The Issue The issues in this matter are whether the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) proved that Derek Welling (Respondent) is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes; and whether Petitioner proved that Respondent is guilty of failing to account and deliver funds in violation of Subsection 475.25(1)(d)1, Florida Statutes; and if so, what is the appropriate discipline?
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent is a licensed realtor and has been at all times material hereto, having been issued license number 0582890 under Chapter 475, Florida Statutes. In 1989, Respondent founded UK Realty, a real estate brokerage firm, with his son-in-law, Russell Christner. From 1989 thru the summer of 1996, Respondent primarily served as UK Realty's international sales representative while Mr. Christner served as its qualified broker. Respondent traveled to various trade shows primarily in Europe and encouraged customers to purchase rental properties in the central Florida area. In 1991, Respondent and Mr. Christner formed a short- term rental property management company known as Connoisseur Homes, Inc. (Connoisseur) to manage the rental properties of UK Realty's domestic and international clients. In 1993, Respondent and Christner sold a one-third interest in Connoisseur to Mr. Graham Greene, who immediately became president of Connoisseur and served as its day-to-day operations manager. Although Respondent maintained a one-third ownership in Connoisseur, he remained the company's international sales associate. Respondent was generally not involved in the day-to-day management and operations of Connoisseur and had little personal knowledge of the factual circumstances surrounding the client complaints that form the basis of Petitioner's allegations. Each of the allegations levied against Respondent in Petitioner's Amended Administrative Complaint involves complaints filed by property owners relating to contract services with Connoisseur. There is no evidence in the record that any of the property owners was dissatisfied with the services of Respondent or Connoisseur prior to the summer/fall of 1996. Hart Property In 1994, Michael Hart, a resident of England, engaged the services of UK Realty and purchased a rental home property in Davenport, Florida. Mr. Hart was referred to Mr. Richard Wilkes, a representative of Connoisseur, to manage his property. On May 17, 1995, Mr. Hart contracted with Connoisseur to provide rental management services. Mr. Hart placed an initial deposit with Connoisseur to purchase various items and maintained a $1000 balance in an escrow account to pay the annual taxes and monthly expenses associated with the management of the property. Pursuant to his contract with Connoisseur, Mr. Hart received periodic statements from Connoisseur detailing all moneys collected from tenants, escrow balances, and any other activity in his account. According to the statements Mr. Hart received, Connoisseur booked nine persons to stay in his property between October of 1996 and January of 1997. While Connoisseur received approximately $9,844.60 for these rentals, Mr. Hart received none of the rental proceeds. On or about January 3, 1997, Mr. Hart received notice from the Polk County tax collector indicating that the "tourist development tax" associated with his property was delinquent for the months of September, October, and November of 1996. In addition, the letter indicated that Connoisseur made a payment to Polk County for September 1996 that was returned for insufficient funds. Shortly thereafter, Mr. Hart was advised that the cable and electricity to the property had been disconnected for non-payment. Glass Property In May 1993, Mr. Colin Glass purchased a rental home in Davenport, Florida, and contracted with Connoisseur to manage the property. Pursuant to the contract, Connoisseur agreed to advertise and list the property, manage the reservations and timely pay the rental property's expenses. Mr. Glass agreed to receive $500.00 for each week that the property was rented minus a cleaning fee. Pursuant to the contract, Mr. Glass placed a $1000 deposit with Connoisseur to pay the initial maintenance costs associated with the property. Thereafter, Mr. Glass received periodic statements from Connoisseur detailing the funds received, occupancy, and expenses paid to manage his property. The statement for the month ending November 30, 1996, indicates that Connoisseur collected $5,290.00 in rental proceeds from tenants who rented the property between August of 1996 and January of 1997 and paid $110 for cleaning services on November 8 and 21, 1996. In November, 1996, Mr. Glass requested a detailed accounting from Connoisseur regarding his property. On December 6, 1996, Mr. Glass received a written letter on Connoisseur stationary, signed by Kelleen Newman, a Connoisseur employee responsible for preparing accounting statements during the relevant period. The letter advised Mr. Glass that Connoisseur owed Mr. Glass approximately $1,750.00 for payments received pursuant to bookings under the names Beaumont and Tullet. To date, Mr. Glass has not received the rental proceeds. In addition, Connoisseur failed to pay the property tax bill associated with the Glass property as required by the management contract, and it became delinquent. Hamlyn Property On September 22, 1993, John Hamlyn purchased a home in Davenport, Florida. Five months later, on February 22, 1994, Mr. Hamlyn hired Connoisseur to manage his rental property. Pursuant to the contract, Connoisseur agreed to advertise and rent the property, manage the collections, and pay the operational expenses. Mr. Hamlyn placed a $500.00 deposit with Connoisseur to perform the contract and was required to maintain that balance in the account. In November of 1995, Respondent and Connoisseur increased the required escrow balance to $1000.00. In January of 1997, immediately following the demise of Connoisseur, Mr. Hamlyn maintained an escrow account with Connoisseur. Mr. Hamlyn did not receive an accounting of the escrowed funds or a refund of the balance. The evidence is undisputed that Mr. Hart, Mr. Glass, and Mr. Hamlyn each delivered funds in trust to Connoisseur which were not accounted for or returned. The evidence is undisputed that Connoisseur, in 1996, received rental proceeds as agents on behalf of Mr. Hart and Mr. Glass, which were not remitted to the owners. The evidence is undisputed that Connoisseur, in 1996, failed to pay certain utility bills and tax bills as required in its contracts with Mr. Hart and Mr. Glass. Connoisseur's Collapse Connoisseur's operational and financial failure surfaced on September 13, 1996, when Mr. Green, the company's co-owner and day-to-day operations manager, without notice, resigned as President of Connoisseur and formed a competing property management company. To make matters worse, within days, Mr. Green hired key staff away from Connoisseur including Richard Stanton, Connoisseur's office manager, accountant and licensed real estate broker, as well as Dyer Scott, the company's book-keeper. Shortly thereafter, Mr. Green's new company was operational and selectively securing new management agreements with Connoisseur's client list. In response, Respondent immediately evaluated Connoisseur's financial and operational status and attempted to manage its problems. Respondent advised all of Connoisseur's homeowners of the company's status, including the departure of the key operational owner and employees, but tried to assure them that the company was headed in the right direction. In fact, in a news update dated October 15, 1996, Respondent advised all of the clients, including Mr. Hart, Mr. Glass, and Mr. Hamlyn of the following: Upon investigation we were appalled to find that most of our homeowners are waiting on payments and upon further investigation we found that in many cases payment had never been collected from the tour operator. This situation is being corrected immediately and manual invoices are being prepared for collection . . . I'm happy to say that approximately $200,000 in back bookings will be properly allocated to our homeowners this month. Connoisseur did not recover. Within two months, 150 of Connoisseur's 270 homeowners cancelled their management contract with Connoisseur and on January 1, 1997, Respondent sold his interest in Connoisseur to Richard Wilkes and received a total of $15,000.00. Respondent experienced complete financial loss as a result of the demise of Connoisseur. His home was foreclosed and his vehicle was repossessed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent in this matter be dismissed. DONE AND ORDERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 3rd day of July, 2003. COPIES FURNISHED: Victor L. Chapman, Esquire Barrett, Chapman & Ruta, P.A. 18 Wall Street Post Office Box 3826 Orlando, Florida 32802-3826 Christopher J. DeCosta, Esquire Department of Business and Professional Regulation Hurston Building, North Tower 400 West Robinson Street, Suite N809 Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2010.
Findings Of Fact Based upon the documentary evidence and the testimony taken at the hearing, the following relevant facts were uncontroverted: At all times pertinent to this proceeding, Respondents National Home Realty, Inc. and Philip Marzo were licensed real estate brokers and Respondent Steve Mishkin was a licensed real estate salesman holding license numbers 0210856, 0056147 and 0151878, respectively. At all times pertinent to this proceeding, National Home Realty, Inc. was qualified by Philip Marzo, a licensed real estate broker. At all times pertinent to this proceeding, National Home Realty, Inc. was engaged in the business of negotiating rental contracts and in furnishing for an advance fee, rental information as to available residential rentals to prospective tenants. In connection therewith, the company used Service Agreements of which Petitioner's Exhibits 1 and 2 are accurate examples. The Service Agreements do not comport with Rule 12V-10.30, Florida Administrative Code, which requires a specific refund notice to be placed on any such contract, nor do the contracts comply with Section 475.453(1), Florida Statutes, which provides for full refund in the event the rental information provided by the broker or salesman to a prospective tenant is not current or accurate in any material respect. In October of 1980, Grace Pasquale, as a prospective tenant, signed a rental service agreement with National Home Realty, Inc., on a form supplied by National Home Realty, and paid to National Home Realty a $65 cash advance fee for the specified rental services. During a period of approximately 25 days after the date of the contract, Pasquale was not able to locate a residential rental to meet her requirements, as set forth in her rental contract, Petitioner's Exhibit 2, from the list of alleged available rentals supplied to her by National Home Realty. As a result, Pasquale made written demand within 30 days of the date of the contract for 75 percent of her advance fee, all as provided for by Section 475.453(1), Florida Statutes, and Rule 12V-10.30, Florida Administrative Code. That on or about June of 1981, after intervention by the Department of Professional Regulation, Grace Pasquale received a refund. On or about February 16, 1981, prospective tenant Bruce Blair paid to National Home Realty a $75 cash advance fee, for agreement for rental services including a list of available rentals to meet the specific requirements of prospective tenant Bruce Blair. Only one listing was supplied to Blair and this did not meet Blair's requirements as set forth in his agreement, Petitioner's Exhibit 6. Failing and unable to obtain a rental by and through National Home Realty, Blair located a rental through his own efforts unconnected with the services of National Home Realty. Within 30 days of the date of his agreement, Petitioner's Exhibit 6, Blair made written demand on National Home Realty for a 75 percent refund of his advance fee, in accordance with the provisions of Rule 12V-10.30, Florida Administrative Code. In response to his demand, National Home Realty issued check number 1735, dated March 25, 1981, to the order of Bruce Blair on the account of National Home Realty, Inc. at the Barnett Bank for $18.75 being only 25 percent of the advance fee paid and, therefore, contrary to the provisions of the above stated rule. When Blair presented the check for payment, it was not honored due to the account having been closed. In April of 1981, Respondent paid Blair in cash for the balance due on his refund. Respondent Marzo, the qualifying broker who worked in the office, never personally refused a 75 percent refund to anyone who requested the same within 30 days from the date of a service contract. However, while he was qualifying broker, certain salesmen in the office ignored demands for refunds. Marzo was unaware that this was occurring until it was brought to his attention through the Department's direct intervention. When Marzo realized there was a problem with the salesmen making timely refunds, he instituted an unwritten policy that anyone who requested a refund should be given one. Despite this directive, salesmen continued to refuse or delay refunds due to the manner in which commissions were paid by the office. Respondents Marzo and Mishkin never met either Grace Pasquale or Bruce Blair. Although Respondent Mishkin never denied a refund to anyone who requested one, he would harass or make a person who asked for a refund "feel pretty bad" for doing so. (See Transcript at 37)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered revoking the license of National Home Realty, Inc., suspending the license of Philip Marzo for a period of six (6) months and dismissing the charges against Steve Mishkin. DONE and ORDERED this 7th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Brian Hal Leslie, Esquire 1795 North East 164th Street North Miami Beach, Florida 33160 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be resolved concerns whether the Petitioner was the victim of a discriminatory housing practice, by allegedly being denied the opportunity to rent an apartment from the Respondents, and by being falsely informed of its non- availability, based upon her race.
Findings Of Fact The Petitioner is an African-American female. In early January 2007, she learned of an apartment for rent, owned or managed by the Respondents. She called to inquire about the apartment and was told by the Respondent, Ms. Lindsay, that the rent would be $625.00 per month, with a one-month rent amount and security deposit due in advance. She was told that the Lessee of a neighboring apartment, Clint Cook, would have a key and would show her the apartment. She went to view the apartment, and decided that she wished to rent it. She then telephoned Ms. Lindsay, and Ms. Lindsey faxed an application to her to complete. In the conversation, she told Ms. Lindsay she would not have the required deposit money until Friday. This was on a Monday or Tuesday. Ms. Lindsay then told her securing the apartment was on a “first come-first-served” basis. The Petitioner never completed the application and never tendered the security deposit. Shortly after that telephone conversation, Ms. Lindsay was contacted by Stacey Edwards, while the apartment was still available for rent, concerning rental. Ms. Edwards, on behalf of herself and her boyfriend/husband, submitted an application to rent the apartment, together with the appropriate required deposit and rental amount on January 15, 2007. Ms. Lindsay leased the apartment to the couple. They had a planned move-in date of February 1, 2007. They are a mixed-race couple, and Ms. Lindsay was aware of that fact when renting to them. Sometime after January 15, 2007, the Petitioner called Ms. Lindsay a second time, and was told that the apartment had been rented (to the Edwards couple) and was no longer available. Testimony to this effect is corroborated by the Edwards rental application and deposit receipt, which are in evidence. The Edwards rental was documented on January 15, 2007. Later that month, the Petitioner noticed the “for rent" sign displayed, or displayed again, and she and/or her witness, Lynn Kliesch, called about the apartment’s availability. Ms. Lindsay again stated that it was rented. Indeed, it was, to the Edwards. The rental sign had been left up because the Edwards couple were not scheduled to move in until February 1, 2007. This communication between the parties occurred before Ms. Edwards informed Ms. Lindsay that they would not be moving in. Shortly before February 1,2007. Ms Edwards and her husband/boyfriend learned that his employment had ended (or he was transferred to another job location). They therefore informed Ms. Lindsay that they had to re-locate to South Florida and could not take the apartment. She charged them for the two weeks of rental, and refunded their deposit. She then placed the apartment back on the rental market. On January 31, 2007, Ms. Mari Ferguson inquired of Ms. Lindsay about the apartment’s availability. This was after Ms. Edwards had informed Ms. Lindsay that she would not be renting the apartment. Ms. Lindsay told Ms. Ferguson that the property was available and she rented it to Ms. Ferguson that same day. Ms. Ferguson and her boyfriend, who occupied the apartment with her, were also a mixed-race couple, with children. In fact, the boyfriend is the nephew of the Petitioner herein. Ms. Ferguson and family moved into the apartment. Some months later a hostile situation arose between the Respondents and Ms. Ferguson. Ms. Lindsay apparently received reports that “drug dealing” was occurring in the apartment. Ms. Ferguson and/or the other occupants were responsible for some damage, and Ms. Ferguson became several months behind on rental payments. The Respondents therefore, through legal process, had her evicted. The Respondent, Ms. Lindsay, through her firm, Elite Properties of Northwest Florida, Inc., manages some 37 rental properties in Escambia and Santa Rosa Counties. She is the president and broker for the firm and has no employees or agents. Among the rental property owners she and her firm represent is her Co-Respondent, Michael Houser. Both Ms. Lindsay and Elite Properties, as well as Mr. Houser, have a significant number of minority tenants, both Hispanic and African-American. A substantial number of those, both historically, and at the time of the hearing are single, African-American females, as heads of households. There is no evidence, aside from the Petitioner’s unsubstantiated opinion, that either the Respondent has ever refused to rent to the Petitioner or anyone else, based upon race, nor that they have falsely denied availability of a dwelling for rent or sale for that reason. There is no evidence that they have refused or attempted to avoid holding out a property for rent or sale for reasons based on racial animus.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that the Respondents did not commit a discriminatory housing practice based upon the Petitioner's race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 April, 2009. COPIES FURNISHED: Sylvia Mims 3382 Greenbriar Circle, Apt. B Gulf Breeze, Florida 32561 Beverly Lindsay 5252 Springdale Drive Milton, Florida 32570 Michael Houser 3533 Edinburgh Drive Pace, Florida 32571 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent, M. Betty Murray, currently holds Florida Real Estate Broker's License number 62943. At all times material to this proceeding, the license was in full force and effect. The Respondent represented L. O. Huckaby and Sarah Huckaby in the sale of property located at 363 Boylston Avenue, Daytona Beach, Florida, to Elizabeth T. Stein, the complainant in this proceeding. Pursuant to her representation of the Huckaby's, the Respondent, on or about June 18, 1979, prepared a proposed contract for the sale and purchase of the subject property. Prior to signing the contract and tendering a deposit thereunder, Ms. Stein reviewed the contract with her attorney, Berrien Becks, Sr. When reviewing the contract with Mr. Becks, Ms. Stein failed to inform either Mr. Becks or his secretary, Sylvia Van De Mark, that she intended to use the property as either a duplex or a triplex. Had Ms. Stein indicated such an intent, a provision to that effect would have been included in paragraph VIII of the contract for sale and purchase. This was the normal procedure utilized in the ordinary course of business by the Becks' law firm. The contract for sale, Respondents Exhibit 1, shows no such provision or notation. The sellers, Mr. and Mrs. Huckaby, were represented by Charles E. Booth, Esquire. On behalf of Ms. Stein, Mr. Becks requested that certain repairs be made to the property. Mr. Booth rejected these demands by letter dated July 24, 1979. Although the contract does not state that the property was intended to be used as a duplex, the property is in fact recognized as a de facto duplex under the nonconforming use provisions of the city's zoning ordinance. Had Ms. Stein elected to proceed with the sale, she would have been permitted to utilize the property as a two unit property so long as she lived in one of the units which was her expressed intent. Prior to paying the balance of the deposit due on the contract, Ms. Stein and the Respondent went to Mr. Booth's office where Mr. Booth confirmed by telephone conversation with city officials and in the presence of both Ms. Stein and the Respondent, the lawful use of the property as a single family residence with attached rental unit. Following this information, Ms. Stein paid the balance into the Respondent's escrow account. On August 20, 1979, Ms. Stein demanded return of the $9,000.00 deposit from the Respondent. Upon receipt of this demand, the Respondent contacted Mr. Booth who instructed her to retain the deposit in her escrow account. Mr. Booth and Mr. Becks negotiated a release which was signed by the Sellers on August 28, 1979 and by Ms. Stein on September 11, 1979. The release authorized disbursements to be made including $500.00 to the Respondent, $150.00 to Mr. Booth, $43.00 to Lawyers Title Services, Inc. and the remaining $8,307.00 to Ms. Stein. On August 20, 1979, prior to signing the release, Ms. Stein sent a complaint to the Board concerning the return of her $9,000.00. On September 7, 1979, Ms. Stein sent another letter to the Board indicating that she had not agreed to the disbursements set forth in paragraph 8 above notwithstanding her agreement to sign the release. Ms. Stein's attorney, Mr. Becks, witnessed the release and explained the legal implications of the release in detail to her prior to her signing. Mr. Stein did not inform Mr. Becks of her correspondence with the Board which attempted to disclaim the release. At no time did the Respondent represent the property as a triplex, but only as a single family residence with a single attached rental unit, which was a permissible use under the city zoning ordinance. In fact, Ms. Stein defaulted on the contract and under its express terms could have forfeited the entire $9,000.00. The release negotiated between Mr. Becks and Mr. Booth which returned $8,307.00 to Ms. Stein was generous and demonstrated good faith efforts on the part of the Sellers to settle this matter amicably. The Respondent has maintained her registered office at 231 Gradview, Daytona Beach, Florida. The office consists of a room where she maintains her business files and which can be closed for privacy. The allegations of Ms. Stein against the Respondent were untrue and were made with knowledge that neither the Huckaby's nor the Respondent had engaged in any illegal or unethical activities regarding this transactions. The testimony of Mr. Becks, attorney for Ms. Stein and the affidavit of Mr. Booth, attorney for the Huckaby's, corroborates the Respondent's testimony and contradicts the allegations made in the complaint filed by Ms. Stein and the administrative complaint filed by the Board which was based entirely upon Ms. Stein's allegations. Ms. Stein's failure to appear at the final hearing supports the conclusion that she knew the allegations made by her could not be proved at the hearing. Any equitable or legal rights which Ms. Stein may have had to pursue this matter ended when she knowingly and voluntarily signed a release in order to secure the return of a substantial portion of her deposit monies. In effect, the only misrepresentation in this case was that made by Ms. Stein when she represented that the release would extinguish all responsibilities, obligations and rights arising from the contract in return for the $8,307.00 and then effectively requested the Board to proceed against the Respondent.
The Issue Appellants raised several issues on appeal, including: (1) whether Appellee retroactively applied the LDC to Appellants' lawfully-established non-conforming vacation rental use; (2) whether Appellee violated Appellants' right to due process by applying Ordinance 004-1997, and its 2016 counterpart, retroactively to events which occurred and were established as a matter of record prior to 1997; (3) whether Appellants acquired vested rights when Ordinance 004-1997 was enacted, and the circuit court opinion judicially recognized those vested rights; (4) whether the Appellee erred by requiring compliance with Ordinance 004-1997, and its 2016 counterpart, in light of the doctrine of laches and equitable estoppel; and (5) whether Appellee erred, under the doctrine of collateral estoppel, by not applying the circuit court opinion.
The Issue The issues in this cause are those as set forth in the attached copy of the administrative complaint, which is made a part of this recommended order for purposes of setting out the issues to be considered.
Findings Of Fact The Florida Real Estate Commission, is an agency of the State of Florida, and has filed this administrative complaint as Petitioner against the licensee, United Jax Rentals, Inc., a registered corporate broker which holds license number 069690; Thomas J. Capobianco, a registered broker and active firm member of United Jax Rentals, Inc., who holds license nos. 0157568, 0157767, 0168549, 0168551 and 0169691; Bruce K. Lammert, who holds license no. 0177625 as a salesman; Richard L. Levinger, who holds license no. 0175791, as a salesman; Deborah K. Parnell, who holds license no. 0177268, as a salesman and Rose J. Vines, who holds license no. 0139543, as a salesman. This action is for the suspension or revocation or other discipline of the above named Respondents who are holders of the referenced licenses. The administrative complaint contains 27 counts which are more specifically detailed in the attached copy of the administrative complaint. Count one of the administrative complaint is an allegation against United Jax Rentals, Inc. and Thomas J Capobianco for matters pertaining to transactions between United Jax Rentals, Inc. and Reaves L. Mathison and Nancy A. Mathison. To prove the material facts found in the allegation which is count one, the Petitioner offered as evidence the depositions of Trenner J. Thompkins and Kathleen E. McDavid. These depositions are found as Petitioner's Exhibits 1 and 2, denied admission as evidence. The reason for the denial of the depositions was based, upon the fact that the depositions are a heresy report of a conversation between the Mathisons and representatives of United Jax Rentals, Inc., as made by the witnesses Thompkins and McDavid. Because these depositions are the only testimony offered to prove the allegations of count one and are not offered for the purpose of supplementing competent evidence, they may not be relied upon to arrive at conclusions about material disputes in fact. This prohibition is set out in Chapter 120.58, Florida Statutes. Therefore, there has been insufficient proof to establish any violations as alleged in count one of the administrative complaint. Count two accuses Thomas J. Capobianco and United Jax Rentals, Inc. of violating Sections 475.25(1)(d) and (2), Florida Statutes. This violation is alleged to have occurred when the Respondent Thomas J. Capobianco submitted an application to be the corporate broker for United Jax Rentals, Inc., in October, 1976. Through that application, Capobianco listed the residence of the President of the corporation, who at that time was John MacDermott, as being 1642 North Main Street, Jacksonville, Florida. In fact that address was the business address of the corporation, United Jax Rentals, Inc. as opposed to the residence address of John MacDermott. Although this is a misstatement, it is not the type of misstatement which when considered in view of the truth of the matter, should have caused the rejection of the application. Therefore, the Petitioner has failed to demonstrate that there is any violation of Sections 477.25(1)(d) and (2), Florida Statutes. (The matters set out in the application may be found as part of Petitioners Composite Exhibit 3, which is admitted into evidence.) Count three pertains to a certain transaction between United Jax Rentals, Inc. and J.P. and Anna Williams. Mrs. Williams testified that she had contacted Rose J. Vines, one of the employees of United Jax Rentals, Inc. Mrs. Williams explained to Ms. Vines that she had a house for rent and after discussion was entered into, Ms. Vines advised her what she considered to be a reasonable rental price that should be placed. That amount of rental was $250. Mrs. Williams testified that Ms. Vines stated that there would be no charged by the United Jax Rentals, Inc. for renting Mrs. Williams' house. A tenant was found and a contract was entered into with that tenant. A copy of the contract may be found as Petitioner's Exhibit 5, admitted into evidence. (The contract was with one David Ebanks who had paid United Jax Rentals, Inc. for finding him a place to live.) The Petitioner's Exhibit 9, admitted into evidence, shows the disbursement of certain funds collected from Ebanks and reflects a $250 commission in behalf of United Jax Rentals, Inc. The signature on that form is that of Richard L. Levinger an employee of United Jax Rentals, Inc. and a Respondent in this cause. Mrs. Williams also indicated that someone named Bruce took Mr. Ebanks to see the property prior to the rental contract being consummated. Beyond this testimony, no information was given about the involvement of United Jax Rentals, Inc., Thomas J. Capobianco or other members of the firm as alleged in the action clause of the count. In the absence of more specific information which tended to describe the involvement of United Jax Rentals, Inc., Thomas J Capobianco, Bruce K. Lammert, and Richard L. Levinger, the Petitioner has failed to make a sufficient showing of a violation of Section 475(1)(a) and (d), Florida Statutes, or Rule 21V-10.13, Florida Administrative Code. No testimony was offered on the allegations set forth in count four, consequently no proof of violations of Section 475.25(1)(a) and (d), Florida Statutes, has been established. Count five alleges that one Delores Logan paid an agent of the Respondent United Jax Rentals, Inc. $50 as a fee to find a rental property for her. The terms of the agreement between the representative of United Jax Rentals, Inc. and Ms. Logan may be found in the Petitioner's Exhibit 19, admitted into evidence. One of the special conditions of that agreement was that the property must fit the requirements of Ms. Logan or $45 of the $50 fee would be refunded. The particular requirement was that the dwelling be a single level home. Testimony shows that the property was actually for the benefit of one of her sisters; however, that is not a factor so crucial in nature that it would cause the proof of the allegation to fail. The contract document also gave the appearance that the refund should have been rendered by September 15, 1977. It was hard to determine from the testimony whether that condition was absolute; nonetheless, it is apparent that Ms. Logan had requested the refund in and around the month of September, 1977 and was not afforded the refund until November, 1977. Ms. Logan dealt with someone at the United Jax Rentals, Inc. office whom she referred to as being "Larry". "Larry" gave her three addresses and she went to the first one and discovered someone was already residing there. She went to another address on that list of three or four addresses and found the house was a two-story house. The third location of the group of listings was also a two-story house and was thus unsatisfactory. She went back to United Jax Rentals, Inc. and got another list and one of the addresses on Crestwood, Jacksonville, Florida, was found to be occupied. She went to a second place on the second list which was located at 16th Street and evidently did not find that listing to be satisfactory. After having no success with the two initial lists which were given to her by "Larry" she spoke to a person identified as "Bruce". "Bruce" said that he would get her a house, in the sense of giving her more listings. After a discussion, she demanded a refund from Bruce Lammert, whom she later determined was the "Bruce" that she had been dealing with. This is the same Bruce Lammert who is a named Respondent in this cause. Ms. Logan subsequently located a residence by means unrelated to the service of United Jax Rentals, Inc. After considering the allegations set forth in count five in view of the overall facts in the case to include the testimony pertaining to other counts within the complaint, it is concluded that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes. No other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown. In consideration of the facts offered in the discussion of count five of the administrative complaint, it is concluded that the Petitioner has failed to show violations as alleged in count six, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(c) and (d), Florida Statutes. Count seven alleges that Deborah K. Parnell received a commission for showing houses to Larry and Clair Wells, after the Wellses had paid $40 on September 22, 1977 to the Respondent United Jax Rentals, Inc. This is felt to be a violation of the Petitioner's laws because at the time Respondent Parnell was registered as a salesman for Rental Finders, Inc. of Ft. Lauderdale, Florida. The Specific allegation is that it is a violation to operate as a salesman for a person or organization not registered as your employer. Consequently this constitutes a violation, according to the Petitioner, of Section 475.42(1) Florida Statutes, and Section 475.25(1)(d), Florida Statutes. The rental contract between the Wellses and the landlord, H. G. Johnson may be found as Petitioner's Exhibit 7 and Respondent's Exhibit 1, admitted into evidence. The property had been shown to the Wellses by a member of United Jax Rentals, Inc. and the contract was signed by the Wellses at a time different than that when it was signed by Mr. Johnson. Nonetheless, the testimony by Mr. Johnson demonstrated that a person, established as being Deborah Parnell, did coordinate the matters of consummating the rental contract between Johnson and the Wellses and did this work in behalf of United Jax Rentals, Inc. at a time when Parnell was registered as a salesman for Rental Finders, Inc. in Ft. Lauderdale. This registration may be found as part of Petitioner's Composite Exhibit 3, admitted into evidence. Therefore, Deborah Parnell is in violation of Section 475.42(1)(b), Florida Statutes, as implemented by Section 475.25(1)(d), Florida Statutes. The violation by Deborah Parnell established herein, also would cause a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco of the conditions found in Section 475.42(1)(c), Florida Statutes, as implemented by 475.25(1)(d), Florida Statutes; in that the corporation and acting broker were employing Deborah Parnell as a real estate salesman, who is not the holder of a valid current registration certificate as salesman for United Jax Rentals, Inc. These allegations pertain to count eight. Counts nine and ten charge violations for transactions involving James Weinheimer and his wife, in their dealings with United Jax Rentals, Inc. and employees of that firm. No testimony was offered concerning the transaction with James Weinheimer and his wife and consequently there was insufficient proof to establish a violation on the part of any of the named Respondents, concerning counts nine and ten. Likewise, in discussing counts eleven and twelve, involving Joyce Elifritz, there was no testimony offered concerning the transactions between United Jax Rentals, Inc. and Joyce Elifritz. Therefore, no violation has been established pertaining to counts eleven and twelve. Counts thirteen and fourteen pertain to a transaction between Beverly Morris and United Jax Rentals, Inc. On August 31, 1977 Beverly Morris paid United Jax Rentals, Inc. in the person of one "Larry", an employee of United Jax Rentals, Inc. the amount of $50 to attempt to obtain housing for her. The contract involved in this transaction, which is a second contract drawn between the parties, is found as Petitioner's Exhibit 17, admitted into evidence. This contract entitles her to receive listings from the United Jax Rentals, Inc. for a period of one year. The contract also indicated the method by which Ms. Morris could receive listings from the Respondent United Jax Rentals, Inc. Those listings would be given upon request. Sometime in September, 1977 Ms. Morris told the Respondent to cease honoring their contract with her and refund her money. She was unable to contact "Larry", but did speak with Bruce Lammert who advised her that she could see listings under the terms of her contract. She went back to United Jax Rentals, Inc. several times to get the money back and wrote a letter, but has never received a refund. She moved into an apartment in Jacksonville, Florida, in October, 1977 after locating this rental on her own. Upon consideration of the facts and the date of the transaction, Petitioner has failed to show that the Respondent Thomas J. Capobianco as active firm member and as a responsible agent of the Respondent United Jax Rentals, Inc. is guilty of a violation of Section 475.25(1)(a) and (d), Florida Statutes, or that the named Respondents are in violation of Section 475.25 (1)(c) and (d), Florida Statutes, as alleged in counts thirteen and fourteen respectively. The Respondents were not directly involved in the transactions, and an examination of the contract does not demonstrate that Ms. Morris was entitled to any refund of the $50 fee. Count fifteen pertains to transactions between Jack and Solette Jones and United Jax Rentals, Inc. This involved the payment of a $40 fee on September 12, 1977 in return for guaranteeing to show five prospective rentals which would meet with the requirements expressed by the Joneses. Among those requirements was that the rental property be air conditioned. This requirement is expressed in Petitioner's Exhibit 27, admitted into evidence. The parties discussed possible locations with the representatives of United Jax Rentals, Inc. They were told that one of the houses could not be seen until the next day; however, when they saw the house it was not satisfactory because it was unair- conditioned. The second house that they looked at was out of the price range that they had indicated and also unavailable for six weeks. The next day Ms. Jones called and found that there were no listings available. She called many times after that and tried to get her money back because she had been advised by one "John" that she could receive a refund. "John", who is an employee with United Jax Rentals, Inc., said that he would have to speak to the broker about getting the refund. Mrs. Jones additionally spoke to Rick Levinger, an employee with United Jax Rentals, Inc. Finally, she received a refund after a conversation with Bruce Lammert, who worked for United Jax Rentals, Inc. The efforts by the employees of United Jax Rentals, Inc. to honor the terms of the contract were not satisfactory to the extent that it is concluded that the Petitioner has shown violations as alleged in count fifteen, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(a) and (d), Florida Statutes. The violations are as to Section 475.25(1)(a), Florida Statutes, only. Counts sixteen and seventeen allege violations of Chapter 475, Florida Statutes, pertaining to transactions between United Jax Rentals, Inc. and Howard Peake. No testimony was given about the matter of Howard Peake, therefore counts sixteen and seventeen have not been proven. Counts eighteen and nineteen of the administrative complaint pertain to the transaction between Betty Ross and United Jax Rentals, Inc. Ms. Ross paid $35 to an employee of United Jax Rentals, Inc. whose name was "Rose". The payment of $35 was for purposes of having United Jax Rentals, Inc. locate a residence for Ms. Ross. The contract period was for one month in which the Respondent United Jax Rentals, Inc. was to find a residence for Ms. Ross. The first location address given already had someone living there. The second location on Division Street, Jacksonville, Florida, was provided by United Jax Rentals, Inc. Ms. Ross did not bother to call that address. The next day she saw the address of Division Street in the paper under a separate listing than that of United Jax Rentals, Inc. The Division Street address was not going to be vacant for a month. Consequently, Ms. Ross, on the Saturday following the initial contact with United Jax Rentals, Inc. went and demanded her money back from "Rose". The following week after the Saturday contact, Ms. Ross continued to make inquiry about having her money returned but that refund was never forthcoming from United Jax Rentals, Inc. The contact included discussions with Bruce Lammert. The contract that was signed was not produced in the hearing, nonetheless, the form of contract was one for providing listings, such as has been entered in the case of the named individuals in the previous counts. Ms. Ross finally moved in with her sister in October, 1977 and subsequently located her own apartment prior to Christmas, 1977. The Respondent United Jax Rentals, Inc. had been given two days to try to locate a residence for Ms. Ross. After a full consideration of the testimony by Ms. Ross it is concluded that only Rose J. Vines of the Respondent who are alleged to have violated Section 475.25(1)(a) and (d) Florida Statutes, as alleged in count eighteen is guilty of a violation and she only as to Section 475.25(1)(a), Florida Statutes. No showing has been made that the other Respondents did not perform their part of the contract or that they failed to deliver money which was due and owing to Betty Ross, as alleged in count nineteen pertaining to Section 475.25(1)(c) and (d), Florida Statutes. Count twenty pertains to transactions between Linda Johnson and United Jax Rentals, Inc. which took place on August 21, 1977. The parties entered into an agreement between United Jax Rentals, Inc. and Linda Johnson to locate a residence for Ms. Johnson. Ms. Johnson Paid $40 for the service which would allow her to receive six months worth of listings from the Respondent United Jax Rentals, Inc. A copy of this contract may be found as Petitioner's Exhibit 21, admitted into evidence. Ms. Johnson was of the opinion that the United Jax Rentals, Inc. would provide the services without her having to request anything from them. When no action was forthcoming by United Jax Rentals, Inc. Ms. Johnson cancelled payment of the $40 check that she had given United Jax Rentals, Inc., thus ending the transaction. There was never any attempt on the part of Ms. Johnson to avail herself of listings as provided by her rights under the contract. It is clear that there was some misunderstanding between Ms. Johnson and the representative of United Jax Rentals, Inc. on the question of what rights she did have for the payment of her $40 fee, be those rights; one, a right to receive listings; or two, to have United Jax Rentals, Inc. make the contacts under the listings. Nonetheless, there is no indication that Thomas J. Capobianco, as active firm member, or United Jax Rentals, Inc. through the person of their active firm member, were in violation of Section 475.25(1)(a) and (d) Florida Statutes. Count twenty-one involves the October 3, 1977 transaction between Steve Mercer and United Jax Rentals, Inc. Mercer paid $40 for obtaining listings from United Jax Rentals, Inc. He was told by an employee of United Jax Rentals, Inc. whose name is "Dave" that he would be shown listings if he would wait in the office of United Jax Rentals, Inc. until "Dave" had concluded other business. Mr. Mercer did not wait and took three listings that were provided him to pursue his efforts at finding a residence. The first location was at a number that did not exist; the second location was not acceptable the third location was acceptable but it had already been rented. He talked to Bruce Lammert about the matter and asked that his money be returned. Mr. Mercer never received his money, he never was given the address of the location that first attracted him when he had seen it in the United Jax Rentals, Inc. advertisement in the paper and he was never given the opportunity to speak to the manager who might have given him a refund. The factual situation involving Steve Mercer, when considered in view of the other facts and cases reported in this recommended order, leads to the conclusion that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes, no other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown. The facts in the Mercer transaction do not show a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco as alleged in count twenty-two. There has been no showing under terms of the contract document or by legal determination that Mercer was entitled to a refund of the $40 fee that he had paid for the services, therefore there is no violation of Section 475.25(1)(c) and (d), Florida Statutes. Count twenty-three involves the transaction of August 15, 1977 between William Machalski and United Jax Rentals, Inc. This involved the efforts by United Jax Rentals, Inc. to obtain a residence location for Machalski who had paid them $40 for such service. The terms and conditions of the agreement are found in Petitioner's Exhibit 26, admitted into evidence. The firm member who had discussed this transaction and service with Machalski was a person named "Larry". Six addresses were checked by Mr. Machalski and those addresses had either been rented or were not available for a period of time, or were unfit. Mr. Machalski went back to the agency and talked to a person named "John". He also spoke later with a person named "Rick". Attempts were made to reach Mr. Capobianco but the employees in the office did not provide his telephone number. The attempts to reach Mr. Capobianco were made on the part of Clara Mitchell, the sister of Mr. Machalski. During this period, members of United Jax Rentals, Inc. indicated to Machalski and his sister that efforts would be made to get new listings. However, shortly thereafter, Mr. Machalski located a residence through another broker unrelated to United Jax Rentals, Inc. Although the employees of United Jax Rentals, Inc. have been aware of the development and problems with this service that was being offered to Mr. Machalski, when this fact pattern is considered in view of the facts and circumstances outlined in the recommended order herein, it does not demonstrate that United Jax Rentals, Inc. in the person of its active broker, Mr. Thomas J. Capobianco or other officers or directors of the corporation were, at the time of the occurrence, aware of the problem, or should have been aware of the problems, such that they would be in violation of Section 475.25(1)(a) and (d), Florida Statutes. Moreover, no showing has been made as alleged in count twenty-four that the contract conditions under which Mr. Machalski was being given service or by any declaration by a court of competent jurisdiction that the $40 fee should have been returned to Mr. Machalski as alleged. Consequently, no violation of Section 475.25(1)(c) and (d), Florida Statutes, has been shown. The Petitioner's Composite Exhibits 22, 23, 24 and 25 are actual or copies of newspaper advertisements placed by United Jax Rentals, Inc. in October and November, 1977. As shown in Petitioner's Exhibit 25, some of the advertising placed with the Florida Times Union, a paper of general circulation in Jacksonville, Florida, listed the general location and description of property, in terms of the accommodations and gave the phone number and listed the word "Broker" only, with no name. Petitioner's Exhibit 22, admitted into evidence contained a listing in the same newspaper with the indication that the registered name was United Jax Rental Broker, Inc., not United Jax Rentals, Inc., showing the same telephone number as was shown with the advertising in Petitioner's Exhibit 25 that contained the word "Broker". The same exhibits contained advertisements in newspapers in which landlords were solicited and given a telephone number which was the number of United Jax Rentals, Inc., where again the name United Jax Rentals, Inc. is missing. This form of advertising spoken of was in violation of Section 475.25(1)(b), Florida Statutes, and those which did not list the broker's name were in violation of Rule 21V-10.10, Florida Administrative Code, as implemented by Section 475.25(1)(d), Florida Statutes. Count twenty-six pertains to allegations that various employees within the firm of United Jax Rentals, Inc., were guilty of operating as real estate salesmen who are not holders of valid, current registration certificates as salesmen, held with the Florida Real Estate Commission. There was no testimony to that effect that they were not the holders of valid, current registration certificates. Consequently, no violation of Section 475.42(1)(c), Florida Statutes, has been shown. County twenty-seven alleges that United Jax Rentals, Inc., Thomas J. Capobianco, Bruce K. Lammert, Richard L. Levinger, Deborah K. Parnell and Rose J. Vines are guilty of violations of Section 475.25(3), Florida Statutes. After considering the testimony in this cause it is determined that the necessary proof has been shown to find United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger in violation of Section 475.25(3), Florida Statutes. There is insufficient showing to establish such a violation on the part of Bruce K. Lammert, Deborah K. Parnell and Rose J. Vines.
Recommendation It is recommended that the applicable licenses of United Jax Rentals, Inc.; Thomas J. Capobianco; Richard L. Levinger and Rose J. Vines be suspended for a period of six months. It is recommended that Deborah K. Parnell be given a letter of reprimand. (This recommendation is in keeping with the offer that has been entertained by the Florida Real Estate Commission by agreement of the parties). Finally, it is recommended that the action against Bruce K. Lammert be dismissed. DONE AND ENTERED this 1st day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 John S. Winnie, Esquire Post Office Box 682 Gainesville, Florida 32602 Richard L. Levinger 2243 Southeast 10th Street Pompano Beach, Florida 33062 Rose J. Vines c/o United Jax Rentals, Inc. 1642 North Main Street Jacksonville, Florida 32206 =================================================================
The Issue Appellants raised two issues for resolution in this appeal. First, Appellants seek reversal of the LOU and Resolution No. 06-20, and recognition of a lawful non-conforming vacation rental use of the Property. Second, Appellants seek clarification that they are not subject to any provisions of section 134-1, Monroe County LDC, regarding the Property.
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018.
The Issue The issues in these cases are whether Respondent, Cristal Coleman, committed the violations alleged in two separate four- count Administrative Complaints filed with the Petitioner Department of Business and Professional Regulation on April 17, 2009, and, if so, what disciplinary action should be taken against her Florida real estate associate license.
Findings Of Fact 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, Cristal Coleman, was at the times material to this matter, the holder of a Florida real estate associate license, license number 693909, issued by the Division. From January 4, 2005, until March 31, 2008, Ms. Coleman was registered as a sales associate with Cristal Clear Realty (hereinafter referred to the “Realty Company”). Cristal Clear Rentals, LLC., and Ms. Coleman’s Relationship Thereto. Cristal Clear Rentals, LLC (hereinafter referred to as the “CC Rentals”), is a Florida limited liability company registered with the office of the Florida Secretary of State, Division of Corporations. CC Rentals business consisted of marketing and renting for compensation transient rental properties. CC Rentals did not engage in the sale of real estate and, therefore, was not registered with the Division as a licensed real estate broker. Ms. Coleman became the sole managing member of CC Rentals as of December 5, 2007. As a managing member, CC Rentals office manager, rental manager, and accountant reported to her on a regular basis. The Richard Bloom and Greg Sousa Rentals. CC Rentals, at the times relevant, was managing two separate properties, one owned by Richard Bloom (hereinafter referred to as the “Bloom Property”), and one owned by Greg Sousa (hereinafter referred to as the “Sousa Property”). The nature of the role of CC Rentals in managing the Bloom Property and the Sousa Property was not proved. Whatever agreements existed as to the management of these properties was not proved. Nor was any evidence presented as to whether any money, in the form of a security deposit, rental fees, or any other form, was received or in the possession of CC Rentals at the times relevant to this matter. On or about May 6, 2008, a form email was sent from Ms. Coleman’s email address to clients of CC Rentals notifing clients of the financial demise of CC Rentals (hereinafter referred to as the “Email Notice”). The Email Notice was sent to Mr. Bloom and to Mr. Sousa. In pertinent part, the Notice Email stated: We regret to advise you that Cristal Clear Rentals, LLC is no longer sufficiently solvent to continue operating. The Company has ceased trading effective May 6, 2008. We have tried to weather a very difficult season where the economic crisis in our country has seriously impacted travel and especially rentals in the Florida Keys this year. Since the Company has no funds, we need to advise Owners: The contract between you and Cristal Clear Rentals, LLC is no longer valid and is terminated. There are no funds to pay Owners any rentals collected but not yet paid to Owners through April 2008. If there are current reservations we are providing the contact details below to allow you to make direct contact with your pending guests. Since there are no funds in Cristal Clear Rentals, LLC, the Company cannot refund any security deposits to the people who made the reservation. This means that any Owner accepting the reservation directly will need to reimburse the guest out of pocket for the amount of the Security Deposit after their stay. . . . . According the specific information included in Email Notices sent to Mr. Bloom and Mr. Sousa, there were tenants in the Bloom Property and Sousa Property of a term longer than a transient rental. Ms. Coleman was not, however, aware of either rental property or the nature of any agreement with Mr. Bloom and Mr. Sousa for the management of their properties.
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 the Division failed to prove any of the violations alleged in the Administrative Complaints; and Dismissing the Administrative Complaints. DONE AND ENTERED this 23rd of November, 2009, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2009. COPIES FURNISHED: Jennifer Blakeman, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Nicholas W. Mulick, Esquire Nicholas W. Mulick, P.A. 91645 Overseas Highway Tavernier, Florida 33070 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
