Findings Of Fact C & W Sales, Inc., was licensed as a dealer in agricultural products under license No. 1367 and was so licensed at all times here relevant. At the time of the incorporation of C & W Sales, Inc., Henry T. Watson was listed as an officer (President) and director of the company. The company was run by Philip A. Roberts, the brother-in-law of Watson. Roberts applied on behalf of C & W Sales, Inc., to FFB for an agriculture bond in the amount of $20,000 for the period 5/19/79 until 5/19/80 (Exhibit 1) . As a condition for issuing this bond FFB required and obtained a general agreement of indemnity from Roberts and Watson and their wives (Exhibit 2) which was executed on 2 May 1979. In addition to agreeing to save Florida Farm Bureau harmless from all claims arising out of the bond paragraph 14 provided: That this indemnity is continuing and will apply to any and all bonds, as provided in the opening paragraph of this Agreement which the Company may have executed or procured the execution of from time to time, and over an indefinite period of years; however, any Indemnitor may by written notice to the Company at its Home Office, Gainesville, Florida disavow his liability as to bond(s) which may be executed by the Company subsequent to fifteen days after receipt by the Company of such notice. Agriculture bond (Exhibit 4) was issued on 5/19/79 for one year and upon expiration on 5/19/80 the bond was renewed for an additional period of one year (Exhibit 5). Subsequent to the expiration of the 1979-80 bond (Exhibit 4) and reissuance of the 1980-81 bond (Exhibit 5) but within the prescribed time for submitting a claim against the agriculture dealer and his bond, John T. Brantley, Jr., filed a claim against C & W Sales in the amount of $8,317.05 for payment owed on a transaction which occurred during the 1979-80 period. When C & W Sales failed to pay or respond to the Commissioner of Agriculture's demands for payment, claim was made on the 1979-80 bond and FFB remitted to the Commissioner of Agriculture a check for the Brantley claim (Exhibit 6). Around February 1980 Watson became disenchanted with Roberts' running of C & W Sales, Inc. and wanted out. He told Roberts to get someone to buy his (Watson) stock and to get his name out of the company. Roberts said he would. Watson never advised FFB that he would no longer be an indemnitor under the bond. During the period covered by the bond year beginning 5/19/80 claims against C & W Sales, Inc., were submitted to the Commissioner of Agriculture by Henry L. Watson in the amount of $32,326.50; Hugh D. Martin in the amount of $1,932.80; Jesse J. Wilson in the amount of $1,490.00; John T. Brantley, Jr., in the amount of $15,024.40; and Philip Dean and Willie Bass in the amount of $4,919.13, for a total of $55,692.83. The Commissioner of Agriculture notified C & W Sales of these claims and advised them of the opportunity to contest the validity of the claims. No response was received from C & W Sales and Roberts appears to have departed the area to parts unknown. An order demanding payment was submitted to C & W Sales and when payment of these claims was not made, FFB, as surety on the bond, was notified by the department of its surety on the bond, was notified by the department of its obligation under the bond and a demand for payment of $20,000 to the department was made. There is no dispute regarding the accuracy or validly of the claims against C & W Sales contained in Finding 7 above. Nor does FFB contest its liability under the agriculture bond it issued for the 1980-81 bond year. However, FFB claimed an equitable setoff for the percentage of the $20,000 that would go to Watson. This setoff is claimed by virtue of Watson's indemnity agreement. By the stipulation the parties have agreed that the FFB is entitled to the pro rata share of the $20,000 to Watson.
The Issue By an information filed by the Florida Real Estate Commission, respondent Thomas F. Thayer was charged with fraud, dishonest dealing and breach of trust in a business transaction in violation of Florida Statutes s.475.25(1)(a). In essence, the information charges that respondent, as the real estate broker for the Jacobs and in order to obtain a ninety percent loan commitment for the Jacobs, falsely represented to a mortgage corporation that the Jacobs Intended to move into the duplex they planned to purchase and sell their present home.
Findings Of Fact At all relevant times to this proceeding, respondent was a registered real estate broker. Respondent had been an acquaintance of Mr. and Mrs. Richard Jacobs for a period of four to five years. Some two years before the transaction in question, Jacobs had expressed to respondent his desire to purchase property containing a duplex for purposes of a tax shelter. Mr. Jacobs testified that he intended the purchase to be an Investment somewhere in the neighborhood of $5,000.00. There was also evidence that Mr. Jacobs understood that there were tax shelter benefits from living in half the duplex and depreciating the other half. In April of 1974, respondent showed the Jacobs a duplex. At the time, the Jacobs were living in a two bedroom, two bath waterfront home with a swimming pool, valued somewhere in the neighborhood of $60,000.00. The location of the duplex was in a lower rent neighborhood near some railroad tracks. However, the front portion contained three bedrooms, two baths, a thick shag carpet and a built-in bar. There were also two large screened-in patios. The Jacobs were impressed with the duplex, and on April 19, 1974, they signed a deposit receipt contract prepared by respondent to purchase the duplex for $41,000.00. This contract was subject to the Jacobs being able to obtain ninety percent financing at 9.25 percent annual Interest within fifteen days from the date of acceptance by the sellers. The contract also contained certain conditions regarding inspection of the rear apartment; electrical, plumbing, roofing and appliance defects; termite damage and the inclusion of a metal storage shed. Such conditions were included in the contract at the request of Mr. Jacobs. In order to obtain ninety percent financing, it was necessary that the lender be assured that the borrower actually intends to reside on the mortgaged property. This assurance comes about through either an affidavit executed by the borrower at the time of closing and/or the filing with the lender of a sales listing on the present home of the borrower. From this point forward, disputes in the testimony arise. Respondent testified that Mr. Jacobs was aware of the financing requirement that he would have to indicate an intent to sell his present home. Jacobs acknowledged that he was so aware, but testified that he never had any intent to move from his waterfront home to the duplex, and so informed respondent. However, when he went in to make the loan application with the mortgage company, he told its representative that he would be living in the duplex. Respondent then informed the mortgage company that he would be sending them a multiple listing form on the Jacobs' present residence. Jacobs stated at the hearing that he and his wife never intended to reside in the duplex and that he followed respondent's advice regarding the filing of a multiple listing only because he had faith and trust in respondent, who told him such things were done all the time. Respondent testified that the Jacobs never informed him that they did not intend to live in the duplex or that they did not intend to sell their present home. In fact, there was testimony from Mr. Jacobs that between the time of the deposit receipt contract and the first letter approving the mortgage loan commitment, he and his wife were looking at other homes on the water in which to live. The multiple listing form was signed by the Jacobs and delivered to the mortgage company by respondent, but it was never turned in to the multiple listing service. Sometime subsequent to receiving the mortgage loan commitment on May 29, 1974, Jacobs inspected the rear apartment of the duplex and became very upset and disgusted with its condition. Repairs were estimated at $1,000.00 and the sellers only offered to contribute approximately $75.00 toward such repairs. Jacobs then went to an attorney who advised him that it would be illegal to continue with the purchase because of the misrepresentation as to the Jacobs' intent to reside in the duplex. Jacobs then called the mortgage company and told them he did not intend to live in the duplex. Thereafter the mortgage company informed Jacobs that they were unable to obtain a mortgage commitment. Respondent testified that he first became aware that the Jacobs did not intend to live in the duplex the night after Jacobs inspected the rear apartment and spoke with his attorney. In summary, the testimony in this case is conflicting with respect to respondent's knowledge of the Jacobs' intent as to where they would actually reside. In order for respondent to be found guilty of fraud, dishonest dealing and breach of trust in a business transaction, as prohibited by Florida Statutes s 475.25(1)(a), the Real Estate Commission must prove by clear and convincing evidence that respondent actually knew that the Jacobs never intended to reside at the duplex property. That proof is lacking in this case. Here, the substance of the matters in dispute are as readily susceptible of proving respondent's innocence as they are susceptible of proving guilt. Jacobs testified that he originally wanted the duplex as an investment which would provide a tax shelter and that he did not intend to live in it. Yet, he verbally represented to the mortgage company that he did intend to live in the duplex, signed a multiple listing agreement and actually did look at other homes to live in during the period of time between signing the deposit receipt contract and obtaining knowledge of the original loan commitment. There was no evidence that respondent had any knowledge of or was involved in the Jacobs' search for another home in which to live. Jacobs was willing to go through with the purchase of the duplex until he became aware of the extent of damages to the rear apartment. It was at this time that he Informed the mortgage company that he did not have any intention of living in the duplex or selling their house. And, it was at about this same time, according to respondent, that respondent first learned that the Jacobs did not intend to reside in the duplex. There is no clear and convincing evidence in this record that proved that respondent knew that the Jacobs did not plan to live in the duplex at the time respondent forwarded the multiple listing to the mortgage company on April 30, 1974. The most credible evidence tending to show such knowledge on respondent's behalf is the fact that after the multiple listing agreement was signed and delivered to the mortgage company, the house was never actually put up for sale, was not shown to anyone, and the agreement was not filed with the multiple listing service. Yet, this is consistent with the evidence that the Jacobs did not receive word of the loan commitment until after May 29, 1974 (later to be rescinded on July 5, 1974) and the fact that the Jacobs were in the process of looking for yet another home to purchase. It is logical to assume that they were not yet ready to sell their present home with the uncertainties that existed, and this Instructed respondent to delay the selling process. In summary, it is concluded that the Real Estate Commission failed in its burden to prove, by clear and convincing evidence, the misconduct charged; to wit: fraud, dishonest dealing and breach of trust in a business transaction. It is therefore RECOMMENDED that the information charging respondent with a violation of Florida Statute 475.25(1)(a) be dismissed. Respectfully submitted and entered this 30th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttman, III, Esquire Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Spindler, Jr., Esquire and James R. Eddy, Esquire EDDY AND SPINDLER, P. A. 700 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact Respondent is currently licensed, and as of the date of the Administrative Charges and Complaint, held license No. HB-0008511 as a mortgage broker and was president and principal broker of Bay Area Financial Services, Inc. He has held such license since November 1979. He sold the business in April 1980 and has reapplied within six months for an individual license. The application was received on May 16, 1980. Pursuant to Rule 3D-40.03(3), Florida Administrative Code, Respondent is treated as a current licensee, and as an applicant. From October 25, 1977, until June 12, 1979, Respondent was employed as vice-president and principal mortgage broker by United Companies Mortgage and Investment of St. Petersburg, Inc., hereinafter UCMI, a mortgage brokerage firm. United Companies Financial Corporation, hereinafter UCFC, is a Louisiana corporation, authorized to do business in Florida. The company engages in the business as a mortgage lender. On August 31, 1978, UCMI by and through its broker, Respondent, made a loan to "James G. Anderson" and "Lorraine Anderson, his wife," and accepted a note in the amount of $14,500.00 made by "James G. Anderson and Lorraine Anderson," together with a first mortgage also made by "James G. Anderson and Lorraine Anderson, his wife," as security for the repayment of the loan. The first mortgage purported to encumber Lot 25, Oak Harbor Subdivision, according to the plat thereof as recorded in Plat Book 5, page 94, Public Records of Pinellas County, Florida. On August 31, 1978, UCMI, for value, assigned the note and mortgage to UCFC. The Respondent has no objection as to the authenticity and genuineness of Exhibit 11, a copy of a contract for sale of real estate which, on its fact, was executed by "James G. Anderson and Lorraine Anderson," as purchasers of certain real property from the seller, Linda Carol Querry, a/k/a L. C. Querry. The document reflects that the purchase price be $18,500.00, payable $100.00 in cash as a deposit, $900.00 cash within twenty-four hours, $4,500.00 additional deposit at time of closing, and $13,000.00 mortgage balance. (Exhibit 2). Anderson acknowledged his signature on this document but has no recollection of signing it. On August 31, 1978, a Notice to Customers, required by federal law, was executed by "James G. Anderson and his wife Lorraine," setting forth the disclosure requirements of Regulation Z. The lender is reflected as UCFC and the broker as UCMI of St. Petersburg. Respondent Hughes executed such document as a witness to the signatures of "Mr. and Mrs. Anderson." On August 31, 1978, a promissory note was executed by "James G. Anderson and Lorraine Anderson" promising to pay UCMI the sum of $14,500.00. (Exhibit 3). On August 31, 1978, a document entitled Consummation of Loan Secured by Real Property, was executed by "James G. Anderson and Lorraine Anderson," as the borrowers. (Exhibit 4). On August 31, 1978, a document entitled Notice to Customer Required by Federal Law was executed by "James G. Anderson and Lorraine Anderson," as the borrowers. (Exhibit 5). On August 31, 1978, a document regarding the loan transaction was executed by "James G. Anderson and Lorraine Anderson," acknowledging receipt of the "Good Faith Estimates," and certain other materials. (Exhibit 6). On August 31, 1978, a Notice to Purchaser-Mortgagor was executed by "James G. Anderson and his wife, Lorraine Anderson" acknowledging receipt of such notice. (Exhibit 7). On August 31, 1978, an Owner's Affidavit was executed by "James G. Anderson and his wife, Lorraine." (Exhibit 8). On August 28, 1978, a loan application was executed by "James G. Anderson" for the $14,500.00 to be secured by a first mortgage. Respondent personally handled the application as indicated on the application itself. (Exhibit 1). On August 31, 1978, check No. 15-39091 was executed by Respondent Hughes, as authorized representative of United Companies, Inc., as payor, to James G. Anderson and Title Consultants, as payees, in the amount of $11,014.58. The check was endorsed by "James G. Anderson and Lorraine Anderson." (Exhibit 10). On August 31, 1978, a Warranty Deed was executed by Linda Carol Querry, a/k/a L. C. Querry, as seller of certain real property to "James G. Anderson and Lorraine Anderson, his wife." Respondent Hughes executed the document as a witness to Linda Querry's signature and execution. The property described in the Warranty Deed is the identical property mortgaged by "James G. Anderson and Lorraine Anderson" to secure the loan from UCMI and UCFC. (Exhibit 13). On August 31, 1978, a Mortgage Deed was executed by "James G. Anderson and Lorraine Anderson, his wife," as mortgagors, to UCMI of St. Petersburg, as mortgagee, as security for the repayment of the loan. Respondent Hughes executed the Mortgage Deed as a witness to the signatures of "Mr. and Mrs. Anderson." (Exhibit 9). On August 31, 1978, UCMI, by and through its principal broker and vice president, Respondent Hughes, assigned the Anderson mortgage and note to UCFC. The applicable Florida law governing this matter is Chapter 494, Florida Statutes (1977), and as amended in the 1978 Supplement, and Chapter 3D- 40, administrative rules regulating mortgage brokerage, Florida Administrative Code. In August 1978, James G. Anderson, who worked in the Sanitation Department of the City of St. Petersburg, also worked part-time repainting houses purchased for resale by Vic Vogel, a speculator. While so employed, Anderson had seen Respondent a few times in the company of Vogel, but had never formally met Respondent. Vogel offered to sell one of these houses to Anderson on terms that would require no down payment by Anderson, who would thereafter make monthly payments similar to the rental payments he was then making. Further, there would be no "red tape" and Anderson would be buying a home rather than renting one. Anderson trusted Vogel, who assured Anderson he would take care of all the details. The house Anderson agreed to buy was on 11th Street and 20th Avenue South in St. Petersburg and was one of the houses Anderson had worked on in his part-time job with Vogel. In the contract to purchase signed by Anderson (Exhibit 11) the block for the legal description of the property is blank. The various other spaces on the form now showing the purchase price, down payment, etc., were blank when signed by Anderson. For several years prior to 1977 Anderson had been living with Lorraine Walker but never held her out as his wife. The signature "Lorraine Anderson" on all exhibits except Exhibit 14, the quitclaim deed from Anderson to United Companies Financial Corporation, were signed by someone other than Lorraine Walker. At the instigation of his attorney, Anderson and Lorraine Walker signed Exhibit 14 to clear up foreclosure proceedings that had been instituted against Anderson. The closing of the sale of property to Anderson took place at the offices of United Companies at 300 S. Duncan Street, Clearwater, Florida on 31 August 1978. Anderson was picked up by Vogel and driven to the closing. Accompanying Vogel was Mike Robertson, an associate of Vogel; Linda Querry, Vogel's girl friend, who signed the deed conveying the property to Anderson; and an unidentified black woman. While awaiting Respondent's arrival for the closing, Vogel took the group to lunch. At the closing, Anderson signed numerous documents and other people, including the black woman who obviously signed "Lorraine Anderson," also signed these documents as witnesses and/or notary. Anderson does not recall having seen Verona Krnjaich, who notarized his signature on the documents he signed at the closing and Ms. Krnjaich does not recall a closing at which Anderson was present. However, she testified that her normal practice is to notarize only documents notarized in her presence, and that she follows this practice at all closings. On the other hand, she has good recall of faces seen at closings but does not believe she ever saw Anderson before this hearing. Anderson testified that he trusted Vogel and signed whatever documents Vogel asked him to sign; that all the documents bearing his signature were blank when he signed them; that he did not know the black woman in the room at the closing or that when she signed these documents she did so in the name of Lorraine Anderson; that the closing took place on the second or third floor of a building just off U.S. 19 between Clearwater and St. Petersburg; that he doesn't know the address of this building but could return to it, and in fact, a few months prior to this hearing, took one of Petitioner's agents to the building where the closing took place; that he received no copy of any document signed by him at the closing; that he thought he was buying a house from Vogel; and that he expected Vogel to notify him after the closing when he could move in and how much he would pay each month. Vogel did not again contact Anderson and apparently has left the area. A few months prior to this hearing Anderson accompanied one of Petitioner's agents to show the agent where the closing occurred. The building to which the agent was taken by Anderson is two-storied and occupied by Ellis National Bank. In August 1978 there was no other occupant of this building and the second floor was unfinished but contained restrooms and some offices occupied by bank employees. Anderson made no cash payment before, at, or after the closing on this house; nor did he ever move into it. The legal description on the deed conveying the property to Anderson is for property located at 626-27th Avenue South, St. Petersburg, Florida, and not for the house at 11th Street and 20th Avenue South which Anderson thought he was buying. After Anderson became delinquent on his mortgage payments Respondent went to Anderson's home one Sunday afternoon demanding payment of the delinquent monthly payments owed by Anderson. The latter told Respondent he hadn't bought any house from the lender, owed no money, and wasn't going to pay. Respondent shortly thereafter turned the case over to the United Companies' attorney, who instituted foreclosure proceedings. When served with these papers Anderson took them to his lawyer. After some of the facts surrounding this transaction became apparent, the assignee of the mortgagee accepted a quitclaim deed to the mortgaged property from Anderson. Lorraine Walker accompanied Anderson to the lawyer's office and signed the quitclaim deed "Lorraine Anderson" (Exhibit 14). The deed signed by L. C. Querry conveying Lot 25 to Anderson (Exhibit 13) conveyed the property to "James G. Anderson and Lorraine Anderson, his wife." Respondent had known Vic Vogel for five or six years prior to August 1977 and had been involved in ten or twelve transactions in which Vogel had picked up distressed property, refurbished it and sold it. Anderson had few debts and readily qualified for the mortgage loan without considering the income of Lorraine or his income from his part-time work. He understood he was buying the house without any down payment, and, in fact, Anderson paid nothing down when he signed the contract and he produced no cash at the closing. The only disbursement made at closing was by the mortgagee, whose check for $11,014.58 (Exhibit 10) was payable to Title Consultants and Anderson. The latter endorsed this check and presumably Title Consultants disbursed to the seller. Closing statements for the buyer and seller were not in the files of UCMI or Title Consultants, nor was a contract to purchase in which the description of the property to be bought was shown. Respondent's witness testified that she reviewed all documents prior to a closing; that she recalls the Anderson transaction; doesn't recall who prepared those documents but believes she typed them; that documents were never signed in blank and the blanks subsequently completed; that she did the credit check on Anderson; and that all documents used in the closing were completed in full before the closing at which they were signed by Anderson and the person signing as Lorraine Anderson. A check with the credit bureau should have disclosed Anderson's marital status as not married and this witness was unable to explain the failure to pick this up when Exhibit 1, the loan application, was verified with the credit bureau. Respondent testified that he recalled the Anderson transaction on 31 August 1978 but later in his testimony stated he did not recall this specific transaction. He believes he followed his usual procedure and explained the various documents to Anderson before the latter signed them. Prior to 1978 he had closed many transactions for UCMI without a contract to purchase having been executed. The loan application is mailed to the main office of United Companies in Baton Rouge, Louisiana and telephonic approval is given by Baton Rouge. Accordingly, it was not unusual for Anderson's loan application to be prepared 28 August 1978, the original mailed to Baton Rouge and approval received in time to close the transaction on 31 August 1978. The contract upon which this house was conveyed, and the closing statements of buyer or seller, were not presented at this hearing. Witnesses testified these documents were missing from the files in which they would be expected to keep. Regardless of this, it is uncontradicted that Anderson made no payment at closing and, if any payment was made prior to closing, any such payment would have been accounted for by the escrow agent. It is also evident that no such accounting was made. By signing a note and mortgage for $14,500.00 Anderson purported to purchase a house for slightly more than $11,000.00, which is the amount of the check endorsed by Anderson at closing and which sum presumably went to the seller. Some $3,000.00 was retained by the lender as prepaid finance charges ($1,567.67) and brokerage fee ($1,545.45). (Exhibit 2.) Accordingly, the mortgage of $14,500 represented approximately 130% of the amount paid for this house. This fact was known, or should have been known, to Respondent, who presumably was representing his principal, UCMI, the lender at this closing. Respondent was paid a fixed salary by UCMI and did not receive additional compensation for each transaction he closed. UCMI suffered a financial loss on the repossession of the house from Anderson and filed suit against Industrial Valley Title Insurance Company (Exhibit 15).
Recommendation From the foregoing it is concluded that Respondent was guilty of concealing material facts from UCMI involving the transaction with Anderson at which UCMI was mortgagee, and that, as a result, UCMI suffered injury. It is therefore RECOMMENDED that Robert E. Hughes' license as a mortgage broker be suspended for a period of six (6) months. DONE AND ENTERED this 17th day of October 1980. COPIES FURNISHED: Franklyn J. Wollett, Esquire Assistant General Counsel Office of the Comptroller Room 1302, The Capitol Tallahassee, Florida 32301 George W. Greer, Esquire 302 South Garden Avenue Clearwater, Florida 33516 K. N. AYERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October 1980.
The Issue Whether Respondent has violated provisions of the Florida Statutes or the Florida Administrative Code which relate to his licensure as a limited surety agent (a bail bondsman) as charged in the Administrative Complaint, and, if so, what is the appropriate discipline? PRELIIMINARY STATEMENT On August 28, 1996, the Division of Administrative Hearings received a letter from the Department of Insurance signed by Dick Kessler, Esquire, of the Department’s Division of Legal Services. The letter was in regard to “CARL ALBERT THOMPSON, Case No. 14413-95-A.” In addition to requesting assignment of a Hearing Officer (Administrative Law Judge) to conduct a proceeding pursuant to Section 120.57(1), Florida Statutes, the letter referred to an enclosed Administrative Complaint and a request for formal hearing. The Administrative Complaint alleged that Respondent, Bondsman Carl Albert Thompson, had committed numerous violations of the Florida Insurance Code and the Florida Administrative Code related to his licensure as a limited surety agent or bail bondsman in two counts. The first count alleged generally that he wrote bail bonds in the case of Jose Zamora in the amount of $10,000 and, notwithstanding that all obligations of the bond had been released, refused to refund the bond less the premium claimed. The second count alleged that Thompson failed to have on file with the Department of Insurance an accurate business address. Also attached to the letter of August 21, 1996, were both an answer to the Administrative Complaint submitted by Respondent’s attorney, Ms. Germann, in which he denied pertinent parts of the complaint, and an Election of Rights Form in which he disputed factual allegations in the complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case proceeded to hearing on December 16, 1996, in Arcadia, Florida. The Respondent was not present. Through Ms. Germann, he filed a motion to bifurcate the hearing to allow the Department’s case-in-chief to proceed as scheduled while allowing him to appear at a later date, since he alleged he was unable to attend due to a last-minute illness. The motion was granted on the condition that Respondent would provide physician documentation of the illness. Such documentation was never filed with the Division of Administrative Hearings. Following the granting of the motion, Petitioner proceeded with its case, offering into evidence 13 exhibits all of which were admitted. Petitioner also presented nine witnesses, including six members of the Villafuerte family: Hilario Villafuerte, Consuela Ylda Villafuerte, Martin Villafuerte, Jose Isidro Zamora, Ylda Patricia Villafuerte, and Juana Ramirez. The second phase of the proceeding was scheduled for February 19, 1997. It was canceled because of an accident which befell Ms. Germann. Pursuant to agreement of the parties, the hearing was rescheduled for April 18, 1997. Three days prior to commencement of the re-scheduled second phase of the proceeding, Mr. Migneault served a notice of appearance. He also filed a motion for continuance on the basis of inadequate time for him to prepare and conflicts with scheduled criminal jury trials. The motion was denied, not because it did not on its face allege good cause for a continuance, but because good cause was not shown in light of all the circumstances of the case: Mr. Thompson’s failure to appear at the originally noticed hearing, Mr. Thompson’s failure to provide physician documentation of his December 1996 illness, the seriousness of the case, the lengthy delay which had already ensued and the Department’s objection to further delay. At the April 18 hearing, Mr. Migneault did not appear. Ms. Germann, however, was present in order to petition for withdrawal as counsel for Respondent. Prior to presenting her withdrawal, Ms. Germann on Mr. Migneault’s behalf, announced that Respondent was in jail in Charlotte County and, on that basis, moved ore tenus for a continuance. Ms. Germann was permitted to withdraw. In response, the Department presented testimony of its law enforcement investigator, Antonio Davis, who reported that he had been informed by Charlotte County law enforcement personnel that Respondent, indeed, was in jail. Investigator Davis further reported, however, that he had been informed by the same personnel that Respondent turned himself into Charlotte County authorities under an outstanding warrant for his arrest issued months earlier and that he had done so at 9:30 that morning, one- half hour prior to noticed commencement of the hearing. The ore tenus motion for continuance was denied. Because Respondent was not present and was represented solely by Mr. Migneault, who also was not present, no defense was presented in a case continued twice and delayed for over four months for the very purpose of allowing presentation of Respondent’s case. The hearing was concluded and the record closed without any evidence from Respondent in defense of very serious charges against him.
Findings Of Fact The Parties Carl Albert Thompson, at all times relevant to these proceedings, has been licensed by the Department of Insurance as a limited surety agent, known colloquially as a bail bondsman. His agent number, according to records of the department, is 265683823. Records with the Department show this address of the agency for whom he wrote bonds: Sechrest Bail Bonds Inc 128 Herald Ct Punta Gorda FL Petitioner’s Ex. No. 1. The Department of Insurance is the agency for the State of Florida responsible for licensing limited surety agents and, upon sufficient grounds, disciplining them for violation of the Florida Insurance Code or Florida Administrative Code relating to the licensing and conduct of licensed bail bondsmen. The Arrest of Jose Zamora Jose Zamora is the nephew of Consuelo Villafuerte; he is the son of one of her sisters. In February of 1995, Jose lived with his aunt and her husband, Hilario Villafuerte in the area of Arcadia, Florida, where Mr. Villafuerte works as the leader of a crew of orange pickers. The Villafuertes have a close, extended family which includes their son Martin. Like his father, Martin is the leader of a crew of orange pickers. Martin Villafuerte attended schools in the Arcadia area. He speaks English fluently. Hilario and Consuela Villafuerte came to the United States from Mexico as adults. They speak English, but not as well as their son. Both were more comfortable at final hearing testifying in Spanish with the assistance of an interpreter than in English which Mr. Villafuerte termed “broken.” Shortly before February 13, 1995, Jose Zamora, was arrested for driving while intoxicated. Bail was set at $10,000. It was not the first time Mr. Zamora had been arrested. “[Y]ears back . . . [he] had had a similar case . . . .” (Tr. 73.) In this first case of Jose’s, however, bail was half as much: $5,000. The Villafuerte family had dealt with Jose’s bail in this first case through Hilario Villafuerte. Mr. Villafuerte deposited the $5,000 in cash at the sheriff’s office at the jail. The experience was a successful one succinctly described by Hilario Villafuerte at final hearing: “When [Jose’s] court was over I went with my nephew and they gave me the $5,000 without missing five cents.” (Tr.73.) The first of the Villafuertes to learn of Jose’s second arrest, the February 1995 arrest, was Martin. About to leave for church, he received a phone call from a friend that his cousin had been in an accident. He went to the scene immediately. After Jose was taken to jail, Martin inquired about his release and learned that bail was set at $10,000. It was important to Martin that Jose be bailed out. Not only was he a member of the family, but Jose was also a member of Martin’s orange picking crew, for which Martin shoulders a heavy responsibility. In the several years that he has led the crew, the only day of work Martin has ever missed was the first day of hearing in this case so that he could testify. Martin had to work the weekend of Jose's February 1995 arrest. He asked his father to go to the jail to deliver the bail money. First, though, Martin had to raise the ten thousand dollars, not a simple matter. The Villafuerte Family Pitches In Jose Zamora had been giving his aunt some of the money he earned at work for her to save for him. In February of 1995, it amounted to $1,200, not nearly enough to meet the amount of his bail. Martin canvassed family members. Martin and his wife, Ylda, had $4,000 in the bank, while Martin’s sister, Juana Ramirez, was able to contribute the remainder needed: $4,800. The family was able to amass the $10,000 needed to make bail for Jose. The money was withdrawn from bank accounts in, or converted into, $100 denominations. On February 13, 1995, Hilario and Consuela Villafuerte with the $10,000 in cash, all in $100 bills nestled safely inside Consuela Villafuerte’s purse, set out for the county jail. Mix-up at the Jail In the interim between Jose Zamora’s first case and the February 1995 case, the jail had been remodeled. When they arrived at the sheriff’s office in the jail, Hilario Villafuerte noticed the result of the remodeling; the physical arrangement was different from when he had been there before. There was no interpreter at the jail through whom Mr. Villafuerte could explain the purpose of his visit in Spanish. Instead, Mr. Villafuerte told the receptionist at the front desk in English as best he could, why he had come to the jail. The receptionist asked whether he had the $10,000 in cash. When Mr. Villafuerte responded in the affirmative, the receptionist did not seem to know what to do. She asked Mr. Villafuerte the same question three or four times. Each time he responded in the affirmative. She called over a uniformed member of the sheriff’s department. Mr. Villafuerte could not hear what he said but he observed him shake his head “no.” The receptionist then told Mr. Villafuerte to take the money to any of three places across the street. An Unlucky Choice The three places to which Mr. Villafuerte was directed were bail bond establishments, one of them Fowler Bail Bonds where Mr. Thompson was employed. Mr. Villafuerte thought, however, because the sheriff’s office had been renovated that he was being directed to a new branch office of the sheriff’s department where bail money could be received. Mr. and Mrs. Villafuerte crossed the street and knocked on the door of Fowler Bail Bonds. Carl Albert Thompson answered. Mr. Villafuerte told him, “that they had sent me from the Sheriff’s Department to give him that money for the bond for Jose Isidro Zamora.” (Tr. 69.) Mr. Thomspon indicated he would accept the ten thousand dollars. The only legitimate purpose for taking more than a 10% premium, in this case one thousand dollars, was as additional collateral. Mrs. Villafuerte removed the money from her purse and gave it to her husband. In the presence of Mrs. Villafuerte, Mr. Villafuerte counted out the $10,000 for Thompson to see in thousand dollar piles: ten piles of ten $100 bills. Thompson wrote the Villafuertes a receipt for $10,000, the amount they entrusted to his care. The receipt was not pre-numbered. It did not indicate on its face the purpose for which the money was received, the number of the Power of Attorney form attached to the bond, or the penal sum of the bond. Posting of the Bonds On the same day as the Villafuerte’s visit to Mr. Thompson’s office, February 13, 1995, two General Surety Appearance Bonds, each in the sum of $5,000, for a total of $10,000, were filed with the Clerk of Courts for DeSoto County for two charges in the case of State of Florida vs. Jose Zamora: “DUI w/ personal injury,” and “DUI w/ property damage.” Petitioner’s Composite Ex. No. 7. The premium for each of the two bonds was $500 for a total of $1,000. The bonds are signed by both Jose Zamora and, for Accredited Surety & Casualty Company, Inc., as surety, by Carl Thompson, “attorney-in-fact.” Id. The Remaining Nine Thousand Dollars The additional $9,000 the Villafuerte’s gave to Mr. Thompson was not deposited or paid to a surety company; nor did Thompson place the money with the DeSoto County sheriff’s department for the bail of Jose Zamora. On February 14, 1997, there was deposited in an account at the First State Bank of Arcadia, named the “Carl Thompson DBA/Fowler Bail Bonds Escrow Account,” (Petitioner’s Exhibit No. 11), $9,000, all in one-hundred dollar bills, bills that had composed nine of the ten stacks counted out to Carl Albert Thompson by Hilario Villafuerte the day before. Obligations of the Bond Fulfilled In the interim between the posting of the bond and the deposit of the $9,000 in Mr. Thompson’s escrow account, Jose Zamora was released from jail. The case then reached disposition; the obligations of the bond were fulfilled. Attempts to Retrieve the Money After finalization of Jose Zamora’s case, he and Hilario and Martin Villafuerte went together to Mr. Thompson’s office two or three times. Thompson was not there. Martin persisted. Eventually he contacted Mr. Thompson. Thompson told him that it would take two months for paperwork to be completed before the money could be returned. His suspicion not aroused, Martin told Thompson that he would be checking with him from time to time during the two-month period. True to his word, Martin continued to visit Mr. Thompson’s office. In the two months following his initial contact with Thompson after disposition of Jose Zamora’s case, he went by the office approximately 15 times. Whenever he saw Mr. Thompson, Martin was given slightly different details as to why the money was not yet available. Finally, because the family needed the money, Martin visited the courthouse and made an inquiry. He was told that everything was cleared and that he was entitled to receive any cash bond money owed by Mr. Thompson for the Zamora case. More visits and conversations ensued with Mr. Thompson until the Villafuerte family realized that it was not likely that Thompson would return the ten thousand dollars or any part of it. (Thompson had told the Villafuertes that they were entitled to only an amount slightly less than $9,000 because 10% of the money was the premium for the two bonds posted and because there was a slight charge for paperwork.) The Villafuertes hired an attorney in an attempt to regain their ten thousand dollars. On November 17, 1995, the attorney wrote a letter to the Department of Insurance to inquire as to steps that might be taken toward filing a complaint or pursuing the return of the money entrusted to Mr. Thompson. The letter led to investigation and the administrative complaint in this case. The Administrative Complaint The Administrative Complaint is in two counts. Because of his misappropriation of the Villafuerte's money, refusal to refund it, and issuance of an improper receipt, the first count charges Thompson with having violated or being accountable under the following provisions of law: Sections 648.295(1) and (3), 648.33, 648.36, 648.442(1), (4) and (8), 648.45(2), (2)(d), (2)(e), (2)(f), (2)(g), (2)(h), (2)(j), and (2)(l), 648.45(3), (3)(b) and (3)(d), Florida Statutes; and, Rules 4-221.105, 221.115 and 120, Florida Administrative Code. The second count charges Thompson with violating Section 648.421, Florida Statutes, and Rule 4-221.060, Florida Administrative Code for failure to notify in writing the Department of a change in name, address or telephone number of the agency or firm for which he writes bonds. Change of Agency The name and address of the agency for which Mr. Thompson’s was writing bonds listed in Department records at the times material to this case were not correct. Thompson left the Sechrest office in Sarasota to work for Fowler Bail Bonds as a subagent in its Arcadia office where he met the Villafuertes. When he did so, he did not notify the Department of Insurance of the change of name, business address and telephone address of the agency for which he was then writing bonds, Fowler Bail Bonds. Thompson no longer works for Fowler. He left in November of 1995 for another company after Fowler put pressure on him because of poor performance generally.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Insurance revoke the “limited surety agent” license of Carl Albert Thompson. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance The Capitol, LL-26 Tallahassee, Florida 32399-0300 Dickson E. Kessler, Esquire Division of Legal Services Department of Insurance 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 David J. Migneault, Esquire 201 West Marion Avenue, Suite 205 Punta Gorda, Florida 33950
Findings Of Fact Petitioner was organized because its principals perceived a need for a cold storage facility convenient to docks in Tampa where refrigerated cargoes were loaded on and off ships. Negotiations between petitioner and the Tampa Port Authority (TPA) resulted in EPA's leasing petitioner land suitable for such a facility for a term of 25 years, with options to renew the lease. After entering into a contract with a construction firm for erection of a cold storage facility on the land leased from TPA, petitioner sought to borrow money with which to pay for construction of the facility; but lenders petitioner approached objected that a loan could not be secured by a mortgage in the customary fashion, because petitioner did not own the land on which it proposed to build. Mortgage bankers in New York suggested an arrangement to meet this objection and petitioner adopted the suggestion. A new corporation, Edward Stephen of Tampa, INC. (EST), was formed. The lease between petitioner and TPA was vacated; TPA leased the same land on the same terms to EST. Petitioner assigned all its rights under the construction contract to EST. EST borrowed the money for construction from a bank. When construction was completed, EST borrowed money from John Hancock Mutual Life Insurance Company (John Hancock) with which it repaid the bank loan. Petitioner guaranteed repayment of John Hancock`s loan to EST. As an additional inducement to John Hancock, petitioner undertook certain obligations for the life of the loan, with respect to maintenance of a minimum ratio of current assets, minimum working capital, and minimum net worth; petitioner made further undertakings which were similarly designed to increase the likelihood of petitioner's being able to repay John Hancock, in the event of EST's default. Once the cold storage facility was ready for use, EST subleased the property to petitioner. EST used petitioner's payments under the sublease to repay John Hancock, and continues to do so. If petitioner should fail to make the agreed payments under the sublease, EST would he unable to make repayments under its loan agreement with John Hancock, but EST could take possession of the cold storage facility in accordance with Section 30 of the sublease, in much the same way any lessor can dispossess his lessee for a material failure to abide by the terms of the lease. The sublease by EST to petitioner was entered into in conjunction with an option to purchase, a separate document which was subsequently amended. By virtue of the amended option to purchase, petitioner gained the right to acquire title to the cold storage facility, free of all claims except TPA's title to the fee, by paying EST at specified times an amount equivalent to what EST would have to pay John Hancock as full repayment of the loan, plus incidental sums to make EST whole. In this respect, the transaction resembles a loan by John Hancock to petitioner, with provision for prepayment. Petitioner carries the cold storage facility on its books as a capital asset against which depreciation is charged. Petitioner treats its payments to EST under the sublease as though they were repayments of the loan from John Hancock, allocating appropriate portions to principal and interest. On advice of counsel, the transaction is treated in the same fashion for federal income tax purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner pay respondent 4 percent of all sums paid by petitioner to Edward Stephen of Tampa, Inc., under the agreement embodied in Joint Exhibit No. 2, together with interest calculated in accordance with the rule laid down in Lewis v. Creative Developers, Ltd., 350 So.2d 828 (Fla. 1st DCA 1977) DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Edna Wilson, Esquire Dixon, Shear, Brown, Lima & Moffitt 620 Twiggs Street Tampa, Florida 33602 Mr. Harold F.X. Purnell, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
Findings Of Fact In June, 1975 Randall J. Conley, attempting to set his son and daughter-in-law up in business, arranged for them, with his help, to purchase Roger Sparks' business known as Sparky's Pizza. By Exhibit 6 dated June 17, 1975 the owner and lessor of the premises executed, with Randall M. Conley and his wife Sandra, a Consent to Assignment whereby the lease between the lessor and Mr. Spaghetti and Roger Sparks was assigned to the younger Conley and his wife and the previous lessees were released from further liability under the five year lease they had executed on April 30, 1974. (Exhibit 10) By Collateral Assignment Note dated 6-2-75 Randall J. Conley, Randall M. Conley and Sandra Conley obligated themselves to pay the Florida Center Bank $9750 over a five-year period and pledged the equipment and fixtures in the pizza business as security therefor. In October, 1975 Sandra, who had been operating the business, left for another job preparatory to separating from her husband. The business closed on November 1, 1975 and Defendant learned that the lessees were delinquent in the rent and payments on the chattel mortgage. Thereafter he attempted to sell the business. In November, 1975 Charles Hicks, the owner of a small fast-food chain, while looking for a site for a franchisee, saw the empty Sparky's Pizza and ascertained that information on occupying the property could be obtained from Defendant. He called Defendant's office and was told the rent was $260 per month. Arrangements were made for Defendant to show him the property the same afternoon. On November 25, 1975 Defendant showed Hicks and his putative franchisee, Ronald Beasley, the property. After being assured that the rental included the equipment and fixtures they agreed to accept an assignment of the lease if the lessor agreed and to bind the transaction Hicks gave Defendant a check for $200 made payable, at the request of Defendant, to Randall J. Conley. No written agreement was executed by the parties at this time. The check stated on its face that it was a deposit on lease of building here involved. The following day Defendant called Hicks and told him that the lessor had agreed with the assignment and that he should bring a check for $7,000 to pay for the equipment, plus a check for the rent. Hicks objected to the purchase of the equipment and demanded return of his $200 deposit. Defendant refused to return the money and Hicks immediately tried to stop payment on the check. When he did so he learned that his check had been cashed by Defendant as soon as the bank opened that morning, November 26. After Hicks was unsuccessful in getting his deposit returned he reported the incident to the FREC and the complaint here under consideration was filed. Defendant contends that he was operating as the owner of the lease and not in his capacity as a broker; that the consent to assignment of the lease did not result in an assignment; that by executing the collateral installment note he was part owner of the business; that when his daughter-in-law left and the business folded he acquired the leasehold by abandonment; and that he was entitled to retain Hicks' deposit of $200 as liquidated damages. One witness called by Defendant testified that the bank's policy on chattel mortgage loans was that they would only make such loans to the owners of the business. However, he acknowledged that he did not handle the loan here involved and never saw any documents showing Randall J. Conley having an interest in the leased premises, the equipment and fixtures for which was the subject of the loan represented by Exhibit 9. Defendant had advertised the sale of the lease in the newspaper and therein indicated the assignee of the lease would be required to assume payments on the equipment. Neither Hicks nor Beasley ever saw any such advertisement.
