Findings Of Fact Plotkin is the owner and operator of the Rendale Hotel located at 3120 Collins Avenue, Miami Beach, Florida, which has been operated by Plotkin, a family owned corporation, for more than twenty-five years. The apartment/hotel has 98 studio apartments. In the Spring of 1972, after Plotkin corresponded with DOR, it made the determination that it was exempt from the imposition of sales tax on the rentals it charges. Plotkin made the same determination for consecutive years through and including 1978. Early in September 1978, DOR caused an audit to be made of Plotkin's records and determined that Plotkin was not an exempt facility and that taxes were due for the three years prior to September , 1978, for all rentals to "non- permanent" guests. DOR's auditor utilized only the transcript of guest charges in making his determination. The transcript was compiled from April 1, 1975, a period beyond three years prior to the date of the audit. A transcript is a compilation generally prepared by the night clerk of all the active folio cards or guest ledge cards for that particular day. When tenants or guests were absent from the apartment hotel for various periods of time, they were not carried on the transcript. At times when a tenant had no charges for a particular day, the tenant was not carried on the transcript. As of April 1, 1975, Plotkin had 87 units occupied. As of June 30, 1975, it had 55 units occupied. Thirty of those units were occupied continually during that test period in 1975. As of April 1, 1976, 80 units were occupied and as of June 30, 1976, 55 units were occupied. Twenty-five units were continuously occupied during that three month test period. As of April 1, 1977, 95 units were occupied and as of June 30, 1977, 50 units were occupied. During the test period, 29 units were occupied for a continuous period of time.
Findings Of Fact A notice to show cause why the Petitioner should not have a civil penalty assessed against it or the license be suspended or revoked, together with a notice of right to hearing was sent to Petitioner by certified mail. A formal administrative hearing was requested by Petitioner. Respondent contends that petitioner violated Section 83.49, Florida Statutes, by failure to give notice to a tenant of the disposition of her security deposit and later of the claim against it within 15 days. Petitioner contends it received no security deposit and therefore no notice was necessary. On or about August 18, 1977, Hizi Malka, president of the Petitioner corporation, entered into an oral agreement with Denise Lombardo to rent to Lombardo an apartment owned by Petitioner corporation. There had been discussions about the rental of an apartment between Mr. Malka and Lombardo prior to the date of August 18, and Lombardo had moved some of her possessions into the apartment. Mr. Malka presented an unexecuted lease agreement to Lombardo at the time of the oral agreement to rent with a request that it be executed. Lombardo paid a sum of $200 by check for which she was presented a receipt reflecting a billing of $300 and a payment of $200. She was then given a key to the apartment and took the unexecuted lease with her. Lombardo moved into an apartment of Petitioner and resided there until sometime in December of 1977. Received into evidence was a receipt dated 8/18 reflecting a billing of $300, $200 paid and $100 due; a receipt dated 9/2/77 denoting $150 paid; a receipt dated 10/4/77 denoting $150 paid; a receipt dated 10/30/77 reflecting a billing of $150, $100 paid and a balance due of $50. Also received into evidence was a letter from Petitioner's attorney to Denise Lombardo dated January 11, 1978. Also entered into evidence was the unexecuted lease agreement in which the proposed terms were that the monthly rental for the subject apartment would be $150 a month, payable in advance the first of each month with an advance rental payment of $150 and a security payment of $150. The proposed lease was dated September 1, 1977, to September 30, 1977 for the advance rental payment, but the lease itself was to have run for a term of 12 months beginning on the 18th of August, 1977 and ending on the 17th day of August, 1978. It is uncertain from the testimony at the hearing the exact date when Lombardo vacated the premises although she informed the Petitioner that she intended to vacate the premises at the end of November, 1977. Lombardo surrendered the keys to the premises sometime during the month of December, 1977. Lombardo was unable to state exactly when she surrendered the keys to Mr. Melka, but he stated that she delivered the keys on December 31, 1977. The Petitioner, through an attorney, Myron B. Berman, by letter dated January 11, 1977, made a demand upon Lombardo to pay an additional sum of money in the amount of seventy five ($75) dollars for rent of the premises rented from the Petitioner corporation and stated that a security deposit in the amount of $150 was applied to the arrearages. There had been no mention of a security deposit on any of the billing statements given to Lombardo. Lombardo paid the total sum of $600 to the Petitioner from August, 1977 to the time the premises were vacated in December, 1977. There was no substantiating evidence of any other payments made although Lombardo said she made additional payments in cash and the Respondent denied receiving any such payments. The premises were used by Lombardo for storage purposes during the first part of August before she moved into the premises and paid the original $200 payment. The Hearing Officer further finds: the receipts presented show that monies were paid but there is no showing that a security deposit was demanded or paid. All the monies paid by the witness to the Petitioner were assigned to the payment of rent, which at the rate of $150 per month would be the amount of the agreed rental payments for the period from the first of August to the end of November or the middle of August to the middle of December. The premises were not used for living by the witness until August 18, 1977, but the premises were not vacated and the keys returned to the Petitioner until sometime in December, 1977. The proposed lease agreement was not executed and therefore the findings of fact relative to the renting of the premises by the witness from the Petitioner is largely dependent upon the evidence and testimony received at the hearing. The letter from the Petitioner's attorney erroneously concluded that the witness had paid a security deposit which could be applied to arrearages in rent. The proposed recommended orders of the parties were considered in the findings and conclusions of law in this order.
Recommendation Dismiss the complaint. DONE AND ENTERED this 25th day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Myron B. Berman, Esquire Post Office Box 1113 North Miami Beach, Florida 33160
Findings Of Fact Respondent Larry B. Lewis is a real estate salesman licensed under the laws of the State of Florida, having been issued license number 0052189. Respondent Melvin M. Lewis is a real estate broker licensed under the laws of the State of Florida, having been issued license number 0052222. Gateway Acres, Inc., was incorporated under the laws of the State of Florida in February, 1984, for the purpose of selling certain undeveloped property in Osceola County, Florida. Both Respondents are officers of that corporation, and Respondent Melvin M. Lewis is the sole stock holder. Because she had previously sold undeveloped property in Florida to him, a salesperson employed by Gateway Acres, Inc., contacted Ray O. Newbill, an insurance agent in Tennessee, in approximately early June, 1984. As a result of that conversation, Newbill received from Gateway Acres, Inc., an Agreement for Deed and other promotional material. That form Agreement for Deed related to an unspecified "1 1/4 acres more or less" at Gateway Acres in Osceola County. However, the terms and conditions of sale were specified on that form, which consists of one sheet of paper, with writing on the front and back of that sheet. The form initially sent to Newbill contained several "privileges". There was an Inspection Privilege whereby a buyer could receive a full refund at the time that the buyer completed a company guided inspection tour so long as that tour occurred within six months from the contract date. Pursuant to the Vacation Privilege, Gateway Acres, Inc., agreed to pay room and tax charges for three days and two nights at a motel in Orlando while the buyer participated in the inspection tour. The form next provided a 30 Day Unconditional Refund Privilege whereby the buyer could receive a refund for any reason whatsoever within 30 days from the date of purchase. Newbill signed that Agreement for Deed on June 18, 1984. In the signature portion of that document there appeared the following language requiring notarization: I HEREBY CERTIFY that on this day before me an officer duly qualified to take acknowledgments personally appeared an officer of Gateway Acres, Inc., a Florida corporation to me well known to be the grantor described in and who executed the foregoing instruments, and acknowledged before me that he is duly authorized by the corporation to do so and that this instrument is the act and deed of the corporation. WITNESS MY HAND and official seal at Miami in the said County & State, this day of , 19 . Although that language clearly calls for notarization of the signature of an officer of Gateway Acres, Inc., the seller of the property, Newbill had his secretary notarize his signature using that part of the form. Newbill mailed to Gateway Acres, Inc., the Agreement for Deed which now bore his signature and the false notarization by his secretary, together with his check in the amount of $500, the down payment on the property. When that document was received by Gateway Acres, Inc., Respondent Larry B. Lewis telephoned Newbill to explain that the false notarization invalidated that form and that particular Agreement for Deed could not now be executed by the seller. Since Newbill was anxious to immediately inspect the property and receive his vacation privilege, Newbill and Respondent Larry B. Lewis agreed that Newbill would come to Florida and he would be presented with a new form to execute. On approximately June 21; 1984, Newbill arrived in Orlando with his wife and eight children in a station wagon. He met both Respondents at the motel being paid for by Gateway Acres, Inc. Newbill and his wife then went with both Respondents to Gateway Acres and completed the company guided inspection tour of the area. When Respondents returned Newbill and his wife to their motel, Respondent Melvin M. Lewis gave to Newbill for his signature an Agreement for Deed. The front of that document obviously differs from the document that Newbill had executed in Tennessee. The second document is for a specifically described piece of property and carries that specific lot's legal description. The second document has a large blank space in the middle of the page where the first document had described the Inspection Privilege and Vacation Privilege. These paragraphs were no longer relevant since Newbill had already received his paid vacation and inspection tour. The third and most important difference in the second document was that only a Three Day Unconditional Refund Privilege was offered rather than the 30 Day Unconditional Refund Privilege offered in the first document given to Newbill. Respondents reviewed that document with Newbill, and Newbill signed. Newbill's offer was accepted on June 26, 1984, when Faye Lewis signed on behalf of Gateway Acres, Inc., as its secretary, and Respondent Melvin M. Lewis notarized that signature and executed the required certification regarding the corporate officer signing the instrument. On July 10, 1984, Gateway Acres, Inc., directed to Newbill, by certified mail, a copy of the contract entered into between them. That mailing reached Newbill on July 17, 1984. On July 12, 1984, Newbill sent a letter by certified mail to Respondent Melvin M. Lewis advising that he wished a refund of his $500. That letter reached Melvin M. Lewis on either July 16 or July 17, 1984 (both dates appear on the post office's receipt) On approximately August 10, 1984, Newbill left a message for Respondent Larry B. Lewis on the answering machine for the telephone at Gateway Acres, Inc., demanding that his $500 be returned or he would file a complaint with the Florida Real Estate Commission. To date, Gateway Acres, Inc., and the Respondents have failed to return to Newbill his $500 down payment. No other disciplinary actions have been filed by Petitioner against either Respondent Larry B. Lewis or Respondent Melvin M. Lewis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent Melvin M. Lewis and Respondent Larry B. Lewis not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against them. DONE and RECOMMENDED this 18th day of March, 1986, at Tallahassee, Florida. LINDA M. RIGOT, 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 18th day of March, 1986. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Harry E. Geissinger, III, Esquire Suite 201 415 West 51st Place. Hialeah, FL 33012 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
Findings Of Fact On 11 July 1977 Orestes Lopez moved into Apartment 102F at Fairview Villas (Fairview). He paid a $200 security deposit and the pro rata portion of the $280 per month rent for the balance of July. He did not sign a lease prior to moving in. Several attempts were made by Fairview to get Lopez to sign the year lease required from tenants, however he was allowed to remain in occupancy on a month-to-month basis during the months of August, September and October. By letter dated November 12, 1977 Lopez was notified by Fairview that he was occupying the apartment illegally without a signed lease that had been ready for his signature since he moved in; and that, unless he signed the lease by November 14, legal proceedings to evict him would be started. Lopez did riot sign the lease but no eviction proceedings were commenced. Lopez accepted the November 12 letter as notice to quit the apartment at Fairview and found another place in which to live. Without notifying Fairview that he was leaving Lopez moved out on 30 November. He left no forwarding address and turned in no keys. After the furniture was removed from the apartment, Mrs. Lopez, assisted by her two grown daughters, cleaned the apartment. Rugs were shampooed and vacuumed, stove was cleaned with oven cleaner, bathrooms were scrubbed, mirrors were cleaned and the icebox was cleaned. On 1 December the apartment was inspected by the manager of Fairview and the Move In/Move Out Inspection Checklist was completed. This checklist was introduced into evidence as Exhibit 2. In addition to listing bathrooms as not having been cleaned, range and refrigerator dirty, rugs and counter tops dirty and screen door torn, Exhibit 2 contained the following comments: Would not sign lease gave no notice had to file on. Attorney's fees too. No refund due to dirty apartment & no notice given & legal fees. In rebuttal Lopez testified that there had not been a screen door on the apartment since he moved in. No notice of intent to retain the security deposit was sent to Lopez by Fairview.
The Issue Whether the Respondent violated Subsection 475.25(1)(b), Florida Statutes, by failing to reconcile his accounts, having monies stolen from him by an employee, and withdrawing money from his escrow account as commissions. Whether the Respondent violated Subsection 475.25(1)(k), Florida Statutes, by failing to maintain funds paid to him as deposits for rentals, sales taxes, and security deposits in his escrow account until after the date of the rental.
Findings Of Fact The Respondent is a licensed real estate broker and was so licensed at all times relevant to the events which are a part of the Administrative Complaint. The Respondent holds license number 0177110 issued as a broker, t/a Sunspot Realty, 16428 West Highway 98A, Panama City, Florida 32407. On February 10, 1989, Elaine Brantley, an investigator for the Department of Professional Regulation, visited the Respondent's office for the purpose of conducting a financial audit of the records of the business. The Respondent was not present; and Teresa Tuno, the Respondent's secretary and wife, stated she would prefer that Brantley not review the records in her husband's absence. On February 14, 1989, Brantley telephoned the Respondent and made arrangements to audit Respondent's books on February 15, 1989. A review of the records by Brantley on February 15, 1989 revealed that the records were in a state of disarray and the ledgers were not posted. At that time, Brantley advised the Respondent that the records had to be put in order, the ledgers posted, and accounts reconciled by February 17, 1989, when she would reinspect the records. Brantley reinspected the records on February 17, 1989, and all the ledgers had been posted and the accounts had been reconciled through January. The audit revealed that Tuno had received $47,961.45 in security deposits, sales taxes, and rental deposits which were not refundable under the lease agreement. The audit revealed that the balance of the Respondent's escrow account was $33,321.45. The difference between the balance of the escrow account and the money received by the Respondent includes $8,000 which the Respondent paid to himself with checks drawn on the account for "commissions", and $6,540 which had been stolen by an employee of the Respondent. The monies stolen included cash deposits paid by rental customers to the employee and one check on the escrow account endorsed in blank and given to the employee to pay for items purchased for one of the rental units which the employee cashed and converted to his own use. The theft was reported to the local police and their investigation revealed that the employee had disappeared under suspicious circumstances, indicating foul play. The lease agreement states that a deposit of 50% of the rental rate was required to reserve a property and the deposit was refundable only if another tenant could be found for the same period. The Respondent's agreement with the owner of the property called for a commission of 30% of the rental receipts. However, there was no mention of when the commission was earned and under what circumstances it would be paid in the original rental agreement. Upon being criticized for this practice by Brantley, the Respondent repaid the total amount of the draws. Subsequently, he had a new agreement drawn purporting to authorize early payment of management fees. The new agreement states in pertinent part: Owner agrees to compensate Agent a commission of 30% of rental receipts with the exception of long term winter rentals which will be at a rate of 20%. Agent is authorized to draw management fees upon receipt of tenant's non-refundable reservation deposit. The balance of the escrow account was sufficient to meet any potential demands against it. Had the property been leased to another renter for the same period of time, the second renter's deposit would have been deposited to the account making up the funds refunded to the first renter. The audit also revealed that the Respondent had paid monies from the escrow account to a maintenance company operated by the Respondent for work performed on various of the properties. However, the Respondent had not debited the individual property accounts at the time the check was drawn. Each of the properties had a sufficient individual balance to pay for work charged against the property. The appropriate entries were made eventually in the ledgers for the property by the Respondent. The Respondent has amended his agreement with property owners to permit him to bill for repairs on their property on a cost-plus-10% basis to eliminate this problem. None of the actions by the Respondent resulted in financial loss to any of his clients, and the Respondent was cooperative and candid with the auditor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent: Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing commissions to himself; Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing payments to a maintenance company which he owned without debiting individual property accounts; and Be required to enroll and satisfactorily complete a course on maintenance of escrow funds and accounts. DONE AND ORDERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 1989. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 89-2681 The Respondent filed a letter in place of proposed findings which contained legal argument which was read and considered. It did not contain any findings. The Petitioner filed proposed findings which were read and considered as follows: Paragraphs 1-3 Adopted Paragraph 4, 1st sentence Adopted Paragraph 4, 2nd sentence Rejected as irrelevant Paragraphs 5-7 Adopted Paragraphs 8-10 Rejected. The terms of the contracts do not address when Tuno was entitled to his commission. Under the terms of the contracts the renters were not entitled to a refund of their advance deposit after a reservation was made unless a new renter could be found for the same time, in which case that renter would have to make a deposit. When Tuno was entitled to his commission was not addressed in the contracts. While findings that Tuno violated the provisions of statute relating to maintenance of funds in his escrow account; this failure was based upon the lack of clarity in the contracts and the high standard of conduct in maintaining escrow accounts which is required of licensees. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. 0. Box 1900 Orlando, Florida 32802 Mr. Robert P. Tuno 16428 West Highway 98A Panama City, Florida 32407
The Issue The issue is whether Respondents violated section 70-176, Pinellas County Code of Ordinances (Code), as alleged in Petitioner's Housing Discrimination Complaint (Complaint).
Findings Of Fact This case concerns an allegation that Petitioner, an African-American female, was the victim of housing discrimination in two respects. First, after complaining that her bathroom was not timely repaired by her landlord, Petitioner reported the problem to the City of St. Petersburg (City). When the manager came to repair the bathroom, Petitioner alleges he told her he "would throw her black ass out of here for calling the city on them." Second, Petitioner alleges she was told by the manager to move her car that was parked "for a few days" on the property, yet white tenants were allowed to keep a truck with "no tags and flat tires" on the premises for more than a year. Because no evidence was presented on the second issue, only the first allegation will be addressed. By way of background, from August 2012 until she was evicted in October 2015, Petitioner resided in an apartment complex at 3865 9th Avenue North, St. Petersburg, Florida. The complex is owned by Holly Berry Gifts, Inc., whose president is Holly Bonk. The complex is managed by Mike Prusinski. Bonk and Prusinski are employed full-time in other jobs, but devote attention to apartment matters when required. Bonk has a practice of leasing units to whoever is qualified, regardless of their race. She was drawn into this affair because of the alleged comments of her manager. It is fair to assume that Bonk has delegated responsibility to Prusinski to deal with maintenance issues and to evict tenants. Pursuant to a one-year Residential Lease executed by Petitioner in July 2012, she was required to pay $500.00 rent each month, due no later than the fifth day of the month. If rent was paid after the fifth day, a $60.00 late charge was imposed. After the lease expired on July 31, 2013, Petitioner continued renting her apartment on a month-to-month basis, but all terms and conditions in the original lease still applied, including the same monthly rent and late payment provisions. Prior to 2015, Petitioner was periodically late in paying her rent. For the months of February, March, July, and August 2015, she was either late paying her rent, or she did not pay the full amount. No rent was paid for September 2015. Despite Petitioner being in arrears throughout her tenancy, Prusinski "worked with" her because of her financial constraints, and according to Petitioner, he never demanded she pay the late charge. On June 2, 2015, Petitioner sent a text message to Bonk complaining that her upstairs neighbor (a female) was playing loud music and was noisy, which interfered with Petitioner's enjoyment of her apartment. When the neighbor came to Petitioner's apartment to discuss the complaint, Petitioner opened the door and "maced" the neighbor in the face. The neighbor filed a complaint with the police. Petitioner was arrested and charged with battery. In 2016, a jury convicted her of battery, and she was sentenced to 15 days in jail and placed on probation for 11 months. According to Prusinski, the macing incident was the final straw that led him to begin the eviction process. Besides the macing incident, Prusinski explained that Petitioner "harassed" the air-conditioning crew that serviced the complex to the point they refused to provide further service unless they received a $45.00 surcharge for each visit. He described Petitioner as being "hostile" towards him throughout her tenancy, and he noted it reached the point where she would not answer the door half of the time when he knocked. On August 14, 2015, a Fifteen Day Notice to Vacate the premises was personally served on Petitioner informing her that she must vacate the premises by August 31, 2015. An Eviction Notice was then obtained from the court. Before it was served on Petitioner, she changed the door locks, padlocked the circuit breaker box to her apartment, and moved out without notice to Respondents. Each of these actions violated the terms of her lease. Petitioner says she did this because she was "scared" that "Mike was coming over to throw her out," and a friend told her it was okay to change the locks. Prusinski was forced to call a locksmith to access the empty apartment and use bolt cutters on the padlock to restore electricity. In all, Petitioner still owes $1,933.00 for past due rent, late charges, court costs, locksmith charges, and the cost of a bolt cutter. There is no evidence that the eviction process was motivated by racial bias. The record shows that Prusinski has evicted four black tenants and eight white tenants for failing to pay their rent. Although Petitioner was upset that she had to relocate to new housing, she agrees there was justification for her eviction. A month after her eviction, Petitioner filed her Complaint. Petitioner says the Complaint was filed only to address issues other than her eviction. Against this backdrop, the only allegation that requires resolution is an assertion by Petitioner that Prusinski directed a racial slur towards her when he was repairing her bathroom.2/ Due to a leak in the upstairs bathroom, Petitioner's bathroom developed multiple problems, which required repairs to the walls and ceiling and professional mold remediation. Although these problems were eventually resolved, they were not resolved as quickly as Petitioner desired. Therefore, she reported the problem to the City. The City inspected her unit in early April 2015, determined that repairs were needed, and relayed its findings to Prusinski. After receiving the City's report, Prusinski came to the apartment to repair the bathroom. Petitioner says an argument over the repairs ensued, and he told her he would "throw her black ass out of here for calling the city on them." Except for Petitioner's testimony, there is no other credible evidence to corroborate this statement. Notably, even though the incident occurred in early April 2015, Petitioner never reported it to Bonk (Prusinski's boss), she did not mention the incident at the eviction hearing, and she waited until after she was evicted to raise the issue with the County. Prusinski denies making any racial comments to Petitioner and attributes her allegation to the hostile relationship between the two and her eviction in September 2015. Having considered the record as a whole, Prusinski's testimony is accepted as being the most credible on this issue. Ironically, Petitioner sometimes used the term "black ass" when referring to herself in text messages sent to Bonk, and during the hearing, she sometimes referred to herself as a "black ass."
The Issue The issue for consideration in this case is whether the Respondents, individually and jointly, on March 24, 1999, established, maintained, or operated migrant housing on their properties located on Rosebud Lane in Arcadia, Florida, without first obtaining permits from the Department of Health.
Findings Of Fact At all times pertinent to the issues herein, the State of Florida's Department of Health, and the DeSoto County Public Health Unit were the agencies in DeSoto County, Florida, responsible for the management and permitting of migrant labor camps and residential migrant housing within that county. Jack L. Sikes has been an environmental specialist II with the DeSoto County Health Unit for 18 years. His duties comprise the management of the migrant housing program within the county, including permitting and inspection of migrant residential housing units and camps. Migrant housing is defined within the Health Department as any structure housing five or more workers engaged in seasonal work, and who have changed their residence during the preceding year. Inspection standards applied to migrant housing relate to health and safety issues, such as cleanliness, refrigeration, hot and cold water, lights, bedding, and structural problems of the facility which impact safety. For the 1998-1999 growing year, permits were issued for 108 migrant worker camps in the county. In the 1997-1998 year there were only 16-17 permits issued for camps. The increase is due to state emphasis on increased safety for migrant housing. By far the greatest percentage of migrant workers are of Hispanic origin. The migrant population increases significantly in DeSoto County during the citrus harvest period which extends from November through June. On March 23, 1999, Mr. Sikes and a co-worker, as a part of a continuing search for un-permitted migrant housing, conducted a drive-through inspection of several mobile homes situated on Southwest Rosebud Lane in Arcadia, Florida. Eight of the lots on Rosebud Lane have mobile homes on them while the other lots are vacant. On this visit, Mr. Sikes did not see any of the indications normally present when a structure is used for a family home such as toys in the yard, laundry drying, etc. As a result, he suspected the homes, some of which were obviously occupied, were being used as migrant housing. The next day, March 24, 1999, at approximately 5:00 p.m., Mr. Sikes and a Spanish-speaking inspector, Robert Schultz, returned to the area and went to the structure located at 1408 Southwest Rosebud Lane, where in response to the inspectors' knock, the door was opened by an Hispanic individual who identified himself as Mario Hernandez. Through the interpretation services of Mr. Schultz, Mr. Hernandez indicated that he lived at that house with his five cousins, all of whose names were recorded on the "Documentation of Hand Laborer" form on which the answers to the interview questions were written. As recounted by Mr. Sikes, Mr. Hernandez spoke for the group as his cousins were not present when the interview began. Mr. Hernandez indicated that he and his cousins arrived in DeSoto County from another location to pick oranges during the first week of November 1998 and took up residence at 1408 Southwest Rosebud Lane. The mobile home they were occupying was large enough to be permitted for six residents. Mr. Hernandez also indicated he and his cousins were renting the mobile home but did not know from whom. Though this statement is hearsay, it is corroborated by an examination of the electricity billing records and other independent evidence of record. A four-fold November increase in electric usage over the mid-October 1998 electric bill indicates the structure was most likely unoccupied before November 1998 but was occupied for several months thereafter. In fact, just after the inspectors left the home, a bus discharged several other men who appeared to be migrant workers and four of them went in the direction of 1408. When Mr. Sikes and Mr. Schultz went to 1375 Southwest Rosebud Lane they found several Hispanic men getting out of a utility van and going into the mobile home. The inspectors went to the house and were invited in. Mr. Schultz translated. During the course of the conversation, the men indicated they had just returned from the fields where they worked picking oranges. They said they all lived in the mobile home with a sixth man who was not present at the time. They also indicated they had come to DeSoto County from Mexico around the first of the year to pick oranges, and had rented the mobile home from someone whose name they did not know. When the picking season was completed in DeSoto County, they intended to move on to other farm work elsewhere. The inspectors spoke with the driver of the bus who identified himself as a crew leader for Turner Foods for whom the migrant laborers also worked. The driver attempted to interfere with the inspectors' questioning of the workers who got off the bus, and as a result, the inspectors requested that he leave the area. Within five minutes of the driver's departure, Respondent Gary L. Frierson drove up and asked Mr. Sikes what was going on. Mr. Sikes advised Mr. Frierson that he and Mr. Schultz were conducting a housing investigation and that based on what information they had gathered, Mr. Frierson needed to obtain a residential migrant housing permit for the properties. Mr. Frierson did not deny he owned the property, but, by the same token, did not admit to owning it either. Mr. Frierson said he was trying to sell the property, but, due to tax considerations, was restricted to selling a limited number of parcels per year. Taken together, the evidence of record is abundantly clear that the occupants of both 1375 and 1408 Southwest Rosebud Lane on March 24, 1999, were migrant farm workers, and the properties were being used as residential migrant housing without being permitted as such. The question remains, however, as to who owned the property and was utilizing it in the fashion described. The public records of DeSoto County reflect that Alice H. Frierson is the owner of record of the property located at 1408 Southwest Rosebud Lane, and Gary L. and Alice H. Frierson, jointly, are the owners of record of the property located at 1375 Southwest Rosebud Lane. Respondents presented several documents in an effort to establish they did not own the properties in question. As to Lot 14 and Lot 22, Bokara Acres, unrecorded Agreements for Deed dated December 31, 1998, between both Mr. and Mrs. Frierson and Wayne Radloff as to Lot 14, and Ricardo Sanchez as to Lot 22, provide for a future transfer of title to each buyer, providing the buyer pays all amounts due on the purchase price. Identical Agreements for Deed were also issued the same date to Mr. Radloff for four other properties in the subdivision. As to Lot 14, a second Agreement for Deed, dated January 1, 1999, purports to transfer a future interest in the same property to Fernando Gomez, and on that same date, Mr. Radloff executed an Assignment of Agreement for Deed to Fernando Gomez. On January 9, 1999, Mr. Radloff also executed a Quit-Claim Deed for Lots 13 and 14 to Gary L. and Alice H. Frierson. As to Lot 22, on March 28, 1999, Mr. Gomez executed a Rescission of Agreement for Deed and Mutual Release to the Friersons in which the December 31, 1998, transfer of the property to Gomez was rescinded, thereby restoring title to Mr. and Mrs. Frierson. This is four days after the visit on March 24, 1999 by the inspectors, Mr. Sikes and Mr. Schultz. By none of the documents, however, did legal title transfer from Mr. and Mrs. Frierson to Mr. Radloff, Mr. Gomez, or Mr. Sanchez. In fact, Mr. Frierson admitted that he collected the rent from the occupants of both parcels weekly from January through March 24, 1999, though he indicated he had no idea which individuals occupied which property. All Mr. Frierson could recall was that a Hispanic man would come out to the truck each time Mr. Frierson went there and beeped his horn, and would give him the money due. He could not identify the man or even say if it was the same man each time. While the Department contends that the unrecorded Agreements for Deed are a sham designed to isolate Respondents from their legal responsibility to obtain permits for the property which they operate as residential migrant housing, Respondent vehemently denied this and produced a series of witnesses who, over several years past, have purchased real estate from them through the same process. None of these individuals experienced any difficulty in obtaining title to the property when they completed payment in full. It should be noted, however, that while these individuals have had no difficulty with the transactions, they are permanent residents of the area, and the situation regarding the parcels in question differs considerably. On none of the transfer documents in issue are the name and address of the person who prepared the document legible, and other technical deficiencies make the agreements un-recordable. When those factors are considered in conjunction with the coincidental concurrence of the documents with the arrival of the migrant workers, and the fact that all interest in the property reverted to Mr. and Mrs. Frierson immediately after the date of the Department inspection, the inescapable conclusion is that the transfers to Mr. Radloff/Mr. Gomez and Mr. Sanchez were not bona fide transfers of an interest in property, but were an effort to obscure the actual ownership of the property to avoid the responsibilities which go with the ownership of residential migrant housing. Other evidence of record supports that conclusion. For example, Respondents presented no documentary evidence to indicate they had ever received any of the weekly payments called for under the Agreements for Deed as to either property but claim that they received a down payment, and that Mr. Frierson collected "rent" each week. For the five properties sold to Mr. Radloff/Mr. Gomez for a total consideration of $63,000, the total down payment was $300. For the property sold to Sanchez for $20,000, the down payment was $100. Respondent admits he has no records to show the down payment or the monthly rental payments he received on either property. Respondents paid the electricity for both properties during the entire time the properties were under the Agreements for Deed through their account with the utility company and were not reimbursed. They provided water to 1375 Southwest Rosebud Lane free of charge from a well on adjacent property they owned. They paid property, casualty, flood, and hurricane insurance for both properties throughout the entire period and were not reimbursed. They did not advise the county property tax office that they had transferred interest in the property to someone else. Though Respondent gave a key to each property to the respective "purchaser," he never saw either at the property. All but one of the properties in which an interest was transferred to Mr. Radloff, Mr. Gomez, or Mr. Sanchez, are vacant and the location of the "buyers" is unknown. Mr. Frierson indicated that he frequently sells property by unrecorded Agreement for Deed. This is standard procedure for him. He claims he paid the electric bills on the properties when they were previously used as rental properties, and he did not cancel the service -- a thing he has done in the past when the buyer is short of cash or cannot pay the power company deposit. In one case under consideration here, he claims, the tenant paid more than was called for, so he used the accrued overpayment to pay the electric bill. As for insurance, he continued his coverage because he wasn't sure the buyer could get coverage. Respondent asserts he does not want to operate migrant housing and has told this to Mr. Sams of the Health Department. He wants single families, and the family which occupied one of the properties in issue on June 7, 1999, went in after the rescission of the Agreement for Deed. Mr. Frierson claims the family's rental business is far less formal than a normal rental operation. Many renters who terminate usually do so by leaving without notice. Many of the renters are Hispanics, whom he describes as quite naïve about paper work. When Mr. Sanchez advised him he wanted out of their agreement, Respondent prepared a Rescission and Release and a Quit-Claim Deed, though he admits the use of both is probably overkill. As to the transactions with Mr. Radloff, Respondent claims he entered into it on the basis of advice from his tax accountant to avoid a higher tax obligation. When he found that he didn’t have the tax problem after all, he bought the lots back and transferred them to Mr. Gomez, which, he contends was his original intention. Mr. Frierson contends that the money paid to him by Mr. Radloff actually came from Mr. Gomez, which, to Respondent, explains the concurrent transfers. He also contends that shortly after the transfer, Mr. Gomez came to him and wanted out of the deal, as had Mr. Sanchez, and he, Mr. Frierson, agreed. Respondent claims, however, that he had no idea of how the properties were used when Mr. Gomez and Mr. Sanchez had control of them. He overlooks the fact that he collected the rents weekly during that period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order in this matter imposing administrative fines of $500.00 on Gary L. and Alice H. Frierson for the proven violation at 1375 Southwest Rosebud Lane, and an additional $500 fine on Alice H. Frierson for the proven violation at 1408 Southwest Rosebud Lane, both in Arcadia, Florida. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Susan Mastin Scott, Esquire Department of Health Post Office Box 9309 Ft. Myers, Florida 33902-0309 James M. Beesting, Esquire 207 East Magnolia Street Suite B Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
