The Issue Whether Respondent is entitled to contest the forfeiture of his retirement benefits.
Findings Of Fact On December 28, 2006, Respondent sent a Notice of Forfeiture to Petitioner at 2848 Carriage Court, Kissimmee, Florida 34772, via certified mail. Petitioner’s actual residence was not in Kissimmee, but rather located at 2848 Carriage Court, Saint Cloud, Florida 34772. The certified mail receipt for the Notice of Forfeiture was returned unsigned. A printout of the United States Postal Service’s website scanned in as part of Petitioner's file with the Division indicates that the Notice of Forfeiture was delivered on January 6, 2007, in Saint Cloud, Florida 34772. A handwritten notation on the copy of the printout indicates that: “must file petition on or before Jan 29, 2007.” On January 22, 2007, Robert Augustus Harper, who represented himself as counsel for Petitioner, sent a letter to Respondent requesting “all records and documents on Mr. Day.” This letter was stamped as received on January 25, 2007, in Respondent’s records. Respondent’s records do not indicate whether a response was ever sent to Mr. Harper or Petitioner. On April 8, 2009, Petitioner sent a letter to Respondent regarding the appeal of his criminal case, which was stamped as received on April 10, 2009, by Respondent. The letter advised that it was “to update your office of my retirement account with the State.” The letter further stated: At this time I have gone through one appeal process of criminal offences [sic] filed against me, out of the original 15 charges filed 13 has [sic] been reversed or found not guilty by either the Circuit Court or Appeals Court [sic] We are in the process of further appealing the remaining two counts. Enclosed is a letter from my attorney which was sent to you prior to our first appeal. After over 30 years of retirement payments made and a few years paid by myself in the 1970’s I hope this results in a favorable ending to myself. No response was sent to this letter by Respondent. On July 26, 2017, Petitioner met with employees of Respondent and received a copy of the Notice of Forfeiture. At that meeting, an employee of the Division, identified as Mr. Dame, submitted the following electronic inquiry: “Member never received reply to his letter dated April 8, 2009. He would like a reply ASAP. He also would like to know the disposition of his contributions.” On August 9, 2017, Kathy Gould, bureau chief of Benefit Calculations for Respondent, sent Petitioner a letter in response to his inquiry of July 26, 2017. The August 9, 2017, letter from Ms. Gould to Petitioner stated in pertinent part: The Division has reviewed the legal circumstances surrounding the forfeiture of your Florida Retirement System Benefits. On December 28, 2006, a Notice of Forfeiture of Retirement Benefits was sent by certified mail to you. This notice also included a statement of your rights to appeal the forfeiture decision by administrative hearing within 21 days, if you believed your rights under Chapter 121, F.S. were improperly or wrongfully determined. We have no evidence that you filed an appeal with the Division within 21 days. You have $315.89 in employee contributions on deposit. I am enclosing a Request For Refund of Employee Contributions (form FRS- M81) for your completion. Please contact our office if you have any questions or need additional information. On September 18, 2017, Petitioner sent Respondent a letter addressed to Ms. Gould stating in pertinent part: Thank you for your letter dated August 9, 2017. Although your letter indicates that a Notice of Retirement Benefits was sent by certified mail on December 28, 2006, I did not receive the notice. In fact, when I visited with staff of the Division of Retirement on July 26, 2017, I was advised of the existence of the forfeiture notice and provided a copy of the Certified Mail Receipt from my file. Importantly, the receipt is unsigned and the mailing address was incorrect. The file also includes a request from my attorney for a copy of all records and documents related to myself. The letter is dated January 22, 2007. No documents, records, or other response, however, was provided. The timing of the forfeiture letter is very curious to me. At the time the letter was mailed, my convictions were under appeal. A decision was not issued until February 22, 2008. Day v. State, 977 So. 2d 664 (Fla. 5th DCA 2008). That decision reversed all of the convictions for the misdemeanor offenses. The two felony convictions were upheld but, as of the date of the forfeiture letter, they were on appeal and not yet final. My file also includes a letter dated April 8, 2009, from myself to the Division of Retirement advising that the process of further appealing the remaining two felony counts was continuing. The letter attached the previous letter from my attorney requesting a copy of my file. Again, no response from the Division was received. I believe that I have a meritorious argument regarding whether the retirement benefits for my 30-years of service were lawfully forfeited. Under the circumstances, it would be greatly appreciated if you would review my file and advise whether the Division will re-issue the forfeiture letter so as to allow me appropriate notice and an opportunity to contest the determination. The letter was stamped as received by Respondent on September 21, 2017. On October 12, 2017, Respondent, through its Assistant General Counsel Mitchell Herring sent a letter to Petitioner denying his request to reissue the forfeiture letter. The pertinent part of the letter states: I am responding to your letter dated September 18, 2017 addressed to Kathy Gould. Based on a review of the original legal file related to the forfeiture of your retirement benefits, a Notice of Forfeiture of Retirement Benefits was mailed to 2848 Carriage Court, Kissimmee, FL on December 28, 2006 and delivered to that address on January 6, 2007. This was the address that you provided to the Florida Retirement System as your home address, and therefore constituted your address of record. Accordingly, this Notice was effective pursuant to section 120.569, Florida Statutes (2006), and your opportunity to file a petition expired on January 27, 2007. There is no record indicating that a petition was filed. More importantly, our records indicate that the Department was not provided with any notice that an appeal of your criminal conviction was occurring until more than two years after the Notice had originally been sent. Regardless of this, had the appeal overturned all convictions which could have served as the basis for the forfeiture of your retirement benefits, the forfeiture would have been reversed. However, this did not occur, as either of the two convictions for grand theft which still stand are independently sufficient bases for the forfeiture of retirement benefits pursuant to section 112.3173, Florida Statutes (2001-2017), and were included as justification for the forfeiture in the Notice of Forfeiture of Retirement Benefits. Because it has been more than ten years since the Department notified you of its forfeiture of your rights and benefits under the Florida Retirement System, a sufficient basis for the forfeiture still exists, and the Department provided effective notice of its intended action pursuant to law, the Notice of Forfeiture of Retirement Benefits will not be re-issued. At the hearing, Petitioner persuasively testified and offered evidence that he neither received the Notice of Forfeiture in January 2007, nor was aware that such a notice had been issued until his meeting with an employee of the Division near the end of July 2017. When Petitioner obtained a copy of the Notice of Forfeiture during his July 2017 meeting, he noticed that it had an incorrect address, i.e., it was mailed to Kissimmee instead of St. Cloud. Kissimmee and St. Cloud are distinct cities and the only two incorporated cities in Osceola County. Petitioner further explained that his home in St. Cloud was located about a quarter-mile down a private dirt road from a county-maintained road. His home was situated on five acres, with a fence surrounding the property and a locked gate at the driveway. He purchased the property in 2001 and resided there until 2011. Petitioner testified that all of the mailboxes for homes on the private dirt road were clustered together and located at the end of the road where it intersected with the county-maintained road. Anyone from the post office would have been unable to access Petitioner's home because of the fence and locked gate. Petitioner also had a “cur dog” that would not let anybody on the property. The other individuals residing in Petitioner's home in January 2007 were his wife and daughter. Petitioner's wife worked during the week and his daughter went to school and worked part-time. Petitioner testified that there would have been no one around during the week to receive any certified mail delivered at his home from the post office. There were occasions where the post office would leave certified mail slips in Petitioner’s mailbox at the end of the road. On such occasions, Petitioner would go into town to the post office to pick them up. Petitioner did not recall, however, the delivery of, or anyone showing up at his home with, a certified mail letter from the Division. The fact that Petitioner was aware that his criminal convictions could impact his ability to obtain retirement benefits does not demonstrate that he received the Notice of Forfeiture in January 2007. Petitioner acknowledged that he never asked for his deferred retirement option program (DROP) proceeds to be distributed. However, when asked why he sent his letter in April 2009, advising the Division of the status of his appeals and post-conviction efforts, if he was unaware of the forfeiture letter, Petitioner explained that he was still able to work, he was not 62 at the time, and that he wanted to let the Division know that he was still out there. Petitioner further explained that he informed the Division about the status of his appeals because he thought that he could receive his retirement benefits if he won in the appeal process. Petitioner's testimony that he did not receive the Notice of Forfeiture until his meeting with a Division employee in July 2017 was credible. The location and physical description of Petitioner’s home was uncontested and it appears unlikely that the postal service would have been able to deliver the certified mail to Petitioner. Other than the printout of the United States Postal Service website indicating that the Notice of Forfeiture was delivered on January 6, 2007, in St. Cloud, Florida, the Division produced no evidence that Petitioner, in fact, received it. The absence of a signed receipt, when considered with the postal service’s Track and Confirm printout indicating delivery, could, at best, suggest that Petitioner deliberately failed to pick up the certified mail letter. If delivered to St. Cloud, it is plausible that the certified mail slip was placed in the wrong mailbox. The evidence is insufficient, however, to show that Petitioner refused to accept the certified mail letter. The Division’s records do not include any notation that the certified mail was undeliverable or refused. Considering the evidence in light of all of the surrounding facts and circumstances, it is found, as a matter of fact, that the evidence is insufficient to show that Petitioner received the Notice of Forfeiture in January 2007. The Department presented no testimony regarding the practices and policies of the Division when the Notice of Forfeiture was issued. Division employees who were historically involved with Petitioner’s retirement forfeiture issues have either retired or obtained employment elsewhere. The deposition testimony of Mary Katherine Gould, the present bureau chief of the Division’s Benefit Calculations, discussed the Division’s current practice regarding unsigned certified mail receipts for notices of forfeiture. Ms. Gould testified that, currently, additional efforts are undertaken to locate the member and additional certified mailings are attempted to obtain the member’s signature on the return receipt. She also indicated that current practice would include further review of a member’s file to discover any other addresses. Petitioner’s retirement file with the Division shows that the general counsel for the Department at the time was aware that the certified mail return receipt was neither signed nor dated. And, there is nothing in the file indicating that Petitioner was avoiding delivery of the certified mail. Based on her review of Petitioner’s file, Ms. Gould could not determine whether any additional efforts had been made to search for a different address to attempt another certified mail delivery. Had the Division reviewed its own files, it could have easily discovered Petitioner’s correct mailing address. There are letters, applications, and other retirement form submittals within Petitioner’s file reflecting that his correct mailing address at the time was 2848 Carriage Court, St. Cloud, Florida 34772. For example, there are several documents from Petitioner related to his DROP application and submittals that contain his correct mailing address. His file also contains several letters and documents mailed from the Division to Petitioner at his correct address. The Division’s file for Petitioner further reveals that it received the public records request by Petitioner’s attorney, Robert Harper, on January 25, 2007. At the hearing, Petitioner explained that he had retained Mr. Harper to represent him in the appeals of his convictions, which were ongoing at the time of the public records request. Petitioner also asked Mr. Harper to help him “keep track of . . . the retirement part.” There is no evidence that the Department ever responded to Mr. Harper’s request. According to practice, the Division calendars the 21-day time period for the challenge of a forfeiture as commencing on the date the notice is received by the member. Although there is no certified mail return receipt, the purported delivery date of the Notice of Forfeiture indicated by the postal service was January 6, 2007. Therefore, had Petitioner actually received the Notice of Forfeiture, there was still time for Petitioner to contest the forfeiture, when the Division received the public records request by Mr. Harper on January 25, 2007. On January 30, 2007, five days after Mr. Harper’s public records request, the Division sent a memorandum to the General Counsel’s office. The subject of the memorandum is “Request for OGC Assistance with Public Records Request." The memo specifically advised that the public records request was for a copy of Petitioner’s retirement file and that there was a “legal block of Mr. Day’s retirement account because of possible forfeiture. There should be a file in the Legal Office.” An interoffice memorandum regarding the matter from Sarabeth Snuggs, director of the Division, to Geoffrey Christian, Office of General Counsel, dated February 1, 2007, states, in part: The return receipt was neither signed nor dated. However, according to the postal service’s track and confirm website, the letter was delivered on January 6, 2007. The member has failed to protest the forfeiture action within the 21-day time limit. The benefits are now forfeited and the legal file is closed. In other words, even though the certified mail receipt was returned unsigned, and despite the fact that the Division and its general counsel were aware of the pending unanswered public record’s request from Petitioner’s counsel, the Division closed Petitioner’s file on the grounds that Petitioner failed to timely challenge the forfeiture. Regarding Petitioner’s meeting with Division employee, Mr. Dame, on July 26, 2017, Petitioner provided undisputed and persuasive testimony that Mr. Dame provided him with a copy of the Notice of Forfeiture, the certified mail return receipt, and the Postal Service Track and Confirm printout. During the meeting, Mr. Dame pointed out the fact that the return receipt was unsigned. At the time, Mr. Dame also advised Petitioner that he was going to send an inquiry regarding the issue and that Petitioner should “sit tight, we’ll see what happens.” Mr. Dame never advised Petitioner that his 21-day time period to challenge the forfeiture letter would re-commence based upon the fact that Petitioner received a copy of the Notice of Forfeiture during that July 2017 meeting. Petitioner filed the Petition in this case in response to the letter from the Department’s Assistant General Counsel Mitchell Herring, dated October 12, 2017, because it had a case number on it. The letter referenced Petitioner’s September 18, 2017, letter and “OGC Case No. 17-36457.” Prior to that time, Petitioner's understanding was that the Division was investigating the circumstances surrounding his forfeiture letter. Based upon these facts, it is found that the Department never provided Petitioner with a clear point of entry within which to contest the forfeiture of his retirement benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, either reissue the Notice of Forfeiture of Retirement Benefits to Petitioner or otherwise allow him a point of entry with a 21-day time period within which to contest the forfeiture of retirement benefits. DONE AND ENTERED this 14th day of May, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2015.
The Issue Whether Respondent may levy upon property belonging to Petitioner (specially, funds in Petitioner's account, number 300126719, at Admiralty Bank), as proposed in Respondent's March 30, 2000, Notice of Intent to Levy?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner operates a Chevron station at 4109 Northlake Boulevard in Palm Beach Gardens, Florida, at which it engages in the business of selling motor fuels at posted retail prices. Petitioner maintains a business account at Admiralty Bank. The number of its account is . Petitioner's Local Option Motor Fuel License number is 60-023068. Petitioner was delinquent in remitting to the Department "local option gas tax" payments for the period from July 1, 1995, through June 30, 1996. The Department provided Petitioner notice of Petitioner's failure to make these payments. The Department filed with the Clerk of the Circuit Court in Palm Beach County a Tax Warrant "for collection of delinquent local option gas tax[es]," in the amount of $106,904.62, plus penalties (in the amount of $59,556.47), interest (in the amount of $12,026.25), and the amount of the "filing fee" ($12.00), for a "grand total" of $178,499.34. Rafael Fanjul is the president and sole owner of Petitioner. On May 2, 1997, Mr. Fanjul, on behalf of Petitioner, entered into a Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $178,024.29 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the Stipulation Agreement. 4/ On May 1, 1998, Petitioner entered into a second Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $142,701.38 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the second Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. Petitioner made some, but not all of the payments, set forth on the Amortization Schedule incorporated by reference in the second Stipulation Agreement. 5/ On August 12, 1999, Petitioner entered into a third Stipulation Agreement with the Department, which provided as follows: THE FLORIDA DEPARTMENT OF REVENUE AND ELF SERVICES, D/B/A PALM BEACH CHEVRON S/S 4806, THE TAXPAYER, TAX IDENTIFICATION NO. 60- 123068, HEREBY AGREE THAT THE $88,375.04 TAX LIABILITY IS DUE THE STATE OF FLORIDA. IT IS FURTHER AGREED THE SUM OF TAX, PENALTY, AND INTEREST REFERENCED ON THE WARRANT OR WARRANTS DATED 02/20/97 IS SUBJECT TO THE FOLLOWING STIPULATIONS: The taxpayer will retire the tax, penalty, and interest shown on the Tax Warrant or Warrants whose dates or dates are shown above. The taxpayer waives any and all rights to institute any further judicial or administrative proceedings under S.72.011, F.S., with respect to this liability and; The taxpayer further agrees to meet each payment term which is detailed on the Amortization Schedule and Payment Coupons provided by the Department of Revenue. IN THE EVENT THE TAXPAYER FAILS TO MEET THE PAYMENT TERMS DETAILED ON THE ENCLOSED AMORTIZATION SCHEDULE AND PAYMENT COUPONS OR FAILS TO TIMELY REMIT ALL TAXES WHICH BECOME DUE AND PAYABLE SUBSEQUENT TO THE DATE OF THIS AGREEMENT, ANY UNPAID BALANCE OF TAX, PENALTY, AND/OR INTEREST SCHEDULED PURSUANT TO THIS AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. Mr. Fanjul had the authority to bind Petitioner to the terms set forth in the third Stipulation Agreement. There has been no showing that, in so doing, he acted involuntarily or under coercion or duress. The Amortization Schedule incorporated by reference in the third Stipulation Agreement required Petitioner to make 47 weekly payments of $1,000.00 each from August 12, 1999, to June 29, 2000, and to make a final payment of $28,994.57 on July 6, 2000. As of January 12, 2000, Petitioner was five payments behind. Accordingly, on that date, the Department sent a Notice of Delinquent Tax to Admiralty Bank, which read as follows: RE: ELF SERVICES INC. DBA: PALM BEACH GARDENS CHEVRON STA 48206 FEI: 65-0055086 ACCT: ST#: To Whom It May Concern: You are being notified, under the authority contained is Subsection 212.10(3), Florida Statutes, that the referenced dealer is delinquent in the payment of gas tax liabilities in the amount of $75,581.47 to the State of Florida. You may not transfer or dispose of any credits, debts, or other personal property owed to the dealer, that are to become under your control during the effective period of this notice. Any assets in your possession exceeding the dollar amount shown above may be released in the ordinary course of business. This notice shall remain in effect until the Department consents to a transfer or disposition or until sixty (60) days elapse after receipt of this notice, whichever period expires the earliest. Please furnish a list of all credits, debts, or other property owed to the dealer in your possession and the value of these assets to the Department. Chapter 212.10(3), F.S. requires this list within five (5) days. If you fail to comply with this notice, you may become liable to the State of Florida to the extent of the value of the property or amount of debts or credits disposed of or transferred. Thank you for your cooperation. If you have any questions, please contact the undersigned at the telephone number below. On or about January 18, 2000, in response to the foregoing notice, Admiralty Bank advised the Department in writing that "the balance being held" in Petitioner's account at the bank was $2,223.53. On February 10, 2000, the Department sent Admiralty Bank a Notice of Freeze, which read as follows: RE: Elf Services Inc. DBA Palm Beach Gardens Chevron FEI: 65-0055086 ACCT: ST#: Dear Custodian: You are hereby notified that pursuant to Section 213.67, Florida Statutes, the person identified above has a delinquent liability for tax, penalty, and interest of $75,581.47, which is due the State of Florida. Therefore, as of the date you receive this Notice you may not transfer, dispose, or return any credits, debts, or other personal property owned/controlled by, or owed to, this taxpayer which are in your possession or control. This Notice remains in effect until the Department of Revenue consents to a transfer, disposition, or return, or until 60 consecutive calendar days elapse from the date of receipt of this Notice of Freeze, whichever occurs first. Further, Section 213.67(2), F.S., and Rule 12-21, Florida Administrative Code, require you to advise the Department of Revenue, within 5 days of your receipt of this Notice, of any credits, debts, or other personal property owned by, or owed to, this taxpayer which are in your possession or control. You must furnish this information to the office and address listed below. Your failure to comply with this Notice of Freeze may make you liable for the amount of tax owed, up to the amount of the value of the credits, debts or personal property transferred. Thank you for your cooperation. If you have any questions please contact the undersigned at the telephone number listed below. On March 22, 2000, the Department sent to Petitioner a Notice of Intent to Levy upon Petitioner's "Bank Account # , in the amount of $2,320.07, . . . in the possession or control of Admiralty Bank" "for nonpayment of taxes, penalty and interest in the sum of $75,581.47." After receiving information from Admiralty Bank that Petitioner actually had $7,293.36 in its account at the bank, the Department, on March 30, 2000, sent Petitioner a second Notice of Intent to Levy, which was identical in all respects to the March 22, 2000, Notice of Intent to Levy except that it reflected that Petitioner's account at Admiralty Bank contained $7,293.36, instead of $2,320.07. Petitioner's account at Admiralty Bank does not contain any monies paid by a third party to Petitioner as salary or wages. The amount of the Petitioner's current outstanding delinquent "tax liability" is $75,581.47.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order upholding its March 30, 2000, Notice of Intent to Levy and proceed with the garnishment of the funds in Petitioner's account at Admiralty Bank. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Florida. STUART M. LERNER 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 25th day of October, 2000.
The Issue The issue in this case is whether the Respondent, Michael Crudele, should be disciplined for alleged violations of the statutes and rules governing the conduct of insurance agents.
Findings Of Fact The Respondent, Michael Crudele, is currently eligible for licensure and is licensed in Florida as a life insurance agent and as a life and health insurance agent. The Respondent was the agent-of-record on two American Life and Casualty Insurance Company (American Life) annuities purchased by Mary Clem, one in the face amount of $30,000 dated October 28, 1992, and the other in the face amount of $20,000 dated December 28, 1992. Clem was 84 years old at the time and a widow. The annuities represented more than 80 percent of her life savings. The Respondent became agent-of-record on these annuities at the request of Charles Perks, a good friend and former fellow Metropolitan Life agent. Clem had been an insurance customer of Perks since approximately 1985. When Clem complained to Perks that "the bottom fell out of interest" on her certificates of deposit, he suggested the American Life annuities as a safe alternative that paid higher interest. But Perks was not an authorized agent for American Life, so he asked the Respondent to participate in the sales and split the commissions. In 1992, the Respondent became involved in the Zuma Engineering Co., Inc., a startup tire recycling venture. After being introduced to Zuma, the Respondent became very enthusiastic about its prospects. He invested $30,000 in Zuma, received stock in return for his investment, and became a thirty percent owner. He also became involved in all aspects of the startup business, from promoting the business to the public, to raising capital from and working with private investors, to cleaning up Zuma's recycling facility. He understood that he was a corporate director, but corporate filings with the Secretary of State indicate that he was a vice-president from October 27, 1993, until March 20, 1994. The Respondent not only solicited investors himself, he participated in recruiting a sales force. As part of this effort, he recruited his friend Charles Perks. In late 1993 and early 1994, Perks and the Respondent approached Mary Clem to solicit her investment in Zuma. It is not clear from the evidence how the solicitation of Mary Clem proceeded. It is believed that Clem may have initially contacted Perks around the time of the anniversary date of the $30,000 annuity to complain that she had been notified of a drop in the interest rate paid by the annuity. Mary Clem received a guaranteed 5.75 percent interest, plus a one percent interest "bonus" for a total of 6.75 percent interest during the first year of her two American Life annuities. The "bonus" interest automatically terminated at the end of the first year. In addition, the evidence was that the standard interest guarantee decreased to five percent starting with the second year. It is not clear when Clem received notice of the decrease in the interest guarantee or whether she received notice from American Life as to the elimination of the interest "bonus," but it is found that by December 2, 1993, Clem knew the interest rate on her $30,000 annuity was being decreased to five percent for the second year of the annuity. It is possible that she also knew by then that the interest on her $20,000 annuity was being decreased to five percent as well. Perks saw Mary Clem's dissatisfaction with the American Life annuities as an opportunity to sell Zuma promissory notes to her. On or about December 2, 1993, Charles Perks approached Mary Clem and sold her a $10,000 promissory note issued by Zuma. On its face, the promissory note was dated December 3, 1993, and paid twelve percent interest, with a single balloon payment of principal and interest due on June 3, 1995. The evidence was that the Respondent did not participate in this transaction on December 2, 1993. Mary Clem does not recall, and both Perks and the Respondent testified that the Respondent was not present. The Respondent testified that he was not even aware of this $10,000 Zuma note until the Department's Order of Emergency Suspension and Administrative Complaint on or about July, 1996, but this testimony is rejected as not being credible. It is found that the Respondent knew about Clem's purchase of the $10,000 promissory note either on December 2, 1993, or soon thereafter. It is found that by December 2, 1993, or shortly thereafter, Clem complained to both Perks and the Respondent about the interest on her annuities. It is found that all three of them discussed Zuma promissory notes as an alternative investment. Contrary to the Respondent's testimony, it is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note by then, the Respondent would have learned of the $10,000 Zuma promissory note during these discussions. It also is found that, based on those discussions, Clem decided to surrender her $20,000 annuity and use the money to buy Zuma promissory notes. It is found that Perks and the Respondent helped Clem with the surrender of her $20,000 annuity. It also is found, contrary to the Respondent's testimony, that Perks and the Respondent assisted in arranging for Clem to be able to purchase a Zuma promissory note in the face amount of $20,000 for the net cash surrender value of the $20,000 annuity, after deduction of premium tax and surrender penalty. When American Life was notified of Clem's desire to surrender the $20,000 annuity, the company contacted the Respondent and asked him to "conserve" the annuity, i.e., dissuade Clem from surrendering it. It is found that, if he did not already know about it by then, the Respondent would have learned of Clem's intentions to buy Zuma promissory notes when he contacted her on behalf of American Life to comply with American Life's request that he attempt to conserve the annuity. It also is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note, he would have learned of the $10,000 Zuma promissory note at this time. By letter dated January 24, 1994, American Life responded to Clem's request to surrender her $20,000 annuity. American Life's letter advised Clem that she was entitled to principal and $69.67 in interest, less premium tax in the amount of $213.69 and surrender charges in the amount of $1,625.65, for a net of $18,230.33. A check for the net amount was enclosed. A copy of American Life's January 24, 1994, letter was sent to the Respondent as the agent-of-record. On or about February 1, 1994, Perks and the Respondent went to Clem's home to complete the purchase of a $20,000 Zuma promissory note. The Respondent testified that, since all of the arrangements had been made in advance, the Respondent's role in the transaction was solely as "corporate director and verifier" on behalf of Zuma; however, the Respondent also would receive $900 of the $2,000 commission paid by Zuma on the transaction. Meanwhile, his additional role as American Life's agent required him to attempt to "conserve" the annuity policy. At one point, the Respondent testified that, as "corporate director and verifier," he inquired into Clem's assets (presumably to ascertain if the investment was appropriate for her). But he also testified that he assumed her assets were unchanged from 1992, raising a question as to whether the Respondent undertook any inquiry into Clem's assets on February 1, 1994, at all. At another point, the Respondent testified that he understood Mary Clem to have $200,000 in assets. See Department Exhibit 6. But, if so, those assets consisted of her home, the annuities and the $10,000 Zuma promissory note. It is found that the Respondent had no reason to believe she had any other assets. The Respondent also testified that he did not determine from his alleged inquiry into Clem's assets, and did not know, that Clem already had purchased a $10,000 Zuma promissory note. As previously found, it is considered incredible that the Respondent did not already know by February 1, 1994, that Clem had purchased the $10,000 Zuma promissory note; it is all the more incredible that he would not have learned of it from a diligent inquiry into Clem's assets for purposes of determining the appropriateness of the $20,000 Zuma investment. Mary Clem testified that the Respondent and Perks touted the safety of the Zuma investment as well as the higher interest it paid. The Respondent testified that, although acting in the conflicting roles described in the preceding finding, he discussed the differences between the two investments, including the risk of the Zuma investment. The Respondent testified that he read to Mary Clem from a written disclosure statement that defined Zuma's promissory notes as being a "risk investment," but no written disclosure statement was introduced in evidence. In any event, the "verification" was a mere formality; as the Respondent knew full well, Clem already had decided to buy the promissory note. Clem wrote a personal check in the amount of $18,230, and Perks and the Respondent gave her Zuma's $20,000 promissory note bearing twelve percent interest. The note was erroneously dated February 1, 1993, and erroneously stated on its face that the single balloon payment of principal and interest was due on February 1, 1995. The note was supposed to have a 24- month term from February 1, 1994, to February 1, 1996. (This discrepancy would lead to problems later. See Findings 32-33, infra.) In view of the conflict of interest inherent in the Respondent's multiple roles in the transaction, it is found that the Respondent did not make a good faith inquiry into appropriateness of the Zuma investment for Mary Clem and did not fully disclose the risk associated with it, as compared to the American Life annuity. If the Respondent disclosed the risk, it is found that he did not do so fully and clearly, again probably due to the conflict of interest inherent in his multiple roles. Neither Mary Clem nor her late husband had ever invested in any stocks, mutual funds or even bonds. Before Mary Clem invested in the American Life annuities, she and her late husband always invested in certificates of deposit. While it is true that Clem wanted higher interest than she was getting on her annuities, she also wanted safety and security. It is found that, if the Respondent had fully and completely disclosed the risk of investing in Zuma promissory notes, Mary Clem would not have invested in them. Mary Clem also surrendered her $30,000 American Life annuity and used the money she received to buy another Zuma promissory note. The Respondent claimed not to have known anything about the third Zuma note, and the Department was not able to prove that he did. It is not clear exactly when Clem decided to surrender her $30,000 annuity and buy a third Zuma note. It was before March 3, 1994, the date of the American Life letter responding to Clem's request to surrender her $30,000 annuity. American Life's letter advised Clem that she was entitled to principal and $16.04 in interest, less premium tax in the amount of $324.71 and surrender charges in the amount of $2,474.92, for a net of $27,216.41. A check for the net amount was enclosed. As with Clem's request to surrender her $20,000 annuity, American Life contacted the Respondent and asked him to try to "conserve" the annuity. The Respondent also received a copy of American Life's March 3, 1994, letter as the agent-of- record. The Respondent admitted that he telephoned Clem on or about February 28, 1994, to try to conserve the annuity but that Clem was adamant. He claimed that Clem did not tell him what she intended to do with the money and that he did not ask. The meeting at which Clem bought the third Zuma promissory note took place on March 10, 1994. Mary Clem thought the Respondent was there but could not swear to it. Perks also testified that he thought the Respondent was there. The Respondent testified that he definitely was not there and did not know the transaction took place. By that time of the meeting on March 10, 1994, the Respondent had become suspicious and distrustful of Zuma's principals. They had diluted his thirty percent share of the company to a mere 0.3 percent. In addition, the Respondent did not think that the principals were following the business plan they had "sold" the Respondent, and which the Respondent in turn had "sold" to private investors, including Mary Clem. By early March 1994, the Respondent began to take steps to attempt to protect the investors in Zuma, including himself, and force Zuma to follow its business plan. Eventually, he emptied Zuma's accounts and placed the funds in the trust account of the lawyers he hired to sue Zuma and its principals to enjoin them to follow the business plan. The court ruled against the Respondent and required him to return the money to Zuma. The Respondent paid his lawyers' fees out of his own pocket. Based on the timing of events, it seems probable that the Respondent did not meet with Perks and Clem on March 10, 1994. By that time, he was becoming deeply involved in his dispute with Zuma and its principals. It is less clear that the Respondent was completely ignorant of Clem's intention to use the money from the surrender of the $30,000 American Life annuity to buy a third Zuma note, but he may well have lost track of Mary Clem and her intentions in the midst of his dispute with Zuma and its principals. It had been arranged before the March 10, 1994, meeting for Clem to be able to purchase a Zuma promissory note in the face amount of $30,000 for the net cash surrender value of the $30,000 annuity, after deduction of premium tax and surrender penalty. The Respondent denied participating in making these arrangements or having any knowledge of them. A similar arrangement already had been made for the $20,000 annuity and Zuma note, and it is conceivable that Perks did not require the Respondent's participation to arrange it for the $30,000 annuity and Zuma note. It is found that the evidence did not prove the Respondent's participation. On March 10, 1994, Clem wrote a personal check in the amount of $27,2126.41, and received Zuma's $30,000 promissory note dated March 10, 1994. On its face, the note paid twelve percent interest, with quarterly payments of $900 interest and the principal payable on March 10, 1996. The Respondent contacted Mary Clem in June or July, 1994, to inquire about her Zuma investment. Clem told him everything was fine. In December 1994, the notes were revised to show Mary Clem's daughter as a beneficiary on the notes in the event of Clem's death. The revised $20,000 note preserved the erroneous issuance and due dates. See Finding 21, supra. The $900 interest payment due on the $30,000 Zuma note on March 1995, was seriously past due. In addition, no payments were made on the $20,000 note. On April 1, 1995, the $20,000 note was renewed upon payment of $6,200 interest and penalties. Under the renewal note, monthly interest payments of $200 were due, and a balloon payment of principal and remaining interest was due on September 1, 1995. By mid-1995, Zuma was in default again, and Clem received no payments after August 8, 1995. Zuma paid Clem a total of just $23,400 on the three promissory notes. The Respondent conceded that there was a high risk of losing one's entire investment in Zuma and that someone investing in Zuma had to be prepared to lose the entire investment. He also conceded that Mary Clem should not have invested the bulk of her life savings in Zuma. He also conceded that it would have been significant to know, and he should have wanted to know, the extent of Clem's investment in Zuma before increasing her investment in Zuma.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order: (1) finding the Respondent, Michael Crudele, guilty of violating Sections 626.611(7), 626.621(3), and 626.621(6), Florida Statutes (1993); and (2) suspending his license and eligibility for licensure as a life insurance agent and as a life and health insurance agent for six months. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.
The Issue The issues for determination are whether Respondent violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida Statutes (2004),1/ as alleged, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Danny Howell was a duly-elected commissioner for the City of Ocoee, Florida (hereinafter "City" or "City of Ocoee"). As a commissioner for the City of Ocoee, Respondent was subject to the requirements of Chapter 112, Part III, Florida Statutes, the Code of Ethics for Public Officers and Employees. At all times relevant to this proceeding, James Gleason was city manager for the City of Ocoee. Mr. Gleason was appointed city manager by the Ocoee City Commission in January 2001 and served in that position until March 2004. When Mr. Gleason was initially appointed as city manager, Respondent did not vote in favor of Mr. Gleason. During his tenure as city manager, Mr. Gleason was supervised by the Ocoee City Commission, which was comprised of five elected commissioners. As a commissioner, Respondent was one of Mr. Gleason's immediate supervisors. Several years prior to Mr. Gleason's appointment as city manager, he had been a commissioner for the City of Ocoee and a candidate for mayor. As a result of Mr. Gleason's political involvement in the City, Respondent knew Mr. Gleason before he was appointed city manager. When hired, Mr. Gleason's annual base salary was approximately $87,000.00. Mr. Gleason's annual base salary at the time of his termination from the position of Ocoee city manager was $103,000.00. As a City commissioner, Respondent was paid a monthly salary of $400.00 per month to serve on the City Commission. In addition to his $400.00 monthly salary, Respondent received a monthly stipend of $275.00 for local travel. Fine for Late-Filed Campaign Treasurer's Report At all times relevant to this proceeding, Jean Grafton served as the Ocoee city clerk and as the City's supervisor of elections. By letter dated April 12, 2001, Ms. Grafton advised Respondent that a $150.00 fine had been assessed against him due to his Campaign Treasurer's Report not being timely filed. The same or a similar letter was also sent to Vickie Prettyman, Respondent's campaign treasurer. Despite Respondent's having been notified of the $150.00 fine in April 2001, a year later the fine had not been paid. After the $150.00 fine remained outstanding for more than a year, Ms. Grafton requested Mr. Gleason's assistance in getting Respondent to pay the fine. Ms. Grafton told Mr. Gleason that if Respondent did not pay the $150.00 fine, she would have to notify the Florida Elections Commission that Respondent had failed to pay the fine. Upon learning that the $150.00 fine had not been paid, Mr. Gleason discussed the matter with Respondent. Respondent advised Mr. Gleason that Ms. Prettyman was to pay the fine. In making this statement, Respondent was reasonably relying on Ms. Prettyman's representation to him that she would pay the $150.00 fine. As Respondent's campaign treasurer in 2001, Ms. Prettyman took responsibility for late-filing Respondent's Campaign Treasurer's Report in April of that year. Thus, Ms. Prettyman assumed she should pay the fine. The $150.00 fine for the late filing of Respondent's Campaign Treasurer's Report was paid on May 17, 2002. There is no dispute that Mr. Gleason delivered $150.00 in cash to the City Clerk's Office and paid the fine that had been assessed against Respondent. However, there was conflicting testimony between Ms. Prettyman and Mr. Gleason as to who provided the funds for the payment of the $150.00 fine and under what circumstances the fine was paid. On May 17, 2002, Ms. Prettyman met with Mr. Gleason at the City's Beach Recreation Center, where Ms. Prettyman worked as interim recreation director for the City. The meeting was about an upcoming work-related project. After the meeting ended, Mr. Gleason reminded Ms. Prettyman that the $150.00 fine was still outstanding.2/ Ms. Prettyman then told Mr. Gleason she got paid that day3/ and would pay the fine after she cashed her paycheck during her lunch hour. Although it was lunch time, Ms. Prettyman told Mr. Gleason that she could not leave the recreation center until the other employee assigned to the center returned from lunch so that the center could remain open.4/ On May 17, 2002, Mr. Gleason volunteered to stay at the Beach Recreation Center, so it could remain open while Ms. Prettyman went to the bank to cash her paycheck. When Ms. Prettyman returned to the recreation center, she told Mr. Gleason that she would go to City Hall to pay the fine later that afternoon. In response, Mr. Gleason offered to take the money to City Hall and make the payment for Ms. Prettyman since he was going there after he left the recreation center. Ms. Prettyman accepted Mr. Gleason's offer to deliver the $150.00 to City Hall and pay the fine for her. Ms. Prettyman then gave Mr. Gleason $150.00 in cash to pay the outstanding fine. Mr. Gleason never gave Ms. Prettyman a receipt for the payment. However, a few days after Ms. Prettyman gave the $150.00 to Mr. Gleason, she checked with Ms. Grafton to determine if the fine had been paid. In response, Ms. Grafton acknowledged that the payment had been received. Mr. Gleason contradicts the foregoing account regarding payment of the $150.00 fine, as described and testified to by Ms. Prettyman. Specifically, Mr. Gleason denied that Ms. Prettyman gave him the $150.00 in cash to pay the fine and testified that he paid the fine out of his personal funds. According to Mr. Gleason, he paid the fine after being directed to do so by Respondent. Mr. Gleason testified that after Ms. Grafton asked him to assist her in getting Respondent to pay the fine, he discussed the matter with Respondent on two or three occasions. Mr. Gleason testified that on one of these occasions, Respondent told him (Gleason) that he made more money than Respondent so he (Gleason) should pay the fine and make it go away. Based on the foregoing comments that Respondent allegedly made, Mr. Gleason testified that he believed Respondent wanted, expected, or was directing him (Gleason) to pay Respondent's $150.00 fine. Furthermore, Mr. Gleason testified that he believed and/or feared that his job as city manager might or could be adversely affected if he did not pay the fine. Contrary to Mr. Gleason's testimony, the credible testimony of Respondent is that he never directed or in any way coerced, threatened, or pressured Mr. Gleason to pay the $150.00 fine. Ms. Prettyman's testimony regarding payment of the $150.00 fine and the circumstances surrounding the payment is found to be more credible than that of Mr. Gleason. Waiver of Fees Related to Late Payment of Water Bill During the time Mr. Gleason served as city manager, Respondent and his wife were sometimes late in paying for their residential water service. In March 2003, the City of Ocoee determined that Respondent's residential water service would be terminated due to non-payment of the balance owed on the account. On or about March 20, 2003, Cathy Sills, who worked in the City's Utilities Service Department (hereinafter referred to as "Utilities Department"), contacted Mr. Gleason and informed him that Respondent was on the City's water service cut-off list. Mr. Gleason then contacted Respondent and informed him that his water service was going to be turned off that day if his bill was not paid. After being notified that his water service was scheduled to be cut-off, Respondent told Mr. Gleason that either he (Respondent) or his wife would go to the Utilities Department that day to pay the past due balance. Respondent also told Mr. Gleason that he would not be able to pay the late charges and any other related fees. On March 20, 2003, after Mr. Gleason telephoned Respondent about his (Respondent's) delinquent water bill, Respondent went to the Utilities Department and paid his water bill. Some time after Respondent spoke to Mr. Gleason, but before he arrived at City Hall to pay his water bill, the water service had been turned off. Due to Respondent's existing financial difficulties, Respondent needed more time to pay the late charges or other fees related to the water bill. Nevertheless, Respondent never asked or directed Mr. Gleason to waive the late charges or other fees associated with his delinquent water bill. Furthermore, Respondent never asked or directed Mr. Gleason to make sure that Respondent's water service was not cut off to restore water services after it was cut off. Mr. Gleason testified that after he talked to Respondent about his (Respondent's) delinquent water bill, he called Ms. Sills at the Utilities Department and asked her what the policy was regarding waiver of late charges. Mr. Gleason then told Ms. Sills that if the policy allowed for such a waiver, she should remove Respondent's late charges and the disconnect/service interruption fee from his account.5/ At all times relevant to this proceeding, the City of Ocoee had an informal "forgiveness" policy in which late charges and other penalties related to delinquent water bills were waived. The purpose of the policy was to provide assistance to individuals, who like Respondent, were having financial difficulties. Consistent with the City's "forgiveness" policy, Mr. Gleason had routinely directed the Utilities Department employees to waive late fees and other fees related to delinquent water bills of eligible citizens and to work out payment plans for them. Ms. Sills waived Respondent's late charges and the service interruption fee associated with Respondent's water bill after being directed to do so by Mr. Gleason. As a result of this waiver, on March 20, 2003, two late fee charges totaling $50.00 and one service restoration fee of $50.00 were "reversed" or removed from Respondent's account. Ms. Sills confirmed the waiver in an e-mail to Mr. Gleason in which she wrote, "Pursuant to our conversation and you [sic] direction, I have reversed from [Respondent's] account" two late fees at $25.00 each and one service restoration fee of $50.00. Respondent received a call from Ms. Sills advising him that the late fees and other fees related to his water bill had been waived. However, she did not mention why they were waived or at whose direction. At the time Mr. Gleason directed Ms. Sills to waive Respondent's late fees, Mr. Gleason knew that Respondent was currently experiencing financial difficulties and had been experiencing such difficulties for some time. Based on Respondent's financial circumstances, he was eligible for the waiver of late fees and service interruption fees under the City's "forgiveness" policy. The City's "forgiveness" policy, which was applied in Respondent's case and effectively waived his late charges and service interruption fees, was also routinely used in other financial hardship cases. Respondent had been delinquent in paying his water bill on other occasions because of the financial difficulties he was experiencing. However, the waiver of late fees and service interruption fees given to Respondent in March 2003, at the direction of Mr. Gleason, was the only waiver that Respondent ever received. Not long before March 20, 2003, the City Commission adopted a policy which increased the late charges for delinquent water bills from $5.00 to $25.00. When the Commission was considering the fee increase, Respondent opposed the increase. Notwithstanding Respondent's opposition to the increase in late charges for delinquent water bills, he believes that once a policy is adopted by the Commission, it should be applied equally to everyone. In accordance with this belief, Respondent did not ask or direct Mr. Gleason to violate City policy with regard to Respondent's water service, water bill, or fees/charges related thereto. Payment of City-Issued Credit Card on Balance At all times relevant to this proceeding, City commissioners received a monthly stipend of $275.00 to cover travel costs and expenditures in the local area. The City of Ocoee is located in Orange County, Florida. However, the resolution that established the monthly stipend for City commissioners defined the "local area" as Orange, Seminole, Lake, and Osceola counties.6/ In addition to receiving the monthly stipend of $275.00 for local travel, the City issued credit cards to the City commissioners. Each month, the charges incurred by City commissioners were reviewed by the City's Finance Department to reconcile and ensure the legitimacy of the charges. On May 9, 2002, Gequitha Cowan, executive assistant to the mayor and commissioners of the City of Ocoee, sent an e-mail to Respondent. In the e-mail, Ms. Cowan reminded Respondent that he had not yet paid the City the $354.18 to cover non-reimbursable charges that he charged on the City-issued credit card. Ms. Cowan sent Mr. Gleason a courtesy copy of the e-mail. Of the $354.18 outstanding balance on the credit card, $157.83 was for expenses Respondent incurred that were related to his attending the League of Cities conference held in Atlanta, Georgia. The remaining credit card balance of $196.35 was for local charges, primarily to restaurants made during a seven-month period, September 1, 2001, through April 2002. Respondent admitted that included in the $196.35 credit card balance is a $28.80 charge for which he should not be reimbursed. This charge resulted from Respondent's inadvertently using his City-issued (Visa) credit card, instead of his personal Visa credit card when he purchased medicine at a local store. Except for the $28.80 charge, Respondent believed that the other charges at issue were expenses for which the City should have reimbursed him. After Mr. Gleason received a copy of Ms. Cowan's May 9, 2002, e-mail, he met with Respondent to see if any of the charges identified in the e-mail were expenditures that could be properly reimbursed by the City. With respect to the $157.83 expenditure, Respondent presented no documentation to support reimbursement. As to the remaining balance (except the $28.80 Eckerd's charge), the credit card charges were for expenditures made at establishments in the local area and were not reimbursable by the City. There is no allegation that the expenditures made by Respondent were not legitimate expenses. However, based on the City's policy, expenditures for official City business in the local area should have been paid out of Respondent's monthly stipend. Such expenditures were not reimbursed by the City, even if the expenses were put on the City-issued credit card. Pursuant to the City's policy, generally, the City reimbursed City commissioners only for expenditures involving official business outside the local area. Respondent sometimes mistakenly made improper charges when using his City-issued credit card because he did not understand the City's policy related thereto.7/ In fact, as of the date of this proceeding, Respondent acknowledged that he still does not understand the policy. Due to Respondent's frustration with not understanding the City's policy and resulting problems associated therewith, Respondent voluntarily returned his City-issued credit card to the City's Finance Department in 2002. Although Respondent believed, albeit mistakenly, that he should have been reimbursed for the subject charges on the City-issued credit card, he never brought the issue regarding the disputed charges before the City Commission, the final arbiter of such disputes. Having failed to do so, Respondent does not dispute that he was obligated to pay the City $354.18, as determined by the City's Finance Department. After Respondent received Ms. Cowan's e-mail and talked to Mr. Gleason about the charges, he did not immediately pay the charges. The reason Respondent did not pay the charges in May or early June 2002, was that he was not working. As a result of being unemployed, Respondent was experiencing financial difficulties and did not have the money to pay the $354.18 to the City.8/ On June 3, 2002, Mr. Gleason paid the City of Ocoee $354.18 from his personal funds to cover Respondent's outstanding City-issued credit card debt. Mr. Gleason paid the outstanding charges using a personal check which had the imprinted name of Mr. Gleason and Mr. Gleason's wife. The memo section of the check indicated that the check was for "miscellaneous expenses" for the same time period as Respondent's outstanding charges. There is no dispute that on June 3, 2002, Mr. Gleason paid the $354.18 to cover Respondent's outstanding credit card charges. However, the circumstances surrounding the credit card payment, the reason Mr. Gleason made the payment, and whether Respondent repaid Mr. Gleason for the payment are disputed. Although, due to his financial situation, Respondent was unable to timely pay his outstanding $354.18 credit card charges, he never asked or directed Mr. Gleason to pay those charges. Furthermore, Respondent never coerced, threatened, or pressured Mr. Gleason to pay the credit card charges. Respondent was out-of-town on June 3, 2002, the day Mr. Gleason paid his $354.18 credit card bill, but returned to the City of Ocoee a day or a few days later. Respondent first learned that Mr. Gleason had paid the $354.18 outstanding credit card balance in or about early June 2002, after returning from his out-of-town trip. Mr. Gleason approached Respondent at City Hall and told him that he (Gleason) had taken care of the credit card bill. Mr. Gleason then gave Respondent the receipt which showed that Mr. Gleason had paid Respondent's outstanding $354.18 credit card bill. Mr. Gleason told Respondent that he paid the credit card bill because he was trying to help him (Respondent) out with "Martha" and did not want Respondent to look bad. Respondent was surprised to learn that Mr. Gleason had paid the $354.18. In response to Mr. Gleason's statements to Respondent described in paragraph 60, Respondent told Mr. Gleason that he had no right to pay the outstanding credit card bill and that he did not want him to pay the bill. Respondent also told Mr. Gleason that his paying the bill would "create a bad problem" for both of them. The "Martha" referred to by Mr. Gleason during his conversation with Respondent, discussed in paragraph 60, was Martha Lopez Anderson, a citizen of the City of Ocoee. At the time in question (May or early June 2002) Ms. Anderson, a very active citizen in the community and a familiar face at City Hall, was making public record requests regarding the travel expenses of City commissioners. The travel records requested and being reviewed by Ms. Anderson were located in the Finance Department in City Hall. Consequently, it was common knowledge among many City employees at City Hall that Ms. Anderson was reviewing the City commissioners' travel records. After Mr. Gleason paid Respondent's credit card balance, but prior to October 1, 2002, Richard Waldrop, a friend of Respondent and long-time City employee, became aware that Ms. Anderson was reviewing the City Commissioners' travel records. In fact, Ms. Anderson spoke to Mr. Waldrop about the matter and told him that Mr. Gleason had paid a bill for Respondent and that Respondent had not repaid Mr. Gleason. Mr. Waldrop does not recall the actual date that he learned that Respondent owed Mr. Gleason money for the bill that Mr. Gleason had paid. However, Mr. Waldrop's credible testimony was that he is sure that it was prior to October 1, 2002. After June 3, 2002, but prior to October 2002, Respondent was approached by Mr. Waldrop, who asked him if Mr. Gleason had paid a bill owed by Respondent. In response to his friend's inquiry, Respondent told Mr. Waldrop that Mr. Gleason had paid the bill, but without Respondent's prior knowledge. Respondent also acknowledged that he had not repaid Mr. Gleason, because he did not have the money. Upon learning that Respondent had not repaid Mr. Gleason, Mr. Waldrop was concerned that this was something that Mr. Gleason might want to "hold over" Respondent's head. Mr. Waldrop told Respondent that this situation "didn't look good" and then offered to lend Respondent $420.00 so that he could reimburse Mr. Gleason. Respondent accepted Mr. Waldrop's offer to lend him $420.00 so that he could repay Mr. Gleason. In order to repay the loan to Mr. Waldrop, Respondent and Mr. Waldrop agreed that Respondent, through his (Respondent's) and his wife's cleaning service, would provide house cleaning services to Mr. Waldrop and his wife two hours every other week until the debt was repaid. These services were provided at no charge for about a year, until the $420.00 debt was repaid. After Respondent received the $420.00 loan from Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding credit card balance that Mr. Gleason had paid on June 3, 2002. Although the amount Respondent owed Mr. Gleason was $354.18, when Respondent repaid Mr. Gleason, he gave Mr. Gleason $355.00 in cash. Due to the passage of time, Respondent does not recall the exact date that he reimbursed Mr. Gleason for paying Respondent's $354.18 outstanding credit card debt. Nonetheless, Respondent testified credibly that he repaid Mr. Gleason weeks, rather than months, after he learned that Mr. Gleason had paid Respondent's credit card bill. Furthermore, Respondent testified credibly that he is certain that he reimbursed Mr. Gleason prior to October 1, 2002. Mr. Gleason denied that Respondent repaid him the $354.18. Also, Mr. Gleason's testimony regarding the circumstances which resulted in his paying Respondent's outstanding credit card debt contradicts Respondent's testimony. According to Mr. Gleason, he met with Respondent in or about May 2002, after receiving Ms. Cowan's e-mail, about his credit card balance. Mr. Gleason testified that during that discussion, Respondent told Mr. Gleason that he (Gleason) made the "big bucks" and "could afford it [the credit card balance]." In May 2002, when Respondent's outstanding credit card balance was at issue, Mr. Gleason knew that Respondent was having financial difficulties, as well as other problems. Mr. Gleason testified that, in light of those difficulties, when Respondent made the comments noted in paragraph 73, Mr. Gleason believed that Respondent either did not have the money to pay the credit card bill or did not intend to pay it. Mr. Gleason did not interpret the alleged comments (that Mr. Gleason made "big bucks" and could afford to pay the outstanding credit card balance) as an attempt by Respondent to coerce, threaten, or pressure him to pay the $354.18 or to extort the money from him. Rather, Mr. Gleason testified that he implied from those comments that Respondent was asking Mr. Gleason for a loan. Contrary to Mr. Gleason's interpretation of the foregoing comments made by Respondent, Respondent did not ask Mr. Gleason for a loan, imply that Mr. Gleason should lend him money to pay the $354.18 outstanding credit card balance, or direct Mr. Gleason to pay Respondent's outstanding credit card balance. At this proceeding, Mr. Gleason testified that Respondent never repaid him for the $354.18 payment that he made to the City for Respondent. This testimony contradicts an earlier statement Mr. Gleason made at a City Commission meeting. During the October 1, 2002, City Commission meeting, Mr. Gleason stated that the commissioner, for whom he had paid an outstanding credit card balance, had repaid him in full and that he (Gleason) owed the commissioner some change. Mr. Gleason did not name the commissioner to whom he was referring, but he was referring to Respondent.9/ Mr. Gleason made the statement that the commissioner had paid him in full, in response to comments of Ms. Anderson, in the context of a broader discussion about commissioners' travel expenses. Almost as an aside to the specific "travel expenses" topic being discussed, Ms. Anderson mentioned that inappropriate charges made by "commissioners" were being reimbursed by Mr. Gleason.10/ During the course of making the foregoing comments, Ms. Anderson never specifically named the commissioners whose expenses were being reimbursed by Mr. Gleason. The statement Mr. Gleason made at the October 1, 2002, City Commission meeting, is consistent with the credible testimony of Respondent on two points. First, Mr. Gleason's statement that he was paid in full supports Respondent's testimony that he reimbursed Mr. Gleason for paying the $354.18 credit card balance to the City prior to October 1, 2002. Second, Mr. Gleason's statement that he owed the commissioner change is consistent with Respondent's testimony that, when he reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash. This was $.82 cents more than the outstanding credit card bill that Mr. Gleason paid. In this proceeding, Mr. Gleason testified that when the issue of his paying Respondent's $354.18 credit card charges came up at the City Commission meeting, he did not tell the truth when he said that Respondent had paid him. Mr. Gleason testified that on October 1, 2002, but prior to the City Commission meeting that day, Respondent approached Mr. Gleason and advised him that Respondent's $354.18 credit card bill issue might be raised at the meeting. Mr. Gleason also testified that Respondent told him that if the issue were raised at the meeting, Mr. Gleason should say that Respondent had paid/reimbursed him.11/ Mr. Gleason testified that he lied at the City Commission meeting at the behest of Respondent, because he "wanted to keep [Respondent's] favoritism in terms of [Gleason's] job." As to matters related to the payment of Respondent's outstanding $354.18 credit card debt and the circumstances related thereto, Respondent's testimony is found to be more credible than that of Mr. Gleason. Purchase of Surplus Computer While serving on the City Commission, Respondent's wife, Mrs. Howell, and their son, frequently visited City Hall. During these visits, it was customary for Respondent's son, who was about ten-years-old, to visit Mr. Gleason, whose office was next door to Respondent's office. When Respondent's son went to Mr. Gleason's office, Mr. Gleason would give him candy and sodas. Mr. Gleason and Respondent's son enjoyed a cordial relationship. The City of Ocoee periodically disposes of surplus equipment, including computers, by use of a closed bid system which was open to employees and elected officials. In or about September 2003, during one of Mrs. Howell's and her son's visits to Mr. Gleason's office, a discussion ensued about computers and the City's upcoming sale of its surplus computers. Mrs. Howell's son stated that he wanted one. That day, Mrs. Howell's son had gone to Mr. Gleason's office first, and she joined him there later. In response to Respondent's and Mrs. Howell's son saying he wanted a computer, Mr. Gleason volunteered to get him one as a gift. Mrs. Howell responded by telling Mr. Gleason, "No. He [referring to her son] can wait." Mrs. Howell rejected Mr. Gleason's offer initially because she felt that the family could not afford one, and she did not feel comfortable allowing her son to accept a gift from Mr. Gleason. However, she did not feel comfortable telling Mr. Gleason, especially in her son's presence, that she could not afford the computer her son wanted. Mrs. Howell was adamant and repeatedly told Mr. Gleason that she did not want him to purchase a computer for her son. Nonetheless, Mr. Gleason insisted that he was going to get the computer for her son anyway. After Mrs. Howell made it clear that she did not want Mr. Gleason to purchase a computer for her son, Mr. Gleason said to her, "Listen, I'm going to get it and you can do whatever you want, if you want to pay me back or whatever." Mrs. Howell's final answer to Mr. Gleason was the same one that she initially shared with Mr. Gleason--she did not want him to purchase a computer for her son. Mrs. Howell never asked or agreed to Mr. Gleason buying a computer for her son, and she never agreed to pay Mr. Gleason for purchasing a computer. Respondent was not present in Mr. Gleason's office with his wife and son when Mr. Gleason and Mrs. Howell were discussing the surplus computer, but Mrs. Howell told Respondent about the conversation later. After learning of his wife's conversation with Mr. Gleason, Respondent told Mr. Gleason that he did not want his son to have a computer. Based on this discussion, Respondent believed the matter was settled. There was a computer in Respondent's home, and Respondent believed that for his ten-year-old son to have his own computer would be a detrimental distraction. Mr. Gleason's offer to buy a surplus computer as a gift for Respondent's son was subject to Mr. Gleason being a successful bidder. In order to purchase one of the City's surplus computers, a potential purchaser had to submit a bid. Consistent with this policy, Mr. Gleason submitted a bid for a surplus computer. On September 19, 2003, Mr. Gleason was notified that his bid of $130.10 was one of the successful bids and that he had won one of the City's surplus computers. A few days later, Mr. Gleason purchased the surplus computer to give to Respondent's son. On Monday, September 22, 2003, Mr. Gleason sent an e-mail to Respondent indicating that he had successfully bid on one of the surplus computers. In the e-mail, Mr. Gleason stated that he was going to pay for the computer on Tuesday and then "turn the PC [computer] over to [Respondent's son] for his room." Mr. Gleason then wrote, "We can work out the details later!" Both Respondent and his son read this e-mail. The September 22, 2003, e-mail gave the false and/or misleading impression that Respondent had asked Mr. Gleason to purchase the computer for Respondent's son, knew that Mr. Gleason had submitted a bid on the computer, and had agreed to repay Mr. Gleason for the computer. In fact, none of those impressions were accurate. Respondent never asked Mr. Gleason to bid on a computer for Respondent's son or to purchase such computer. Neither did Respondent ever promise to pay Mr. Gleason for a computer. Although the implication in the September 22, 2003, e-mail was false, there is no indication that Respondent replied to the e-mail. Furthermore, Respondent provided no explanation or reason as to why he failed to respond to the misleading e-mail. On or about September 22, 2003, after Mr. Gleason paid for and received the surplus computer, and he took the computer to Respondent's home, unannounced. When Mr. Gleason brought the computer to Respondent's home, Respondent and his wife were placed in an awkward position. Their son was home when Mr. Gleason brought the computer and was very happy and excited about getting a computer. Seeing the expression on her son's face, Mrs. Howell did not have the heart to tell Mr. Gleason to take the computer back. Rather than disappoint their son, Respondent and his wife allowed Mr. Gleason to install the computer. Not long after Mr. Gleason brought the computer to Respondent's home, Respondent called Mr. Gleason several times and told him to come and pick up the computer. Despite Respondent's repeated directives, Mr. Gleason never came to get the computer. At some point, Mr. Gleason left a voice mail message on Respondent's home telephone indicating that the surplus computer he purchased and gave to Respondent's son was a gift. Rather than picking up the computer as Respondent had requested, on October 1, 2003, Mr. Gleason sent Respondent another e-mail message which stated, "The computer is a gift from [sic] to [Respondent's son], tell [Mrs. Howell] to not worry about any cost-he is a good kid and I hope it helps him with his school work." The October 1, 2003, e-mail implies that Mrs. Howell had agreed to pay for the computer, that Mr. Gleason had now decided that the computer was a gift, and that he no longer expected Mrs. Howell to repay him for purchasing the computer. However, that implication is not only misleading, but unfounded. Nevertheless, Mrs. Howell never agreed to repay Mr. Gleason for the computer. Instead, she, like her husband, had repeatedly refused Mr. Gleason's offer to purchase a computer as a gift for their son. Even though Respondent did not want Mr. Gleason to purchase a computer for his son, there is no indication that Respondent or his wife replied to the October 1, 2003, e-mail. Respondent never directed, requested, threatened, coerced, or pressured Mr. Gleason to purchase a computer for their son. However, when Mr. Gleason brought the computer to Respondent's home, he accepted it. After realizing he had exercised poor judgment in accepting the computer, Respondent did not return the computer to Mr. Gleason. Instead, Respondent kept demanding that Mr. Gleason pick up the computer from Respondent's home. Even when it became apparent that Mr. Gleason was not going to pick up the computer, Respondent never returned the computer to Mr. Gleason. The computer never worked properly so eventually, Respondent and/or his wife threw it in the trash. Mr. Gleason disputes and contradicts the foregoing account of events related to his purchasing the computer for Respondent's son. Mr. Gleason testified that Respondent initially approached him and expressed an interest in the City's surplus computers. According to Mr. Gleason, Respondent asked if such computers could be purchased on a payment plan. Mr. Gleason testified that after checking with the appropriate office, he advised Respondent that the City did not accept payment plans for the purchase of surplus computers and equipment. Mr. Gleason testified that Respondent then told Mr. Gleason that he (Respondent) wanted Mr. Gleason to get him a computer and that he expected Mr. Gleason to be successful on the bid. Mr. Gleason testified that in October 2003, he decided to give the computer to Respondent's son because his relationship with Respondent by this time had become adversarial, and he decided that it would be in his best interest not to make an issue of purchasing the computer. With regard to the purchase of the computer for Respondent's son and issues related thereto, the testimony of Respondent and Mrs. Howell is found to be more credible than that of Mr. Gleason. Gleason's Termination as City Manager In February 2004, about four months after Mr. Gleason gave the computer to Respondent's son, Respondent and two other City Commission members voted to terminate Mr. Gleason's employment with the City. As a result of this majority vote, Mr. Gleason was terminated as city manager. Respondent voted to terminate Mr. Gleason because he believed that Mr. Gleason was not doing the job. Respondent also was concerned that Mr. Gleason had taken inappropriate and unsolicited actions (i.e., purchasing the computer in September 2003 and paying the $354.18 credit card debt in June 2002), presumably to help Respondent. All the actions taken by Mr. Gleason were unsolicited and done gratuitously because Mr. Gleason thought that he was losing Respondent's support, and Mr. Gleason was trying to gain or regain Respondent's support. Instead of gaining Respondent's support, Mr. Gleason's inappropriate and unsolicited actions had the opposite effect. Respondent, displeased with Mr. Gleason's inappropriate and unsolicited actions, was offended by those actions and voted to terminate Mr. Gleason as city manager. The month after he was terminated, Mr. Gleason filed a Complaint with the Commission on Ethics (hereinafter the "Commission on Ethics" or "Commission") making the allegations, which are the subject of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order and public report be entered finding that Respondent violated Subsection 112.313(4), Florida Statutes, in one of the four instances alleged; Respondent did not violate Subsection 112.313(4), Florida Statutes, in three of the four instances alleged; Respondent did not violate Subsection 112.313(6), Florida Statutes, in any of the four instances alleged; and Respondent did not violate Subsection 112.313(2), Florida Statutes, in any of the four instances alleged; and imposing a civil penalty of $500.00 for the single violation. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th of September, 2007.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 31st day of January, 1984.
The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents violated a rule and various provisions within Chapter 475, Florida Statutes, as alleged in the Administrative Complaint filed by Petitioner on May 20, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Mercedes M. Powers and Patricia A. Fleck, were both licensed as real estate brokers, having been issued license numbers 0151412 and 0027277, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Fleck served as qualifying broker for Patricia A. Fleck Real Estate, 5466 Spring Hill Drive, Spring Hill, Florida, while Powers was employed as a broker-salesperson at the same firm. Douglas K. Rogers, a Spring Hill resident, was interested in purchasing a lot in a Spring Hill subdivision and observed a "for sale" sign on Lot 7 at 12287 Elmore Drive. The lot was owned by Wayne and Faith Ryden, who resided in North Hero, Vermont. Rogers contacted the Rydens by telephone in mid or late March 1997 to ascertain the price of the lot. Rogers had also seen a nearby lot for sale carrying a sign from Respondents' firm. On March 23, 1997, he telephoned Powers and inquired about another lot in the same subdivision. Powers contacted the owners but learned that they did not want to sell. After relaying this advice to Rogers, she told him that she had a listing on Lot 6; however, Rogers was not interested in Lot 6 and merely indicated he would "get back" to her later. On April 3, 1997, Rogers again telephoned Powers and told her he was interested in purchasing Lot 7, which was owned by the Rydens. Powers invited Rogers to come to her office where she would call the sellers. Powers then "ran the public record" and learned that the Rydens owned the lot. On Friday, April 4, 1997, in the presence of Rogers, Powers telephoned Mrs. Ryden and spoke with her for three or four minutes. In response to an inquiry from Mrs. Ryden, Powers indicated that if the Rydens listed the property with her, she would represent the sellers; otherwise, she would represent the buyer in the transaction. Based on Mrs. Ryden's response, Powers was led to believe that the Rydens wanted Powers to represent them in the transaction. Accordingly, she explained the arrangement to Rogers, and he voluntarily signed an Agency Disclosure form which acknowledged that he understood, and agreed with, that arrangement. With Powers' assistance, that same day Rogers executed a contract for the sale and purchase of Lot 7 for a price of $8,500.00. The contract called for the sellers to accept the offer no later than April 7, 1997, or three days later, and that the contract would close by May 15, 1997, unless extended by the parties. The contract further called for Rogers to provide a $200.00 cash deposit, which was "to be placed in escrow by 4-7-97." The contract, listing agreement, and expense report were all sent by overnight mail to the Rydens the same day. Because Rogers did not have sufficient cash for a deposit with him, he advised Powers that he would return with a check the following Monday, or April 7. Notwithstanding the language in the contract, he gave Powers specific instructions that when he delivered a check, she was to hold it until the Rydens signed the contract, and then deposit the money. This is confirmed by a contemporaneous note made by Powers which read: "Mr. Rogers will bring check Monday. Then to hold until Rydens sign contract, then deposit it." Rogers testified that he delivered check no. 3497 in the amount of $200.00 to a receptionist in Respondents' office approximately two hours after he executed the contract. He also says he got the receptionist to make a copy of the face of the check, which has been received in evidence as Petitioner's Exhibit 5. If in fact a check was actually delivered to a receptionist that day, that person lost the check and never advised Powers or Fleck (or anyone else) that one had been delivered. Indeed, until June 6, 1997, Respondents were not aware that one was purportedly delivered, and they never saw a copy of the face of the check until they received the Administrative Complaint, with attached exhibits, in May 1998. The original check has never surfaced, and it was never presented for payment to the bank. Under these circumstances, it was impossible for Respondents to deposit the check in the firm's escrow account, as required by rule and statute. According to a Division investigator, there have been other instances where a realtor denies receiving a deposit from the buyer. It can be fairly inferred from his testimony that when this occurs, if the realtor's denial is accepted as being true, the realtor will not be held accountable. At no time did Respondents ever intend to violate any rule or statute governing the deposit of escrow funds; had they known that a check had been delivered to the firm, it would have been handled in an appropriate manner. The contract technically expired on April 7, 1997, when the Rydens had not yet accepted the offer. However, on April 8, 1997, Powers again contacted Mrs. Ryden by telephone since Powers had not received a reply. Based on that conversation, which led Powers to believe that the Rydens may not have received the first set of documents, Powers re-sent by overnight mail copies of the contract, agency disclosure, and expense sheet to the Rydens with a request that they either accept or refuse the contract, but in either event, to return the contract and let her know their decision. The Rydens, however, never extended her the courtesy of a reply. It is fair to infer from the evidence that by now, Rogers had again contacted the Rydens by telephone about purchasing the lot in a separate transaction so that the parties would not have to pay a realtor's commission. Rogers telephoned Powers once or twice in April or May 1997 to ask if the contract had ever been returned by the Rydens. He made no mention of his check. Those inquiries are somewhat puzzling since Rogers was well aware of the fact that the parties intended to negotiate a separate agreement. In any event, on the reasonable belief that the contract had never been accepted, and no deposit had ever been made by Rogers, Powers did nothing more about the transaction until June 6, 1997, when Rogers telephoned her at home that evening asking for "his check." By then, he had a separate binding contract with the Rydens for the sale of the lot; he had already stopped payment on the check a week earlier; and he knew that it had never been deposited. Powers advised Rogers that if in fact his check was at the office, he could drop by the next day at 10:30 a.m. and get it from the broker. Rogers came to the office the next morning, but he arrived at around 8:45 a.m., or well before Powers expected him. In Powers' absence, the on-duty receptionist was unsuccessful in locating his file (which was in Powers' office) and the check. On June 14, 1997, Rogers sent a complaint to the Division. That complaint triggered this proceeding. It is fair to infer that Rogers filed the complaint to gain leverage in the event Respondents ever brought an action against him to recover their lost real estate commission. Unknown to Respondents, on June 10, 1997, the sale was completed, and the Rydens executed and delivered a warranty deed to Rogers and his wife conveying the property in question. For all their efforts in attempting to accommodate Rogers, Respondents were deprived of a real estate commission through the covert acts of the buyer and seller, and they were saddled with the legal costs of defending this action. In terms of mitigating and aggravating factors, it is noted that Fleck was never involved with this transaction until the demand for the check was made in June 1997. There is no evidence that Powers has ever been disciplined by the Real Estate Commission on any prior occasion. On an undisclosed date, however, Fleck received a fine and was required to complete a 30-hour broker management course for failing to adequately supervise a "former rental manager" and failing to "timely notify FREC of deposit dispute." Neither Rogers or the Rydens suffered any harm by virtue of the deposit check being lost, and the parties completed the transaction on their own without paying a commission. During the course of the investigation, Respondents fully cooperated with the Division's investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of May, 1999. COPIES FURNISHED: Herbert S. Fecker, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Ghunise Coaxum, Esquire Division of Real Estate 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Charlie Luckie, Jr., Esquire Post Office Box 907 Brooksville, Florida 34605-0907 William M. Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In July 1976 Berger was working as a salesman for Property Resales Services when he and Tritsch decided to set up a similar advance fee listing operation. Berger was knowledgeable of the operation and Tritsch held a broker's license. Both had been engaged for several years in land sales in Florida and at one time both worked for the same land developer selling land to mostly out of state investors. Each put up $1,000 to get the corporation formed and in operation. Stock was equally split between Berger's son Albert and Tritsch with two shares unissued. Shortly after the business became operational Berger and Tritsch repaid themselves $750 of their investment/loan. Berger was to supervise the obtaining of listings and Tritsch was to set up the resale operation. Shortly before the beginning of operations Berger suffered a heart attack and was hospitalized For some two and one half weeks. Following his release from the hospital he was able to spend only limited time in the office. However, script for the telephone salesmen had been prepared as well as listing contracts and brochure to be sent to those customers indicating a desire to sell their land. The business opened as scheduled in a rented office with WATS lines installed. Similar to other advance fee operations the salesmen worked from about 6 P.M. until 10 P.M. making phone calls to out of state owners of Florida land. Most of the owners contacted were those who had earlier bought land in the developments of Rotunda, Royal Highlands, and Port Charlotte with which Tritsch and Berger were familiar. Lists of owners were purchased from a company in Miami providing such information and copies of the Charlotte County tax records were obtained. NPS joined the National Multiple Listing Service (NMLS) and the listings obtained were to be published in that publication. They also indicated in their sales pitch and on the listing contract that advertising would be placed in local newspapers. Salesmen were paid $125 for each listing received with the $350 advance listing fee obtained from the property owner except Egan who was paid $175 for each listing. Shortly after Berger became well enough to devote time to the affairs of NPS, Tritsch broke a shoulder in a motorcycle accident and was limited in his movements by a cast for some six weeks. This was followed by an operation on his nose also injured in the accident. Berger did little, if any, telephone solicitation. His function appeared to be that of supervisor and consultant. His son, Albert Berger, was given the job of secretary, bookkeeper and keeper of the records which the son, a fifty percent shareholder in the corporation, had no idea what happened to following his departure in December, 1975. Exhibit 6 shows checks were made payable to Annette Berger, presumably a daughter, as wages. Berger and Tritsch were paid $300 to $500 per week (net) for their services depending upon availability of funds, Albert Berger received $250 per week (net) and Annette Berger received $100 to $225 per week (net). Net wages are normally the salary left after the deduction for withholding and FICA taxes. Since no check stubs showed payment to the Internal Revenue Service the withheld portion of the salaries apparently was not remitted. Additionally Berger and Tritsch were reimbursed for travel expenses, but no testimony was adduced that Berger did any traveling on the business of the company. Nevertheless Berger was paid travel expenses and one check was made payable to an airline for nearly $300. Respondents Egan and Resnik as well as several other salesmen, not named as Respondents here, manned the telephones during the operating hours of 6:00 to 10:00 P.M. They generally followed the script given to them and no evidence was presented that any known false representation was made by either Egan or Resnik. Neither Egan nor Resnik attempted to sell property. However, Egan testified that if a customer was happy with his land and didn't want to sell, he would ask if the customer would like to buy more. No evidence was presented that either salesmen advised customers that contractors and other brokers were being transported to the property or that they suggested the customer could obtain an inflated price for his property. No sales of the listings so received was ever made by NPS. If the customer indicated a willingness or desire to sell his property when first called he was advised that literature would be mailed to him to more fully explain the services offered by NPS. The salesman then turned the name in to the office and a blank contract (Exhibit 3) and brochure (Exhibit 4) were mailed to the customer. After the customer received the material the salesman would again call and go over the provisions of the contract with the customer and attempt to induce the customer to sign the contract and forward it with his $350 listing fee for services NPS were to perform in selling the property so listed. The customers were told that the advance fee was used to advertise the property and to cover office expenses, however the fee would be deducted from the commission when the property was sold, and, in effect, refunded to the property owner. Both Resnik and Egan were led to believe that a sales office was being set up on the west coast, near the property for which listings were being solicited, however, no such office was ever opened. No advertising of any property was ever placed in newspapers or in any other media than the National Multiple Listing Services. As a matter of fact, no evidence was presented that any property for which NPS was paid an advance listing fee was ever advertised for sale in NMLS. Exhibit 6 indicates that NPS paid a total of $62.50 to NMLS before going out of business near the end of 1975. During the four to five months NPS remained in operation in excess of $52,000 was received from customers as advance listing fees and no sales of any of these listings was made. Respondents Tritsch and Berger both blamed their respective accident and illness for their failure to consummate sales of the properties for which listing fees were obtained.
The Issue The issue is whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be imposed on his licenses and appointments as a life, life and health, and health agent.
Findings Of Fact At all times material to this action, Respondent, Louis Francis Robert, Jr. (Respondent), was a licensed insurance agent and under the jurisdiction of Petitioner, the Department of Insurance (Department). Respondent has been licensed in the State of Florida for fifteen years. Grace Newson is an elderly widow, presently age eighty- one (81) who lives alone and who lived alone at all times material to the occurrences in this matter. Mrs. Newson first met Respondent on September 10, 1998, when he made an unannounced visit to her home in Plant City, Florida. During this initial visit, Respondent told Mrs. Newson that he was in the area and the purpose of his visit was to see if she wanted to change her annuity policy. Respondent's initial visit with Mrs. Newson was about two months after Mrs. Newson's husband died. Mrs. Newson had never met or spoken with Respondent prior to his September 10, 1998, visit to her home. However, it was apparent to Mrs. Newson that based on Respondent's comments to her during the visit that he knew her husband had recently died. Moreover, it was also apparent to Mrs. Newson that at the time of Respondent's initial visit, he was aware that she owned an annuity policy. The annuity policy owned by Mrs. Newson prior to and at the time she met Respondent had been issued by Fidelity and Guaranty Life Insurance Company (Fidelity and Guaranty). The policy number was 1-00127454. After his initial visit to Mrs. Newson's house, Respondent continued to visit Mrs. Newson whenever he was in the Plant City area and/or to call her. Each time Respondent contacted Mrs. Newson, he attempted to sell her another annuity policy. In response, Mrs. Newson repeatedly told Respondent that she did not need another policy. Nonetheless, Mrs. Newson's credible testimony was that Respondent was "insistent in trying to put [Mrs. Newson] in a new product." At one point, Mrs. Newson told Respondent that she wanted her deceased husband's name removed from her annuity policy that had been issued by Fidelity and Guaranty. Mrs. Newson told Respondent that the annuity was for her handicapped nephew and that the reason she wanted her husband's name removed from the annuity was so that her nephew would not have difficulty receiving the benefits after her death. Respondent agreed to have Mrs. Newson's deceased husband's name removed from the annuity and requested that she give him the annuity documents in her possession. Mrs. Newson complied with this request. After Mrs. Newson told Respondent to have her deceased husband's name removed from the annuity, he went to her house and delivered two documents for her to sign. Mrs. Newson assumed that the two printed documents were necessary only for the purpose of removing her deceased husband's name from the existing annuity. At no time did Respondent advise Mrs. Newson that the documents he was requesting her to sign were for a new annuity policy and for a death claim benefit. Mrs. Newson signed the documents on the designated signature lines and next to the hand-written "X" on each of those lines, as instructed by Respondent. At the time Mrs. Newson signed the documents, she believed that the documents were for the purpose of removing her deceased husband's name from her annuity issued by Fidelity and Guaranty. Accordingly, she did not thoroughly review or read the documents. One of the documents that Respondent gave to Mrs. Newson to sign was an application form which requested information regarding the "premium amount paid with the application." In the space provided for the response to that inquiry, there is a hand-written "0" with a diagonal line drawn through it that had been scratched out. Immediately below the scratched out "0" was written $32,282.04 and the word, "TRANSFER." Next to the space on the application form that requested "the premium amount paid with the application" was another space that requested "additional information." In that space, the following was written: "Funds coming from death claim on policy #1127454." This was the number of Mrs. Newson's annuity policy that she owned prior to and at the time she met Respondent. The documents were completed by Respondent and signed by Mrs. Newson. However, it is unknown whether all the hand- written information on the documents was on the forms when they were delivered to Mrs. Newson for her signature. In or around October 1998, Respondent processed the forms signed by Mrs. Newson to cause a death claim on the existing annuity previously issued by Fidelity and Guaranty, and to use the proceeds therefrom for the purchase and issuance of a new annuity by that company. Respondent's actions were taken without Mrs. Newson's knowledge or consent. After the forms were processed, Respondent delivered to Mrs. Newson a newly numbered policy issued by Fidelity and Guaranty. Mrs. Newson assumed that the policy simply eliminated her deceased husband's name from the annuity that she owned when she first met Respondent. Based on that assumption, Mrs. Newson merely filed that policy and did not know or understand that it was a new annuity policy which Respondent had caused to be issued without her knowledge. Subsequently, Mrs. Newson received a Form 1099 from the Internal Revenue Service, calling to her attention that her initial annuity had been caused to be surrendered and the proceeds therefrom had been used for the purchase of a new annuity. This was her first knowledge of this occurrence. Immediately, Mrs. Newson immediately contacted Fidelity and Guaranty to inform the company that she did not authorize the purchase of a new annuity policy. She further advised the company that she desired to be immediately returned to ownership of her previously existing policy. During Mrs. Newson's discussions with staff of Fidelity and Guaranty, it was confirmed that Respondent had filed a death claim against her Fidelity and Guaranty annuity, surrendered her initial annuity, and issued a new policy in Mrs. Newson's name. After Mrs. Newson confirmed Respondent's actions, she demanded that Fidelity and Guaranty straighten out the matter. In response, Fidelity and Guaranty canceled the new policy that Respondent had issued to Mrs. Newson and reinstated her original annuity policy. Respondent collected a commission in the amount of $3,758.43 for issuing the new policy to Mrs. Newson. However, Respondent had to reimburse the company for the commission he received as a result of his issuing a new policy to Mrs. Newson, which she had not authorized or requested. Had Mrs. Newson not discovered what had occurred relative to her initial annuity and had the new annuity policy rescinded, Respondent would have received a substantial commission from the transaction. Mrs. Newson never authorized or directed Respondent to file a death claim against her annuity. According to Mrs. Newson, she had no reason to do so because her husband's funeral had been pre-paid and he had a government policy. Furthermore, Mrs. Newson never agreed to purchase a new annuity from Respondent and had repeatedly declined his offers to sell her a new annuity. Erma Clark is an elderly woman, presently aged eighty- eight (88), who lives alone and lived alone at all times material herein. Prior to meeting Respondent, Mrs. Clark was the owner of two (2) annuity policies issued by IDS Life Insurance Company. The policy numbers were 9300-425987 and 9300-04085461. In or around early 2001, Respondent came to the home Mrs. Erma Clark unannounced and without a prior appointment, and asked to see her existing annuities. Respondent then proceeded to attempt to persuade Mrs. Clark to surrender her existing policies and purchase a new annuity that would earn more interest. Mrs. Clark refused to surrender her existing policies and to purchase a new annuity from Respondent. After his initial visit to Mrs. Clark's home in early 2001, Respondent returned to Mrs. Clark's home several times and continued to attempt to convince her to surrender her existing policies and purchase a new annuity policy. Mrs. Clark repeatedly informed Respondent that she did not wish to nor would she do so. On one of Respondent's subsequent visits to Mrs. Clark's home, she told Respondent that she wanted to change the beneficiaries presently reflected on her existing annuities. Respondent agreed to accomplish this task for her. Thereafter, in or around May 2001, Respondent again visited the home of Mrs. Clark and presented her with forms that she assumed were necessary only for the purpose of changing beneficiaries on her existing annuities. She did not carefully review these papers and executed them as instructed by Respondent. In fact, the forms presented by Respondent to Mrs. Clark were those necessary to cause the surrender of her existing annuities and for the purchase of a new annuity to be issued by American Investors Life Insurance Company. In or around May 2001, after Mrs. Clark executed the papers that were presented to her by Respondent, he processed the forms to cause surrender of her existing annuities and the purchase and the issuance of a new annuity from the proceeds thereof. This action by Respondent was without Mrs. Clark's knowledge and consent. In or around June 2001, Mrs. Clark was contacted by IDS Insurance Company, insurer of her previously existing annuities, inquiring as to why she was surrendering the annuities. This was her first knowledge of such occurrence. Upon becoming aware of Respondent's actions, Mrs. Clark immediately informed IDS that at no time did she have knowledge of Respondent's actions nor did she authorize or desire to surrender her existing annuities to purchase any new annuity. She informed IDS that she desired to retain ownership of her two existing annuities. Mrs. Clark then discovered that Respondent had caused National States Insurance Company to issue a new annuity policy to her, policy number HC1-1-0946693. She immediately informed the company that she wanted that policy canceled. On or about June 6, 2001, National States Insurance Company acknowledged cancellation of the new annuity policy that had been effected by the actions of Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Department of Insurance enter a final order finding that Louis Francis Robert, Jr. committed the offenses alleged in the Amended Administrative Complaint and suspending his insurance license for eighteen months. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2002. COPIES FURNISHED: Dean Andrews, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 James V. Caltagirone, Esquire 111 South Moody Avenue Tampa, Florida 33609 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against Respondent on the basis of allegations of misconduct set forth in an Administrative Complaint dated August 13, 2003.
Findings Of Fact At all times material to this case, Respondent Jean- Rene Joseph has been licensed in the State of Florida as a bail bond agent. At all times material to this case, Respondent worked as a bail bond agent with a bail bond company named America's Best Bail Bonds, Inc. At approximately 2:30 or 3:00 a.m. on the morning of January 29, 2002, Santacroce contacted Respondent for the purpose of arranging bail for a friend of hers named John Raymond Moyer ("Moyer"). Moyer needed a bond in the amount of $1,500.00. Respondent agreed to provide, and did provide, the requested bail bond for a fee of $150.00. On the morning of January 29, 2002, Santacroce paid $150.00 cash for the bail bond fee. Santacroce also agreed to furnish collateral for the bail bond issued on behalf of Moyer. In this regard, Santacroce agreed that she would either deliver the title to a specified automobile as collateral, or she would make payments of $250.00 per week until the bail bond on behalf of Moyer was fully collateralized. In the early morning hours of January 29, 2002, Santacroce did not have an original certificate of title to an automobile with her. Instead, she gave Respondent a color photocopy of title number 50460657, which was a certificate of title to an automobile. The certificate showed title to a 1986 Chevrolet in the name of a registered owner named Oliver C. Todd ("Todd"). Handwritten information on the certificate indicated that the registered owner had sold the automobile to AAA National Auto Sales, who in turn had sold the automobile to Santacroce. Santacroce also had with her at that time an affidavit signed by Todd that authorized Santacroce to retrieve the subject automobile from a towing company, as well as a document from Festa Towing Service, Inc, itemizing towing and storage charges. During the early morning hours of January 29, 2002, Respondent and Santacroce both signed a receipt document numbered 11122. Section 4 of that document describes the collateral or collateral documents as consisting of a promissory note and "Fl car title #50460657 or weekly payment of $250.00." Santacroce never made any payments towards collateralization of the subject bail bond. Moreover, Santacroce never delivered to Respondent the original of the certificate of title described above. Less than two weeks later, Moyer was arrested and jailed on other criminal charges. Through another bail bond company, Moyer posted bail on the second arrest. Santacroce no longer wished to have any liability on the bail bond issued on January 29, 2002. Accordingly, she asked Respondent to "surrender" the bond and have Moyer returned to jail. Moyer failed to appear for his court appearance that was guaranteed by the bail bond obtained by Santacroce. A bond forfeiture order was issued on February 12, 2002. Eventually, Moyer appeared, the forfeiture order was set aside, and the surety was discharged. Respondent's employer incurred expenses in the amount of $50.00 to have the forfeiture order set aside. At some point after the surety was discharged, Santacroce asked Respondent to return what Santacroce described as the certificate of title she had given to Respondent. Respondent could not return a certificate of title to Santacroce, because Respondent never received a certificate of title from Santacroce. Respondent never returned the photocopy of the certificate of title to Santacroce. That photocopy was still in Respondent's possession as of the day of the final hearing.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Administrative Complaint in this case be dismissed because there is no clear and convincing evidence that Respondent received "car title #50460657" or anything else of value as collateral security for the subject bail bond. DONE AND ENTERED this 7th day of May, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2004. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Financial Services Suite N-321 401 Northwest Second Avenue Miami, Florida 33128 Hernan Hernandez, Esquire 1431 Ponce de Leon Boulevard Coral Gables, Florida 33134 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
