Findings Of Fact The instant proceeding arises over the application of the Florida documentary stamp tax law, Chapter 201 of the Florida Statutes, to transactions in which customers bought lots from Sandy Development Company and homes from Shubert Construction Company. Documentary stamp taxes and surtaxes have been paid on these transactions reflecting only the price of the lot. The Petitioners assert that the amounts already paid are the proper amounts due. The Respondent, Department of Revenue, asserts that the taxes and surtaxes are due upon the price of the home and lot together. The Department has issued a proposed notice of assessment against the Petitioners which reflects the amount due for additional taxes and surtaxes if the Department's position is upheld, plus an amount levied as a tax penalty, which amounts total $2,449.70. This Proposed Notice of Assessment and the schedule by which it was computed are included as Exhibit "A" to this stipulation. The mathematical computations underlying this assessment are not in dispute. The Petitioner Jerome Parker is the sole stockholder and sole employee of the Petitioner Sandy Development Company (hereinafter "Sandy"). Sandy is engaged in the business of buying vacant land and selling parcels of that land to individuals to use as home building sites. This land is located in Pasco County, Florida. Sandy has been engaged in this business since its incorporation in 1973, and has engaged in no other type of business. The Shubert Construction Company (hereinafter "Shubert") employs the Petitioner Jerome Parker as its Assistant Secretary and Branch Manager. Parker runs the Shubert branch office in Pasco County, with the help of one secretarial employee. Parker is Shubert's authorized agent for soliciting customers, negotiating and signing construction contracts, and arranging for financing for prospective home buyers. All of Shubert's construction business in Pasco County is conducted through Parker's office. Shubert maintains one other office, located outside Pasco County. Customers wishing to purchase a home and lot have come to Parker's office, which is located at the Shubert Construction Company, 1520 1st Street, Zephyrhills, Florida. Some of these customers already have lots selected, and Parker makes no attempt to sell lots to those customers. Customers who do not already have lots selected are solicited by Parker to consider purchasing a lot from listings maintained by him. Parker keeps at his office listings and maps of lots which are available for sale to home buyers by Sandy, Shubert, and certain third parties. If the customer expresses an interest in a lot or subdivision owned by Sandy or Shubert, Parker proceeds with the initial steps in selling that customer a lot (i.e., a credit check). If the customer expresses interest in a lot or subdivision owned by a third party, Parker refers the customer to that third party. All of the sales by Sandy, with a few exceptions, originated in this manner at Parker's office. Customers buying lots from Sandy return to Parker's office at the Shubert Construction Company after the credit check is completed. The purpose of this second visit is to have the customer sign a loan application to finance both the home and the land, and an option and acceptance of option for the land, conditioned upon the lender's extension of credit. These papers, copies of which appear as Exhibit "B" to this stipulation, are then routinely forwarded to the lender by Parker, acting as agent for both Shubert and Sandy. The Exhibit reflects that the loan application is for a single sum covering home and lot. The customers sign one note and one mortgage for both home and lot and make lump sum installment payments to the lender without dividing those payments into separate accounts for home and lot. It is the practice of the lender, however, to issue separate checks to Sandy and Shubert for the lot and home, respectively. Although persons buying lots from Sandy are not legally obligated to buy a home from Shubert, they have nevertheless done so in every case. Some 38 individual customers have purchased lots from Sandy, and all have contracted for the purchase of a home from Shubert built upon the land purchased from Sandy. In the course of selling a lot belonging to Sandy along with a home from Shubert, Jerome Parker normally identified Sandy as the seller of the lot, but this information was not emphasized to the customer. The enclosed affidavits from customers of Parker's indicate whether they sought to purchase a home, a lot, or both, and whether they believed the seller to be a single enterprise or two enterprises. Upon learning of a customer who wished to purchase both a lot and a home, Jerome Parker formed the intent to sell, through his two agency capacities, both a lot and a home to that customer. Shubert owns no interest in Sandy, and Sandy owns no interest in Shubert. The only link between the companies is through their mutual agent and employee Jerome Parker. Parker owns no interest in Shubert Construction Company. This Stipulation includes Exhibits "A" and "B" referred to above, and in addition Exhibit "C" consisting of affidavits relating to the intentions and beliefs of Sandy's customers, and Exhibit "D" consisting of copies of notes and mortgages signed by Sandy's customers, and/or affidavits relating to the handling of the notes and mortgages by the Farmers Home Administration. The parties do not waive objections on the grounds of relevancy or materiality to the materials included in the Exhibits. The only question remaining to be resolved is whether the transactions described above are taxable under Florida Statutes, sections 201.02 and 201.021 based on the price of the lot alone, or upon the price of the lot and the home. Petitioner and Respondent reserve the right to introduce testimony not inconsistent with the foregoing. All documents used in the transactions here under consideration are prepared on forms provided by Farmers Home Administration (FHA) of the Department of Agriculture. These include the Option to Purchase, Construction Contract, and all notes and mortgages. The Option to Purchase provides it is given to enable buyer to obtain an FHA loan and such offer is void if buyer is unable to obtain a loan from FHA. At the time of closing purchaser executes a note for the full amount of the loan for home and lot secured by a mortgage on the lot. At this time the construction of the home has not commenced although the buyer has in effect borrowed funds to purchase the lot and pay for the construction of his home. Construction funds are disbursed to the builder by FHA in draws as the construction of the home progresses. Upon completion of the home the final draw is paid to the builder and buyer presumably takes possession. No evidence was presented regarding the payment to the seller for the price of the lot, which is separately stated on documents forwarded to FHA, however nothing was presented to indicate the seller was not paid at the time of closing, which would be the normal procedure. From the testimony that after closing Sandy Development had no claim to the lot, it would be presumed that Sandy had been paid for the lot.
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives
Findings Of Fact Prior to April 1987, the Department of Corrections (DOC) determined that it needed 2,300 square feet of office space for its parole and probation office in Santa Rosa County, Milton, Florida. Since the desired square footage of the office was more than 2,000 square feet, DOC was required to seek competitive bids for the proposed office. Towards that end, Wendell Beall, Region I Budget Manager for the Department, prepared a Request for Proposal and Bid Proposal Submittal Form package on lease number 700:0378. This package contained various specifications for the type building DOC wished to lease, as well as weighted, bid evaluation criteria and the numerical points given to each of those criteria. The desired initial term of the lease was five years with an option to renew the lease at the end of the primary term for three years. On April 2, 1987, DOC held a pre-proposal conference for lease number 700:0378 in the Probation and Parole Office in Milton, Florida. The purpose of the meeting was to hand out the Request for Proposal and Bid Proposal Submittal Form package and to answer any questions interested parties may have regarding the bid and bid package. Both Petitioner and Jay Mortgage Co. (the ultimate successful bidder) were present through their representatives. At the pre-proposal conference, the area within which the leased premises must be located was questioned. Specification A.3 defined the area for the leased premises by referring to a map of Santa Rosa County. Normally, such a map would have the acceptable area delineated by a circle or a boundary line drawn on the map. No such delineation was on the Santa Rosa map. Therefore, a more precise definition of the mandatory acceptable area was sought by the potential bidders. Mr. Beall explained that the meaning to be attributed to specification A.3 was that any building within five to ten minutes of the courthouse would be acceptable, i.e., responsive. At this time, no mention of the relative points to be given a location closer to the Courthouse vis. a location farther away was discussed. The enumerated bid evaluation criteria allowed ten points for "location as to clients served" and zero points for "location as to other Department activities." Also at the preproposal conference Mr. Beall reminded those present of the importance of complying with the handicapped requirements. Handicap compliance was stressed because the present landlord could not meet those requirements. He also cautioned all bidders to initial all applicable spaces on the bid submittal form. He further explained that the weighted evaluation criteria in the bid submittal form were the means of ranking the proposals on a point system for purposes of comparison of the respective bids to be submitted. Mr. Beall described the ranking system he preferred as an example of how the individual bid committee members might evaluate the bids. That system was to take the total number of points for a given evaluation criteria, divide by the number of proposals submitted to yield the deduction to be given a building of lesser quality under that criteria. The bids submitted were to be reviewed and graded by a lease committee. The lease committee was not bound by Mr. Beall's preference in awarding or deducting points under a given bid criteria. The individual members could develop their own ranking system based on their best judgment. On April 16, 1987, three bids were received by DOC. The bids were opened at the Probation and Parole Office in Milton, Florida. At that time, Mr. Beall checked the last page of each of the three bids timely submitted, read the first year rental rate per square foot, checked for the bidder's signature and the required attachments on each. The bids were submitted by Jay Mortgage Co., the apparent low bidder, Northrup Building Partnership, the apparent second lowest bidder, and D & C Partners, the apparent third lowest bidder. Mr. Beall accepted the three bids and stated that they appeared to be in order and that he would present them to the lease committee who would then make the final award. On May 14, 1987, the Region I lease committee met. The committee consisted of T. H. Young, Dura Williams, and W. E. Beall. Prior to said meeting, Wendell Beall reviewed all of the bids and transferred appropriate information to a Bid Synopsis sheet. On the synopsis sheet he proposed preliminary point assignments for the three bids under the evaluation criteria set forth in the bid package. Further, Mr. Beall reflected on the synopsis sheet that Petitioner had failed to initial Specification A.12(a), acknowledging the requirement that the leased premises comply wish the State's requirements for Handicapped Facilities. At the lease committee meeting, each of the bid packages were reviewed. The committee decided that the Petitioner's bid and the D & C Partners bid were non-responsive because of the bidders failure to acknowledge (initial) certain bid specifications. Beyond a rudimentary discussion of the rejected bids they were not considered further by the lease committee. The point awards proposed by Mr. Beall were not utilized. Only the Jay Mortgage bid was determined responsive by the committee. Jay Mortgage, therefore, was deemed to be the lowest and best responsive bid by default and was awarded the lease. Petitioner's bid was found to be nonresponsive because Petitioner had inadvertently failed to initial Item A.12(a). The committee felt that Petitioner's failure to initial Specification A.12(a) was material and could not be waived as a non-material item even though some of the committee members were aware that Petitioner's proposed building already had handicap facilities in place at the time the members inspected Petitioner's property. The evidence demonstrated that it was the lack of the initials and not the actual compliance with the specification that the committee found material. The committee felt it could not look to outside evidence or promises of compliance from Petitioner. However, the committee did accept such promises from Petitioner regarding the floor to ceiling walls which did not exist at the time of inspection, but were promised by Petitioner. It is difficult to see how the committee may look behind the bid proposal in one instance and refuse to look behind the bid proposal in another instance. Such inconsistency can be nothing but arbitrary on the part of DOC. This is especially true since the lack of initials was an oversight on Petitioner's part, and the absent floors and ceilings were promised but not present and the handicap facilities were a concrete reality. Moreover, petitioner had initialed in no less than two other places in the bid package specifications requiring compliance with all federal and state requirements and any space requirements of DOC. 1/ The redundancy of the bid package in this regard renders the lack of initials on specification A.12(a) immaterial. In essence, the department was assured at least twice that continuing compliance with the State's handicap requirements would occur. To refuse to waive such a minor deficiency on these facts is arbitrary and capricious. Such an immaterial item should have been waived by DOC and the Petitioner's bid should have been considered and compared to the Jay Mortgage bid. Since the bids submitted by Petitioner and Jay Mortgage, Co., were not compared by the lease committee, but were challenged as to who submitted the lowest and best bid, that comparison is now ripe for decision in this de novo review of DOC's action. The first relevant bid evaluation criterion deals with the comparative rental value for the initial term of the lease on the two bidders' properties, reduced to present value. Seventy points were awardable for this criteria. In this case, Petitioner was the lowest bidder on the initial lease term by 78 cents per square foot. The victory in the primary term was only achieved by Petitioner in the first three years of that term. In the last two years of the primary term, Jay Mortgage Co. was lower, but not by enough to offset Petitioner's lead. Petitioner was, therefore, lower by at least a minimal amount and to that extent would be the better bid. The difference, however, should only be reflected in a minimum deduction of two points from Jay Mortgage Co. /2 The awarded points should, therefore, be seventy points for Petitioner and 68 points for Jay. The second relevant criterion was the conformance of the building space to efficient utilization and layout. Two points were awarded for this criterion. Both bidders adequately met this criterion. Therefore, the maximum of two points should be awarded to each bidder. The third relevant criterion was for street level parking space. Ten points were awardable under this criterion. In this instance, a minimum of fifteen off-street parking spaces were required by DOC. Both bidders met this minimum requirement. However, the evidence demonstrated that Petitioner offered considerably more parking space at its location. The evidence further demonstrated that DOC experienced periods when it conducted an unusual amount of business with its clients, requiring more parking than usual. In that respect, Petitioner offered the better property. However, the probation offices unusual requirements occurred about once a month for only two or three days. Therefore, a minimum difference of one point should be deducted from Jay Mortgage. The awarded points should, therefore, be ten points for Petitioner and nine points for Jay. The fourth relevant criterion was the proximity of the lease site to the clients served by the parole and probation office. In this regard, the evidence clearly demonstrated that Petitioner had the better location for the county-wide area serviced by Petitioner. Respondent's main business was the supervision of probationers and community controllees. Most of this "service" is conducted by DOC at its office or county-wide in the field. Petitioner clearly has easier and better access to its location than the downtown location offered by Jay Mortgage, Co. Therefore, Petitioner's location would be far more proximate and convenient to the probation offices clients than would the downtown location offered by Jay Mortgage. At the hearing, DOC felt that the preferential location under the fourth criterion was the location closest to the courthouse because some of the probation officer's work must be done at the courthouse and an officer may be summoned to the courthouse at any time by a judge. Therefore, a building within walking distance of the courthouse such as Jay Mortgage's building was more convenient for the probation office's personnel as compared to one which requires driving to the courthouse, such as Petitioner's building. The reasons given by DOC for their selection of Jay Mortgage under the fourth criterion at the hearing do not fall within a reasonable interpretation of "proximity to clients served by the Department." DOC's reasons would fall under another separate evaluation criterion. The criterion which would approximately cover DOC's reasons deal with the proximity of the offered space to the other activities of the Department. These "other" activities would include attendance at court for probation revocation hearings or for sentencing of offenders. "Convenience for the personnel" is relevant under these other activities and there is no question that "convenience for the office personnel" is a valid reason for distinguishing between bidders. However, the evaluation criterion which covers these reasons was assigned zero points. DOC cannot go outside its bid criteria. Therefore, no distinction can be made between the bids based on the above grounds. The only points awardable are the ten points assigned under the fourth relevant criterion outlined in paragraph 14 above. DOC's reasons do not fall within the fourth criterion. No other evidence was presented by Respondent to support a preference for Jay Mortgage Co. over Petitioner under the fourth criterion proximity to clients. Petitioner presented evidence which clearly demonstrated that it was the better bid under the fourth criterion. The difference between the bids is significant since client service is the DOC's main business. The only formula available for rating the value of the difference is Mr. Beall's. Therefore, utilizing Mr. Beall's methodology, the points awardable for the fourth relevant criterion should be ten points for Petitioner and seven points for Jay. The fifth relevant criterion was for moving costs. No evidence was submitted by Petitioner or Respondent as to this criterion. Therefore, no conclusions can be drawn about the effect of such costs. No points should be awarded under this criteria. The sixth relevant criterion dealt with the option period rental rate. Six points were awarded for this criterion. Jay Mortgage Co. was the lower of the two bids. The actual difference between the two bids was approximately 25 cents a square foot. That difference appears in the last year of the option term. 3/ In the first two years of the option term the bidders reflect the same rental rate. Since 25 cents is a minimal difference only a minimum deduction of one point should be made. 4/ Therefore, the points awardable for the sixth relevant criterion should be six points for Jay and five points for Petitioner. The overall result would be as follows: CRITERIA PETITIONER JAY MORTGAGE CO. 1. Basement 70 68 2. Space 2 2 3. Parking 10 9 4. Clients 10 7 5. Moving Costs 0 0 6. Option Rent 5 6 TOTAL 97 92 As can be seen from the above table, Petitioner submitted the lowest and best responsive bid under a consideration of all the weighted evaluation criteria established by DOC. Petitioner should, therefore, be awarded the bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner be awarded the lease contract as the lowest and best responsive bid. DONE and ORDERED this 21st day of December 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December 1988.
The Issue By this petition, American Foam Rubber Distributors, Inc. (AFRD) and Edward Rothbard seek to have the Department of Revenue's assessment for documentary stamp tax and penalties on a transfer of real property by quit claim deed from Edward Rothbard to AFRD set aside. Petitioners contend that the transfer was without consideration and therefore nontaxable under sec. 201.02, F.S. , while Respondent contends that consideration flowed to the grantor by virtue of the grantee making the mortgage payments; and therefore, documentary tax stamps were due on the deed of conveyance computed on the amount of the mortgage at the time of transfer. One witness testified in behalf of Petitioners and four exhibits were admitted into evidence. From the pleadings, interrogatories and evidence presented at the hearing, the facts are largely undisputed and are as follows:
Findings Of Fact Edward Rothbard owns 100 percent of the outstanding stock of AFRD and he has been the sole shareholder and chief executive officer of the company since the company s inception in 1962. On March 9, 1973 the Seaboard Coastline Railroad (SCL) entered into an agreement with AFRD to sell a tract of land in Miami to the latter at an agreed price of $116,978.00 with certain conditions. The principal condition was that the grantee erect a warehouse on the property within one year from the date of the transfer. By deed dated August 23, 1973 the property was conveyed by SCL to Edward Rothbard rather than as per the contract. This deed was apparently delivered in late October, 1973 and the proper documentary stamp tax was paid on this transaction. Mr. Rothbard's testimony that the sole reason for taking the property in his name was to expedite the transaction was not rebutted. In exhibits 1 and 2 copies of letters from SCL dated September 21 and 26, 1973, SCL referred to Rothbard as nominee of AFRD to be grantee of the property. Exhibit 4, the title page of an interim title insurance binder, indicates that the title insurance policy on the property purchased from SCL was intended to be in the name of AFRD. In August, 1974 the building erected on the site for the use and benefit of AFRD was completed and Edward Rothbard mortgaged the property to secure a note in the amount of $550,000.00. His wife also executed the note and mortgage. AFRD occupied the building in September, 1975 and made all mortgage payments to the mortgagee including the first payment. By quitclaim deed executed February 26, 1975 Edward Rothbard conveyed the property here involved to AFRD subject to the mortgage. Minimum documentary tax stamps were placed on this deed. On February 26, 1975 the outstanding balance due on the mortgage was $543,969.59.
The Issue The issue to be resolved is whether Petitioners were the victims of a discriminatory housing practice, by allegedly being denied the opportunity to renew the lease of an apartment from Respondents, based upon their race.
Findings Of Fact Petitioners Vernon and Glenda Shaw are husband and wife. They and their children are African-Americans. Respondent EPI Townsend, LLC owns an apartment community located in Gainesville, Florida, known as Uptown Village. Respondent Epoch Management, Inc. (Epoch) manages Uptown Village on behalf of EPI Townsend, LLC. On June 25, 2010, Ms. Shaw submitted an application to lease an apartment at Uptown Village. She listed herself, her husband, and her two children as the proposed occupants. Ms. Shaw noted the family had a dog. She provided her email address on the application, as requested. At the time of application, prospective tenants of Uptown Village are given a document entitled ?Epoch Management, Inc. Rental Application Approval Criteria.? It contains an ?Equal Housing Opportunity? statement and displays the ?Equal Housing? logo approved by the U.S. Department of Housing and Urban Development (?HUD?). When she submitted her application, Ms. Shaw acknowledged receipt of the Rental Application Approval Criteria form. The Shaws’ application was approved, and Ms. Shaw subsequently signed a one-year lease (?the Lease?) agreement on June 26, 2010. Soon thereafter Ms. Shaw moved into Apartment 2- 201 of Uptown Village with her children and their dog. Mr. Shaw was living in Alabama at the time and planned on moving to Gainesville at a later date to join his family.1/ At the time the Shaws began their tenancy at Uptown Village, Rhonda Hayden served as the property manager and Stacy Brown as the assistant property manager for Epoch. Both were experienced property managers and both had received Fair Housing training. Ms. Hayden and Ms. Brown testified that Epoch tries to create a sense of community among its tenants. Its efforts include hosting monthly breakfasts and other events for tenants. Information about upcoming community events is sent to all tenants with email addresses on file via Constant Contact, an on-line social and business networking platform. The email address provided on Ms. Shaw's rental application was entered into Epoch’s Constant Contact list. The Uptown Village Lease The Lease contained several provisions intended to ensure a safe and peaceful living environment for tenants. For example, paragraph 4 of the Lease provided that a resident shall ?. . . not permit any disturbance, noises or annoyance whatsoever detrimental to the comfort and peace of any of the inhabitants of the community or its Landlord.? Similarly, paragraph 30(G) provided that the ?Resident shall ensure that the pet(s) does not, at any time, disturb any other Resident of the apartment community.? The Lease reserved to Epoch the right to determine, in its sole discretion, whether a pet was disturbing residents. The Lease also incorporated a code of community rules (?the Rules?) for Uptown Village, which provided in pertinent part, ?all garbage, refuse and other types of waste shall be placed in garbage receptacles? and that ?loud and boisterous noise or any other objectionable behavior by any Resident or guests is not permitted.? The Rules also noted that the "quiet time" hours of the complex were from 10:00 p.m. to 8:00 a.m. Paragraph 12 of the Lease provided that a tenant must give 60 days’ advance notice of his or her intent not to renew the Lease. If notice was not given, then the Lease would renew on a month-to-month basis at the then current market rate, plus $50.00. The Shaws' Neighbors The Alcubilla family, who are Hispanic, lived across from Petitioners’ apartment, in Apartment 2-202. The Alcubilla family included a husband and wife, as well as the wife’s mother (Mrs. Alcubilla), who spoke little English. A Caucasian graduate student, Amanda Watson, lived on the third floor of the building directly above the Shaws in Apartment 3-201. A Hispanic tenant, Angelo Caruso, lived with his girlfriend on the same floor as Ms. Watson. In October 2010, four months after the Shaws became residents, the Kohl family moved into Apartment 2-101, the first floor apartment directly beneath the Shaws’ apartment. Trouble in Paradise The Shaws' first rent check, dated July 9, 2010, was returned for insufficient funds. This was a Lease violation. On July 14, 2010, Epoch issued a reminder to Ms. Shaw advising her that a neighbor had complained about her dog barking all hours of the day. This was a violation of the Lease and the Community Rules. Mr. Shaw joined his family at Uptown Village on or about August 8, 2010. On the day he moved in, Epoch leasing agent Breanne Parks was conducting a survey of the community grounds and noticed empty boxes outside the Shaws’ apartment on the walkway, as well as trash outside another tenant’s apartment. She issued a warning notice to the Shaws and the other tenant in the building. Leaving trash outside of an apartment is a violation of the Lease and Community Rules. On August 20, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease Violation. On October 8, 2010, the Shaws were notified by Epoch that they were being assessed a late fee for failure to pay their rent on time. One week later, on October 15, 2010, Epoch sent the Shaws notification about an outstanding balance on their account. The notices concerned Lease violations. On October 21, 2010, Ms. Watson complained to the office about loud arguments and sounds emanating from the Shaws’ apartment the night before. One of the noises sounded like someone or something had been thrown against a wall. Though she feared that someone was being physically abused due to the intensity of the impact, she decided not call the police. In response to Ms. Watson's complaint, Epoch posted a notice on the Shaws’ door for a second time warning them about noise and asking them to be considerate of their neighbors. The noise violation was considered a violation of the Lease and Community Rules. The same day Epoch posted the noise violation notice on the Shaws' door, Ms. Shaw called the management office and lodged a retaliatory noise complaint against Ms. Watson. As a consequence of this complaint, a warning notice was sent by Epoch to Ms. Watson. The noise violation was considered a violation of the Lease and Community Rules. On November 4, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease violation. Epoch allows sworn officers from the Gainesville Police Department to reside on the premises in exchange for services to the community as a Courtesy Officer. At some point during the Shaws' tenancy, Courtesy Officer Farah Lormil, an African-American female police detective, noticed a car belonging to the Shaws parked in an area that was not a designated parking space. This was a violation of Community Rules. Detective Lormil testified that she left a note on the car asking the owner to move the vehicle because "your car doesn't belong here." Detective Lormil also included her name and badge number on the note. At hearing, Ms. Shaw testified that the note read "you don't belong here." Inasmuch as Petitioners did not offer the note in evidence, and given the context in which the note was written (a parking violation), the testimony of Detective Lormil as to the actual wording of the note is the more credible. On December 27, 2010, leasing agent Erin Napolitano wrote a memo to Ms. Parks reporting that Mrs. Alcubilla’s daughter, Mater Alcubilla, had come to the management office the prior weekend to complain about an incident involving Ms. Shaw. Consistent with her memo, Ms. Napolitano testified that Mater Alcubilla had told her that Ms. Shaw had screamed at her family, followed them up and down the stairs to their apartment, and loudly knocked on their door. Mater Alcubilla also accused Ms. Shaw of stating that she knew what type of vehicles the Alcubillas drove and dared them to call the police. The memo recorded Ms. Alcubilla’s daughter as stating the police were called but when they arrived at Building 2, Ms. Shaw already was gone and therefore, no enforcement action was taken. Ms. Napolitano ended her memo to Ms. Parks with a personal observation: ?I just don’t know what to do about all of this but it certainly seems to be escalating.? Whatever the source of the friction between the two families, Ms. Napolitano testified that she had no reason to believe there was any racial animus on the part of the Alcubillas. On December 30, 2010, Ms. Hayden invited Mater Alcubilla to the office to discuss the incident with Ms. Shaw. Following their meeting, Ms. Hayden notated the date of the meeting and substance of their discussion in the Alcubilla’s resident conversation log. Ms. Hayden recorded in her own handwriting: ?Resident very frightened, Resident plans on moving at the end of her lease-Resident claimed Ms. Shaw yelled at her and threatened her and told her she needed to return to her country.? Ms. Hayden considered this to be an interpersonal dispute between the Alcubillas and Ms. Shaw. Also on December 30, 2010, Ms. Hayden and Ms. Parks invited Ms. Shaw to the management office to discuss the Alcubillas’ complaints. Ms. Hayden recorded in the Alcubilla’s resident log that Ms. Shaw denied the Alcubillas’ accusations, became upset and told Ms. Hayden and Ms. Parks that her neighbors needed to mind their own business. Ms. Hayden also noted that the meeting ended when Ms. Shaw got up, stated, ?you wait? and left the office. Based on what she perceived as a threat by Ms. Shaw of continuing trouble with the Alcubillas, Ms. Hayden recorded her intent to notify a Courtesy Officer of the situation. On February 15, 2011, the Shaws received a three-day notice from Epoch for failure to pay rent, and a notice of an outstanding balance due. This was a Lease violation. Three weeks later, on March 4, 2011, the Shaws were issued another three-day notice for failure to pay rent. This concerned a Lease violation. Ms. Watson continued to hear the Shaws' dog barking and loud voices and other noises, included stomping and footsteps, emanating from the Shaws' apartment. On one occasion, the Shaws left Gainesville for the weekend and placed their dog out on the balcony because it barked continuously. The noise and barking interfered with Ms. Watson’s ability to study and to enjoy her residence. On March 5, 2011, Epoch posted a letter on the Shaws' door regarding complaints received from the Shaws' neighbors about the dog barking for hours at a time, often late at night and in particular on March 3, 2011. This concerned a Lease violation. The loud barking, stomping, and talking within the Shaws' apartment did not abate, and on March 9, 2011, Epoch sent the Shaws a "Seven Day Notice to Cure Lease Violation" which cited their violation of Lease Provision 30 and Community Rule Y. On March 17, 2011, Epoch send the Shaws an ?Urgent Outstanding Balance Due? notice regarding their outstanding unpaid utility bill. This concerned a Lease violation. Also on March 17, 2011, an email was generated by Epoch’s answering service which reported that Tara Kohl of Apt. 2-101 had called. The generated message stated Ms. Kohl’s complaint as, ?Apt. Above Very Noisy/Heavy Walking Again.? On March 19, 2011, Ms. Napolitano printed off the email note and called Ms. Kohl to get more information about the complaint. Ms. Napolitano recorded hand-written notes about the conversation on a printed copy of the email which read: ?Last couple nights—beating down on floor–jumping/walking. 3-4 am can hear them all the time.? The email with Ms. Napitano’s hand- written notes was placed in the Kohl’s tenant file. Immediately following Ms. Kohl’s complaint, Ms. Shaw wrote the following note and faxed it to the management office: To Uptown Village On Saturday night, March 19, 2011, I noted a very loud bumping noise coming from my floor. I was home alone and very afraid. I even feared calling the office or security in fear of retaliation. From past experiences when I have voiced a complaint, I receive notes on my door alleging that my dog was barking, that I had trash beside my door, we were stomping, we were too loud and have even found handwritten notes on my car. My family and I can no longer live in such turmoil. Please accept this letter as a formal complaint regarding harassment. If these occurrences continue, I will have no other choice than to contact HUD. Thank you in advance for your help. Glenda Shaw Prior to the date of the faxed letter neither Petitioner had ever complained about discrimination of any kind to anyone at Epoch. Ms. Hayden and Ms. Brown discussed the content of Ms. Shaw's fax and how to handle its allegations. They viewed Ms. Shaw’s complaint against the Kohls as retaliation against the Kohls for making a complaint about noise from the Shaws’ apartment the day before, and therefore a personal dispute. They also considered whether to respond to Ms. Shaw’s allegation of harassment by Epoch, and decided that any response would just be viewed by Ms. Shaw as evidence of further harassment. They decided to place the faxed letter in the Shaw’s tenant file and take no other action. It was a normal business practice of Epoch to generate a list of tenants whose leases were due to expire within the following 90 days. The list was used to create flyers reminding those tenants to contact the management office regarding renewal. Flyers were sent to each tenant on the list regardless of whether the tenant was in default of the lease or potentially a candidate for non-renewal. A renewal flyer was placed on the Shaws’ door in late March and a second renewal flyer was posted on the Shaws' door the following month. Neither renewal notice elicited a response from the Shaws. On March 25, 2011, Epoch sent the Shaws an ?Urgent Outstanding Balance Due Notice? regarding their overdue utility bill. This concerned a Lease violation. Just prior to Easter, 2011, an Uptown Village tenant asked the management office for permission to hold a private Easter egg hunt for their friends on the community’s volleyball court. Epoch approved the request. Uptown Village residents were not notified of the event through Constant Contact because the Easter egg hunt was not an Epoch-sponsored event. The individual who organized the event made the decision whom to invite. On May 10, 2011, Ms. Shaw came to the management office and was assisted by Ms. Brown. Ms. Shaw accused Brian Kohl of confronting her daughter and calling her ?two-faced.? Ms. Shaw demanded that Epoch take action against Mr. Kohl and stated that if Epoch would not do anything about the situation, she was going to call the police or the Florida Department of Children and Families. Before Ms. Shaw left, Ms. Brown asked about the Shaws' intentions to remain residents upon the expiration of their Lease. Ms. Shaw did not give a definitive answer. Ms. Brown then told Ms. Shaw that if the Shaws decided not to renew, Epoch would not hold them to the 60-day advance notice required by the Lease. Three days after this meeting, Ms. Brown notified Ms. Shaw that Epoch could not send a notice of violation to Mr. Kohl because the accusations against him were not Lease violations. However, Ms. Brown offered to discuss the allegations with Mr. Kohl, a truck-driver who was often on the road. On May 18, 2011, Ms. Brown met with Brian Kohl to discuss Ms. Shaw’s complaint. Mr. Kohl gave his side of the story. After he left, Ms. Brown entered the following note in the Kohl’s resident conversation log: Brian came in wanting to break lease b/c [because] daughter is being harassed by girls in 2-111 and 2-1012/ so badly that she won’t go outside. Told him that one 2-111 should be finish soon (they are on NTV [Notice to Vacate] and the other may too, (2-101) lease expires 6/25. Otherwise would do what I can and to give us the opportunity to help before he moves. Ms. Brown also made an entry in the Shaws' resident conversation log regarding Mr. Kohl’s allegation that the Shaws' daughter was bullying the Kohl’s daughter. The following day, May 19, 2011, Ms. Watson came to the management office and gave notice that she was moving out of Uptown Village when her lease expired in August 2011. She was asked to complete a form entitled ?Notice to Vacate from Resident.? In her own handwriting, she wrote the reason for vacating as ?loud tenants.? The Notice to Vacate from Resident was placed in Ms. Watson’s tenant file as part of Epoch’s regular business practices. At hearing, Ms. Watson testified that she and her fiancé had considered living in her apartment after they married and decided they could not live there due to the continued noise and disturbances emanating from the apartment below. With Ms. Watson’s notice to vacate, Ms. Hayden and Ms. Brown came to the realization that three tenants in Building 2 had levied complaints against the Shaws and two had made decisions to move out in whole or in part due to the Shaws’ conduct. Ms. Hayden and Ms. Brown then conducted a more thorough review of the Shaws’ tenant history, and discussed whether the Shaws should continue to reside at Uptown Village. They called Epoch’s attorneys to get legal advice and left a message. On May 29, 2011, Epoch received a handwritten letter from Tara Kohl making numerous complaints against the Shaws, including loud noises late at night, and the Shaws parking one of their cars in a handicapped parking space. On June 8, 2011, the management office received a hand-written letter from Brian Kohl giving notice of his family’s intent to break their lease and move out. The reasons given all centered on the noise being generated in the Shaws' apartment, and alleged threats that had been made by Ms. Shaw against Ms. Kohl. On June 17, 2011, Ms. Shaw called the management office and spoke with Ms. Brown. Ms. Shaw asked for a copy of her lease, inquired about the shortest lease term possible, and the amount of any rent increase. Ms. Brown did not commit that the Shaws' lease would be renewed nor did she quote a renewal rate. Ms. Shaw continued to press the issue and Ms. Brown finally stated that a normal rent increase on renewal was $100 a month. On June 20, 2011, Ms. Hayden and Ms. Brown spoke to Epoch’s attorneys regarding options for ending the Shaws' tenancy. A decision was made to non-renew their lease as that would cause the least disruption to the Shaws. Ms. Hayden prepared a non-renewal letter, and it was posted on the Shaws' door the same day. Later that afternoon, Mr. and Ms. Shaw came to the management office, met with Ms. Brown, and demanded to know the reason why their Lease would not be renewed. Ms. Shaw insisted that Ms. Brown had told her their Lease would be renewed at a rate of $937.00. Ms. Brown denied she made this statement. Ms. Brown asked Ms. Hayden to intervene in the dispute. Ms. Hayden explained that Epoch had a right to issue a non-renewal notice and that the decision was based on the numerous complaints received about the Shaws. Ms. Shaw insisted that if there were grounds to terminate the Lease for cause, Epoch should issue them a seven-day notice to vacate. Ms. Hayden explained that they had decided to issue a non- renewal notice rather than a notice to vacate to allow the Shaws more time to make arrangements and to foster an amicable parting. Epoch has sent non-African-American, White and Hispanic tenants notices of violation regarding excessive noise and non-payment of rent and fees, and also has terminated leases (through eviction) on these bases. There is no competent substantial evidence in this record to even suggest that the decision to non-renew the Shaws' lease was in any way related to their status as African-Americans. On June 23, 2011, Mr. Caruso’s girlfriend was walking their dog outside Building 2 off leash (in violation of the Rules) when it began to chase the Shaws' son. The dog nipped at their son’s leg but did not draw blood or break his skin. When Mr. Caruso learned of the incident, he came to the Shaws' apartment to apologize. He later returned and asked to take a photo of their son’s leg because he feared Ms. Shaw might bring legal action against him, given her hostility after he had offered her a bag to clean up her dog’s waste on a previous occasion. Ms. Shaw refused to allow Mr. Caruso to photograph her son’s leg. Instead, she told him if he did not leave she would call the police, and if his dog ever attacked again she would report him and have the dog put to sleep. On June 27, 2011, a second non-renewal letter was posted on the Shaws' door to ensure that Petitioner’s understood their lease would not be renewed. The following day the Shaws returned to the management office and insisted that at the end of the June 20th meeting, they had been told their lease would be renewed. Ms. Hayden denied this and reiterated that their lease was being non-renewed based on complaints from neighbors. As the meeting continued, Ms. Shaw became increasingly agitated; she turned to Ms. Brown and asked if Ms. Brown found her to be confrontational. Ms. Brown responded that she thought Ms. Shaw had a ?strong personality.? To that, Ms. Shaw replied, ?It’s my culture.? As the meeting continued, Ms. Shaw began to inject the issue of race into the conversation. For example, in response to Ms. Hayden’s remark that the decision to non-renew was not personal, since she would not even recognize Ms. Shaw if she saw her at a mall, Ms. Shaw stated that ?white people think we all look alike.? As the conversation was taking an uncomfortable turn, Ms. Hayden ended the meeting and referred the Shaws to Epoch’s attorneys if they had any further questions or concerns. In early July 2011, Mr. Caruso was returning to Building 2 after walking his dog on leash and encountered Mr. Shaw. Mr. Shaw told Mr. Caruso to keep his dog away or he would kick it. On July 11, 2011, Ms. Shaw complained to the management office about Mr. Caruso’s dog charging at her while it was on a leash. She noted this was the second incident involving the dog. Ms. Brown told Ms. Shaw she would look into the matter, since this would be considered a violation of the Lease and Community Rules. On July 12, 2011, Ms. Brown spoke with Mr. Caruso’s girlfriend and cautioned her to keep the dog under control. Ms. Brown noted their conversation in both the Shaws’ and Mr. Caruso's resident conversation log. On August 4, 2011, Ms. Watson completed a "Move Out Survey" and in response to a question about what could have been done by management to encourage her to stay, wrote in her own hand-writing: ?Dealt with loud neighbors more consistently and effectively . . .? She added that her reason for leaving was ?loud, inconsiderate tenants.? The Shaws refused to move out by the date given in their non-renewal notice and stopped paying rent. On August 3, 2011, the Shaws dual-filed a charge of housing discrimination (race and color) with the Commission and the Federal Department of Housing and Urban Development. The charge alleged that Epoch had refused to rent to them, made discriminatory statements, and had offered them less favorable terms, conditions, privileges, services or facilities than other non-African-American tenants. The facts supporting their charge were that they were not invited to the Easter egg hunt; that they had been told their lease would be renewed yet it was not; and that Ms. Hayden had made racist statements. The Shaws did not pay rent for July 2011,3/ and on August 4, 2011, were sent a "Notice to Pay Rent" by Epoch. The Commission investigated the Shaws' charge of housing discrimination and issued a determination on August 31, 2011, finding there was no probable cause to support the claims. On September 29, 2011, the Shaws filed a Petition for Relief from an alleged discriminatory housing practice, giving rise to the instant proceeding. During the pendency of this matter, the Shaws were evicted from Uptown Village for non- payment of rent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that Respondents did not commit a discriminatory housing practice based upon Petitioners’ race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
The Issue This proceeding involves permits for outdoor advertising issued by the Florida Department of Transportation. The issue for determination is whether those permits should be revoked for failure to have the property owner's permission to maintain a sign at the subject location.
Findings Of Fact Respondent, POA Acquisition, Inc. (POA), is an outdoor advertising company maintaining an office in Orlando, Florida. On or about June 7, 1985, sign permits #AQ 195-35 and AQ 196-35 were issued by the Florida Department of Transportation (DOT) to Iverson, Inc., for the two faces of a sign located near the highway intersection of State Road 438 and U.S. 441 in Orlando, Orange County, Florida. The site for the sign was leased from the owners by Iverson, for 5 years effective August 1, 1985, at an annual rate of $1,800.00. The lease provided for automatic renewals of successive 5-year terms unless written notice to terminate was given by either party ninety (90) days prior to the end of the term. The lease also provided for termination by the lessor with ninety (90) days notice if the lessor required use of the property for another purpose. (Petitioners Exhibit #4) At some point, Iverson assigned its lease and transferred the permits to another company, Don Bell Industries, Inc. (Don Bell) The lessors sold the property to Bernard Kaplan. Patricia Lavelle became the agent for the owner, Bernard Kaplan. The new owner had development plans for the property and began negotiating a new lease with Don Bell in July 1989. Offers and counter-offers were made, but no new lease was signed. On July 2, 1990, Patricia Lavelle sent a letter to Don Bell stating that the lease had expired as of June 30, 1990, and the billboards needed to be removed. Unknown to Patricia Lavelle, Don Bell had transferred its lease to POA in November 1989. Ms. Lavelle found out about the transfer the day she wrote to Don Bell, and she sent POA a copy of the letter. Ms. Lavelle also sent a notice to Peter Wright, DOT, informing him that the lease with Don Bell was terminated and asking that the permits be revoked and reissued to the new leasee, National Advertising Company. POA sent Ms. Lavelle a check for $1,440 (deducting 20% for federal tax), dated July 11, 1990. She held the check and never deposited it. Ms. Lavelle contends that no lease exists between the owner and POA, and POA does not have the owner's permission to maintain its billboard on the premises. She contends that the lease expired in June 1990, when the Don Bell lease expired. The assignment of lease from Bell to POA, which was never sent to Ms. Lavelle or Bernard Kaplan, indicates that the lease term is 6/26/85 to 6/26/90. POA contends that a five year renewal period commenced in July 1990, as the lessor did not give 90 days advance notice, as provided in the lease document. However, no evidence was presented to refute Ms. Lavelle's statement that the notice was given to Don Bell when a letter dated July 7, 1989, was sent from P.A. Lavelle to Russ Adams, Manager of Don Bell & Company, stating that the land was "under a development project", and someone from the company needed to negotiate a new lease. (Petitioner's Exhibit #1) In the absence of evidence to the contrary, Ms. Lavelle's testimony and the July 7th letter establish that POA does not have the owner's permission to maintain a sign at the subject site.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the DOT issue a Final Order revoking permit numbers AQ 195-35/AQ 196- 35. DONE AND RECOMMENDED this 9th day of A1pril, 1991, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Vernon L. Whittier, Jr. Asst. General Counsel Dept. of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, FL 32399-0458 Jay Trent, Real Estate Manager POA Acquisition, Inc. P.O. Box 617617 Orlando, FL 32861 Ben G. Watts, Secretary Dept. of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991.
Findings Of Fact Ben L. Musick is a registered real estate broker, t/a Ben Musick holding License No. 0062987. In September or October of 1975, Ben Musick was contacted by Barbara Hawkins who requested Musick to represent her in the sale of her home located at 3802 East Esther Street, Orlando, Florida. At that time, Hawkins advised Musick that she had had a recurrence of cancer, was behind on the second mortgage to her house, and desired to sell her home. Musick advised Hawkins that he could assist her in selling the home but that if he undertook to list the house in a direct capacity, that by virtue of his membership in the Orlando/Winter Park Multiple Listing Service that he would have to charge her seven percent commission on the sale. Hawkins advised Musick that she did not desire to have the house so listed and did not desire to place a sign on the property. Hawkins was desirous of paying off the money owned on the house, and obtaining as much money as possible on the sale. Musick was unable to give her an approximation of the money she could hope to realize on the sale of the home because Hawkins was unable to tell him the amount she was in arrears on the second mortgage. Musick undertook to represent Hawkins and advised her that he would check into the status of the second mortgage and would contact her. Upon checking with the second mortgagor and with the courthouse, Musick determined that there was a lien against the property for a deficiency judgment from a small loan company. He also determined the amount of money which she was in arrears on the second mortgage. With this information, Musick met with Hawkins on the 12th or 13th of October, 1975 and discussed with Hawkins the fact that the judgment lien of the small loan company would have to be satisfied together with the amounts due and owing on the second mortgage. A firm purchase price was not reached, but it was their understanding that he would attempt to get the very best price for the home and bring any offers to her and see if she would approve. Musick, having been limited in the manner in which he could advertise Hawkins' property, contacted several friends of his wife and as a result of these contacts showed the home to two couples during the months of October and November. Mrs. Hawkins entered the hospital at the Naval Station in Orlando around November 10, 1975. After her initial examination, it was determined that she would have to be evacuated by air to a cancer treatment center and arrangements were made to do this. She was to be transferred on November 20 or 21, 1975. Ben Musick had shown the Hawkins' home to Bobby and Jerry Hill who on November 19 communicated their decision to Musick that they would offer to pay all outstanding obligations on the Hawkins' home and assume the first mortgage on the home. By this time it had come to light that there was due and owing four months payments on the first mortgage and that both mortgage companies were considering foreclosure. Ben Musick communicated the offer made by the Hills to Hawkins on November 19, 1975 by telephone speaking with her at the Naval Hospital. Based upon her acceptance of the offer and having been advised by Hawkins that her husband was present, Musick prepared the contract for sale based upon the estimates of the cost which the Hills would have to pay and the amount of the first mortgage which they would have to assume. Then Musick presented the contract for purchase and sale and the deed to the property to Barbara Hawkins and her husband at the Naval Hospital on November 20. At that time Musick advised Hawkins that upon signing the contract and deed that the property would be effectively transferred although there would be a formal closing at which he would appear and represent her. Hawkins concurred in this and signed the contract for sale and the deed conveying the property from herself and her husband to Bobby and Jerry Hill. She was told prior to signing that she would receive no cash proceeds from the sale pursuant to the offer of the Hills to pay all debts owing on the home and assume the first mortgage. On November 21, 1975, Barbara Hawkins was transferred from the Naval Hospital in Orlando to Keesler Air Force Base Hospital in Biloxi, Mississippi. The Hills had determined to obtain title insurance on the subject property; and, therefore, Musick turned to Lawyers Title Insurance Company to handle the closing in this transaction because they offered to do so for free thereby saving the Hills money in closing the sale of the property. The final closing statement for the sale of the property was prepared by Jody Sellers of Lawyers Title Insurance Company. She prepared the closing statement based upon information obtained by her from the mortgage companies involved. The information provided her was slightly different from the information provided to Ben Musick and the estimates which he had been required to make regarding the cost of title insurance and other closing costs as stated in the contract for sale. However, the offer was premised upon a payment of debts and assumption of mortgage with the understanding that Hawkins would receive no cash proceeds. Because of the difference in Sellers and Musick's figures there was a slight difference ($250) between the purchase price figures arrived at by Sellers and that arrived at by Musick as expressed in the contract for sale. On November 28, 1975, Ben Musick called Barbara Hawkins at the Air Force Hospital at Keesler Air Force Base, Biloxi, Mississippi, where he advised her that the closing had been approved and was imminent and that she would receive $55 cash from the proceeds of the sale. He further advised her that he would be at the closing and represent her picking up her papers and check. She acknowledged his representation of her at the closing. At closing Jody Sellers requested that Ben Musick execute an affidavit stating that the subject property was free and clear of any mechanics liens, which Ben Musick signed as follows: "Ben Musick, Realtor for Barbara M. Hawkins" Ben Musick signed the closing statement indicating the receipt of $55.31 in behalf of Barbara M. Hawkins in the same manner. Upon her return from Biloxi, Mississippi, around December 10, 1975, Ben Musick delivered the closing papers and the check for $55.31 to Barbara Hawkins.
Recommendation The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends that the Florida Real Estate Commission take no action against the license of Bennett L. Musick, t/a Ben Musick, as a registered real estate broker. DONE and ORDERED this 28th day of December, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Randy J. Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Thomas F. Lang, Esquire Post Office Box 633 Orlando, Florida 32802 Charles T. Wells, Esquire Post Office Box 3109 Orlando, Florida 32802
The Issue Whether the Respondent should be denied registration to transact business as a registered Florida Securities salesman.
Findings Of Fact The Applicant, William Russell Taylor, applied for a certificate of registration as a Securities salesman with Hibbard O'Connor & Weeks, 2740 East Oakland Park, Fort Lauderdale, Florida, on March 19, 1975. The Division of Securities, Department of Banking and Finance, refused to register Applicant-Respondent Taylor for the reason that Applicant-Respondent Taylor answered "No" on his application to sell securities with the Division of Securities, Department of Banking and Finance, to the question "16. Have you ever been arrested?". Criminal Docket 28943 of the United States District Court, Eastern District of Michigan, shows that Applicant-Respondent Taylor had in fact been arrested, was found guilty of the violation of the National Motor Vehicle Theft Act, and was committed to the custody of the Chief Probation Officer of the Court for the term and period of three (3) years. Applicant-Respondent Taylor was given due notice of the hearing before the Division of Administrative Hearings, Department of Administration, but failed to appear.
