The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue for consideration in this case is whether Petitioner’s mother is eligible for a replacement housing payment in addition to funds already received from the Department.
Findings Of Fact At all times pertinent to the issues herein, Petitioner and his mother, Frances Scott, owned real property owned property located in Pasco County, Florida, some of which was taken, and all of which was affected by the construction of the Department’s project no. 97140-2303. The Respondent, Department of Transportation, is the state agency in Florida responsible for the construction of public roadways in this state. In the acquisition of land for the construction of this project, the Suncoast Parkway, the Department of Transportation utilized Gulf Coast Acquisition Company. Consistent therewith, Gulf Coast initiated relocation programs for the individuals whose property was being taken for the construction of the project. Its operation was overseen by an engineering company, PBS&J, to ensure that all relevant policies and procedures were followed correctly. In this as in all acquisition cases, an initial determination was made, prior to any offer being made, as to value of the property to be taken. After the offer was made, an order of taking was entered. Once Final Judgment was entered, the relocation specialists went back to the property owner to see if any modification was necessary. In dealing with relocation of property owners, a replacement payment is defined as the difference between the acquisition price paid for the property and what it costs for an equal replacement of the property. In the instant case, Frances Scott, Petitioner’s mother, an octogenarian not in the best of health, was determined to be eligible for a replacement payment as a 180-day homeowner occupant of the property acquired. Her property consisted of two acres on which a residence was located. The approved appraisal amount for her property was $39,400. The value of the acquired dwelling on the homesite represented 67.9% of the approved appraisal amount, as calculated by the Department, which was $26,750. The value of the comparable replacement dwelling offered by the Department was $33,900. Therefore, the replacement housing payment amount was $7,150, the difference between the appraisal value of the dwelling and the replacement dwelling cost. However, through mediation, at which the Scotts were represented by counsel, a settlement payment for the entire acquisition in the amount of $114,000 was arrived at. Of this figure, $52,952 was attributable to the land, mobile home, and septic and water systems belonging to Frances Scott. The second mobile home located on the land, an unrelated septic system, the land other than that owned by Frances Scott, and damages relating to the move of Petitioner’s business amounted to a total of $61,048. Taken together, the two parcels and accouterments totaled the $114,000. Since that $52,952 figure attributed to Frances Scott’s property exceeded the $33,900 cost of a comparable replacement dwelling, the entitlement to a replacement housing payment was nullified. Because of the taking in issue here, and because of Frances Scott’s advanced age and fragile health, it became necessary to move her residence onto Petitioner’s property to keep the family together. The relocation program is designed to reimburse the expenses of people who are displaced by highway projects. Implementation of the program is governed by both federal and state law. (Public Law 91-646 - the Uniform Relocation Assistance and Real Property Acquisition Act of 1970; and Sections 339.09 and 421.55, Florida Statutes.) These statutory bases and the rules of the Department implemented thereunder spell out how payments are to be calculated. Replacement housing payments relate to housing only. In the instant case, the issue was one of mixed use which had to be distributed. Frances Scott met the criteria for eligibility and was found to be entitled to $7,150 as a replacement payment. She received this amount, and more, as a result of the settlement reached through mediation by means of which she received more than the amount calculated initially. There is an internal Department process through which the determinations of eligibility and payment amounts made at District level can be reviewed at Departmental level. In this case, the Scott file, at their request, was forwarded to the Department’s Relocation Manager, Mr. Eddleman, in Tallahassee. Mr. Eddleman reviewed the file and discussed its contents with District personnel. Based on his review, Mr. Eddelman determined that the calculation made at the District was correct. It is his policy in this process to lean towards the side of the displaced person in those cases where there is some question as to either entitlement or amount. Here, Mr. Eddleman found the District acted properly in denying extra replacement housing payment. It is easy to see the basis for Petitioner’s dissatisfaction. He relates, and there is no basis for doubting him, that at the mediation he was led to believe by the mediator that the relocation payments had nothing to do with the settlement amount to which he agreed. In this, he was misled. Inclusion of the amount for replacement payment in the settlement figure excluded him from further compensation and served to increase the settlement amount on which his counsel’s fee was based. Mr. and Mrs. Scott seem to have been poorly served in the process. They did not understand the communications they received from the state, categorizing them as “legal mumbo- jumbo.” They do not understand how the figure upon which the settlement was based and do not understand the 67.9 percent calculation. It was again explained at hearing but they remain unsatisfied with the settlement amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payment (replacement housing) previously calculated for Petitioner’s mother, Frances M. Scott. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1999. COPIES FURNISHED: James O. Scott, pro se Post Office Box 11231 Spring Hill, Florida 34610 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether the Applicant is entitled to compensation in the amount of $2,500, to pay for "fill dirt" which was installed on the Applicant's real estate in relocating his homestead, after his former homestead was bought as right-of-way for Interstate Highway 75. This claim is under the guise of a relocation appeal, in accordance with the Uniform Relocation Assistance And Real Property Acquisition Policies Act of 1970 (42 USC, 4601 - 4655).
Findings Of Fact In November, 1974, the Florida Department of Transportation paid the Applicant $32,500 in a negotiated purchase for the Applicant's property which was located in the line of construction for Interstate Highway 75. This price was for a mobile home 24' wide and 40' long, with appurtenances to the mobile home, to include a screen room, privacy paneling and carport. Prior to the November, 1974 sale of the property to the Department of Transportation, the Applicant had purchased another parcel of land in late 1973 or early 1974. It was on this parcel of land that was purchased at that time, that the Applicant relocated his home. The amount of payment for the new lot was between $2,800 and $2,900. In order to comply with certain standards of the DeSoto County, Florida Health Department, ten inches of "fill dirt" were required to be implaced to have the septic tank meet requirements for a drain field. The cost of the application of the "fill dirt" was $2,500. The expenditure of $2,500 for "fill dirt" is the item of controversy between the Applicant and the Respondent. The Applicant is claiming that the $2,500 should be reimbursed to him as part of a relocation assistance payment. The Respondent denies that the $2,500 is a proper item of compensation under the governing law on relocation assistance payments. The Respondent's denial is based upon the fact that it believes that "fill dirt" is not a compensable item. More specifically, the Respondent regards the selection of this piece of property by the Applicant as being a matter of choice, which did not have to be made. The Respondent is persuaded that other parcels of property were available, which did not require "fill dirt" to be brought in, in order to comply with health requirements and the Applicant failed to purchase such a parcel, therefore, the Applicant must defray the expense of his selection, in terms of the $2,500 which was spent to bring the property up to health standards. The history of the payments that were made by the Respondent can be derived by the application of the formula utilized. The Respondent looked at three comparable pieces of land , one for $32,500, a second for $28,500 and a third for $32,900. The closest comparable to the home that the Applicant sold, was the comparable listed at $32,500. The Respondent compared these comparable figures with the so called, "carve out" figure of a typical mobile home with equipment, on a typical mobile home site, which would have been a price of $25,721. Based upon this figure for a "carve out", and taking the figure for the closest comparable $32,500, the amount of maximum relocation reimbursement would have been $6,779. This figure is arrived at by subtracting the amount of the "carve out" figure from the closest comparable. In fact the Respondent spent $27,372 for the land purchased and other compensable items, thus entitling him to $1,651 in relocation reimbursement, according to the Respondent's calculations. Although, in the course of the hearing the Applicant was questioned about taking $1,651 as settlement. The Applicant said that he was only interested in the $2,500 figure. It should be stated that the $1,651, is an amount which does not contemplate the payment for "fill dirt". It is in fact a figure arrived at for payment of other items considered to be compensable. The question then becomes one of whether or not the Applicant is entitled to a $2500 payment for "fill dirt" which is not associated with the $1,651 which the Respondent claims the Applicant is entitled to. One final factual comment should be made. That comment is that the Respondent's acquisition and relocation assistance officer, David Nicholson, saw the Applicant's new property after the twenty five hundred dollars worth of fill dirt had been installed. At that time, Mr. Nicholson said that the property appeared to meet the criteria for a decent, safe and sanitary dwelling. The witness, Nicholson had not seen the property prior to the installation of the "fill dirt". Consequently, the Respondent can not challenge the statement by the Applicant to the effect that the "fill dirt" was necessary in order to achieve a decent, safe and sanitary dwelling.
Recommendation It is recommended that the Respondent deny the payment of $2,500 to the Applicant for installation of "fill dirt" at the Applicant's present homesite. DONE and ENTERED this 4th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Herman A. Beyer Post Office Box 382 Punta Gorda, Florida 33950 Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (e), and (k), Florida Statutes, 1/ by: committing fraud, deceit, dishonesty, or breach of trust in a business transaction; acting as a broker; and failing to place funds with her registered employer; and if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is licensed as a real estate sales person under license number 0555229. The last license issued to Respondent was issued as a sales person percentage A.A. Carnes, Inc., 1399 W. Highway 434, Longwood, Florida 32750. In August, 1993, Respondent operated as a licensed real estate sales person for Mannix Realty, Inc. Respondent managed rental property located at 3551 Malona Drive in Orlando, Florida. The rental property was owned by Ramesh and Harjit Zala who lived outside the state (the "Zalas" property). On November 1, 1993, Respondent solicited and negotiated a lease agreement with Scott and Winifred Houldin at the monthly rental of $2,100 (the "tenants"). The tenants paid two months rent to Respondent as a reservation deposit. Respondent appropriated the reservation deposit and rental income for her own personal use. She failed to disclose the rental agreement, reservation deposit, or rental income to Mr. Amos W. Harris, Respondent's broker. Respondent requested the owners and the tenants to direct all correspondence to Respondent's home address. The owners and tenants complied with Respondent's request. Respondent did not disclose the transaction to Mr. Harris. Respondent neither accounted for nor returned the rental funds to her broker or to the owners. In August 1993, Respondent managed rental property located at 1346 Stearman Court in Orlando and owned by Robert and Patricia Sheetz (the "Sheetz" property). The owners lived outside the state. After Respondent assumed responsibility for the Sheetz property, the rental income declined and expenses increased. Although the Sheetz property was rented, Respondent failed to deliver the rental income from the Sheetz property. In December, 1993, the owners discovered that the rental property was in fact occupied. They informed Mr. Harris, and demanded delivery of the rental income. Mr. Harris was unaware that the property was rented or that Respondent had failed to deliver the rental income from the property. On December 29, 1993, Mr. Harris confronted Respondent. Respondent paid $475 of the rental income to the owners of the rental property. Mr. Harris subsequently terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 475.25(1)(b), (e), (k), and 475.42(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March 1996.
Findings Of Fact At all times relevant hereto, respondent, Ezell Realty, Inc., was a licensed corporate real estate broker having been issued license number 0231943 by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent, Winfield Ezell, Sr., held real estate broker's license number 0309739 issued by petitioner and was the sole qualifying broker and officer of Ezell Realty, Inc. The firm is located at 1512 West Gore Street, Orlando, Florida. Grover Crawford was an acquaintance of Ezell who was interested in purchasing certain rental property on Coretta Way in Orlando, Florida. When he was unable to purchase the property Crawford told Ezell to let him know if anything else became available in that area. Ezell happened to own a rental house at 1121 Coretta Way which he had just purchased several months earlier in a foreclosure proceeding, and the two eventually began discussions concerning a possible sale. At all times relevant thereto, the house was rented to tenants, and Crawford intended the property to remain as investor-owned property rather than owner-occupied property. Ezell initially agreed to sell the property for $70,000 and the two entered into a contract on January 8, 1983, using this sales price. However, the lender's appraisal of the residence came in far below this figure, and the parties eventually agreed on a sales price of $55,450. A second contract for sale and purchaser was executed on June 22, 1983. Although the contract provided that Crawford would pay a cash deposit of $2,300 to be held in escrow by Ezell Realty, none was paid since Ezell was given $2,300 by the tenants of the house to make needed repairs to the property prior to the sale. This arrangement was agreeable with Crawford. The contract also required the seller (Ezell) to pay all closing coats. Therefore, Crawford was not required to pay any "up front" costs in order to buy the property. Under the terms of the second contract, Crawford was to obtain FHA financing on the property in the amount of $53,150. This type of financing is the most desirable from an investor standpoint since the mortgage can be easily transferred to another buyer for a small transfer fee without lender approval. After executing the first contract on January 8, 1983, Ezell and Crawford executed an "Addendum to Contract For Sale and Purchase" on the same date which provided in pertinent part: This contract is for the sole purpose of having the buyer obtain an assumable FHA mortgage for the seller and reconveying title to the seller. The seller hereby irrevocably assumes the said FHA mortgage from the buyer immediately after closing and the buyers hereby agree to that assumption. For this, Crawford was to receive $1,000. The parties agreed that this addendum would apply to the second contract executed on June 22, 1983. At the suggestion of Ezell, Crawford made application for a $53.150 FHA loan with Residential Financial Corporation (RFC) in Maitland, Florida, a lending institution which Ezell had done business with on a number of prior occasions. However, Ezell was not present at any meetings between Crawford and RFC. When Crawford applied for the mortgage, he indicated the property would be used for investment purposes and would not be owner-occupied. For some reason, RFC assumed the property would be owner-occupied and structured the-loan in that manner. Because of this, Crawford's down payment was slightly less than 5% of the value of the property with the remainder being financed by the institution. Had RFC treated the loan as an investor-loan, the down payment would have been increased to around 15%. Neither Crawford or Ezell advised RFC of the Addendum to the contract which required Crawford to reconvey the property to Ezell for $1,000 once the FHA mortgage was obtained. Had RFC known of this it would not have approved the loan. There was no competent evidence that such an agreement was illegal or violated any federal laws or contravened any real estate industry standard or ethical consideration. The loan was eventually approved, and a closing held on September 22, 1983. After closing, Crawford retained the property in his name with Ezell making all payments from the rent proceeds. This was consistent with an oral agreement between the two that such an arrangement would last for an indefinite period as long as the payments were current. When Crawford later received several notices from the lender stating that mortgage payments were in arrears, he hired an attorney and demanded that Ezell fulfill the terms of the Addendum. He also filed a complaint against Ezell with petitioner which precipitated the instant proceeding. After the closing, Ezell had intended for the tenants to assume the mortgage since they had expressed an interest in buying the property. However, such a sale never materialized. In July, 1984, the property was reconveyed to Ezell, and Ezell paid Crawford $1,000 as required by the Addendum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be dismissed, with prejudice. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985. COPIES FURNISHED: Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802 Julius L. Williams, Esq. P. O. Box 2629 Orlando, FL 32802 ================================================================ =
The Issue The issue presented is whether Respondent Jim Walter Homes and its affiliates engaged in an unlawful housing practice in their dealings with Petitioner Curtis Jefferson.
Findings Of Fact Respondent Jim Walter Homes builds homes for people on lots those people already own, and its mortgage company Mid- State Homes, Inc., finances those homes. Such was the arrangement between Petitioner and Respondent. In October 1998 Petitioner, a black man, and his fiancée Jennifer Mitchell executed a promissory note and mortgage on the home built for them by Respondent. That note and mortgage were subsequently sold to Mid-State Homes, Inc., and then to Mid-State Trust VIII. Petitioner and his fiancée, who both owned the home, began making payments, but from the beginning, the payments were frequently late. Respondent continued to work with Petitioner and his fiancée, preferring to receive the mortgage payments to foreclosing on the mortgage. Petitioner and his fiancée also failed to pay property taxes and to maintain insurance on the home. Petitioner and his fiancée failed to make the January 1, 2002, mortgage payment and did not make payments thereafter. In April Mid-State Trust VIII sent a letter to Petitioner and his fiancée demanding that the mortgage payments and late charges be brought current so Petitioner and his fiancée could avoid the filing of a foreclosure action and the sale of their home. Due to their failure to cure their default, Mid-State Trust VIII filed a foreclosure action against Petitioner and his fiancée on June 4, 2002. A Final Judgment of Foreclosure on Default was entered by the circuit court on November 13, 2002. The Final Judgment scheduled the home to be sold at public auction on December 13, 2002. On December 12 Petitioner filed bankruptcy proceedings, which prevented the public sale of the home from taking place due to the automatic stay afforded by the bankruptcy laws. Petitioner's fiancée did not file bankruptcy proceedings. A payment plan was approved by the United States bankruptcy judge whereby Petitioner would make payments to the trustee in bankruptcy for the mortgage payments in arrears and would make payments to Mid-State Trust VIII for the current and future mortgage payments. Petitioner failed to comply with the payment plan ordered by the bankruptcy judge. In December 2003 Mid-State Trust filed in the bankruptcy court a motion for relief from the automatic stay and filed an amended motion for relief in January 2004. The amended motion alleged that Petitioner had failed to comply with the court-ordered payment plan, that Petitioner still had possession of the property, and that Petitioner had no equity in the home since the amount due Mid-State Trust for the mortgage, late charges, foreclosure costs and attorney's fees, and interest now exceeded the value of the property. Mid-State asked to be allowed to go forward with the sale of the home. On January 14, 2004, the United States bankruptcy judge dismissed Petitioner's bankruptcy proceeding. On February 26, 2004, the home, which was still occupied by Petitioner and his fiancée, was sold at public auction. Although Petitioner attempted to stop the sale again by filing a second bankruptcy petition, the sale occurred earlier in the day than the petition was filed. The bankruptcy judge dismissed Petitioner's second petition. Again, Petitioner's fiancée did not file for bankruptcy. On June 18 a certificate of title was issued to the purchaser. Petitioner still did not vacate the home which he and his fiancée no longer owned and on which he was making no mortgage payments and paying no rent. On June 28, 2004, an Order for Issuance of a Writ of Possession was entered by the circuit court. On June 30 a Writ of Possession was entered by the clerk of the circuit court commanding the sheriff to remove all persons from the property. On July 2 the sheriff served the writ. Still, Petitioner and his fiancée failed to vacate the home. On July 15 a representative of the purchaser arrived at the home and told Petitioner he had two hours to vacate or the sheriff would come and remove him and his possessions. Still, Petitioner did not vacate until he was removed by the sheriff. No employee or agent of Respondent or its affiliates ever told Petitioner or in any way indicated that his mortgage payments would not be accepted because he was black or because of his disability. Respondent has foreclosed against other similarly- situated persons who have failed to make their mortgage payments. Petitioner is unable to work as a truck driver due to his sleep apnea, diabetes, and hypertension.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent did not violate the Fair Housing Act and dismissing Petitioner's Petition for Relief filed in this cause. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 1st day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Curtis Jefferson 1603 Elberta Drive Tallahassee, Florida 32304 William M. Furlow, III, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301
Findings Of Fact On March 21, 1979, the Department of Transportation began negotiations to acquire real property in Dade County, Florida, for a right-of-way in connection with the expansion of I-95. In October of 1979, representatives of DOT found the Petitioner's trailer on land located on the right-of way. This trailer was not being used as a residence, but was used for storage of feed for horses being raised by the Petitioner. The Petitioner claimed to be occupying the property pursuant to a lease from the owner. The representatives of DOT advised the Petitioner that he must move the trailer off the property, but that he could file a claim for relocation benefits. Subsequently, the Petitioner presented DOT with a claim for the expenses of moving the trailer off the subject property. The Petitioner also submitted a lease dated May 1, 1979, from Henry Milander to the Petitioner, leasing the subject property for a term of two years, in support of his claim to be in lawful possession. This lease, however, was not executed by Henry Milander, but by Michael Manin, whose signature was neither witnessed nor notarized. The Petitioner subsequently submitted a power of attorney executed by Henry Milander to Michael Manin, dated approximately three years prior to the date of the Petitioner's lease. This power of attorney was witnessed, but was not notarized. Neither the lease nor the power of attorney had been recorded on the public records of Dade County. The DOT representatives conducted a title search, and found that the record owner of the subject property was Ruth Milander Tabrah, as trustee of a trust established by Henry Milander in 1955. This trust had not been terminated, and was in existence during the time periods relevant to this proceeding. Thereupon, the DOT advised the Petitioner that his claim for relocation benefits had been disallowed because his occupancy of the subject property was "inconsistent with the rights of the true owner". The Petitioner's request for a formal administrative hearing challenges the determination of DOT that he is not eligible for relocation benefits.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of Richard E. Kimball for relocation assistance payments be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 15th day of April, 1982. COPIES FURNISHED: Richard E. Kimball 18930 S.W. 312 Street Homestead, Florida 33030 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations contained herein, Petitioner, Division of Real Estate, was the state agency in Florida responsible for the regulation of the real estate profession and for the licensing of real estate professionals. Respondent was, at all times material to the issues herein, a licensed real estate salesman in this state. He was issued salesman's license 0419038 and from August 27, 1990 through September 2, 1991, was an active salesman with Scarlett Faulic & Associates located in Indian Shores, Florida. From September 3, 1991 through September 30, 1991, he was a salesman with Arn Realty Group, Inc., also in Indian Shores. Effective October 1, 1991, his license became inactive due to non-renewal and remained in that status until he renewed it on April 16, 1992 when he affiliated as a salesman with First Gulf Beach Realty, Inc. in Indian Rocks Beach, Florida. From July 28, 1992 to the date of the hearing, he was an active salesman with Bobby Byrd Real Estate, Inc. in Clearwater. Sometime prior to June 13, 1991, Ted Plihcik, presently a resident of Coram, New York and formerly the owner/occupant of the property in issue which is located in Pinellas County, Florida, met the Respondent at a garage sale at Respondent's home. Because Mr. Plihcik intended to move out of the area, he entered into a listing agreement with Respondent on behalf of Arn Realty's predecessor, under which the firm was either to rent or sell the property. This agreement was to expire on December 31, 1991, and there is no evidence it was cancelled prior to expiration. Sometime after Mr. Plihcik moved to New York, he received a telephone call from Respondent in which Respondent said he had a couple to rent the property for the rental amount previously stipulated, $650.00 per month, from which Respondent was to get a commission of 10%. Respondent indicated he would take a deposit from the tenants and that he had a signed lease. Prior to his departure, Mr. Plihcik had started to make some renovations to the property's garage. He had redone the bathroom area and was planning to make another room out of the garage. However, he never got around to completing the job or to putting in the windows. He had decided to change it back into a garage, and in fact the prospective tenants wanted a garage rather than another bedroom, so he directed Respondent to hire someone to finish the reconversion. At Plihcik's request, Respondent got several estimates for the work which Plihcik felt were too high. At that point, Respondent offered to do the work himself. Plihcik agreed and gave Respondent authorization to use the deposit money to pay for necessary materials and consistent with that agreement, on September 14, 1991, by letter, Plihcik authorized Arn Realty Group to release money to Danley for the "alterations and repairs he is doing to my property...." Because the Isabelles did not pay the full two month deposit, Mr. Plihcik later revised the authorization to allow Respondent to use rent money as well, but he did not relieve Respondent from the requirement to turn any money received as rent over to Arn Realty upon receipt and thereafter get payment from the company. It is obvious that Plihcik was under the opinion that the deposit money Danley had received from the tenants had been turned over to the broker, Arn Realty. Mr. Plihcik tried unsuccessfully repeatedly to contact the Respondent requesting a copy of the lease agreement, copies of receipts for materials purchased for the garage work, or anything else pertinent, even sending at least one letter by certified mail, the receipt for which bore what Plihcik recognized as Respondent's signature. He received no responses. Sometime in early August, 1991, Deborah Isabelle and her husband rented Mr. Plihcik's house through Respondent and put up a [portion of the 1st and last month rent. They also signed a lease which called for rent at $525.00 per month but, notwithstanding many requests for one, never received a copy. Each time they asked, Respondent would say he would get them one but he never did. At the time they rented the property, the garage was under repair and, after some negotiation, it was orally agreed upon that the work would be completed by move-in time, September 1, 1991. At one point, Respondent asked the Isabelles to pay the rent in cash because it would be easier for him to buy the things needed for the repair work he was to do. They acceded to this request for a while, writing some checks to the supermarket for cash to pay Respondent, but got only one receipt. Because they were uncomfortable with this cash arrangement, they asked Respondent for the name of the owner of the property and he replied, merely, "Ted." On one occasion, mail for Mr. Plihcik from a real estate agency came to the house. Ms. Isabelle thereafter got Mr. Plihcik's New York address from the County records, contacted him, and asked him if he had received his rent. She received a negative reply. She also asked him about the lease they had signed and he related he had not received one of those, either. In fact, when she called, Mr. Plihcik didn't know who she was he had never heard their name. During that conversation, Ms. Isabelle advised Mr. Plihcik that they had not received any of the things Respondent had promised; that he was also asking them for cash; and was frequently at the house. Mr. Plihcik said he'd take care of it but no more was done. In November, 1991, Ms. Isabelle set up a three way telephone call between the Isabelles, Mr. Plihcik and the Respondent. During that call, Respondent claimed he was doing the work promised; that he had mailed Mr. Plihcik some money in cash several weeks previously and could not understand why it had not been received. The lease agreement, at paragraph 6, dealing with maintenance and grounds upkeep, purports to require the Isabelles "... to help convert 3rd bedroom back to garage in lieu of $650.00 rent." Though Respondent contends the rent was reduced from $650.00 per month, as was called for in the listing agreement, to $525.00, conditioned upon the tenants' help with the work on the garage conversion, there is no evidence that Mr. Plihcik ever agreed to accept less than the $650.00 per month rent. In addition, Ms. Isabelle claims they did not agree to do any work and the lease did not contain that provision at the time they signed it some 2 or 3 weeks after they moved in. It is found that Respondent's contention is without merit even though Mr. Isabelle did take down some 2x4's so he could install his tool bench. Over the period of their occupancy, the Isabelles paid Mr. Danley a total of $1,531.50 by check directly or by check written for cash and turned over, as well as an additional $400.00 in cash. Six hundred dollars of the checks were made payable to Arn Realty, and it appears they were deposited to that company's account. The balance of the checks and the cash were either payable to Respondent directly or, in the case of the Kash & Karry checks, written for cash to give to him. Of the $400.00 Arn Realty check, $300.00 was paid over by company check to Respondent for repairs to the instant property on the same day as the Isabelles' check was deposited to the company account. Respondent admits he received a total of $1,355.00 from the Isabelle's, either directly or indirectly, but claims all of it was used for work on the house. He also claims he is still owed $1,001.00 from Mr. Plihcik which includes $630.00 in real estate commission owed the broker. Nonetheless, Mr. Plihcik claims he received none of the money paid to Respondent, nor has Respondent presented any evidence to show the money was spent on either materials or labor for the garage reconversion. Mr. Arn, the broker supervising Respondent during the time is issue here claims he had no knowledge Respondent had obtained a tenant for Mr. Plihcik before he got Plihcik's letter. His records show a listing agreement for the property which calls for a rental commission in the event the property were leased by the company. In this case, the commission would be paid to the company, not the salesman, and would be deposited to the company's escrow account for later split with the associate involved. At no time would it be appropriate for the sales associate to collect and disburse funds without going through the broker and he would not do it that way. He did not authorize it here. Mr. Arn admits to having written at least one check to Respondent from money's received from the tenant for work to be done on the Plihcik property. He released that money only after he received a letter from Mr. Plihcik authorizing the release of funds to Respondent. All the money he received from the checks he received in August, 1991, in the amount of $600.00, was paid out to Respondent for repair costs. When he subsequently received a letter from Mr. Plihcik regarding cash which Respondent claimed he had mailed directly but which was not received, Mr. Arn replied in writing that he had not authorized Respondent to either receive or disburse funds directly. The Isabelles moved out of the house in either December, 1991 or January, 1992. By that time, Respondent had done very little work on the property. Some building materials were still on the property which Mr. Plihcik said he had left there. They are sure Respondent had not provided it. Mr. Carl Carpenter, a registered contractor and home inspector examined the property in question in March, 1992 for a potential purchaser. At that time, he found the garage in the process of being converted to a room. The framing had been installed as had the windows, and the sheet rock was partially installed. There was also a small bathroom which was not operating properly. It was his opinion that the construction was progressing from garage to room, and not the opposite. Mr. Carpenter was also of the opinion that to convert the room back to a garage would cost somewhere in the range of $600.00 and should take about 2 days. It would about double that to reinstall the bath. The bath he saw on the property was old. Respondent offered an estimate to reconvert the garage from a contractor obtained in August, 1991 which showed a total price of $1,606.00. While this is substantially more than the price cited by Mr. Carpenter, whose estimate seems rather out of line, cost is not the issue. The important part of Carpenter's testimony relates to his belief that the work in progress seemed more of conversion to a room rather than return to a garage and tends to indicate Respondent had done little if any work on the property. Ms. Sutton, the Division's investigator, interviewed Respondent 3 times regarding this matter and found his statements to be inconsistent. While he claimed he had done some work on the property and had not finished it, he could not give her the exact amount he had received from the Isabelles. He also gave her a list of what he had spent the money he had received on, but had no receipts from workers or suppliers to back it up. Mr. Danly claimed he had sent cash to Mr. Plihcik but denied receiving any cash payments from the Isabelles. He claimed he gave them receipts for what they gave him, but they have no memory of receiving any. Mr. Danley takes no issue with the facts as outlined by Ms. Isabelle except as to the remodeling of the garage which he claims is not covered by the restrictions contained in Chapter 475, Florida Statutes. He claims that the payments made by the Isabelles were authorized by Mr. Plihcik to be kept by him as compensation for the repair work on the garage and not to be transmitted to Plihcik as owner because the work needed to be done and Plihcik did not have the money to pay to have it done. He also asserts that the lease was signed by the Isabelles with the requirement in it that they would help with the work as a condition of reducing the rent. He delayed starting on the remodeling until he got the money from Mr. Arn, which, at least in part, was as early as August 29, 1991. When he got that check, he started work. Originally, he states, he hired 2 young men to do the dry-wall, but the bathroom had to be framed before the dry wall could be installed. Then the water heater was installed and the power line installed for that, all of which he claims he did himself. The framing and closing up of the old door to the kitchen was done by Respondent with the assistance of a contractor. All of this, he asserts, was done in September and October, 1991, contrary to the Isabelle's claim that the only work done prior to their departure was the installation of some dry wall. Some materials were already in place but some of that had been damaged and had to be replaced. He claims he had 3 helpers to do all this work and paid them in cash. The sink was put back into its original position and he got the material to reinstall the toilet which he was unable to do because of back problems. Mr. Danley denies ever asking the Isabelles for cash or loans. He claims the only payments he received were in the form of checks payable to him or to Arn, and all money received from them was used for the work. He also admits to collecting the rent due in October which, he claims, was used for the restoration project. The only checks introduced into evidence not payable to Arn or Danley are 3 payable to Kash & Karry and of these, two are endorsed by Daniel Isabelle and one bears no endorsement at all. These are the checks which Ms. Isabelle claims were made to provide cash for Respondent at his request. Taken together, the evidence as presented by both sides tends to support Ms. Isabelle's story. Mr. Danley claims he did not finish the work because he could not find a door for the garage. He claims to have called many places but was unable to find a single garage door. A call to a Scotty's building supply store in that area revealed a single garage door was readily available, though by special order. Finally, he bought one from a builder in St. Petersburg for $235.00 which was paid in cash. The price included installation the following morning, and the site was already prepared. However, the builder never showed up with the door and he lost the payment. On balance, Respondent's account of the matter, unsupported as it is by any direct evidence beyond his own testimony, is found to be less than credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be issued by the Florida Real Estate Commission suspending Respondent, Paul Andrew Danley's license as a real estate salesman in Florida for a period of 3 years under such terms and conditions as are considered appropriate by the Commission; imposing a total administrative fine of $2,000.00; and imposing a reprimand. RECOMMENDED this 1st day of March, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-5598 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. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. Accepted. 6. - 8. Accepted and incorporated herein. 9. Accepted and incorporated. 10. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. 17. Accepted but redundant with 4. 18. Accepted and incorporated herein. 19. - 22. Accepted and incorporated herein. 23. Accepted. 24. & 25. Accepted. 26. Accepted but not material to any issue. 27. Accepted and incorporated herein. 28. - 30. Accepted and incorporated herein. 31. - 33. Accepted and incorporated herein. 34. Accepted and incorporated herein. 35. Accepted but mot material to any issue. 36. & 37. Accepted and incorporated herein. 38. - 40. Accepted. 41. Accepted and incorporated herein. 42. Accepted and incorporated herein. 43. - 46. Accepted and incorporated herein. 47. Accepted. 48. - 53. Accepted and incorporated herein. 54. - 56. Accepted and incorporated herein. 57. Accepted. FOR THE RESPONDENT: 1. A - E. Considered more to be either argumnent on the state of the evidence or conclusions of law. Not accepted as a statement of fact as finally found. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street, Suite N-308 P.O. Box 1900 Orlando, Florida 32802-1900 Gilbert P. McPherson, Esquire 1822 Drew Street, Suite 8 Clearwater, Florida 34625 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Respondent, Home Owners Direct Sales, Inc., is now and was at all times alleged herein a registered real estate entity. Respondent, Roger L. Davis is now a registered real estate broker and from July 30, 1976 to the present time, has been a registered real estate broker, President and active firm member of Respondent, Home Owners Direct Sales, Inc. Respondent Davis, by and through agents of Respondent Home Owners Direct Sales, Inc., solicited from property owners in the Dade, Broward and Palm Beach County areas the payment of a fee in return for listings to sell their property in a magazine which was published by Home Owners Direct Sales, Inc. The complaint alleges that in its solicitation efforts, Respondents advised property owners that the magazine would be published monthly and contain the property owners listing; that such representations were false and known to be false when made; that subscribers relied upon such representations which prompted them to simultaneously pay a listing fee; that none of said fees received subsequent to July 1, 1976 were held or maintained in a trust account and that by reason thereof, the Respondents are guilty of fraud, misrepresentation, concealment, false pretenses, false promises, etc. within the meaning of Subsection 475.25(1)(a), Florida Statutes, and Respondent Home Owners Direct Sales, Inc. by and through President Davis is additionally guilty of collecting an advance fee without depositing 75 percent thereof in a trust account in violation of Subsection 475.452, Florida Statutes, all in violation of Subsection 475.25(1)(d), Florida Statutes. The complaint alleges further that the Respondents, as a means to assure the receipt of said deferred payments, recorded the deferred payment contract amount as liens against the real property interest of those who chose this method of payment for the service to be performed by Home Owners Direct Sales, Inc. Based thereon, the complaint alleges that the Respondents have placed upon the public records of the county, a lien which purports to affect the title of, or encumber, real property for the purpose of collecting a commission or to coerce the payment of money to the broker in violation of Subsection 475.42(1)(j) Florida Statutes, and derivatively in violation of Subsection 475.25(1)(d), Florida Statutes. Further, the complaint alleges that approximately 207 contracts were recorded in Broward County as liens of which there presently remains outstanding approximately 187 liens against the real property interests of those who chose the deferred payment method of compensation to Respondent Home Owners Direct Sales, Inc.; that Respondent has failed to take any steps to remove said liens from the public records and that by reason thereof, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, is guilty of false pretenses, dishonest dealing, trick, scheme or device in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The complaint also alleges that Ronald Kavin, during times material, was a registered real estate salesman in the employ of Home Owners Direct Sales, Inc.; that pursuant to the terms of his (Kavin) employment agreement, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, paid the sums of $250 and $150 by checks dated September 16 and 29, 1976, respectively to salesman Kavin which were returned for nonsufficient funds. Based thereon, the complaint alleges that the Respondents are guilty of dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes. Based thereon, the complaint concludes that the Respondents are guilty of a course of conduct or practices which show that they are so dishonest and untruthful that the money, property transactions and rights of investors and those with whom they may sustain a confidential relation may not be safely entrusted to them, all in violation of Subsection 475.25(3), Florida Statutes. An examination of the record compiled herein reveals that sometime during the month of March, 1975, a corporate brokerage agreement was entered into between Jeff Davey, James McKay and Marylin Benjamin. As a means of doing business, the parties utilized a previously established Florida corporation, Macoda, Inc. James McKay was President of the corporation and Jeff Davey and Marylin Benjamin were Vice Presidents with Benjamin also serving as active broker. Jeff Davey was the son-in-law of President McKay who advanced the initial funds for capitalizing the corporation. Jeff Davey was charged with publishing and distributing the magazine, ensuring that signs were placed on the property of owners who utilized the service, and taking photos of such properties. Messr. McKay envisioned establishing a profitable, ongoing venture for his son-in-law and daughter. As originally conceived, the corporation planned to publish a magazine which would illustrate real property that was available for sale by owners in Dade, Broward and Palm Beach counties. The procedure simply stated involved putting the sellers of property in contact with buyers so that a viewing time could be arranged between them. Further negotiations between seller and prospective buyer were usually handled solely between them without any input or assistance from the personnel of Respondent Home Owners Direct Sales, Inc. During the early days of the corporate venture, monies collected from advertisers and all publication expenses, office expenses and salaries were handled by Jeff Davis and/or James McKay. In the early months of the operation, Messrs. Davey and McKay, pursuant to guidance and counseling from their accountants and lawyers, collateralized the listing fee contracts and used them as receivables to defray the steadily mounting negative cash flow resulting from the business operations. Sometime in December, 1975, Jeff Davey left the country for personal reasons. Thereafter, Messr. McKay took a more active role in the publication of the magazine and took sole charge of financial matters and policy decisions. The best guesstimate is that during this period, the venture was operating at a deficit of approximately $200,000 and was committed to substantial fixed overhead expenses. Mr. McKay who was retired and wealthy, contacted Respondent Roger L. Davis, who was then the publisher of a business and financial opportunity magazine and engaged his services to try to sell the business. Respondent Davis advertised the business in his financial opportunity publication for the asking price of $50,000. After several months of screening prospects, it became apparent to Respondent Davis that he would be unsuccessful in his efforts to locate a prospective buyer for the business and so advised the owner, Messr. McKay. During June or July of 1976, Respondent Davis offered to purchase the business for the outstanding obligations which amounted to approximately $12,000. At the outset of his assumption, Messr. Davis satisfied outstanding obligations of approximately $7,000 which were due to the printer. That amount also represented outstanding bills for rent, phone, salaries and other current expenses. Respondent Davis testified that when he purchased the business in June, 1976, the books were in a shambles and it was extremely difficult to determine what receivables the corporation was due and what obligations were due and owing. His testimony which was corroborated by his ex-wife, Ann Davis, reveals that he (Davis) made an honest good faith effort to satisfy all outstanding obligations with the limited funds available. He was able to obtain extensions from the printer so that approximately 15,000 copies of the magazine's November issue was printed. Respondent Davis found difficulty in physically laying out the magazine due to his lack of experience in layout work. By this time, Davis had exhausted all of his available revenues from the service and he had no funds to hire personnel to perform those functions. He contacted several property owners who had a listing agreement with Respondent Home Owners Direct Sales, Inc. after he took over its operations and was able to determine that approximately 50 - 60 property owners had in fact sold their houses and therefore no longer needed the service. He also testified that he was not responsible for filing the liens on the property of owners who utilized the deferred payment plan with Respondent Home Owners Direct Sales, Inc. He related several instances wherein he, when confronted by a property owner and was advised that an outstanding lien was affecting the title to their property, gave a release or satisfaction for the lien. When Respondent Davis took over the operations of the business, he retained the services of Ronald Kavin for office and sales manager in overall charge of initiating sales. His overall responsibilities included training salesmen, making appointments for sales persons and assuring that they kept appointments. Approximately September 16, 1976, Messr. Kavin approached Respondent Davis for $250 which he needed to pay a garage repair bill. Messr. Davis credibly testified that he advised Messr. Kavin that although he had no money, he would issue him a check which should not be deposited until he assured him that sufficient funds were on deposit in the bank to cover the check. Approximately two weeks later, Messr. Kavin again approached Messr. Davis for $150 to defray expenses which he had incurred in his duties as office manager. Again Respondent Davis explained that while he had no money, he expected to obtain some money shortly from an investor whom he had arranged financing for some property which he owned and that he (Kavin) should not attempt to negotiate the check until he had prior clearance from Davis that he had sufficient monies on deposit in the bank. Messr. Kavin attempted to negotiate both checks which were returned for nonsufficient funds.
Recommendation Based on the foregoing findings and conclusions, I hereby recommend that the registration of the Respondent corporation, Home Owners Direct Sales, Inc. and the license and registration of Respondent Roger Davis be placed on probation for a period of one year. RECOMMENDED this 22nd day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802 Roger L. Davis, Esquire c/o "A" Inc. 1980 North Atlantic Boulevard Cocoa Beach, Florida 32931 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An agency of the state of Florida, Plaintiff, PROGRESS DOCKET NO. 3218 BROWARD COUNTY DOAH CASE NO. 77-2065 HOME OWNERS DIRECT SALES INC. and ROGER L. DAVIS, Respondents. /
