside this state and completed within this state are not taxable. The provisions of s. 212.17(3), regarding credit for tax paid on charges subsequently found to be worthless, shall be equally applicable to any tax paid under the provisions of this section on charges for telephone and telegraph services and electric power subsequently found to be uncollectible. The word 'charges' in this subsection shall not include any excise or similar tax levied by the federal government, any political subdivision of the state, or any municipality upon the purchase or sale of telephone, wired television or telegraph service, or electric power, which tax is collected by the seller from the purchaser." The Petitioner makes a further argument that the provision which the Respondent relies on in proposing its assessment does not have application. That provision is Rule 12A-1.46(8)(e), Florida Administrative Code, and it reads: "(8) Radio Common Carriers. * * * (e) Sales, rentals or repairs of machines, equipment, parts or accessories to a radio common carrier for its use in providing communication services are taxable. This includes parts and materials used by radio common carriers in the repair and installation of their own communication equipment. When purchasing equipment for resale or for exclusive rental, a radio common carrier should furnish its supplier a resale certificate in lieu of paying the tax." The Petitioner doesn't feel that this provision has application to it because of the perception that the sale-rental or repair of equipment is not for purposes of the radio common carrier's use in providing communication service, but is for the benefit of the ultimate consumer/customer of the Petitioner. Finally, the Petitioner argues that if a tax should be allowed, it should be on the arrangement between the Petitioner and the customer, on the theory that the arrangement involves the rental of a pager by the customer and the Respondent should not make that tax have retroactive application to the transactions in question. From the point of view of the Respondent, Section 212.21(2), Florida Statutes, establishes the general proposition that tax shall be levied for sales and rentals considered under Chapter 212, Florida Statutes, except to the extent that those transactions were specifically exempted. To the Respondent, the only exemption in application is that exemption found in Rule 12A-1.46(8)(i), Florida Administrative Code, and that only pertains to the one-way pocket pager service, not as Rule 12A-1.46(8)(e), Florida Administrative Code, sets out, the, "sales, rentals or repairs of machines, equipment, parts or accessories to a radio common carrier for its use in providing communication services." In the position of the Respondent, the purchase or rental of equipment and the repair to that equipment made by the Petitioner are for its own use in providing the separate exempt service to the Petitioner's customers. After analyzing the arguments in behalf of the parties, the Respondent's position is found to be persuasive. Although the service charges made by the Petitioner to its consumer are exempt from taxation, under authority of Rule 12A-1.46(8)(i), Florida Administrative Code, the purchase or rental/lease and repair to the capital equipment of the Petitioner which it uses in providing that service to its consumers are taxable pursuant to Rule 12A- 1.46(8)(e), Florida Administrative Code. There flows from that tax liability certain interest charges not to exceed a total penalty of 25 percent in the aggregate (see Section 212.12(2), Florida statutes). However, the Respondent may for good cause shown compromise those penalties after investigation reveals that the penalty would be too severe or unjust (see Section 212.12(5), Florida statutes). In view of the testimony offered by a number of radio common carriers in the State of Florida licensed by the Florida Public Service Commission to the effect that they misunderstood the tax liability under Rule 12A-1.46(8)(e), Florida Administrative Code, and the acknowledgement of the undersigned of that difficulty, it would be recommended that no penalty be imposed in this instance. (A review has been made of the proposed findings of fact and conclusions of law submitted, and they have been utilized in this Recommended Order in those instances in which the proposals were deemed to be appropriate.)
Recommendation Upon a full consideration of the facts in this cause, it is recommended that the Petitioner be required to pay the tax and applicable interest due and owed under the 1st Revised Notice of Proposed Assessment of Tax, Penalties and Interest, which is the subject of this case. It is further recommended that the penalties be waived. DONE and ENTERED this 29th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1978 COPIES FURNISHED: John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 John W. Costigan, Esquire Post Office Box 669 Tallahassee, Florida Maxie Broome, Jr., Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32304
Findings Of Fact At all times material hereto The Ambrosia Home was a licensed nursing home facility subject to Chapter 400, Florida Statutes, and Chapters 10C-7 and 10D-29, Florida Administrative Code. During the summer of 1982 an auditor from the Medicaid Fraud Control Unit of the Office of the Auditor General conducted an examination of the patient trust fund accounts of The Ambrosia Home. During the course of this audit some 11 instances were found where deceased patients' trust funds had been disbursed by the nursing home without the benefit of probate proceedings. A report of these findings was forwarded to the Department of Health and Rehabilitative Services Office of Licensure and Certification, and the Administrative Complaint dated March 7, 1983, was issued. Respondent had a policy under which all patients entering the nursing home completed a simple "will" which provided that if funds accruing to them monthly for personal use remained in their accounts after their demise, they directed disbursement of these funds to pay all outstanding debts to The Ambrosia Home and remaining funds be used for funeral expenses or paid directly to their named beneficiaries. The 11 patients whose trust funds were not all placed in an interest-bearing account upon their death had completed such a document designating a beneficiary of these funds. The funds which were allegedly not placed in an interest-bearing account upon the death of the patient were disbursed for funeral expenses or paid to the designated beneficiary. This policy had been in existence at The Ambrosia Home for a considerable period of time and inspectors from the Office of Licensure and Certification had inspected these trust fund records several times without noting that such disbursements violated the Florida Probate Code.
Findings Of Fact The Petitioner, Greyhound Lines, Inc., operated as a motor carrier throughout the State of Florida prior to June 30, 1980. Greyhound provided regular route passenger service, sightseeing services, charter operations, tours and express package service. Prior to June 30, 1980, Greyhound, regulated by the Florida Public Service Commission, held Certificate of Public Convenience and Necessity #26. On or before June 30, 1980, the Florida Public Service Commission adopted various rules and regulations regulating motor carriage, including Rule 25-5.14, Florida Administrative Code, related to and pursuant to Chapter 323.22, requiring payment of cab card fees and road taxes by regulated motor carriers including Greyhound. Chapter 323 became invalid by operation of law on July 1, 1980, the subject rule was declared invalid by an Order of the Division of Administrative Hearings in Aero Mayflower Transit Company, Inc., et al., vs. State of Florida Public Service Commission and The Comptroller of the State of Florida, DOAH Case Number 82-131R. Under the Commission's procedures pursuant to Chapter 323, Florida Statutes, and Chapter 25-5, Florida Administrative Code, Greyhound was sent instructions each year (Exhibit 1) together with an application form (Exhibit 2) from the Transportation Section of the Public Service Commission. These instructions and applications were used to file for new cab card identifying devices for vehicles and for payment of road taxes each year. Such was the procedure for the tax year beginning February 1, 1980, and ending January 31, 1981. Pursuant to the Commission's rules and Chapter 323, Greyhound was required to pay $8 per bus for each bus used in intrastate carriage in the State of Florida. In return for that $8.00, Greyhound received a "cab card" to be retained aboard the bus as an identifying device for Public Service Commission enforcement purposes. See Exhibit 5. Road taxes were required to be paid for each Greyhound bus in operation in intrastate carriage which had a capacity of over 21 passengers. The road tax for each bus was in the amount of $100. A road tax identification stamp or device was provided for each bus upon payment of this tax, which evidenced payment of the tax for purposes of law enforcement personnel viewing buses in the field. In the late fall of 1979, Greyhound received the subject Public Service Commission application and instruction forms and accordingly purchased cab cards for its buses and paid road taxes for those buses for the ensuing tax year at various times beginning October, 1979 through January, 1980. The buses which were licensed in Florida for the 1980 tax year (and its other buses) also operated in Greyhound pools of buses throughout the United States, therefore Greyhound, by necessity, had to purchase cab cards and pay road taxes in advance of the February 1, 1980, deadline to allow sufficient time to locate each bus and thus legally qualify it for operation in Florida prior to its operating in Florida on or after February 1, 1980. Pursuant to the Commission's rules, Greyhound was required to assign each cab card and road tax identification decal to a specific bus, retain these on that bus and provide information of this to the Commission on a particular form for its records. On or before February 1, 1980, the beginning of the subject tax year, Greyhound paid the following amounts on the following dates: DATE AMOUNT October 5, 1979 $ 12,636.00 [For 1980 road tax decals on 117 buses.] November 7, 1979 134,244.00 [For registration of 1,243 buses for the 1980 tax year.] December 4, 1979 7,020.00 [For 1980 registration of 65 buses.] January 10, 1980 2,376.00 [For registration of 22 buses for tax year 1980.] Thus, the total amount paid by Greyhound for the tax year 1980 amounted to $156,276.00. Of this total amount, there was the sum of $11,576.00 paid for cab card fees at $8.00 per vehicle. Greyhound also paid for the tax year 1980 the amount of $144,700.00 which represented the road tax fees at $100 per bus. Greyhound was required to have road tax decals and cab cards aboard the buses after February 1, 1980, evidencing payment of the fees and taxes involved. If it did not do so the Commission, through its duly authorized investigators, would issue citations to Greyhound for failure to pay tax or to properly identify vehicles and could initiate penalty proceedings. The Respondent, through use of Exhibit A, established that an Auto Transportation Road Tax Clearing Fund was used by the Public Service Commission to account for the collection of road taxes assessed motor carriers, pursuant to Section 323.15, Florida Statutes, for the use of the public highways. Road tax moneys were transmitted to the State Treasury for the credit of the State's General Revenue Fund as required by Sections 215.20 and 215.22(24), Florida Statutes. Other portions of those receipts were transferred to the Public Service Commission's Regulatory Trust Fund and the Revenue Sharing Trust Funds for municipalities and counties as provided by Section 232.16, Florida Statutes. These distributions were made by the State Comptroller based on information provided by the Commission during the 1979-1980 fiscal year. The fourth-quarter receipts for that fiscal year, however, were not distributed because of the repeal of Chapter 323, Florida Statutes, by Chapter 76-168, Section 3(2)(h), Laws of Florida, 1976, as amended by Chapter 77-457, Section 1(3)(h), Laws of Florida (1977). Distribution of those fourth-quarter receipts is pending a legal determination regarding all motor carrier requests for refunds of fees and taxes for the calendar year 1980. Payments for cab cards and payments of road tax were deposited by the Public Service Commission into the Regulatory Trust Fund, general revenue, or revenue sharing trust funds pursuant to Chapter 323, Florida Statutes (1979). Upon receipt of the payments, with the proper application, the Public Service Commission issued and sent the number of cab cards paid for to the Petitioner. Each cab card specified an expiration date of February 1, 1981. The payment of road taxes was evidenced by the sending of road tax decals by the Public Service Commission to the Petitioner for each vehicle for which such road tax was paid. These decals also specified an expiration date of February 1, 1981. A motor carrier regulatory program of Public Service Commission was administered by the Transportation Section. The operation of this section was paid for out of the regulatory trust fund established under Section 350.78, Florida Statutes (1979). The major functions of this section involved enforcement efforts in the field to ensure that only certificated motor carriers were providing intrastate carriage and that those motor carriers operated in the territory, on the routes, and hauled the commodities or types of passengers which they were authorized to transport. Regulatory functions and enforcement functions also included field inspections of motor vehicles for safety purposes; field analysis of the adequacy of motor carrier service to shippers; verifying registration of ICC certificated carriers and verifying and updating records relative to evidence of insurance by motor carriers, including the Petitioner. Finally, investigations were routinely conducted attendant to new requests for operating authority and certificates of public convenience and necessity by new motor carriers or those seeking to extend their area of operations. The moneys paid into the Regulatory Trust Fund were commingled and were lawfully expended without specific identification of the source of the funds. The road taxes collected pursuant to Section 323.15, Florida Statutes (1979), were deposited pursuant to Section 323.16, Florida Statutes (1979), in the State Treasury credited in the amount of 35 percent deposited in the Regulatory Trust Fund for use by the Commission in the administration of its statutory responsibilities; 2 percent credited to the Revenue Sharing Trust Fund for municipalities; and the remainder of the funds placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for counties. All moneys for cab card fees were deposited in the Florida Public Service Commission Regulatory Trust Fund pursuant to Section 323.011(11), Florida Statutes (1979). The Petitioner timely applied for a refund of the payments made to the Public Service Commission pursuant to Chapter 323, Florida Statutes (1979), for the 1980 cycle or "tax year," as follows: seven-twelfths of amounts paid for cab cards and seven-twelfths of amounts paid for road taxes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered which refunds the Petitioner, on a pro rata basis, seven-twelfths of 35 percent of the road taxes paid by the Petitioner for the year February 1, 1980, through January 31, 1981; and refunds all recurring, second time or renewal fees paid for those identifying devices known as cab cards and identification stamps related to the year February 1, 1980, through January 31, 1981; and refunds all charges related to cab cards or road tax decals issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used July 1, 1980, or on a later date. DONE and ENTERED this 1st day February, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983.
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: Petitioner completed a course in principle and practices of real estate as required by the Florida Real Estate Commission, Department of Professional Regulation, offered by Century 21 Academy of Real Estate on August 22, 1982, with an examination grade of 83. An examination grade of 83 is a passing grade. This information was forwarded along with an application for licensure as a real estate salesman to the Department of Professional Regulation, Board of Real Estate, 400 West Robinson Street, Orlando, Florida. The application form reflected that Petitioner was convicted of fraud in excess of $200 under the criminal code for the Province of Ontario, Canada, at Kitchener, Ontario, on May 8, 1980. Petitioner's implication in this fraud was brought to the attention of the authorities by Petitioner himself who, on October 12, 1979, contacted the Ontario Provincial Police regarding this offense. Petitioner was a mortgage broker in Canada. His fraud consisted of the use of company trust funds to pay off investors on accounts not related to the funds which were being held in trust. The situation leading up to Petitioner's fraud was begun by his partner, Abraham Veder. During the period 1968 to 1971, several large building contractors in the Canadian market had gone into bankruptcy, leaving several of Petitioner's investor/clients with unfinished projects. Veder decided to complete the projects and sell them off in an attempt to salvage the clients' funds. Veder assured Petitioner that the funds to complete the project would come from the investor/clients. This was not, in fact, the case, and the funds used to complete the construction project came out of escrow/trust funds relating to other customers and other accounts. Veder then began using trust funds for personal activities, and the magnitude of the shortfall was gradually increased as incoming funds were used to satisfy obligations coming due and not held in the trust account, as required. Petitioner became aware of Veder's misconduct in the early 1970's. By his own admission, once having become aware of Veder's illegal acts, Petitioner said nothing to authorities about it because of a desire to repay clients who had been defrauded. In so doing, he kept the fraud going until economic conditions finally created a situation that could not be salvaged. Mr. Veder absconded in late 1974, appropriating additional trust funds on the day of his departure. Again, Petitioner admits that he could have gone to the authorities both before Veder left or after Veder left and still have attempted to make restitution to the clients. He admits this was a serious error in judgment on his part, but he felt that if he continued with that course of conduct, he would eventually be able to extricate himself from the situation and pay everyone off. On the other hand, if he went to the authorities, he feels he would not have been able to pay anyone off. In 1979, he went to several clients and discussed with them what had happened. None of the clients were willing to work with him, but insisted on full restitution when due. He feels fortunate that these clients did not go to the authorities at that time and, instead, left it up to him to do so. The amount of the shortage at the time Mr. Veder left in 1974 was more than $400,000. By the time Mr. Agranove called a halt to the situation by turning himself in to the authorities in 1979, the amount of the fraud had increased to $839,000. He contends this large increase was caused by the "tremendous" jump in interest rates. In this regard, the mortgages in question had variable interest rates written into them which called for a prime rate plus. By that is meant that the rate to be paid on the obligation was the prime rate at the time payment is due plus a certain percentage. As the prime rate went up, the amount that Mr. Agranove had to take from the trust accounts to make current interest payments went up, as well. He says that had interest rates remained the same, the amount of shortfall would have remained the same or in fact, through his stewardship, decreased. The shortage at the time of the disclosure does not reflect the $300,000 of his own family money that he invested into the business in order to pay off creditors before arriving at the $839,000 figure. Sometime after reporting his situation to the authorities, Petitioner's companies were placed in bankruptcy because of the cash deficiency. He had to declare personal bankruptcy because of his contingent liabilities, arising out of his signing in his personal capacity on behalf of the companies. At the time of his bankruptcy, his personal indebtedness, not related to the business, was $800. Petitioner alleges he did not know what his partner, Mr. Veder, was doing with company assets prior to 1970-71 because he, Petitioner, was working with his own clients, and was out of the office a lot. Notwithstanding the fact that he had equal access to the books, he claims ignorance of Veder's misdealings up until 1970. I find no reason to disbelieve his contention and so find that Petitioner was, in fact, ignorant of the misdealings of his partner until sometime during 1970-71. Petitioner has had strong feelings of guilt over his participation in this affair to the point that it began to affect his health. As a result, he finally sought professional help to deal with these guilt feelings and has now been able to set them aside, though he still retains his remorse for the fact that individuals were hurt through his misconduct. Petitioner contends his participation in this entire affair is, though of several years' duration, a one-time aberration. He has conducted his business affairs in an exemplary manner for many years and, in the course of his operations, has helped many people to own and keep their homes. Petitioner was president of the Ontario Mortgage Brokers' Association in 1978. He has joined and worked with many civic groups over the years and was heavily involved in service and community work for many years. In fact, he was responsible for bringing the Prudential Insurance Company of England to Ontario and, as a result, was responsible for the creation of many new jobs and the infusion of new income into the community. After his release from prison, people with whom he formerly dealt wanted to help him get back into business. His advice on investments was sought even by those who had been hurt by his and his partner's misdeeds. On December 30, 1980, Petitioner was sentenced to 18 months in prison. He spent only seven weeks in an actual security situation; and thereafter, he was released to a half-way house, where he was free to work in his own office at home during the day, returning to the facility at night. Six months after his conviction, he was placed on parole and granted full and final release a year later. Numerous testimonial letters, including those from the superintendent of the correctional center where he was incarcerated, his probation and parole officer, and others who knew and worked with him for many years, testify to Respondent being a highly ethical and honest individual whose breach in this one incident is totally out of character for him. He is described as responsible, repentant, honest, unselfish, thorough, professional, ethical, and moral. In a strong appeal for permission to be licensed, Petitioner outlined a list of factors which he considers pertinent to and supportive of licensure for him. They are: He turned himself in and cooperated to the fullest extent with authorities. His offense is out of character for him, both from a business and personal standpoint. The offense is an isolated incident. He has no propensity to engage in fraud. He was engaged in the same business for 15 years without any evidence of prior fraud. The judge who tried him stated he found no evidence of personal gain by Petitioner. Monies taken by the Petitioner were used to repay clients who otherwise would have lost as a result of his partner's indiscretion. Within a week of closing the business, he added a large sum of his family money to pay off creditors. He has no reputation for dishonesty in the community. His problem was initiated by a third party, his partner. He has a good record of community service. He maintains an excellent reputation in the community. He has experienced much remorse and regret as a result of this situation. He can give assurance that he will work with total and scrupulous honesty. He has, since his conviction, worked in a fiduciary capacity for clients who knew of his conviction and whose trust he still maintains. His wrong was out of an honest desire to rectify his partner's fraud. He now knows he should have immediately notified the authorities at the time his partner left.
Recommendation Based upon the Findings of Fact and Conclusions of Law rendered herein, it is RECOMMENDED THAT: Petitioner be denied licensure as a real estate salesman in the State of Florida. RECOMMENDED this 23rd day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1983. COPIES FURNISHED: Mr. Bennett P. Agranove 100 Bayview Drive, Apt. 2109 Miami Beach, Florida 33160 Lawrence S. Gendzier, Esquire Department of Legal Affairs 400 West Robinson Street, Room 212 Orlando, Florida 32801 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Both Ryder and Disney World are self-insurers as defined by Section 440.38, Florida Statutes (1979). If the proposed rules were adopted both parties would be liable for assessments required by the rules.
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 1999 until 2017, Bautista was an employee of the Miami-Dade County Public Schools (“MDPS”). On August 24, 2017, Bautista resigned from his position as principal of the Miami Jackson Adult Education Center, an office he had held since 2011. Bautista departed shortly after being arrested on charges of organized fraud, official misconduct, and grand theft. In the criminal Information leading to Bautista’s arrest, the State Attorney of the Eleventh Judicial Circuit alleged, in summary, that Bautista had used his position as principal to misappropriate between $20,000.00 and $50,000.00 of MDPS’s funds for personal expenses, and had destroyed official payroll records to cover his tracks. On or about July 10, 2019, Bautista pleaded nolo contendere in the Eleventh Judicial Circuit Court to one count of official misconduct, a felony of the third degree pursuant to section 838.022, Florida Statutes, and to one count of grand theft under section 812.014, Florida Statutes, also a third- degree felony. The court withheld adjudication of guilt and placed Bautista on community control, to be followed by probation. In addition, Bautista was ordered to pay restitution to MDPS in the amount of $41,798.22. SBA is an agency of the state of Florida whose jurisdiction includes the administration of the Florida Retirement System Investment Plan (the “Plan”). By letter dated August 14, 2019, SBA notified Bautista that his rights and benefits under the Plan are forfeit as a result of his pleas of no contest to the aforementioned criminal charges, which had arisen from acts allegedly committed by Bautista as an MDPS employee. SBA offered Bautista an opportunity to request a formal administrative proceeding to contest the determination, and Bautista timely requested a hearing. As grounds for opposing the forfeiture, Bautista claims that his former employer, MDPS, failed to provide him due process of law during the run-up to his forced resignation. He complains, as well, that “procedural irregularities” in the criminal prosecution likewise deprived him of due process. Next, Bautista notes that he never admitted guilt and insists that he is, in fact, innocent of the charges to which he pleaded no contest. Finally, Bautista argues that he was not “convicted” for purposes of forfeiture of retirement benefits, because the court withheld adjudication of guilt on the criminal charges against him. To be sure, if Bautista was not afforded due process or was otherwise victimized by prosecutorial abuse or inadequate legal representation, as he alleges, then Bautista might have suffered an injury for which the law affords redress. But this proceeding is not the vehicle, and DOAH is not the forum, for hearing such disputes. It does not minimize the seriousness of Bautista’s allegations to recognize that, even if true, none of them changes the undisputed facts that he pleaded nolo contendere to the crimes of official misconduct and grand theft, each of which is a “specified offense” under section 112.3173(2)(e), Florida Statutes. Conviction of a specified offense results in the forfeiture of retirement benefits pursuant to the plain language of section 112.3173(3).1 Thus, the MDPS investigation and any “irregularities” in the criminal prosecution are irrelevant to the issues at hand, and the undersigned declines to make findings of fact concerning Bautista’s allegations in this regard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order determining that Joey Bautista forfeited all his rights and benefits under the Plan, except for the return of any accumulated contributions, when he pleaded nolo contendere to “specified offenses” committed prior to his retirement from public service. DONE AND ENTERED this 7th day of December, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 7th day of December, 2020. COPIES FURNISHED: Soeurette Michel, Esquire The Michel Law Firm, LLC Post Office Box 245131 Pembroke Pines, Florida 33024 (eServed) Rex D. Ware, Esquire Moffa, Sutton & Donnini, P.A. 3500 Financial Plaza, Suite 330 Tallahassee, Florida 32312 (eServed) Jonathon W. Taylor, Esquire Moffa, Sutton & Donnini, P.A. Trade Center South, Suite 930 100 West Cypress Creek Road Fort Lauderdale, Florida 33309 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
