The Issue The issue is whether Petitioner is entitled to relocation benefits from Respondent after receipt of settlement proceeds, pursuant to a final judgment entered following Petitioner's acceptance of an offer of judgment made during the condemnation action previously prosecuted by Respondent.
Findings Of Fact The parties previously litigated a condemnation action in which Respondent sought to terminate Petitioner's leasehold interest in certain real property in order to construct a federal-assisted road project. As between the two parties, the condemnation action ended in a settlement and stipulated final judgment. In an Offer of Judgment dated May 2, 1997, Respondent offered $30,000 "to settle all claims with said Respondents, exclusive of attorneys fees and costs . . .." By letter dated June 6, 1997, Petitioner notified Respondent that it was accepting the offer of judgment, "which was in the amount of $30,000 for business damages." The parties stipulated to the entry of a Final Judgment pursuant to their settlement. By Final Judgment dated June 19, 1997, the court entered final judgment, stating that the payment of $30,000 was "in full payment for any and all business damages for Parcels 136 and 736 herein taken, and for all other damages of any nature, including interest " Paragraph 15 of Petitioner's Answer in Eminent Domain, served December 6, 1994, states that Petitioner "will suffer moving expenses, relocation costs[,] loss of personal property and other expenditures not known at this time, for all of which it seeks recovery from the [Respondent]." In providing Respondent with information to assess the settlement value of the condemnation case, Petitioner included claims that are properly classified as relocation expenses. In a letter from counsel for Petitioner to counsel for Respondent dated April 1, 1997, Petitioner provided "our business damage report . . .." The total claimed was $406,225, which included numerous costs of relocation. Respondent maintains a manual entitled "Relocation Assistance Program" ("Manual"). The Manual contemplates that claims for relocation assistance are separate from takings claims. For example, Manual Section 9.2.18 provides, for owners, that relocation claims must be made within 18 months from the latter of the date of displacement or the date of final payment for acquisition of the property. Manual Section 9.2.22 contemplates the possible inclusion of relocation claims within administrative or legal proceedings. Additionally, Manual Section 9.2.24 provides for a formal administrative hearing of unresolved disputes concerning relocation claims. Manual Section 9.2.22 provides that relocation benefits included in a settlement must be accompanied by certain documentation. Manual Section 9.2.22.2 provides that, absent the required documentation, a specific individual within Respondent must grant an exemption. The record does not indicate that Respondent complied with either of these alternative requirements in settling the condemnation action.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order dismissing Petitioner's claim for monetary relocation assistance. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 16th day of June, 2000. COPIES FURNISHED: Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Vanessa Thomas Forman, Krehl & Montgomery Post Office Box 159 Ocala, Florida 34478 Kelly A. Bennett Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in this care are (1) whether Respondent refused to relinquish the household goods of a shipper in violation of Subsection 507.06(2), Florida Statutes (2004)1; (2) whether Respondent conducted business under two unregistered names in violation of Subsection 507.03(7), Florida Statutes; (3) whether Respondent included provisions in its contracts which waived or limited protection against damage or loss to household goods, in violation of Subsection 507.07(6)(a), Florida Statutes; and, if so, (4) what penalty should be imposed.
Findings Of Fact At all material times, Respondent was registered with the Department as an intrastate mover with intrastate mover registration number IM434. Respondent’s physical business address is 4501 North Florida Avenue, Tampa, Florida 33603-3726. Respondent operates his intrastate moving business under the name “Dixie Transfer The Movers.” Respondents' Failure to Deliver Household Goods Yalonda R. Toran resides at 344 John King Road, Crestview, Florida. Ms. Toran also is employed in Crestview. Charles Beadle is Ms. Toran’s uncle who resides at 11122 Whitney Chase Drive, Tampa, Florida. On December 4, 2004, Respondent, personally or through his employees, designees, or agents, contracted to move seven pieces of furniture from Mr. Beadle’s residence in Tampa to the home of Ms. Toran in Crestview. The furniture to be moved included a dining table, four chairs, a hutch and base, and a table with a marble top. All of these items were the property of Ms. Toran, having inherited them from her grandmother, and were only used as personal property in the home. On behalf of Ms. Toran, Mr. Beadle engaged Respondent to move the furniture. The reason was that at the time of the transaction, Ms. Toran was in Crestview, and the furniture was in Mr. Beadle's home in Tampa. Mr. Beadle paid the initial $250.00 required under the contract, and Ms. Toran was to pay the balance of $250.00 on delivery. The contract for moving Ms. Toran’s furniture was at “carrier’s convenience.” This means Respondent, as the carrier, would deliver the furniture at such time as he had a sufficient load to transport in the direction of Crestview and was not required to make a separate trip solely to deliver Ms. Toran’s furniture. Notwithstanding the "carrier's convenience" provision in the contract, Ms. Toran believed the furniture would be delivered on December 4, 2004, the same day as it was picked up. Between December 6, 2004, and January 31, 2005, Ms. Toran had several conversations with Respondent’s employees concerning when the furniture delivery would be scheduled. On December 6, 2004, Ms. Toran called Respondent’s business telephone number and spoke with “Anthony.” ”Anthony” is Anthony McDuffie, Respondent’s son, who is active in Respondent’s business. Ms. Toran was told that the furniture would be delivered in about two weeks. After the furniture was not delivered within the stated two weeks, Ms. Toran called Respondent's business number and again spoke with Anthony. During this conversation, Anthony told Ms. Toran that her furniture was not on a truck, that he had no control over its loading, and that she would have to discuss the matter with the owner, who he identified as "Bill." Ms. Toran then spoke to the person identified as "Bill" who told her that he would check into the matter and then call her regarding the status of her furniture. However, Ms. Toran never received such a phone call. A few days after the telephone communication described in paragraph 11-b., Ms. Toran, again, spoke with Anthony. During this telephone conversation, Anthony told Ms. Toran that Respondent’s business was slow and that the furniture was still not on the truck. Anthony also told Ms. Toran that he would check on the furniture delivery, but was noncommittal on a definite delivery date. Anthony said the furniture might be delivered in two weeks, but that he did not know. Finally, Anthony told Ms. Toran he would contact her when the furniture actually was in transit. After the two-week period elapsed without any contact from Respondent, Ms. Toran again called Respondent’s business number and spoke with an unidentified individual who was unable to provide any information or assistance. In a subsequent call she placed to the business number during the week of January 31, 2005, Ms. Toran spoke to Anthony, who told her the furniture would be delivered “that weekend,” which would have been the period of February 5 through 6, 2005. Anthony further said Ms. Toran would be called when the moving truck was in her area. Neither Respondent nor his agents or employees ever initiated contact with Ms. Toran about the delivery of her furniture. Ms. Toran’s furniture was not delivered during the weekend of February 5 through 6, 2005, the time specified by Anthony. At approximately 7:15 a.m., local time, on Monday, February 7, 2005, Respondent’s employees appeared at Ms. Toran’s residence in Crestview and stated they had her furniture for delivery. Ms. Toran received no advance notice that the truck was in Crestview and that it would appear at that time. Ms. Toran did not agree for delivery at that time, as she was preparing to leave for work. The driver of the truck, Respondent’s employee, told Ms. Toran the balance of the contract must be paid, in cash, before they would unload the furniture. Ms. Toran stated she did not have cash at that time because she had no advance warning of their arrival and instead offered to have the cash payment ready on the following day, February 8, 2005. The driver requested that she contact Respondent’s office in Tampa to discuss the situation. Ms. Toran called the Tampa office and spoke with an individual whom she believed was Anthony, advising him that she did not have cash at that moment and offering to get the cash and pay the following day, February 8, 2005. This request was refused. Ms. Toran then asked for sufficient time to obtain cash and pay that day. Ms. Toran objected to Respondent's holding her furniture for over two months and now refusing to wait for her to make the payment after failing to provide advance notice of arrival. Respondent’s representative refused to allow additional time for Ms. Toran to obtain cash to pay the balance and told her the truck would leave with her furniture still aboard. After completing her conversation with Respondent’s office, Ms. Toran then told the driver she would pay by personal check. At the time she offered payment by personal check, Ms. Toran had sufficient funds in the bank. Also, Ms. Toran’s personal checks included her name and address printed on the front. The driver said he must consult with Respondent’s office in Tampa. Without further discussion with Ms. Toran about payment or the delivery, Respondent’s employees left with her furniture and did not return. Without explanation, Respondent’s employees declined to accept a personal check from Ms. Toran in payment of the required contract amount. Respondent’s employees refused to unload Ms. Toran’s furniture after she offered payment by personal check. Respondent continues to retain possession of Ms. Toran’s furniture. Respondent's Registration of Fictitious Name Respondent registered “Dixie Transfer The Movers” as a fictitious name with the Florida Department of State, Division of Corporations. In his registration renewal application filed with the Department on November 19, 2004, Respondent stated his business name as “Dixie Transfer The Movers” and struck through the names “Family Moving & Storage,” “Golden Rule Moving,” and “Movers Moving & Storage.” The application thus does not include the names “The Movers Moving & Storage” or “Family Budget Movers.” On January 3, 2005, the Department issued Respondent's registration certificate. The registration certificate issued by the Department included only the name “Dixie Transfer The Movers,” as stated in Respondent’s registration renewal application. In the Verizon 2004 telephone directory, published in November 2004, and effective for the period November 2004 through November 2005, Respondent advertised his moving services separately under the names “The Movers Moving & Storage” and “Family Budget Movers.” In the advertisements for each name, "The Movers Moving & Storage" and "Family Budget Movers," Respondent’s Florida intrastate mover registration number IM434 was used. Respondent failed to register “The Movers Moving & Storage” as a fictitious name with the Department in his license renewal of December 2004. Respondent failed to register “Family Budget Movers” as a fictitious name with the Department in his license renewal of December 2004. An advertisement placed in the yellow pages is effective for a whole year and cannot be changed once published. Respondent chose to advertise under the names “The Movers Moving & Storage” and “Family Budget Movers” prior to November 2004, when the Verizon yellow pages were published and distributed for the year 2004–2005. However, Respondent did not include these additional names when he filed his application to renew his registration certificate. Therefore, for the period from January 3, 2005, until at least the publication and distribution of the Verizon yellow pages for 2005–2006, Respondent advertised under “The Movers Moving & Storage” and “Family Budget Movers” without having registered these names with the Department. Terms and Conditions of Respondent's Contract Respondent's contract for the move of Ms. Toran’s furniture includes the following provision related to the method of payment for the moving services: Section 2. Payment: All charges are payable in cash, cashier’s check and/or personal check. Note: Personal checks are subject to Company approval. The Company reserves the right to refuse any personal checks at their discretion.[4] Respondent's contract for the move of Ms. Toran's furniture limits the company's liability as follows: Section 3. Liability of the Company: * * * (c) The company is not responsible for any fragile articles injured or broken, unless packed by its employees and unpacked by them at the time of delivery and in no event shall the company be liable except for its own negligence. The company will not be responsible for mechanical or electrical functioning of any articles such as but not limited to pianos, radios, phonographs, television sets, clocks, barometers, mechanical refrigerators or air conditioners whether or not such articles are packed or unpacked by the company. * * * The company shall not be responsible for loss of or damage to any article contained in drawers, or in packages, cases or containers not packed and unpacked by the employees of the company unless such containers are opened for the company inspection and then only for such articles that are specifically listed by the customer and are receipted for the company or its agent. In no event shall the company be responsible for loss or damage to documents, stamps, securities, specie or jewelry unless a special agreement in writing is made between the customer and the company with respect to such articles. The form used to prepare the contract for Ms. Toran’s move is a standard form Respondent uses, and the above-quoted provisions in the contract appear in all of his moving contracts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that Respondent violated Subsections 507.06(2), 507.03(7), and 507.07(6)(a), Florida Statutes, as alleged in the Amended Administrative Complaint and imposing the following sanctions: Imposition of an administrative fine in the amount of $5,000.00 and revocation of Respondent’s Intrastate Mover’s Certificate. However, Respondent may mitigate this penalty as provided below in paragraph 2. Mitigation. If Respondent delivers to Ms. Toran the furniture withheld from her, places the furniture into her dwelling, and provides the Department (through its counsel) with verification from Ms. Toran that her complaint has been satisfied prior to the entry of the final order, it is recommended that the penalty imposed in paragraph 1 be mitigated to the following: Imposition of a reduced administrative fine in the amount of $2,500.00. Respondent’s Intrastate Mover's Certificate be placed on a period of probation for one year, conditioned on Respondent's satisfying all consumer complaints arising during the period of probation. Respondent shall adopt and utilize a form of contract which meets all requirements of Chapter 507, Florida Statutes. DONE AND ENTERED this 4th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 4th day of May, 2006.
Findings Of Fact Negotiations for the purchase of right-of-way property for construction of Interstate Highway 95 in Palm Beach County, Florida, began on May 1, 1973. On that date the Applicant lived in an apartment at 27 S.W. 15th Avenue, Delray Beach, Florida with Ms. Willie Hendley, and seven children. The Applicant and Ms. Hendley began living together in approximately 1968. Ms. Hendley had five children at that time. The Applicant and Ms. Hendley had two more children between 1968 and 1973. This residence was located within the highway right-of- way. The Applicant was notified by the Agency that it would be necessary for them to relocate. The applicant, Ms. Hendley, and the seven children moved to a house at 230 N. W. 13th Avenue, Delray Beach, Florida, in approximately August, 1973. The Agency found the new living quarters inadequate under the regulations of the Federal Department of Transportation, which require that replacement housing must be decent, safe, and sanitary. An agent of the Agency informed the Applicant that in order to receive relocation benefits, the new residence would need to be made decent, safe, and sanitary, or the family would have to move to a new location that would meet the requirements. Several months after they moved to the house on N.W. 13th Avenue, the Applicant and Willie Hendley separated. The Applicant moved out of the house, and found a home on N. E. 9th Avenue. He anticipated that Ms. Hendley and the children would move into this home, but they did not. The Applicant stayed at this address for approximately one month. He then moved into a room at his sister's home where he stayed until the end of 1975. After they separated, Ms. Hendley and the children moved into a residence at 917 S. W. 3rd Ct., Delray Beach, Florida. This residence met the requirements of the Department of Transportation, and Ms. Hendley received relocation assistance benefits. The Applicant and Ms. Hendley and the seven children were displaced from their residence at 27 S. W. 15th Avenue, Delray Beach, Florida, as a result of the acquisition of right-of-way for Interstate Route 95. The Applicant was later displaced from the family household as a result of his separation from Ms. Hendley. There was no evidence offered at the hearing that the Applicant moved into living quarters that were comparable to the quarters at 27 S. W. 15th Avenue. That was a two bedroom apartment. The Applicant moved into a single room. The Applicant's displacement was in effect the result of his separation from Ms. Hendley, rather than the result of the acquisition of right-of-way.
Findings Of Fact Respondent James R. Azevedo is now and was at all times relevant herein a licensed real estate salesman having been issued license number 0396545. Respondent Allen Q. Smith is now and was at all times relevant herein a licensed real estate broker having been issued license number 0193451. Respondent M.S.D.S., Inc. d/b/a Sherwood Commercial Brokers, Inc. is a corporation licensed as a broker having been issued license number 0220922. At all times relevant to this proceeding, Respondent Smith was the sole qualifying broker and officer of Respondent M.S.D.S., Inc. d/b/a Sherwood Commercial Brokers, Inc. The Administrative Complaint was filed as a result of a transaction whereby Mr. Larry Chase sought to sell his swimming pool maintenance business using the brokerage and sales services of Respondents. When a proposed sale fell through, Respondents returned a $2,000 earnest money deposit to the purchaser. The return of the $2,000, which is the subject of the Administrative Complaint, was entirely proper under the circumstances. Mr. Chase does not dispute either Respondents' return of the deposit or the manner in which the return was carried out. Apparently, grievances between Respondents and Chase developed as a result of a later sales transaction where Respondents were, in their view, wrongfully deprived of their commission. However, there was no evidence whatsoever of wrongdoing by Respondents related to the charges herein.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ENTERED this 21st of August, 1984, in Tallahassee. Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1984. COPIES FURNISHED: Fred A. Langford, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Robert W. Beaudry, Esquire LYONS and BEAUDRY, P.A. 1605 Main Street Suite 1111 Sarasota, Florida 33577 Mr. Allen Q. Smith 5036 Camus Street Sarasota, Florida 33582 Harold Huff Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Mac's Auto & Tool Supply, Inc. (Mac's Auto) is a business which was started by Mr. Ralph G. McGlauthen in approximately 1962. The business specialized in automobile and truck equipment, supply, tools, and custom made hydraulic hoses for machinery. It had been located on State Road 84 in Fort Lauderdale, Florida just west of State Road 7. Due to the construction of an interchange for Florida's Turnpike, State Road 7, and State Road 84, the property Mac's Auto leased was acquired by the Department of Transportation. The business moved to 4225 S.W. 57th Avenue in Davie, Florida. Negotiations for the acquisition of the land in Ft. Lauderdale were initiated in November of 1983. The original location had included a main building, and behind it a number of trailers used to store merchandise. Wooden 2' X 4' frames to which pegboard had been attached were used to organize the merchandise in the trailers. Other merchandise was kept in several small storage sheds. This method of maintaining merchandise could not be continued when the business was moved to Davie. The fire code there required the merchandise be stored or displayed on steel framing, rather than on pegboard supported by 2' X 4' wooden framing. The highway interchange project was a federally aided highway project. Relocation benefits were available to Mac's Auto as a tenant of the property acquired by the Department under the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended, 42 U.S.C. Section 4601 et seq. (Uniform Act) and the implementing regulations of the United States Department of Transportation published at 49 Code of Federal Regulations, Part The value of any fixtures left at the site would be reimbursable in the eminent domain proceeding, not under the Uniform Act. Mac's Auto was paid certain costs connected with its search for a new business location. The Florida Department of Transportation obtained estimates of the charges for relocating the stock to the new business location from two commercial movers. Mac's Tool was not required to use a commercial mover, and Mr. McGlauthen ultimately elected a self move. The cost which is reimbursable to a displaced business for a self move is the lowest commercial estimate. 49 C.F.R. Section 25.303(c). In his letter of September 1, 1989 Mr. McGlauthen sought reimbursement of a $3,200 appraisal fee paid to Richard K. Cohen in October of 1985. Mr. McGlauthen maintains that the money was spent to assess the cost of moving the merchandise of the business. A letter dated February 7, 1986 from Mr. Cohen is the only written work product from Mr. Cohen. That letter is a progress report, which states that Mr. Cohen is preparing the "pricing of all of the fixture and machinery items" and projects a "final sound value" of $140,000 to $150,000. No final report was prepared. On the face of the letter, it appears that Mr. Cohen was not evaluating the cost of a move, but was assessing the actual value of the property itself. Mr. McGlauthen did abandon certain fixtures at the old site, and was paid by the Department for those fixtures. There is insufficient evidence that Mr. Cohen's work was ever completed, or if completed that it related to estimates of the cost of the move. That portion of the claim should be denied. Ultimately, Mac's Auto was paid $45,350 for a self move, based upon the lowest estimate from a commercial mover. Mr. McGlauthen abandoned at the hearing the claim in his letter for $6,000 for storage fees for seven trailers, because that amount had been paid by the Department. Mr. McGlauthen claimed $13,000 as the amount needed to build a mezzanine to hold the merchandise which previously had been stored in four of the trailers parked behind the main building at the old site. There was no documentation or itemization offered at the hearing of the actual expense incurred to build the mezzanine. The proof at hearing was insufficient to establish the amount of the expense. Moreover, the claim is one for improvement to real property, that is, for construction at the new place of business. Costs for improvements to real property are not reimbursable under the Uniform Act. The U.S. Department of Transportation specifically considered and rejected a proposal that physical changes to the replacement site be reimbursed when it adopted the rules implementing the Uniform Act. 50 Fed. Reg. 8955, 8965. (March 5, 1985) (Comments on Section 25.305). All of the expenses which were categorized on Mr. McGlauthen's letter under the heading "Monies Spent On Electric Installation" were paid by the Department, and are no longer an issue. The claims of Mac's Auto for $307.19 for a business license at the new location, $60.00 for a second business license, and $115.00 for an E.P.A. license were not reimbursed, because the Department regarded them as "additional operating expenses . . . incurred because of operating in a new location" which are ineligible expenses under 49 C. F. R. Section 25.305(f). Claims for $500.00 to complete the water hook-up to the water system at the town of Davie and $3,634.98 for a permit to hook-up to the Davie water supply were not reimbursed for the same reason. Since the Department's original denial of these fees, such fees have become payable due to an intervening decision of an intermediate Florida appellate court, Skiff's Workingman's Nursery v. Department of Transportation, 557 So.2d 233 (Fla. 4th DCA 1990), and a consequent change in characterization of those costs as permits "required of a displaced [business] at the replacement location" by the federal agency responsible for overseeing the relocation program established by the Uniform Act. 49 C.F.R. Section 25.303(a)(6). All these items therefore should be reimbursed. The claim for labor costs paid to employees based on time cards, and the claim for reimbursement of 40% of the salary paid to Mr. Isaac Theodore in the amount of $1,072.28 were not adequately explained at the hearing. The explanation of the manner in which the claim for the labor of employees was allocated on the time cards was superficial. There is an insufficient basis in the record to find that the employees were working on the move, rather than on other work, and an insufficient explanation of why this work was not compensated by payment for the self move. No records for Mr. Isaac Theodore could be produced at the hearing. Both of these reimbursement claims should therefore be denied. The claim for $903.46 were materials for air, water, and lines to hook-up to the sewer had no documentary support at the hearing, and consequently there is a failure of proof which requires that this reimbursement claim be denied. A number of other items listed in the claim letter filed by Mr. McGlauthen for Mac's Auto on September 1, 1989 have already been paid by the Department, and therefore need not be reimbursed again. These include $287.60 for installation of the telephone service, $900 for an alarm system, $250 to St. Jean Plumbing, $315 to pay for a carpenter's aid to the plumber and $3.25 in plumbing supplies. Mac's Auto also made several claims for lighting fixtures, including 50 fluorescent fixtures at a total cost of $1,250; four emergency exit lights, at a total cost of $340; and five emergency spotlights at a total cost $450. These claims had been denied by the Department as improvements to real property which were not reimbursable under the Uniform Act. Under regulations of the U.S. Department of Transportation published at 49 C.F.R. Section 25.305(j) a displaced person is not entitled to reimbursement for physical changes to the real property at the replacement location, which would include the cost of the lighting fixtures. This claim should be denied.
Recommendation It is RECOMMENDED that the Department of Transportation reimburse Mac's Auto & Tool Supply, Inc. for all items listed in Finding 8, but that all other claims be denied. DONE and ENTERED this 25th day of June, 1991, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1991. APPENDIX TO RECOMMENDED ORDER All findings proposed by the Department have been adopted, except findings 26 and 27. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Ralph McGlauthern Mac's Auto and Tool Supply 4225 S.W. 57th Avenue Davie, FL 33314 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue in this case is whether Respondent, Heriberto Alonso, violated Section 475.25(1)(b), Florida Statutes (2005- 2006), as alleged in a one-count Administrative Complaint filed with the Petitioner, Department of Business and Professional Regulation, and, if so, what disciplinary action should be taken against his Florida real estate associate license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Heriberto Alonso, was at the times material to this matter, the holder of a Florida real estate associate license, license number 3037527, issued by the Division. At the times relevant, Mr. Alonso was an active sales associate with The Keyes Company, 690 Lincoln Road No. 300, Miami Beach, Florida 33139. The “Frow Avenue Property” Listing Agreement. On or about March 9, 2006, Mr. Alonso entered into a listing agreement with Mark Saracino and Suzanne Lloyd, husband and wife, whereby Mr. Alonso agreed to list property they owned located at 106 Frow Avenue, Coral Gables, Florida (hereinafter referred to as the “Frow Avenue Property”). Pursuant to the listing agreement for the Frow Avenue Property, the property was to be listed by Mr. Alonso on the MLS for $359,000.00. Consistent with the listing agreement for the Frow Avenue Property, the property was listed on the MLS on March 10, 2006, for $359,000.00. The “Thomas Avenue Property” Listing Agreement. On or about March 14, 2006, Mr. Alonso entered into a listing agreement with Mr. Saracino and Ms. Lloyd, whereby Mr. Alonso agreed to list property they owned located at 3837 Thomas Avenue, Miami, Florida (hereinafter referred to as the “Thomas Avenue Property”). Pursuant to the listing agreement for the Thomas Avenue Property, the property was to be listed by Mr. Alonso on the MLS for $350,000.00. Consistent with the listing agreement for the Thomas Avenue Property, the property was listed on the MLS on March 21, 2006, for $350,000.00. Sale of the Frow Avenue and Thomas Avenue Properties. In June of 2006, Ms. Lloyd entered into a sale and purchase contract with Reinaldo Gonzalez whereby it was agreed that the Frow Avenue Property would be sold to Mr. Gonzalez for $329,000.00. At the same time, Mr. Saracino entered into a sale and purchase contract with Mr. Gonzalez, whereby it was agreed that the Thomas Avenue Property would be sold to Mr. Gonzalez for $325,000.00. Without the knowledge or permission of Mr. Saracino and/or Ms. Lloyd, on July 26, 2006, Mr. Alonso raised the listing price on each property to $450,000.00. Mr. Saracino and Ms. Lloyd first learned of the increased listing price when they appeared at the scheduled closing on the properties and were presented with closing documents with a sales price on each property of $450,000.00. On the advice of counsel, Mr. Saracino and Ms. Lloyd refused to complete the sale of the properties. Mr. Alonso’s testimony to the effect that he disclosed the increase in the sales price of the properties prior to the aborted closing is rejected as inconsistent with the credible testimony of Mr. Saracino and Ms. Lloyd. Cost of Investigation. The cost of investigating this matter totaled $1,551.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that Heriberto Alonso, by his failure to disclose the change in listing price for the properties, did conceal pertinent facts from Mr. Saracino and Ms. Lloyd and, in so doing, violated Section 475.25(1)(b), Florida Statutes; and Suspending his real estate associate’s license for a period of one year, requiring the payment of a fine of $1,000.00, and requiring the payment of the Division’s cost of investigation. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of June, 2010. COPIES FURNISHED: Heriberto Alonso 11336 Southwest 75th Terrace Miami, Florida 33173 Jennifer Leigh Blakeman, Esquire Department of Business & Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact By letter dated May 31, 1979 Respondent notified Petitioner that it was acquiring part of the property on which Petitioner's office was located and that it would be necessary for him to relocate. At the time Petitioner worked as a real estate appraiser in the office of the Pickens Agency owned by Philip Pickens. Pickens provided work space, telephones, secretary, data bank and supplies. The data bank contained data on real property throughout Florida and was invaluable to the appraisers in getting comparables to use for appraising like property. Due to the acquisition of additional property for the U.S. 90 right-of- way, it was necessary to move the two-story building in which Petitioner's office was located. This required moving out of this building into different quarters. In the building Petitioner's office, located on the second floor, comprised approximately 800 square feet in which he had desk, telephone and work space. The data bank was also located on the second floor. Philip Pickens owned another building in the Immediate vicinity into which Petitioner moved. The data bank was left in the original building which was jacked up in preparation for its move. Thee data bank remained available for use albeit less convenient for those using it. Petitioner had less space in the one-story building into which the Pickens Agency moved and Petitioner's office was located near the back door through which clients visited the Pickens Agency. He shared a telephone with another appraiser and had a smaller desk and less work space. He also experienced interruptions from visitors entering the office through the back door which opened into Petitioner's office space. During the two years immediately preceding the relocation of the office, Petitioner's appraisal work was performed exclusively for DOT. Part of this work was assigned him by the Pickens Agency and in some cases he was contacted directly by DOT for the appraisal . When employed directly by DOT, Petitioner received 50 percent of the appraisal fee and the Pickens Agency received 50 percent. When assigned work by the Pickens Agency, Petitioner received 45 percent of the appraisal fee. During the five months following Petitioner's move into the new quarters his income dropped substantially from what it had been before the relocation. Petitioner filed application for relocation benefits as soon as he moved his office and before any change in income occurred. Normally, there is a lag of three to six months between tile Line the appraisal work is done and payment is received. Petitioner's income during the first nine months of 1980 (January - October) we $10,622.97. For similar periods in 1979, 1978, and 1977 his income was $29,750, $26,382.50 and $22.252.50, respectively. Petitioner testified that he believes the loss of income was due to his inability to turn out as much work in the more restricted space and less privacy in the one-story building than he had before the move. Petitioner moved some 30 yards from his original location kept the same mailing address and the same telephone number. During the latter half of 1979 and the first half of 1980, the Lake City District of DOT had fewer relocation claims than in comparable periods of the two previous years. Relocation claims are related to appraisals which would indicate fewer appraisals were ordered by DOT in Lake City in 1979-80 than in the two previous years. During the period in question, most of Petitioner's work for DOT was generated by the Bartow office. This would require most of Petitioner's appraisal time out of Lake City with the use of the office primarily for the preparation of his appraisal report. No evidence was submitted to show the effect, if any, on the Pickens Agency's business resulting from the move or the business done by the other appraisers who also moved. During the period 1977-1980 the Pickens Agency employed between two and five appraisers and at the time of the relocation employed two appraisers, one of whom was petitioner. (Tr. p. 31). The number of appraisers employed varied with the volume of business coming into the agency. The appraisal work done by the Pickens Agency was statewide and not concentrated in the vicinity of Lake City.
The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue Whether the Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust, in a business transaction in violation of subsections 475.25(1)(b),(d) and (k), Florida Statutes, by virtue of the sale of the Wal-Mar Motel by Montver, Inc., to Derek and Lucy Lea.
Findings Of Fact At times material hereto, Respondents were the holders of the following Florida real estate license numbers: John H. McCain (McCain), license number 0192076; J. H. Miller license number 364090 and Dynamic Realty, Dynamic Commercial Group, license number 0044285. The licenses issued to Respondents McCain, Miller and Dynamic Realty were as broker, salesman and corporate broker, respectively. Prior to December, 1983, Derek and Lucy Lea, who are married, were residents of England. During the summer of 1983, they became interested in purchasing property in the United States and determined that in order to immigrate they would need to purchase and become owners of an American business. In keeping with their interests, they came to Florida (Pinellas County) during October, 1983 to inquire about the purchase of a motel listed by Respondent McCain. The Leas were assisted in their search by Dynamic Realty and J. Miller as selling brokers, acting as co-broker with Edna Stokes of Great Britain. The Leas learned of properties for sale in the States through advertisements, and decided that they were interested in purchasing a motel. Their preference was to own a business on the west coast of Florida because of the residence of Mrs. Lea's relatives in the Tampa area. The Leas responded to an advertisement of Edna Stokes who offered them information pertaining to Florida properties. The Leas advised Stokes of their special requirements, including a preference for the west coast of Florida, a motel business which offered a single story residence to accommodate the physical needs of Mrs. Lea's mother and a business situated off the major thoroughfares such that they could house their numerous pets and permit them to roam freely. Edna Stokes provided information on several motels in Florida including two in the Ft. Lauderdale area. Three were noted in the Clearwater/Dunedin area, one of which was under contract to another party and therefore not available. Of the remaining two, only one had the special locale and elevation requirements requested by the Leas, the Wal-Mar Motel located in Dunedin. The Leas had no prior experience in the motel business. During 1983, Mr. Lea was unemployed and his prior experience had been as a messenger in a bookmaking establishment. The major source of family support came from Mrs. Lea's employment as a computer operator. During October, 1983, the Leas began negotiations to purchase the Wal- Mar after they inspected the property late one evening. Respondent Miller made an arrangement for Mrs. Lea to revisit the Wal-Mar the next day. The Wal-Mar was listed for sale by Respondent McCain. Mrs. Lea, in the company of Respondents Miller, McCain and Kathy McCain, the daughter of Respondent McCain and the then manager of the hotel, inspected the Wal-Mar. Mrs. Lea concluded her inspection the following day. During the evening when Mrs. Lea inspected the Wal- Mar, she spoke to her husband by phone and they then decided to make an offer to purchase. Respondent Miller prepared an offer in accordance with Mrs. Lea's instructions and as a safeguard, included provisions in the purchase offer to protect the Leas' interest by allowing a suitable time for inspection and verification of both the physical condition of the premises and the financial books and records. The Leas' offer was accepted and Mrs. Lea returned to England. Respondent Miller later assembled financial data furnished by the owner and forwarded it to the Leas for their personal review. In addition to the written information passed on by Kathy McCain, Respondent Miller included an independent summary of survey results compiled by him of similar area motels respecting comparable rates. The Leas reviewed the information provided by Respondent Miller and confirmed their approval and satisfaction of the data by returning a telegram to Respondents Miller and Dynamic stating that the pertinent condition of the contract (paragraph 17E) was approved. 1/ The Leas returned to the United States and closed the transaction on December 17, 1983. They operated the Wal-Mar Motel through approximately January, 1985. The Leas enjoyed marginal success during the winter season of 1984 and made agreed mortgage payments to the seller for three months. Thereafter, they made no further payments although they continued to live and operate the motel and collected income for approximately ten additional months. They were eventually foreclosed and the property was returned to the seller. The Leas filed a civil suit and obtained a judgement against Respondent Dynamic. Dynamic did not appeal the judgement in favor of the Leas. However, the effect of that judgement is not dispositive of the issues relating to Respondent Dynamic's alleged wrongdoings herein based on, inter alia, different standards of proof in the two forums and Respondent counsel's stated position that Dynamic chose not to seek appellate review based solely on financial considerations. When the Leas contracted to purchase the motel, there was a general expectation within the tourist industry in the Tampa Bay area that the upcoming winter season would be a banner season. One factor leading to this expectation was the scheduling of the Super Bowl which was played in Tampa during 1984 and which was expected to bring a large influx of additional visitors. However, the expected increase in tourism did not occur and the area suffered a remarkably and unusually cold winter which led to a marked drop in tourism. Kathy McCain, who had agreed to assist the Leas in operating the motel and to assure a smooth transition, was unexpectedly told by the Leas that she should prepare to leave within days following the Leas purchase of the Wal-Mar. Ms. McCain inquired of the Leas whether they wanted to review certain files she maintained of past visitors such that the Leas could canvas them to determine whether or not they could generate some business through that medium and the Leas declined her offer. Kathy McCain thereafter disposed of the motel registration cards based on the Leas' wishes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: Petitioner enter a Final Order dismissing the administrative complaint filed herein in its entirety. Recommended this 24th day of May, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of May, 1989.
