The Issue The issue in the case is whether the Petitioner should be granted an exemption from employment disqualification, pursuant to section 435.07, Florida Statutes (2014).
Findings Of Fact The Petitioner is seeking employment as a direct service provider in a “position of special trust” with disabled persons. The Respondent is the state agency responsible for making disqualification and exemption determinations related to persons seeking such employment. A person seeking employment in a “position of special trust” is subjected by law to a background screening process. A person who has committed one of a specified group of criminal offenses is disqualified from the employment. A disqualified person has the opportunity to seek an exemption from the disqualification. The Petitioner's background screening revealed that, in 2002, the Petitioner was charged in Seminole County, Florida, with fraudulent use of a credit card, a third-degree felony violation of sections 817.61 and 817.67(2), Florida Statutes (2014). Pursuant to section 393.0655(5)(j), Florida Statutes (2014), violations of section 817.61 are disqualifying offenses.1/ The Petitioner entered a plea of guilty, and was placed on probation for five years, ordered to complete 50 hours of community service, and required to make restitution in the amount of $2,416.20 to “People’s First Bank” in Panama City, Florida. The sentencing order prohibited the Petitioner from “work[ing] where you have unsupervised access to cash, equipment or merchandise of others” and prohibited the Petitioner from entering the premises of a Burger King. Adjudication was withheld. In the Respondent’s request for exemption, the Respondent stated that she had been shopping in a clothing store with someone else who was using a credit card. In the exemption request, the Respondent wrote “[a]t the time, I honestly didn’t know that this was not her mom (sic) card as that’s what she told me before going to the store.” The Respondent insinuated that she was arrested because she had been observed with the person using the card. At the time of the offense, the Petitioner was employed at a Burger King, where, on at least one occasion, she worked the drive-thru window. A customer who came through the drive-thru window accidently left a credit card. The Petitioner took the credit card and used it to make various purchases. According to the arrest report, the customer realized at some point that she was not in possession of the credit card, and that charges were appearing on her account. She reported the issue to law enforcement authorities, who, after an investigation, determined that the Petitioner had the credit card and was using it, at which time she was arrested. At all times material, the Petitioner was aware of the source of the credit card, and knew that it was not hers. In the request to the Respondent for an exemption from employment disqualification, the Petitioner set forth a false statement of the circumstances surrounding her arrest. The background screening also revealed two non- disqualifying offenses that occurred subsequent to the 2002 disqualifying offense. In 2004, the Petitioner entered a plea of nolo contendere to, and was adjudicated guilty of, a charge of petty theft, apparently related to a shoplifting incident at a T.J. Maxx department store. In 2006, the Petitioner was charged with a “failure to appear” violation related to the sentence imposed for the petty theft. In addition to the criminal offenses referenced herein, the Petitioner has been involved in a number of minor traffic offenses identified in the exhibits presented by the Respondent, but the offenses were relatively insignificant. The Petitioner has a high school diploma, and is gainfully employed. She was described as a good employee in several letters of recommendation submitted to the Respondent with her request for exemption, which were included in the exhibits admitted at the request of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying the Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 14th day of July, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 14th day of July, 2015.
The Issue Whether the Respondent, BankAtlantic, committed an act of discrimination in violation of Chapter 760, Florida Statutes, in relation to its treatment of the Petitioner, Ethel Rials.
Findings Of Fact At all times material to allegations of this case, the Petitioner, Ethel Rials, was an employee of BankAtlantic. The Petitioner worked in the Loan Servicing Department and was responsible for monitoring outstanding loans. She is black. The Loan Servicing Department was comprised of two divisions: standard loans and complex loans. Alice Moore supervised the standard loan division. Barbara Halprin was the Senior Vice President and Manager of the entire Loan Servicing Department. She evaluated the employees and, in August 2000, gave the Petitioner an excellent evaluation. At that time, the Petitioner exceeded the performance expectations of her employer. Subsequently, the Petitioner was promoted to the position of lead complex loan servicing specialist. Again, when the Petitioner was evaluated, her work exceeded the performance expectations of the employer. The Petitioner continued to perform her work responsibilities in an excellent fashion through September 2001. Sometime in 2002 it was announced that Alice Moore intended to retire at the end of the year. Although Ms. Moore did not recommend the Petitioner to assume her role as the supervisor in standard loan servicing, other BankAtlantic employees did. In fact, Ms. Halprin determined the Petitioner to be the most qualified and intended to promote the Petitioner to the Moore position. She advised the Petitioner accordingly. Petitioner acknowledged that she would be interested in the promotion and, until the fall of 2002, Ms. Halprin presumed the promotion would follow as planned. In November 2002, the Petitioner took sick days on November 20-21. She was scheduled for vacation days and was off November 22 and 25. When the Petitioner returned to work November 26, 2002, she alleged she had been the victim of racial discrimination and hostilities. On November 26, 2002, the Petitioner told Ms. Halprin of incidents that she claimed evidenced a hostile work environment. For example, the Petitioner claimed that on one occasion someone had spilled coffee in front of her desk (a large volume) such that the mess made her work area difficult to use. Second, the Petitioner claimed that on one occasion someone had left a note for her with "KKK" written on it. Third, the Petitioner claimed that someone had spit on her desk. And, fourth, the Petitioner claimed that an employee (Ms. Cass) had attempted to publicly humiliate and harass the Petitioner by implying work errors were attributable to the Petitioner. It is undisputed a large quantity of coffee was spilled in front of the Petitioner's desk on one occasion. Who spilled the coffee is unknown. The alleged "KKK" note was not produced or offered into evidence. If written, it is unknown who wrote the "KKK," when it was written, or what it was intended to mean. There is no evidence that anyone spit on the Petitioner's desk. There is no evidence that Ms. Cass intended to humiliate or embarrass the Petitioner when errors were identified. Unknown persons in the Loan Department committed errors that the Loan Servicing Department was required to identify and correct. Although generally found and corrected without issue, Ms. Cass did not like to deal with errors. The Petitioner misapprehended her comments. The comments complained of occurred on one occasion. On November 27, 2002, the Petitioner resigned her position with BankAtlantic and claimed she could not continue in the hostile work environment. The Respondent timely submitted all of the Petitioner's claims to its personnel office for investigation, but the Petitioner terminated employment without waiting for the conclusion of the review.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim. DONE AND ENTERED this 27th day of August 2004, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2004. Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Angelo M. Filippi, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P. A. 200 East Broward Boulevard, Suite 1900 Fort Lauderdale, Florida 33301 Ethel Rials 3832 Baymeadows Road, No. 211 Jacksonville, Florida 32217 Victoria Bloomenfeld Bankatlantic 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007),1 by discriminating against Petitioner based on her race or color in its failure to promote her or in its decision to terminate her employment.
Findings Of Fact Wal-Mart is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by Wal-Mart on or about August 26, 2004. At the time of her dismissal, she worked as a Customer Service Manager ("CSM") on the overnight shift, from 10 p.m. to 7 a.m. As a CSM, Petitioner performed various cashiering and supervisory duties at the front end of the store. These duties included conducting cash transactions and making refunds to customers. Petitioner's employment with Wal-Mart was terminated on November 13, 2007, for a category of offense styled "Gross Misconduct--Integrity Issue" related to fraudulent returns. In plain language, Petitioner was alleged to have stolen money from Wal-Mart by issuing "refunds" to nonexistent customers and pocketing the money from the cash register. Wal-Mart has a "Coaching for Improvement" policy setting forth guidelines for progressive discipline. See endnote 4, supra, for a brief description of the disciplinary progression. While the progressive discipline process is used for minor and/or correctable infractions such as tardiness, "gross misconduct" constitutes a ground for immediate termination. The coaching policy explicitly sets forth "theft," "dishonesty," and "misappropriation of company assets" as examples of gross misconduct. Prior to her termination, Petitioner's most recent three progressive "coachings" related to her habitual poor attendance and punctuality. A verbal coaching for misconduct related to attendance/punctuality was issued on January 5, 2007. A written coaching for misconduct related to attendance/punctuality was issued on February 23, 2007. A "decision day" for misconduct related to attendance/punctuality was issued on August 24, 2007, because Petitioner had accumulated six unauthorized absences since the written coaching in February. All of these coachings pre-dated Petitioner's Complaint by more than 365 days. Petitioner conceded that these coachings were unrelated to the reasons for her dismissal from employment. Apart from her unconvincing testimony about an allegedly malfunctioning store time-clock, Petitioner essentially conceded that she had persistent problems arriving on time for work. Petitioner also conceded that, aside from hearsay and rumor on the floor of the store, she had no personal knowledge of anyone else's coachings and thus had no basis for comparing her disciplinary history to that of any other Wal-Mart employee. Wal-Mart's "Promotion & Demotion Criteria" expressly provide that an employee is not eligible for a promotion to management trainee if he or she has an active written coaching. A written coaching is "active" for a period of one year after its issuance, meaning that Petitioner would not have been eligible for promotion to management trainee until February 24, 2008, had she not been discharged on November 13, 2007. Wal-Mart's "Career Preference" system is a computer program that allows employees to express their interest in promotion to other positions. An employee may log onto the Career Preference system and indicate her interest in a particular job. If an employee has not indicated her interest, she is not considered to have applied for the position and will not be considered for that job opening. A printout of Petitioner's Career Preference history was entered into evidence. It indicates that she never applied for a promotion to department manager. On April 13, 2006, Petitioner attempted to indicate her interest in the management trainee program. However, the Career Preference system will allow only qualified employees to indicate an "interest" and thereby be considered for a job; less-than-qualified employees are shown to have an aspirational "goal" of attaining the position. As of April 13, 2006, Petitioner had at least one active written coaching in her employment file,6 had not completed the prerequisites for the management trainee program, and was therefore ineligible for the position. Thus, the Career Preference system did not list her as having an "interest" in the management trainee position and she was not considered for the job. The evidence indicates that Petitioner was not qualified or eligible for a promotion at any time during the 365-day period preceding the filing of her Complaint. Wal-Mart's asset protection coordinators ("APCs") and Market Asset Protection Managers ("MAPMs") work under an entirely different chain of command than those employees involved in store operations. APCs and MAPMs are not involved in day-to-day decisions regarding employee discipline or promotions. Sandra Raines is the APC for Wal-Mart Store 5326, where Petitioner worked. Her job is to supervise and investigate integrity and facility safety issues, including instances of suspected theft by Wal-Mart employees. Ms. Raines reports directly to Melanie Clemons, the MAPM for 12 stores in Market 481, including Store 5326. Ms. Clemons supervises 12 APCs as to their asset protection duties, which includes allegations of internal theft by Wal-Mart employees. As part of her job, Ms. Raines reviews a weekly refund review report. This report provides information regarding suspicious transactions, such as refunds in excess of $50 for which the customer did not provide a receipt. The report provides information necessary to trace the transaction: the operator number of the cashier, the number of the register on which the transaction occurred, and whether the transaction was hand-keyed. It is usual Wal-Mart refund practice to scan the Universal Product Code ("UPC") bar code from the receipt into the register. A "hand-keyed" transaction is one in which the register operator manually overrides the register's protocol and types the information into the register, rather than scanning in the UPC bar code. Ms. Raines testified that, though there are legitimate reasons for using this procedure, a hand-keyed transaction is one of the "red flags" that cause her to look more deeply into a transaction. In the course of reviewing the November 3, 2007, weekly refund review report, Ms. Raines noticed a sale of $963.92 in merchandise at 3:47 a.m. on October 24, 2007, conducted by Petitioner. She also noticed a refund of $212.92 related to that receipt at 3:29 a.m. on November 2, 2007. The refund was hand-keyed. The large amount of the refund, the odd hour at which it occurred, and the fact that it was hand-keyed, combined to rouse Ms. Raines' curiosity. Ms. Raines reviewed the electronic journal, a record of every transaction that takes place in the store. She was able to obtain the original receipt from the October 24, 2007 purchase and the receipt for the November 2, 2007 refund. The refund receipt indicated that the returned item was a recliner chair. Ms. Raines' suspicions became greater as she wondered who would return a recliner at 3:29 a.m., then further intensified when she noted the original receipt showed that no recliner was purchased. Ms. Raines' preliminary review of the refund report and the receipts led her to believe that Catherine Durso, a white female CSM working the overnight shift, conducted the refund transaction. Ms. Durso's operator number was on the refund receipt. Ms. Raines began reviewing store surveillance footage to find visual evidence that Ms. Durso had committed a fraudulent return. Ms. Raines reviewed the video of the original October 24, 2007, sale and saw no recliner. However, she did observe Petitioner printing an additional copy of the sales receipt approximately 11 minutes after the sale. Ms. Raines next reviewed the video of the November 2, 2007 refund transaction. She saw no recliner chair7 and no customers present at the register at the time of the refund. Instead, Ms. Raines saw Petitioner conducting the refund transaction on Ms. Durso's register at 3:47 a.m. Ms. Durso was not to be seen in the surveillance footage of this transaction. Based on all the evidence before her, Ms. Raines concluded that Petitioner hand-keyed a fraudulent cash refund for $212.92, using the UPC code for a recliner chair and the transaction number from the reprinted receipt she had kept from the October 24, 2007 sale. At this point, Petitioner had recorded a cash refund of $212.92 but had not taken any money from the register. Ms. Raines therefore continued to watch the video to "kind of see what's going to happen next." At 6:03 a.m., Petitioner recorded a "no sale" transaction on the same register she had used for the refund. A "no sale" can only be performed by a CSM or a member of management because it involves opening the register drawer without actually recording a sale. A "no sale" is typically used when the cashier needs to change out larger bills for smaller ones. On this "no sale," Petitioner appeared to be merely sorting money. However, Petitioner recorded a second "no sale" three minutes later, at 6:06 a.m. This time, Petitioner removed money from the large-bill slot of the register and concealed the money in a black jacket draped over her left arm. Petitioner admitted removing the money from the register and placing it under her jacket. She claimed that she did so in order to safely move the money from the front of the store to the accounting office in the back. This claim was not credible. Ms. Raines testified that there is never a situation in which a CSM should hide money under a jacket. Wal-Mart provides blue register bags for transporting money and requires their use, for reasons of safety and employee integrity. Based on her observation of the fraudulent return transaction, and the removal and concealment of money from the register drawer, Ms. Raines concluded that Petitioner was stealing money from Wal-Mart. Ms. Raines continued her investigation, and discovered two additional fraudulent returns performed by Petitioner. Both of these returns were hand-keyed, and both used the receipt from the October 24, 2007 purchase. One refund transaction occurred on October 24, 2007, the same date as the purchase. Petitioner hand-keyed a refund for a recliner chair in the amount of $212.92, the same amount as the November 2, 2007 refund. The second refund occurred on October 26, 2007. Petitioner hand- keyed a $249.09 fraudulent refund for a Barbie Jeep, a battery- operated toy car large enough to hold two young children. No Barbie Jeep was purchased on October 23, 2007. For both of these refunds, Petitioner used the same $963.92 receipt from October 24, 2007, that Ms. Raines observed Petitioner reprinting 11 minutes after the actual purchase. Ms. Raines viewed the store video to confirm that no customers were present when these refunds were conducted. She also confirmed that no recliner or Barbie Jeep entered the store on the dates in question. Finally, Ms. Raines observed that on October 13, 2007, Petitioner's register was $300 short at the end of her shift. The surveillance video for that date showed Petitioner performing nine "no sale" transactions. Under the guise of performing an audit of the cash register, Petitioner was removing money from the drawer. Ms. Raines notified her supervisor, Ms. Clemons, of her observations and her conclusion that Petitioner conducted several fraudulent refunds in order to steal money from Wal- Mart. Ms. Clemons reviewed the evidence gathered by Ms. Raines. She reviewed the store videos to verify that Petitioner conducted three fraudulent refund transactions. At the conclusion of her independent review of the evidence, Ms. Clemons was convinced that Petitioner had stolen money from Wal-Mart. Ms. Raines and Ms. Clemons scheduled an interview with Petitioner on November 13, 2007. At this interview, Ms. Clemons terminated Petitioner's employment with Wal-Mart because of gross misconduct. During the interview, Petitioner admitted that she conducted fraudulent returns. She wrote out a statement in her own words: I had a couple of returns that were not actually returns. They were used for emergency personal purposes due to severe hardship and past-due medical bills. To my recollection, it has only started just recently around October 2007 and only 3x's that I remember. I do apologize for the integrity issue and am willing to pay back the 3 that I know and remember. I felt I was pushed over the edge by personnel and corporate or none of this would have happened. Everyone goes through hardships and I guess it was just my turn and that's how I chose to deal with [sic]. Again, I apologize and am willing to repay Wal-Mart, given the opportunity. At the hearing, Petitioner unconvincingly claimed that she was "coerced" into writing the above statement by a promise that Wal-Mart would not pursue criminal charges for the theft if she made a written confession. She claimed that the statement was not true, but was the result of putting herself "in a theatrical acting mode," imagining what would make someone do the things of which she stood accused. This testimony was not credible. Ms. Raines and Ms. Clemons credibly testified that Petitioner was not coerced into admitting her guilt. Ms. Clemons stated that she offered Petitioner the opportunity to write a statement out of adherence to Wal-Mart procedures. Ms. Clemons did not need the statement. She already had all the evidence she needed and would have fired Petitioner whether or not she wrote the statement. Petitioner admitted that she was discharged solely as a result of the investigation performed by Ms. Raines and Ms. Clemons. Petitioner was criminally prosecuted for the theft. She pled guilty and was convicted of grand theft, was sentenced, and paid restitution to Wal-Mart. Petitioner testified that she does not believe and does not contend in this forum that either Ms. Raines or Ms. Clemons discriminated against her because of her race or color. She testified that the discrimination did not involve Ms. Raines and Ms. Clemons: "I was fired by them, but the case of discrimination goes way before that." Even if the time-barred elements of the Complaints were considered, Petitioner provided no evidence beyond her bare assertions that she suffered from discrimination on account of her race or color. She believed that Ms. Durso received favored treatment, not because she was white and Petitioner was black, but because Ms. Durso had relatives in management and friends in the store. Also, Ms. Durso had computer skills that Petitioner lacked, which at times enabled Ms. Durso to sit at a desk in the back of the store while Petitioner did the heavy lifting in the front. Given Petitioner's obvious lack of candor as to the central issue of her termination, the undersigned is reluctant to base tangential findings on Petitioner's word alone. Even if Petitioner's testimony were credited as to the preferential treatment accorded Ms. Durso, Petitioner alleged no motive related to race or color in any of this treatment. Petitioner offered no record evidence that she was qualified for, applied for, and was denied a promotion. To the contrary, the evidence showed that Petitioner kept herself ineligible for promotion under Wal-Mart rules by having written "coachings" on her record for persistent lateness and unapproved absences from work. Petitioner offered no evidence that a similarly situated employee of another race or color committed a similar theft and was not discharged from employment with Wal-Mart. The greater weight of the evidence establishes that Petitioner was terminated from her position with Wal-Mart due to gross misconduct on the job in form of fraudulent refunds that attempted to cover her theft of money from her employer. The greater weight of the evidence establishes that Wal-Mart has not discriminated against Petitioner based on her race or color.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, L.P. did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2010.
The Issue Whether the Respondent violated Section 475.25(1)(a) and (i), Florida Statutes.
Findings Of Fact The admissions by the Respondent, together with the records introduced at the hearing by the Florida Real Estate Commission show that Respondent was a licensed real estate broker holding license no. 0122293. The Respondent admitted his participation in all the transactions referenced in the administrative complaint. The bank records and other evidence introduced at the hearing show that the Respondent's escrow account maintained at Liberty Bank of Cantonment lacked sufficient funds to pay the bills which Respondent admitted were owed Lawyers Title Insurance Co. in the amount of $44.00. The Respondent testified that he had paid these bills only two days before the instant hearing with a check on his personal bank account. From the Respondent's testimony, it is clear that he failed to maintain sufficiently detailed records to permit him to account for monies in his escrow account in the Liberty Bank of Cantonment and in the bank account which he maintained with the First State Bank in Pensacola, Florida. The closing statements relating to the Netzer/Hayes transaction showed that the Respondent received $1,225.00. His records for this transaction showed checks on his escrow account relating to this transaction in the amount of $1,481.60. Respondent testified that the error in this transaction occurred when he erroneously stubbed one check as relating to the Netzer/Hayes transaction, when in actuality it related to a separate transaction. However, under cross examination the Respondent could not identify the transaction to which this check related. The Respondent admitted depositing the money involved in the Netzer/Hayes transaction to his Cantonment Liberty Bank escrow account. He also admitted that he had made no transfer of funds from the Cantonment bank account to his First State Bank account. The Respondent admitted and the evidence indicates that payments were made at closing from the First State Bank account. The Liberty Bank account records show a balance of less thank $731.00 at all times after 9-30-76. Therefore, insufficient funds were maintained by the Respondent in the Liberty Bank escrow account to satisfy the obligations on the account arising from the Nitzer/Hayes transaction. Furthermore, the Respondent's handling of escrow account at the Liberty Bank in Cantonment was as it related to this transaction was improper The admissions of Respondent and the evidence introduced showed that he was the broker involved in the Suttles/ Kamplain transaction. No evidence was introduced that the Respondent failed to advise Suttles that he initially had accepted a $250.00 note in lieu of cash as an earnest money deposit. The evidence is clear that upon receipt of the money, the Respondent deposited this money to his account in the First State Bank of Pensacola. Although this account was not designated an escrow account, it did bear the designation of a management account. It was not established by substantial and competent evidence that a management account was not an escrow account. The Suttles/Kamplain transaction closed without problem; however, there is no explanation of the disbursement of the $250.00 received as an earnest money deposit in the records of this transaction. Regarding the Suttles/Gordon transaction, it was established that the Respondent was the broker who handled this transaction. No substantial and competent evidence was produced that the Respondent failed to disclose to the Gordons that he did not obtain an initial $100.00 deposit on the transaction. The record is clear that the Respondent did receive a check in the amount of $1,500.00 from Mr. Suttles which the Respondent deposited to his account in the First State Bank. The Gordons did testify that the Respondent was authorized to allow the Suttles to occupy the premises prior to closing. After occupying the property, the Suttles were to make rental payments to be credited to the payment of the mortgage. After moving into the house, Mr. Suttles and his wife began to have domestic problems, and he immediately ceased to make all rental payments upon the property. Mr. Suttles did not advise the Respondent that he was not making payments and did not intend to make further payments on the house. Mr. Suttles did avoid all of Respondents efforts to contact him. The Suttles and the Gordons did execute the closing papers but by the time the papers were executed, Mr. Suttles failure to make the rental payments had caused a deficiency in payment of the mortgage. Because the mortgage was in arrears, the transaction could not close. When the Respondent became aware of the Suttles' separation, he began to make arrangements to have them vacate the Gordon house. However, Respondent failed to keep the Gordons fully advised as to the statuts of this transaction. Further, the check given to the Gordons by Respondent was not honored by the First State Bank of Pensacola because of insufficient funds in the Respondent's account to meet this obligation. The Respondent retained and disbursed portions of the $1,500.00 deposited to the account, although the transaction did not close. Money was disbursed to the Gordons and Respondent took out his commission. Whether Respondent was not entitled to disburse the monies under the contract between Respondent and the Gordons cannot be determined upon the evidence presented. However, it is clear that Suttles was a bona fide purchaser, who after he entered into occupancy, determined that he would not complete the transaction; and under the terms of the contract between the Respondent and the Gordons, the Respondent earned his commission when a purchaser was obtained. It is clear that the Respondent did not keep the Gordons properly advised of the situation regarding the sale of their house to the Suttles; and that the Respondent's check to the Gordons on the First State Bank was not honored because the account was impaired. The evidence and testimony taken as a whole at the hearing shows that Respondent did not keep a running balance of the accounts which he maintained at the Liberty Bank of Cantonment or the First State Bank of Pensacola. The evidence further shows that the Respondent failed to withdraw commissions earned in their total amount subsequent to closings on property, did not pay bills which closing statements indicate he was obligated to pay, permitted inter-bank transfers of funds owed him by banking institutions to his escrow or management account, did not take steps to ensure that the First State account was properly and clearly titled as an escrow account, did not properly annotate withdrawals from his escrow accounts, and failed to maintain money in his escrow account until it was disbursed.
Recommendation The record taken as a whole indicates that the violations for which the Respondent is responsible are the result of his culpable negligence as opposed to any dishonest or fraudulent act. However, the Respondent is so devoid of any knowledge of his responsibilities with regard to monies entrusted to him that he may not safely be permitted to function as a real estate broker. Based upon the foregoing-findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the license of Respondent as a registered real estate broker. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert Pierce, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 O. E. Adams, Esquire Post Office Box 12217 Pensacola, Florida 32002 ================================================================= AGENCY MEMORANDUM ================================================================= Orlando, Florida November 27, 1978 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Manuel E. Oliver, Staff Attorney RE: PD 3267 (PD 15776) FREC vs. Ralph D. Villeneuve t/a Don's Realty 122293-1 DOAH Case No. 78-091 Please find enclosed copies of the Final Order filed on April 13, 1978, in the reference case together with the opinion filed on November 2, 1978 by the District Court of Appeal, First District of Florida, affirming the Commission's Order, as well as a copy of the mandate issued by said Court on November 20, 1978. By virtue of the foregoing, the order of the Commission revoking defendant's registration has become firm and effective in all respects. Please make the necessary annotations in the records for all effects. Manuel E. Oliver Staff Attorney MEO/km Enclosures:* * NOTE: Enclosures noted in this memorandum are not available at the division and therefore not a part of this ACCESS document.
The Issue The issue in this matter is whether Respondents committed the violations alleged in the Administrative Complaints, and, if so, what penalties should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent, Tim Vincent Milianta ("Milianta"), at all times material to this matter, was a licensed title insurance agent subject to the regulatory jurisdiction of Petitioner. Petitioner issued Milianta license number E083154. Milianta is the owner and President of Surf Title ("Surf"), a closing and escrow company. Petitioner issued Surf license number E109661. Surf handles closings all over the State of Florida. Surf has been in business for eight years. Prior to Surf opening, Milianta was a title agent for three years. In October 2008, Charlie Mae Wilder ("Wilder") received a promotional advertisement regarding refinancing her property. Wilder responded to the advertisement and subsequently met Letterman, Manager of Southeast Equity and Lending ("Southeast"), to conduct the refinance. Wilder applied for refinancing of her residence and also requested that the loan be used to pay off some creditors. Letterman helped Wilder with her application. He initiated contact with SEAL Credit1 and had Wilder contract with SEAL Credit to reduce her debt. Wilder provided Letterman a list of creditors she wanted paid off through the refinance. On or about January 9, 2009, Milianta attended Wilder's closing as the settlement agent. The loan number 525210 was processed through First Continental Mortgage. Assurity Financial Services underwrote the loan and provided the closing instructions. Wilder's closing instructions provided that "a condition to the funding of this loan that the following payoffs be made through this closing. Indicate payoffs on the HUD-1 Settlement Statement or provide other satisfactory evidence of payoff." The HUD listed each of Wilder's creditors under the section "additional settlement charges." Each creditor's payoff was also listed as going to SEAL Credit. Wilder signed an acknowledgement at closing that a third party was going to handle her lender required payoffs.2 In addition to the HUD-1 Settlement Statement, Wilder and Milianta also signed a General Acknowledgment document which provided: The undersigned Borrower understands that the Lender has required the payment of specific credit accounts at the time of funding as listed on the HUD. The borrower has contracted with an outside agency for the payment of said accounts and agrees to Hold Harmless Surf Title for disbursal of funds to that agency. Borrower further understands that Surf Title has no affiliation with said contracted agency. The lender approved the HUD with SEAL Credit as the payee. Surf handled the refinancing transaction for loan number 525210 and properly disbursed the actual loan proceeds to the list on the HUD. On January 14, 2009, Surf Title transferred $29,928.00 to SEAL Credit per the HUD. Later, Wilder began to get late fees from creditors who were not paid off. In mid-April or May 2009, Letterman contacted Fragemeno because when he was processing Wilder's second re-finance Letterman discovered that Wilder's credit report still listed two items from the January 9, 2009, closing that were unpaid. Fragameno assured Letterman that the items would show up on Wilder's credit report at any time paid. In 2008, Ama and Rudolph Sauceda ("Saucedas") received a Southeast flyer about refinancing. They responded to the flyer and met with Letterman regarding refinancing their home. After the meeting, the Saucedas decided to refinance their mortgage on their residence and take cash out to consolidate and pay off debts. Mrs. Sauceda met with Letterman several times during the application process. Letterman contacted debt holders on behalf of the Saudedas to negotiate items that had been required by the lender for pay off. Letterman even initiated a contract with SEAL Credit prior to closing to negotiate debts for a lesser amount and help get the Saucedas a higher amount of money in their pocket. On or about September 17, 2008, before closing, Letterman, as a credit counselor, signed a confirmation of settlement on SEAL Credit and Consolidating Services, Inc., stationary for the outstanding balance on Mr. Sauceda's Autobank account in the amount of $2,000, for full payment and to close the account on behalf of the Saucedas.3 SEAL Credit also negotiated and lowered amounts for some of the Saucedas' creditor pay offs. While preparing for the closing, Milianta as the Saucedas' settlement agent relayed any changes from SEAL Credit reductions to the lender by teleconference meetings. During the calls, the lender instructed Milianta to send the changes over with the closing statement, which was ultimately approved. On or about September 18, 2008, Southeast closed on the mortgage for the Saucedas. At the closing, the Saucedas signed the buyer and seller statement listing the creditors that the Saucedas wanted paid off.4 Surf Title served as the title company to disburse the actual loan proceeds for the refinance of the Saucedas' mortgage loan and the pay offs for creditors. Milianta sent out all the payments according to the HUD, which the lender approved. Surf Title cut a check for every creditor that was listed on the HUD. Some of the creditors were obscure and Milianta obtained the mailing addresses for the creditors from the Saucedas' credit report to send the payoffs. Some checks Surf sent to creditors were returned as undeliverable. Milianta placed the returned checks into the file until he could figure out what to do with them. None of the checks returned as undeliverable were items on the title commitment. Milianta double-checked to make sure that there would not be a lien or judgment against the property and that there was clear title after the checks were returned. Milianta contacted both the lender and Mrs. Sauceda5 to inquire what to do about the returned checks. The lender informed Milianta that the returned checks were the borrower's monies since the closing had already taken place. When Milianta asked Mrs. Sauceda what to do with the returned checks, she contacted Letterman about the returned checks and worked out a second contract with SEAL Credit to negotiate the debt for a lesser amount. Ultimately, she directed Milianta to send the money from the returned checks to SEAL Credit. On October 15, 2008, the Saucedas provided Milianta a letter to transfer the returned funds to SEAL Credit for payoff that stated: Thank you for calling me yesterday. Per our conversation, I realize that some creditors were not found or that some of the checks were returned from our refinance closing in September, but instead of returning the money directly to me, please forward the money to SEAL Credit and Consolidation Services. I have contracted SEAL Credit to negotiate the debt listed on my credit report and settle those accounts for minimal amounts.[6] On or about October 16, 2008, Surf followed the Saucedas' instructions and transferred the total returned check amount of $14,621.00 by wire to SEAL Credit to pay the outstanding creditors. On or about November 18, 2008, SEAL Credit confirmed with the Saucedas that the company had successfully negotiated the 15 outstanding creditors down to a payoff settlement that totaled $13,313.00. SEAL Credit then disbursed $1,275.00 to the Saucedas to which they signed a receipt for the monies.7 Months later, Mrs. Sauceda was checking her credit scores and discovered that approximately $14,000.00 had not been paid to her creditors as promised and indicated by SEAL Credit. Mrs. Sauceda contacted Letterman to inquire about the unpaid debt to creditors. Letterman followed up with Fragameno, who assured him that each debt would show up paid on the credit report anytime. Neither the Saucedas' nor Wilder's creditor payoffs were satisfied as promised and agreed to by SEAL Credit. At some point prior to hearing, SEAL Credit closed and discontinued doing business. Both Wilder and the Saucedas suffered financial losses due to the nonpayment of their creditors by SEAL Credit. Letterman tried to help and assist them repeatedly. He ultimately instructed them to file a complaint with the state. After an investigation, Petitioner charged Respondents with numerous violations by separate Administrative Complaints dated March 31, 2011. The Charges: In Count I of the Administrative Complaint filed against Milianta, Petitioner charges Respondents with violations of sections 626.8437(4),(6), and (9); 626.844(2) and (5); 626.9521(1); 626.9541(1)(e)1, Florida Statutes, and rule 69O- 186.008 for the refinancing transaction on behalf of Wilder. In Count II, Petitioner charges Respondents with violations of sections 626.8437(4),(6), and (9); 626.844(2) and (5); 626.9521(1); 626.9541(1)(e)1, Florida Statutes, and rule 69O-186.008 for the refinancing transaction on behalf of the Saucedas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Administrative Complaints against Respondents. DONE AND ENTERED this 31st day of October, 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 31st day of October, 2011.
The Issue Whether or not Petitioner's application for examination as a bail bondsman (limited surety agent) should be granted.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings: On October 24, 1989, Petitioner submitted his application for examination as a limited surety agent (bail bondsman). In preparation to sit for the limited surety agent's examination, Petitioner completed a community services course and received a surety agent's certificate from Hillsborough Community College on April 23, 1989. Additionally, Petitioner completed the bail and bail bonds insurance independent study course offered by the Division of Continuing Education, the Department of Independent Study by correspondence of the University of Florida and was awarded a certificate of satisfactory completion on November 14, 1989. Question 8 of the application for examination as completed by Petitioner contained the following question: "Have you ever been charged with or convicted or pleaded guilty or no contest to a crime involving moral turpitude, , a felony , or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory, or country, whether or not a judgement or conviction has been entered ? If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendere? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged. If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the information or indictment and final adjudication for each charge is required. Petitioner responded to Question 8 by indicating that he had not been charged with, or convicted or pled guilty or no contest to a crime involving moral turpitude; that he had been so charged with committing a felony; that the crime was one which was punishable by imprisonment for one year or more and he gave the dates of September 27, 1980, June 23, 1986 and October 23, 1987. Respondent replied to subsection (a) of question 8 by indicating that the crime was worthless checks/aggravated assault. Respondent's reply to subsection (b), question 8, was that he was charged in Tampa, Florida indicating the dates of September 27, 1984, June 23, 1986, and October 23, 1986. Respondent filed a negative response to subsections (c), (d), and (e) of question 8 and his reply to subsection (f) was that he was living in an apartment, that the manager would not repair anything and he put a stop payment on the check and they filed charges. By letter dated April 25, 1990, Respondent denied Petitioner's application for examination as a bail bondsman (limited surety agent) because he failed to divulge that he was charged on or about February 5, 1988, with three counts of worthless checks (Case Numbers 88-2363C, 88-2364C, and 88-4164A). On or about March 1, 1989, Petitioner pled nolo contendere to the above-referred worthless check charges. Petitioner does not dispute the fact that he failed to divulge the above-referred worthless check charges. However, Petitioner maintains that the subject charges were misdemeanors and did not amount to a crime involving moral turpitude and therefore did not need to be divulged. Petitioner's understanding comes from the training that he received in the independent study by correspondence of the bail and bail bond insurance correspondence training from the University of Florida. Moral turpitude, as defined in the course material submitted by Petitioner, is as follows: "Baseness, vileness, or dishonesty of a high degree. (44 So.2d 802). Demonstrating depravity in the private and social duties which a person owes to society. The term has been used in connection with such common crimes as bribery and larceny." Petitioner was married in 1980 and was divorced during late 1987. During this period, Petitioner and his former wife had a joint banking account and they continued that banking arrangement while they were separated during mid to late 1987 while dissolution proceedings were ongoing between them. Unbeknownst to Petitioner, his former wife "emptied" his checking account and when Petitioner wrote the checks for which he was criminally charged and is the subject of his examination denial, the checks were returned to the payees for insufficient funds. When the checks were returned, Petitioner did not know that they were returned until weeks later after three of the payees who were given the worthless checks had filed charges with the state attorney's office. During the interim, Petitioner picked up the checks and paid a service fee to the payees for the returned checks. For each of the worthless check charges, adjudication was withheld and Petitioner, after presenting proof of restitution, was ordered to pay $35.00 in court costs and a 5% surcharge to a criminal justice trust fund. Petitioner was required to divulge the worthless check charges that he failed to disclose to Respondent in response to subsection (b) of question 8.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner shall be authorized to sit for the examination as a limited surety agent upon submitting an addendum to his application for examination divulging the above worthless checks charges and the dispositions thereof with the appropriate fee. Upon successful passage of the examination and submission of the appropriate fee and license application, the Department shall issue Petitioner's license as a limited surety agent. Upon licensure as a limited surety agent, Petitioner shall be placed on probation pursuant to Section 648.53, Florida Statutes, for a period of six (6) months effective on the date that his first license is obtained. As a condition of probation, Petitioner shall strictly adhere to all provisions of Chapter 648, Florida Statutes and rules of the Department of Insurance and Treasurer. If during the period of probation, the Department has good cause to believe that Petitioner has violated the terms or conditions of his probation, it shall suspend or revoke the license and eligibility for licensure of Petitioner. 2/ DONE and ENTERED this day of November, 1990, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990.
The Issue Whether Petitioner lacks the moral character to be licensed as a Florida real estate salesperson.
Findings Of Fact On May 4, 2004, Petitioner, Rene Anthony Acker, filed an application for licensure with the Florida Real Estate Commission as a real estate salesperson. On that application, Acker revealed that he had pled nolo contendere and was placed on probation for twelve months on July 2, 2003, for fraudulent use of a credit card. At hearing, Acker testified regarding the events that led to his arrest. In November of 2003 during the beginning of the Christmas shopping season, while he was a clerk at a Target Department Store, a person of interest to local law enforcement for credit card theft and who was under surveillance, presented merchandise to Acker for purchase with a credit card. The card was in the name of someone other than the customer. The card was accepted by Acker and the system, and the transaction completed. Subsequently, the customer returned with a high- dollar item and attempted to purchase it with the same credit card. Acker accepted the card, but the system refused to accept the card on the second occasion. Several months later, the deputy sheriff, who was working the case, came to Acker and asked him to identify the customer as part of an effort to make a case against the customer, a person with whom Acker was acquainted as the son of the owner of a restaurant where Acker had worked as a waiter. Acker told the deputy that he had no independent recollection of the transaction, and could not identify the customer from the surveillance camera pictures he was shown. The deputy indicated that if Acker did not cooperate and identify the individual, Acker would be charged with credit card fraud. Acker stated that he could not identify the customer from the photographs as the person with whom he was acquainted. Acker was subsequently charged with credit card fraud. After consulting an attorney, Acker pled nolo contendere to the charge. It was clear that this was a plea of convenience under the plea agreement that was worked out. The only evidence introduced by the Commission was Acker's file that reflected that Acker revealed the plea on his application and the court records of his plea, probation, and early release from probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: It is recommended that application of Petitioner be granted pursuant to the Commission's discretion upon consideration of the matters presented in mitigation. DONE AND ENTERED this 12th day of August, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 2005. COPIES FURNISHED: Rene Anthony Acker 138 Via Tisdelle Orange Park, Florida 32073 Barbara Rockhill Edwards, Esquire Department of Legal Affairs Administrative Law Division The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Guy Sanchez, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801
Findings Of Fact The facts in this case are clear and uncontroverted. On or about February 5, 1975, Martin E. Kulok terminated his employment as a mortgage solicitor with ABC Investment Corporation. ABC Investment Corporation wrote and advised the Division of Finance on February 10, 1975, that Kulok had left his employ. On February 5, 1975, Kulok applied for licensure as a mortgage solicitor with Financial Resources Corporation On February 12, 1975, the Division of Finance cancelled Kulok's registration as a mortgage solicitor with ABC. On February 20, 1975, the Division of Finance issued Kulok's license as a mortgage solicitor with Financial Resources Corporation. On February 13, 1975, while unlicensed, Kulok sold what purports to be a first mortgage to Lincoln H. Evans in behalf of Financial Resources Corporation. Kulok has applied for licensure as a mortgage solicitor with Joseph Maddlone, and said application is at issue because the Division of Finance asserts that Kulok's sale to Evans while he was unlicensed between February 12 and February 20 "demonstrates deficiencies in qualities of experience, integrity, and competency" which are essential to the issuance of a mortgage solicitor's license. It is clear that in issuing licenses, the Division of Finance issues licenses to the broker, in this case Financial Resources, and that nothing is forwarded to the mortgage solicitor. Kulok was physically located in Miami, Florida and his broker's office was located in Fort Lauderdale, Florida. Kulok stated that he called his broker frequently to determine what the status of his license was. On February 13, 1975, some eight days after completing his application, his broker advised him that he could go out and sell. On February 13, 1975, Kulok's application was received by the Division of Finance. The apparent basis for requiring issuance of licenses to brokers and requiring brokers to delicense solicitors is that they are more responsible than solicitors. See Subsection 498.04(9)(10), F.S. It appears that in the instant case Financial Resources Corporation was not as responsible as many people, including Mr. Kulok and the Division, thought it was. Fortunately, the issue presented here is not Mr. Kulok's status when his application for licensure had been received but had not been granted by the Division. Under the procedures adopted by the Division of Finance the solicitor is dependent upon the good faith representations of his broker, to whom the Division also looks for control. By inquiring of and being told by his broker that he was able to sell, Kulok did what he could do to determine his status. Certainly he could have done more, but he had no basis to mistrust his broker. Under the facts presented here, there is no evidence that Kulok lacks the "experience, integrity, and competency" to be licensed as a mortgage solicitor, and that is the issue.
Recommendation Based upon the foregoing conclusions of law and findings of fact, the Hearing Officer recommends that Kulok's license be granted. DONE and ORDERED this 6th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Barclay, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Martin B. Kulok 150 S.E. 25th Road, No. 14F Miami, Florida 33129 ================================================================= AGENCY FINAL ORDER =================================================================
