Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
Findings Of Fact The Respondent, John A. Nangle, is now and was at all times material to this matter, a licensed real estate salesman having been issued license number 0340127. He was employed in this capacity by Delray Realty, Inc. until January 4, 1982, when such employment terminated. Respondent did not thereafter become employed by another broker, but instead placed his license on inactive status. After heaving Delray Realty, Inc., Respondent negotiated a sales contract for the sale of a condominium unit from Marion Mowday to Anthony J. and Donna C. Amato, which closed on January 13, 1982. Respondent received $1,500.00 in compensation directly from the purchasers for his efforts in arranging this transaction.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's license for a period of three years. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 28th day of June, 1983. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. John A. Nangle 860 North West 8th Avenue Delray, Florida 33444 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, Virginia King was registered with the Florida Real Estate Commission as a real estate salesperson. She has been so licensed for at least 15 years working for Tam Bay Realty. Respondent manages the residential unit here involved for the owners to whom she has sold several properties in past years and who have been out of the country for an extended period. In renting the property the rent is paid to Respondent, deposited into her account from which various expenses associated with the rental of the property is paid, and she makes an accounting to the owners for all monies owed to them. The dwelling in question was listed with Tam Bay Realty for sale with Respondent as listing agent, but she was also renting the property on behalf of the owner. To the Tam Bay For Sale sign on the property, Respondent attached a For Rent sign. Richard D. and Linda Grey were looking for a rental and saw the For Rent sign on the property and called Tam Bay Realty where they were put in touch with Respondent who subsequently met the Greys at the residence. The Greys liked the property and gave Respondent a check for $100 as a deposit on the lease to be executed when the Grey's presented their first month's rent. The residence needed some cleaning which Respondent agreed to have done if the Grey's would have the water turned on. Grey also wanted some trimming of hedges to which Respondent agreed. The Greys later met Respondent at the dwelling before the cleaning and trimming had been done. Grey contends that he did not have the water turned on because "that was the owner's responsibility," but the water was turned on and Respondent had the dwelling cleaned and the hedges trimmed for which she paid in excess of $100. Before the time for occupancy arrived, the Greys encountered a delay in the closing on the home they were selling and called Respondent to say they no longer wanted to rent the house and demanded a return of their $100 deposit. Respondent, contending that Grey breached the agreement to rent the property, credited the $100 to the account of the owner (whose account was also charged for the cleaning and trimming), and refused to remit the deposit to Grey.
The Issue Whether Respondent Serafina Martell (Ms. Martell), a licensed real estate salesperson, and Respondent Sera Martell Realty, Inc. (Martell Realty), a corporation licensed as a real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility and duty to regulate the practice of real estate in Florida pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. At all times pertinent to this proceeding, Ms. Martell was licensed as a real estate salesperson in the State of Florida, having been issued license number 0126087. Ms. Martell has never been licensed as a real estate broker. At all times pertinent to this proceeding, Ms. Martell's license was placed with Martell Realty, 110 North Ocean Boulevard, Pompano Beach, Florida, which is the only office Martell Realty has had during its corporate existence. At all times pertinent to this proceeding, Martell Realty was a corporation that was duly organized and existing under the laws of the State of Florida. Ms. Martell has been the sole stockholder of Martell Realty since its incorporation in 1989. Martell Realty was initially registered as a real estate brokerage corporation in the State of Florida on August 12, 1991. Since that date of registration, Martell Realty has been the holder of license number CQ0258296.4 At no time pertinent to this proceeding was Ms. Martell an officer or director of Martell Realty.5 Although Martell Realty was named after Ms. Martell, there was no evidence that Ms. Martell held herself out to the public as a real estate broker. Ms. Johnson was the qualifying broker for Martell Realty and the vice-president of the corporation from August 12, 1991, until August 8, 1994. Ms. Johnson resigned her positions with Martell Realty on August 8, 1994. The allegations of the Administrative Complaint are limited to the period between August 12, 1991, and August 8, 1994. At the time of its initial registration Nina Cianciolo, Ms. Martell's sister, was listed as the president, the secretary, and as a director of Martell Realty. Ms. Cianciolo was not licensed by Petitioner. As of February 22, 1993, Ms. Cianciolo was no longer a corporate officer. Also at the time of its initial registration, Anna D'Amico, who also served as the company bookkeeper, was designated the treasurer of Martell Realty. Ms. D'Amico died prior to the formal hearing, but the record does not reflect her date of death. Martell Realty was an active real estate brokerage company at all times pertinent to this proceeding and was an active real estate brokerage company at the time of the formal hearing.6 At all times pertinent to this proceeding, Ms. Johnson held broker licenses 0262427 and 0271696. Ms. Johnson testified her employment status with Martell Realty was as an independent contractor and that she was paid approximately $150.00 per month to serve as its qualifying broker. Ms. Johnson described her responsibility as being limited to supervising the escrow account, including making deposits, withdrawals, and monthly reconciliation of the escrow account. The evidence established that she performed those responsibilities and that there were no deficiencies pertaining to the escrow account. Ms. Johnson went to work at the Martell Realty office on a daily basis unless she was ill or out of town. She routinely called on days she was not at the office. Although she did not have a private office, she had a desk and telephone that were reserved for her use. Ms. Johnson testified that she acted in the best interest of the company as a designated broker at all times. She testified that she contacted legal counsel on one occasion when there was a difference of opinion between herself and Ms. Martell and sought legal advice concerning the types of brokerage transaction that would best serve Martell Realty, even though Ms. Martell might be opposed. In addition to being responsible for the escrow account, during her tenure as qualifying broker for Martell Realty, Ms. Johnson did the following on one or more occasions: Made application and served as Martell Realty's designated realtor for the North Broward Association of Realtors and attended some of the orientation program of that association. Verified and acknowledged with the Pompano Beach - North Broward Board of Realtors new listings that had been brought into Martell Realty for listing with the Multiple Listing Service. Brought new listings into the office of Martell Realty. Sold real property through Martell Realty. Reviewed commission agreements generated by listings shared by office associates and disputes generated by such arrangements. While Respondents established that Ms. Johnson's activities with Martell Realty were not strictly limited to matters pertaining to the escrow account, Petitioner established by clear and convincing evidence that Ms. Johnson was not in control of the corporate affairs of Martell Realty. Martell Realty did not conduct regular meetings of the board of directors. From 1991 until her resignation in 1994, Ms. Johnson was a member of the board of directors of Martell Realty. During that time, there were no meetings of the board of directors. The designated officers of the corporation did not conduct the affairs of the corporation during Ms. Johnson's tenure as the qualifying broker. At all times pertinent to this proceeding, Ms. Martell conducted the affairs of Martell Realty, except those pertaining to the escrow account. She served as the office manager of Martell Realty and was in charge of the daily operations of the corporation. Ms. Martell hired and fired personnel, including salespersons, who were hired as independent contractors. Although Ms. Johnson periodically gave advice to sales associates and wrote occasional memos to sales associates, the evidence established that Ms. Martell, not Ms. Johnson, supervised the sales associates of the corporation. Ms. Martell conducted sales meetings, collected escrow deposits from other salespersons, attended closings, and supervised all advertising. On April 1, 1993, Martell Realty filed suit against Diane Consenzi for a real estate brokerage commission. This case was filed in the Circuit Court for the Fifteenth Judicial Circuit, where it was assigned Case Number CL 93-2879 AE. The case was styled Sera Martell Realty, Inc. vs. Diane Consenzi, a/k/a Diane Sadallah Consenzi. Protracted litigation followed. Martell Realty was represented by counsel throughout this litigation. Ms. Martell was present during all court appearances on behalf of Martell Realty and hired the counsel that represented Martell Realty.7 Ms. Martell was in control of the litigation on behalf of Martell Realty. Ms. Johnson, the qualifying broker, knew very little about this litigation and did not participate in making decisions pertaining to the litigation. There was no evidence that the board of directors or any authorized corporate officer participated in this litigation on behalf of Martell Realty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner find Ms. Martell guilty of Count I, and Martell Realty guilty of Count II. It is further RECOMMENDED that, for those violations, Ms. Martell and Martell Realty each be reprimanded and fined in the amount of $1,000.00. It is further RECOMMENDED that the final order require that Ms. Martell divest herself of control of the affairs of Martell Realty within thirty days of the entry of the Final Order. It is further RECOMMENDED that all other counts be dismissed. DONE AND ENTERED this 20th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1998.
The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
The Issue The issue in this case is whether Petitioner, a licensed Florida real estate associate, violated provisions of Subsections 475.278(2) and 475.25(1)(q), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring real estate sales associates within the state. Its headquarters is in Tallahassee, Florida. The Department is charged with the responsibility and duty to prosecute administrative complaints concerning real estate sales associates. Saxer is a licensed real estate sales associate, holding License No. 3110487. Saxer is employed by Century 21 Palm Realty of Pasco, Inc., in New Port Richey, Florida. At all times relevant hereto, Saxer was the listing agent for a property located at 3831 Sail Drive, New Port Richey, Florida (hereinafter referred to as the "Subject Property"). The Subject Property is an approximately 40-year- old house that had not been inhabited for some time. The owners, Gary and Albert Osborne (referred to herein as the Sellers), had inherited the house, but had never resided in it. The Sellers were Saxer's client in the sale transaction concerning the Subject Property. Leon and Christine Ausburn (the Buyers) entered into a Residential Sale and Purchase Contract (the Contract) to purchase the Subject Property from the Sellers. Saxer negotiated the contract between the Buyers and the Sellers. The Contract was signed by the Buyers on June 8, 2007, and by the Sellers on June 12, 2007. The Contract called for a closing on or before June 29, 2007. On April 27, 2007, when the Sellers listed the Subject Property with Saxer's employer, the Sellers confirmed that they knew of no roof leaks or defects. The Sellers had inherited the property and were not living in it at that time. The Subject Property was not inhabited at any time during the pendency of the Contract. At some time after signing the Contract, the Buyers did an on-site inspection of the Subject Property. They noticed several stains on the ceilings around the house and inquired of their real estate sales agent about the stains. They received assurance from their agent that the property would be inspected to make sure there were no leaks or damages. The Buyers did not follow up with their agent, nor did they ever see an inspection report indicating his findings. On or about June 14, 2007, the Sellers called Saxer to say there appeared to be a roof leak at the Subject Property. They asked Saxer to take care of having the roof leak repaired. Saxer obtained an estimate from World Class Roofing Services, Inc., for $725 to repair the roof. Saxer contracted with the roofing company to make the necessary repair. A ten-foot by ten-foot section of the Subject Property's mansard roof was replaced by the roofing contractor.2 The leak was in a smaller section, but more of the roof was replaced to insure against further leaks. None of the evidence elicited at final hearing gave any indication of what part of the roof was repaired, i.e., whether it was over the living room, a bedroom, or some other area of the house. The repair estimate describes it as being over the dining room, but no evidence was offered as to where the dining room was in relation to the living room, garage, or other parts of the house. The Contract had a purchase price of one hundred twenty-seven thousand and five hundred dollars ($127,500). Paragraph 5 of the Contract required the Sellers to pay for any improvements up to 1.5 percent of the purchase price (i.e., up to an amount of $1,912.50). The Contract also describes the sale and purchase as an "As Is" sale for wood-destroying organism damages. Inasmuch as the cost of the roof repair was less than the 1.5 percent threshold in the Contract, Saxer did not believe she needed to disclose the repair to the Buyers or Buyers' agent. She did not deem it a "material" defect affecting the value of the Subject Property. The closing was held on June 29, 2007. At the closing, a U.S. Department of Housing and Urban Development closing statement was used to provide the statement of actual settlement costs for the transaction. The Buyers and Sellers were both provided copies of the closing statement and signed an acknowledgement of receipt. The closing statement indicates at Line Item 1314, "Roof repairs paid by seller to World Class Roofing Services, Inc.," and indicates the sum of $725. Christine Ausburn, one of the Buyers, is a licensed mortgage broker. She testified that she did review the closing statement, but did not notice the line item concerning a roof repair, because she only looked at the Buyers' side of the statement. On that same day, after finalizing the closing, the Buyers went to visit the Subject Property. Upon entering the home, they noticed a puddle of water on the living room floor and a flooded garage. The water had come, it appears, from a leaking pipe in the ceiling over the garage area. There is no evidence that the water in the garage was caused by or related to the roof repair done pursuant to Saxer's direction. After seeing the water in the garage, the Buyers notified Saxer that they were very upset. Saxer contacted the entity that had performed the roof repair and sent them to the Subject Property. Finding no one home, the roofers left a message and contact information so that they could make any repairs that related to their earlier work which was guaranteed. It is not known whether the Buyers followed up with the roofers or not. The Buyers also determined after closing that the air conditioning system for the Subject Property was not working properly. There is no indication from the record that Saxer or the Sellers were aware of that problem prior to closing. The Buyers had visited the Subject Property prior to closing, but did not have an inspection done to determine potential problems or defects. They had witnessed a number of water stains on the ceilings, but presumed them to be old in nature. The Buyers were told by their own real estate agent that he would "have his people check it out." The Buyers do not know if their agent ever did so, nor did they ever see an inspection report on the Subject Property. The Buyers are completely dissatisfied with the Subject Property due to many reasons. However, there is no indication that Saxer was aware of any material problem extant at the time of closing. Saxer did not consider the minor roof repair a material defect in the Subject Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Respondent, Christine A. Saxer. DONE AND ENTERED this 27th day of March, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 27th day of March, 2009.
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
