The Issue As stipulated to by the parties, the issue in this case is: Whether there is a numerical need for FHFC's proposed facility when the need is calculated in accordance with Rule 10-5.11(21), F.A.C. [sic].
Findings Of Fact In July of 1985 the Petitioner filed an application for a certificate of need (number 4123), for the construction of a 120-bed nursing home in Citrus County Florida. The Petitioner's application was initially denied by the Respondent and the Petitioner timely filed a Petition for Formal hearing contesting this proposed agency action. The Amended Prehearing Stipulation contains the following stipulation: 2. DHRS and FHFC stipulate, as a matter of fact and law, that, providing FHFC demonstrates in accordance with Rule 10- 5.11(21), F.A.C., a numerical need for not less than 60 beds [sic] nursing home beds in Citrus County, then FHFC's application for 60 community nursing home beds in Citrus County meets all the remaining applicable criteria in S.381.494(6)(c) & (d), Fla. Stat., Rule 10-5.11, F.A.C. The Petitioner is willing to accept a certificate of need for 60 nursing home beds for Citrus County. The following procedures generally apply in reviewing certificate of need applications filed in a July batching cycle, as the Petitioner's application was: Thirty days prior to the application due date, a letter of intent must be filed with the Respondent and the local health council; The application must be filed by July 15; Approximately one month after the application is received, an error and omissions letter is sent by the Respondent to the applicant; A reply to the error and omissions letter is due 45 days after the omissions letter is sent; The application is deemed complete or incomplete; An opportunity for public comment is given; and A decision to approve or disapprove the application is made. In this case, the letter of intent was filed in June, 1985, and the application was filed on July 15, 1985. The error and omissions letter was sent in August, 1985, and completeness was determined in September, 1985. A State Agency Action Report (hereinafter referred to as the "SAAR") was signed on November 7, 1985, by the reviewer of the application and on November 29, 1985, by the unit supervisor. The parties have stipulated that if there is sufficient numerical bed need for at least 60 nursing home beds, the Petitioner's application should be granted. Numerical bed need is determined pursuant to Rule 10-5.011(1)(k)2, Florida Administrative Code (formerly Rule 10-5.11(21)(b), Florida Administrative Code). Pursuant to Rule 10-5.011(1)(k)2, Florida Administrative Code (hereinafter referred to as the "Need Methodology"), need for nursing home beds is determined for the relevant planning district and for the relevant planning horizon. Citrus County is located in the Respondent's planning district 3. For purposes of the Need Methodology, bed need is to be determined on a district- wide basis. The planning horizon in this case is July, 1988. The calculation of bed need pursuant to the Need Methodology requires a calculation of gross need and a calculation of net need. The calculation of gross bed need pursuant to the Need Methodology is based upon certain population figures, occupancy rates and the number of licensed beds in the district. In this case, the parties agreed that the relevant population figures (see Joint exhibit 1) are as follows: June 1, 1985 65 to 74 years population of 96,130; June 1, 1985 75 and over population of 56,717; July, 1988 projected 65 to 74 years population of 107,914; and July, 1988 projected 75 and over population of 68,413. The relevant population figures were released on July 1, 1985, and were applied to applications submitted on July 15, 1985. Occupancy data used in the Need Methodology is for the period October, 1984 through March, 1985. The parties agreed that the occupancy data collected by the local health council was the appropriate data. That data indicated an occupancy rate of .9037. The relevant number of licensed beds for purposes of calculating gross bed need in district 3 is the number of licensed beds as of June 1, 1985. Rule 10-5.011(1)(k)2g, Florida Administrative Code. There were 3,789 licensed beds in district 3 as of June 1, 1985. Although the Petitioner presented evidence that the Respondent had published a report of the number of licensed beds in district 3 indicating that there were 3,849 licensed beds on June 1, 1985, the evidence proved that 60 beds were included on that report in error. Those 60 beds were listed as licensed beds of Suwannee Valley Nursing Center on Joint exhibit 2. The evidence proved that those beds were not in fact licensed as of June 1, 1985, and were not even licensed as of November 27, 1985. The Petitioner also argued in its proposed recommended order that the Respondent had failed to take into account 60 additional licensed beds at Lake Highlands Nursing Home. This is not correct. Although it is true that the 60 beds in question were not included on the Semiannual Nursing Home Census Report and Bed Need Application report of June 3, 1985 (Joint exhibit 2), that report also indicates that there were 60 licensed beds at Suwannee Valley Nursing Center. Those beds were not, however, licensed. If the 60 beds at Suwannee are taken out and the 60 additional beds at Lake Highlands are added in, the June 3, 1985 report indicates that there were 3,789 licensed nursing home beds as of June 1, 1985. Additionally, the list of licensed nursing home beds attached to the SAAR includes the 60 additional nursing home beds at Lake Highlands. The SAAR list also includes 60 beds at Suwannee and 15 too many beds at Eustis Manor. If these 75 beds are subtracted from the correct total of 3,864 licensed beds listed on the SAAR attachment, there were 3,789 licensed nursing home beds as of June 1, 1985. In calculating gross bed need, the Need Methodology also provides for a poverty adjustment. The parties agreed, however, that the poverty adjustment does not apply in this case because there were more than 27 beds per 1,000 population at the time the application was filed. The Need Methodology also provides that the district-wide gross bed need is to be allocated to subdistricts where appropriate. The parties agreed that a subdistrict allocation of gross bed need is not required or appropriate in this case. The Need Methodology provides specific times or time periods for the determination of occupancy rates, population estimates and licensed beds for purposes of determining gross bed need. Once gross bed need is determined pursuant to the Need Methodology, net bed need must be determined. Rule 10-5.011(1)(k)2i, Florida Administrative Code, provides that net need is determined as follows: The net bed allocation for a subdistrict, which is the number of beds available for Certificate of Need approval, is determined by subtracting the total number of licensed and 90 percent of the approved beds within the relevant departmental subdistrict from the bed allocation determined under subparagraphs 1 through 9 [sic] unless the subdistrict's average estimated occupancy rate-for the most recent six months is less than 80 percent, in which case the net bed allocation is zero. [Emphasis added]. In calculating net bed need, the parties have disputed the point in time when approved beds are to be inventoried. The Need Methodology does not provide a specific date for determining approved beds (or licensed beds) for purposes of calculating net bed need. The Respondent has taken the position that the inventory of approved beds is to be determined immediately prior to the signing of the SAAR by the unit supervisor. This non-rule policy is based upon Policy Memorandum No. 26 (FHFC exhibit 3). This Policy Memorandum contains no explanation of the policy or the rationale for counting approved beds in this manner. Although Mr. Carter, the Respondent's only witness, speculated (he did not know why the Respondent adopted the policy) that the policy was implemented to prevent a proliferation of beds, the weight of the evidence does not support a conclusion that the policy is reasonable. Based upon the Respondent's policy as to the relevant date for determining the number of approved beds, there were 933 approved beds as of November 29, 1985. The Petitioner has taken the position that the inventory of approved beds for purposes of determining net bed need should be determined prior to the application filing deadline, at the same time data used to calculate gross bed need are determined. There were 753 approved nursing home beds for district 3 at the time the Petitioner's application was filed. The Office of Community Medical Facilities of the Respondent prepares monitoring reports in order to periodically capture the inventory of approved beds. Based upon the Respondent's position with regard to the calculation of net bed need, there is a net surplus of 109 beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 840 approved beds (90 percent of 933 total approved beds))(109). Based upon the Petitioner's position with regard to the calculation of net bed need and using the correct number of licensed beds in the' calculation of gross bed need there is a net need for 53 beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 678 approved beds (90 percent of 753 total approved beds)) 53. Although the parties did not dispute the date for determining the number of licensed beds for purposes of determining the net need for nursing home beds, it has been concluded as a matter of law that the number of licensed beds for purposes of determining net bed need is to be determined based upon on the most current information as of the date of the final hearing. It has also been determined that the appropriate date for the determination of approved beds is also the date of the final hearing. The Petitioner has failed to prove what the number of licensed beds and approved beds was as of the date of the final hearing. In light of the fact that the evidence fails to prove the number of licensed and approved beds as of the date of the final hearing, the net need for nursing home beds in district 3 in July, 1988, cannot be determined. The most current information concerning the number of licensed beds was the number of beds relied upon by the Respondent: 3,789 licensed beds. The most current information concerning the number of approved beds is contained in the Quarterly Status Report of the Office of Community Medical Facilities dated January 7, 1987 (DHRS exhibit 1): 1,029 approved beds for district 3. Applying the Need Methodology to the facts in this case indicates a gross need for 4,250 nursing home beds in district 3 in July, 1988: STEP 1: BA = LB / (POPC + (6 X POPDD)): 3789 / (90,130 + (6 X 56,717)) 3789 / 436,432 BA = .008681764 STEP 2: BB = 6 X BAs 6 X .008681764 BB = .052090554 STEP 3: A (POPA X BA) + (POPB X BB) (107,914 X .008681764) + (68,413 X .052090584) 936.88 + 3563.67 A = 4501 STEP 4: SA = A X (LBD/LB) X (OR/.90) 4501 X l X (.9037/.90) SA = 4520 Using the most recent information as to the number of licensed and approved beds in calculating net bed need, there is a surplus of 195 nursing home beds for district 3 in July, 1988: 4,520 gross beds needed minus (3,789 licensed beds plus 926 approved beds (90 percent of 1,029))(195). Based upon the foregoing, there is insufficient need pursuant to the Need Methodology to warrant approval of the Petitioner's application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for certificate of need number 4123 be DENIED. DONE and ORDERED this 25th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 25th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0049 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s), if any, in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are refereed to as "RO ." Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection RO 5. RO 6. 3 RO 13-14. 4 RO 13. See RO 16 and 31. Although it is proper to count the number of licensed beds as of June 1, 1985, for purposes of determining gross bed need, it has been concluded as a matter of law that it is not proper to count the number of licensed beds as of June 1, 1985 for purposes of determining net bed need pursuant to the Need Methodology. The first sentence is accepted in RO 17. Although the second and third sentences are technically correct, the weight of the evidence established that there were 3,789 licensed nursing home beds as of June 1, 1985. Irrelevant. Although Mr. McElreath did so testify, the weight of the evidence supports a finding of fact that there were 3,789 licensed nursing home beds as of June 1, 1985. See RO 17. Not supported by the weight of the evidence. The additional 60 beds of Lake Highlands Nursing Home (for a total of 142) were taken into account in the SAAR. Although the first sentence is correct, there was evidence that indicates there was an error in the report. The last sentence is not supported by the weight of the evidence. See RO 17. 11 RO 15. 12 RO 18. The first sentence is generally true-- the specific point in time for the calculation of licensed beds is only for purposes of calculating gross bed need. See RO 20 and 31. The last sentence is irrelevant. The first sentence is accepted in RO 21. The second sentence is rejected to the extent that it suggests that a date is specified for inventoring licensed beds for purposes of determining net bed need. See RO 20 and 31. The first sentence is accepted in RO 28. The last sentence is irrelevant. Irrelevant. 17 RO 23. 18 RO 23. The evidence did not prove that there is not "any other published statement of the rationale...." The testimony only proved that none of the witnesses were aware of any such publication. 19 RO 24. Irrelevant. Not supported by the weight of the evidence. Mr. Carter gave a reason for the policy. 22-23 and 25-31 Irrelevant. These proposed findings of fact are proposed in support of the Petitioner's proposed interpretation of the Need Methodology. The correct interpretation of the Need Methodology is a question of law. 24 Not supported by the weight of the evidence. The witnesses were not aware of any such statement and no evidence was presented to find that such a statement exists, but the evidence did not prove that none exist. 32 Not supported by the weight of the evidence. See RO 36-37. The Respondent's Proposed Findings of Fact: 1 RO 1-2. RO 3. RO 4. Although the parties stipulated that for purposes of this case, approval of the Petitioner's application would depend upon whether need exists under the Need Methodology, this conclusion of law is not generally correct. The determination depends upon a weighing of all the criteria, absent a stipulation of the parties, of Section 381.494(6)(c) , Florida Statutes (1985). RO 9. Not supported by the weight of the evidence. See RO 36-37. Although this is the Respondent's position, the evidence failed to support a conclusion that the Respondent has adopted a valid policy. See RO 23 and 24. COPIES FURNISHED: Robert D. Newell, Jr., Esquire 200 South Monroe Street Suite B Tallahassee, Florida 32301 Paul V. Smith, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact The Division is the administrative agency of this state empowered to ensure that condominium associations comply with the Condominium Act. The Association is the condominium association which manages and operates 12 separate condominiums known as the Pines of Delray, located in Delary Beach, Florida. This case involves a structure placed on the common elements of three of those condominiums: The Pines of Delray condominiums 5, 6, and 11. Condominium 5 has 64 units, 6 has 72 units, and 11 has 96 units. Initially, the 12 condominiums received television under a "Central Television Antenna System Lease" with the Pines of Delray CAT, an agent of the condominium developer. On November 1, 1979, the unit owners of 8 of the 12 condominiums, including condominiums 5, 6 and 11--by vote equal to or in excess of 75 percent of the unit owners in each of the 8 condominiums--voted to cancel or terminate the television system lease pursuant to Section 718.302, Florida Statutes. The leased television equipment was eventually removed by the owner. On February 1, 1982, the Association entered into a written agreement with A-I Quality TV, Inc. d/b/a Denntronics Cable to provide television service for the 12 condominiums. The agreement was authorized by the Association's board of directors; the unit owners were not given an opportunity to vote on the agreement. An addendum to the agreement was entered in December, 1982. The addendum authorized Denntronics to install a satellite receiving station or dish at an unspecified location on the property of the 12 condominiums. The addendum was authorized by the Association's board of directors, but again, a vote of the unit owners was not taken. The Board subsequently selected the site for the receiving dish, centrally locating it on common elements of condominiums 5, 6, and 11, between building no. 65 in condominium 6, no. 25 in condominium 5, and nos. 66 and 110 in condominium 11. On December 24, 1982, Denntronics, with the Board's authorization, entered the premises of the condominiums and cut down four full-grown pine trees on the site to allow construction of a concrete foundation or pad and erection of the satellite dish. The parties stipulate that this cutting of the trees was an alteration of the common elements and that it was not approved by the owners of 75 percent of the condominium units in the affected area. The pertinent declarations of condominiums provide a specific procedure for obtaining approval before altering or improving common elements of the condominium. Article 5.1(b) of each declaration states: 5 MAINTENANCE, ALTERATION AND IMPROVEMENT Responsibility for the maintenance of the condominium property and restrictions upon the alteration and improvement thereof shall be as follows: .1 Common Elements. (b) Alteration and Improvement. After the completion of the improvements included in the common elements which are contemplated in this Declaration, there shall be no alteration nor further improvement of common elements without prior approval, in writing, by record owners of 75 per cent of all apartments. The cost of such alteration or improve ment shall be a common expense and so assessed. After removing the trees, Denntronics poured the concrete pad and attached it to the realty. The pad measures 10 feet by 10 feet, has a depth of 18 inches, and is reinforced with no. 5 grade steel bars. The construction of this pad, as with the tree removal, was not approved or voted on by the condominium owners. Denntronics then anchored the satellite receiving dish to the concrete pad. The dish is approximately 16 feet in diameter, extending 20 to 25 feet in the air. It remains the property of Denntronics since it was only leased to the Association. It is not a fixture since it may be detached and removed from the concrete pad. The cutting of the trees, the construction of the concrete pad, and the erection of the satellite dish altered the common elements. The condition of the real property was changed and the satellite dish affected nearby residents' view and enjoyment of the park-like green space in which it was placed. The replacement of the trees with the concrete pad and satellite dish affected the appearance of the surrounding area. A park-like environment of grass and pine trees surrounds the condominiums; it was this feature which persuaded some residents to originally purchase condominiums at Pines of Delray. Both the name of the condominium and its accompanying description on the condominium documents, "A Condominium in the Woods" emphasize this aesthetic feature of the condominium. As shown by the photographs in evidence, the reinforced concrete pad with satellite dish is an intruding presence in a park- like, pristine area. It is an incongruous, even imposing structure, 1/ and, in the setting in which it was placed, is aesthetically displeasing. 2/ It has adversely affected some residents' enjoyment of the grassy green space and has disturbed the scenic view which they enjoyed from their windows. Some residents now keep their window shades closed or no longer use the park-like surroundings. One resident was so upset by the sudden placement of the structure that she sold her condominium and moved away. Another nearby resident who purchased his unit, in large part, because of its proximity to the park-like green space, would not have purchased it if the pad and satellite dish had been there. Denntronics has a franchise application pending before the City of Delray Beach. If it is granted a franchise, Denntronics will remove the pad and satellite dish, and replace it with underground cable. If Denntronics is not granted a franchise, it intends to maintain and operate the satellite dish at least until June 30, 1987, when the agreement with the Association expires and is up for renewal. If the satellite dish is removed now, however, the Pines of Delray Condominium will not necessarily be without cable television service. Leadership Cable, the only cable T.V. company franchised by the City of Delray Beach, is willing and able to provide cable T.V. reception to the pines of Delray Condominiums.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Florida Land Sales and Condominiums find the Association guilty of violating Section 718.113(2) and order it to cease and desist from further violations. Further, the order should require the Association to remove the concrete pad and satellite receiving dish within 10 days and restore the affected area, as nearly as possible, to its prior condition. Restoration should include the placing and maintenance of grass sod and at least four healthy trees, aesthetically pleasing and not less than 12 feet in height. DONE and ENTERED this 21st day of June, 1984, in Tallahassee, Florida. R. L. Caleen, Jr. 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 21st day of June, 1984.
The Issue The issues in the case are whether Respondents committed fraud and/or misrepresentation in entering into various retail installment contracts in violation of Section 520.995(1)(b), Florida Statutes; and whether the Department of Banking and Finance is entitled to an Order against Respondents, including fines and a Cease and Desist Order.
Findings Of Fact At all times material hereto, Lynn Haven Home Center, Inc. (Lynn Haven), was a licensed motor vehicle retail installment seller with locations at 3250 Highway 77, Panama City, Florida 32405; and 161 Racetrack Boulevard, Fort Walton, Florida 32547. Christopher Wilson was an employee of Lynn Haven Home Center, Inc. Doyce Lindley was allegedly a director of Lynn Haven at its Fort Walton office. However, no competent evidence was submitted at the hearing supporting these allegations and no witness was familiar with Mr. Lindley, his role in Lynn Haven, or his association with any sales of Lynn Haven. Since no relationship with the company was established and no relationship with any of the sales of the company was established, no findings can be made regarding Mr. Lindley. Therefore, the Administrative Complaint should be dismissed in regards to him. Lynn Haven had a dealer agreement with Bombadier Capital Company (Bombadier) under which Bombadier would finance the purchase of a mobile home by a qualified buyer based, in part, on the buyer's credit application, credit history and manner of financing the mobile home, including the amount of the down payment. The dealer agreement between Lynn Haven and Bombadier stated, in part, as follows: Each consumer will have paid any specified down payment in cash or by trade-in prior to delivery of Home, and no part of such down payment will have been loaned or otherwise provided directly or indirectly by Dealer or, to Dealer's knowledge, any other person; any property received by Dealer in trade on a Home which secures a Security Instrument shall be free from any liens, security interests, encumbrances or any other claims, and each Consumer at the time of execution of the Security Instrument shall be the legal owner of such Collateral. The agreement also required Lynn Haven to give truthful information on retail installment contracts. If the dealer did not supply truthful information, the deal would be cancelled prior to funding. If the false information was discovered after the loan was funded, the dealer would be pursued for repayment of the loan. Around May 1998, Bombadier financed one loan for Royal Gaddy which had been originated by Lynn Haven. Mr. Gaddy did not testify at the hearing. Therefore, no competent evidence regarding the negotiations between or the exact home purchased or seen by Mr. Gaddy was introduced at the hearing. The purchase documents reflect that the serial number of the home was the same on all the purchase documents, indicating that one particular home was being purchased by Mr. Gaddy. However, the invoice for the home and the purchase agreement for the home disagree as to the width of the home. The invoice reflects a width of 24 feet and the purchase agreement reflects a width of 27 feet. It is unclear what documents Bombadier reviewed in agreeing to make the loan to Mr. Gaddy. There was no competent evidence presented at the hearing on how the documents for this purchase and loan were prepared or why there was a discrepancy in the home width among the documents. Collin McGowan, the alleged owner of Lynn Haven, submitted the loan to Bombadier. For unknown reasons, Mr. Gaddy defaulted on his loan and the mobile home was repossessed by Bombadier. The lender discovered by visual inspection that the trailer was not the size represented on the retail installment contract. The trailer was, in fact, 24 feet in width instead of the 27 feet indicated on the sales agreement. No competent evidence was introduced which indicated that Respondent Wilson filled out any document possessed by Bombadier as it relates to Royal Gaddy. Likewise, there was no competent evidence that Respondent Wilson had anything to do with the Gaddy purchase or loan. The documents themselves do not constitute evidence of fraud or misrepresentation since the width discrepancy could just as reasonably be due to a typographical error. Therefore, this allegation of the Administrative Complaint against the Respondents should be dismissed. Around January 1998, Donna Huff bought a home from Lynn Haven. Mrs. Huff talked to Respondent Wilson about the purchase of a mobile home. At some point, she spoke with a salesperson that she could not afford a five percent down payment on a home. She did not know if the salesperson she told this to was Respondent Wilson or another salesperson. The salesperson told her not to worry about it and that she could get into a new mobile home. Ms. Huff put down $100.00 cash on the mobile home. She purchased the mobile home under an installment contract. The installment contract was later assigned to Green Tree Financial Center, Inc. No one from Green Tree testified at the hearing regarding this loan, any dealer agreement it had with Lynn Haven, or the representations, if any, Green Tree relied on to take assignment of this installment contract. Nor did anyone from Green Tree or elsewhere testify as to the standards in the industry regarding borrowing a cash down payment. Ms. Huff’s retail installment contract states that she paid $3,602.92 as a cash down payment. Ms. Huff did not notice the amount of the down payment until this investigation, several years after her purchase. She does not know where the amount of the down payment in the installment contract came from. From a review of the documents, it appears that the remainder of the down payment came from money remaining after the seller closed the sale with Ms. Huff. The down payment was generated by adding $2,003.00 to the setup and delivery costs for the mobile home under the heading "TI over allowance." The setup and delivery costs were included in the total sales price of the home. The cash sale price was $33,665.00 plus $2,069.90 in taxes for a total of $35,734.90. The difference between the cash sale price of $33,665.00 and the unpaid balance of the loan of $32,131.98 is $1,534.92. The difference of $1,534.92 plus $2,003.00 equals $3,602.92 or the down payment amount listed in the retail installment contract for Ms. Huff's home. In effect the money for the down payment came from the amount financed under the installment contract. No evidence was introduced by Petitioner demonstrating that any document Mrs. Huff signed was submitted to any lending institution. No evidence was introduced by Petitioner demonstrating that any document Mrs. Huff signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner demonstrating that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mrs. Huff for the purchase of her home or that the source for such down payment was from borrowed funds. Without such evidence, none of the Respondents are guilty of fraud or misrepresentation and the parts of the Administrative Complaint regarding Ms. Huff's transaction should be dismissed. Around March 1998, Rick Laux bought a mobile home from Lynn Haven. Mr. Laux dealt with Respondent Wilson, but did not recognize him at the hearing. Mr. Laux traded in a mobile home to Lynn Haven towards the purchase of a new mobile home. Mr. Laux's equity of $9,472.68 in the mobile home he traded in was used as a down payment on the new mobile home. No cash down payment was made by Mr. Laux. Lynn Haven set up the new mobile home on ten acres that Mr. Laux owned. Lynn Haven also installed a well, septic system, and power pole on Mr. Laux's ten acres. The land had already been cleared by Mr. Laux. No clearing was done by Lynn Haven. The ten acres also served as collateral on the mortgage used in part to buy the mobile home from Lynn Haven. Mr. Laux had no knowledge of who arranged for financing of his mobile home. However, the home was financed by Unicor Mortgage. The loan was closed by Stewart Title of Northwest Florida, a third-party loan closing agent. A review of the HUD statement, a federally required loan closing document, shows that Lynn Haven was paid $9,996.00 for costs associated with land improvements. The purchase agreement, signed by Mr. Laux, shows that Mr. Laux was charged $3,500.00 for land preparation that was not done by Lynn Haven. The $3,500.00 charge was part of the $9,996.00 in land improvement costs paid to Lynn Haven at closing. The remainder of the land improvement costs were a well ($3,850.00), septic system ($1,350.00), and power pole ($1,296.00). The $3,500.00 charge appears along with other figures which eventually yield an estimated total cost and an estimated loan amount, which estimated amount became the final amount financed by Mr. Laux and funded by Unicor. The purpose for the $3,500.00 charge could only have been to increase the estimated loan amount for the transaction in order to pull money out of the transaction to balance against the equity down payment allowed on the trade in. However, it is unclear that Unicor relied on or even saw the purchase agreement between Lynn Haven and Mr. Laux. Further, it is unclear whether the amount allowed for the trade in was accurate or inaccurate. What is clear is that the $3,500.00 figure was a made-up figure. Mr. Laux had no knowledge of who filled out any form relating to his purchase. No one from Unicor or Stewart Title testified as to who filled out the loan closing documents or who supplied the numbers and information used therein. Likewise, there was no evidence introduced by Petitioner demonstrating that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. Laux for the purchase of his home or that Respondent Wilson filled out the purchase agreement associated with this transaction. However, it is clear an agent of Lynn Haven prepared the sales agreement in which the land improvement costs were included and that underlies the eventual loan amount for the Laux transaction. The $3,500.00 amount is a fictitious amount and a misrepresentation on the part of Lynn Haven. Therefore, Lynn Haven is guilty of misrepresentation in an installment loan transaction. In 1998, Brian Withey purchased a mobile home in a home package from Lynn Haven. The package included a lot, well, septic tank, and power pole, as well as permits and other necessities for setting up the home. The salesperson for Mr. Withey was Respondent Wilson. Mr. Withey paid $900.00 as a cash down payment for the mobile home. The purchase agreement reflects a proposed cash down payment of $13,075.00. The amount is very hard to read and may actually be a different amount, but the down payment does appear to be over $10,000.00. It is unclear from the documents exactly where the amount of the proposed cash down payment came from or if it was the amount of payment actually used to close the loan. The HUD Settlement Statement was unreadable. Therefore, it is impossible to determine the closing costs involved in the loan or to trace through other documents the amounts used in the HUD statement. A new home closeout sheet reflects an over-allowance of $12,225.00 and an item labeled "extra gross" of $7,075.00. The extra gross item was made up of amounts for a well ($900.00), power ($710.00), septic system ($700.00), and driveway ($4,765.00). Lynn Haven did not install a driveway for Mr. Withey. The extra gross amounts were the differences between dollar figures listed in a column labeled "charged" and dollar figures listed in a column labeled "actual." The figures appear to be related to costs. However, there was no evidence to support that conclusion. The figure in the charged column for the driveway was $4,765.00, but the figure in the actual column was $0. There was no evidence regarding this extra gross sheet and the document was not recognized by Mr. Withey at the hearing. Likewise, there was no evidence regarding how these two documents were used in closing the loan, what the loan amount was, or even who the lender was. No evidence was introduced by Petitioner demonstrating that any document introduced into evidence was submitted to any lending institution or utilized by any lending institution for any purpose. Likewise, none of these documents can be linked to Respondent Wilson as providing any of the information on any documents submitted to a lending institution regarding the source of any down payment funds provided by Mr. Withey for the purchase of his home. Therefore, Respondent Wilson is not guilty of fraud or misrepresentation and the portions of the Administrative Complaint relating thereto should be dismissed. The evidence regarding whether Lynn Haven charged Mr. Withey for a driveway which he did not receive is not clear since how the extra gross sheet was used in the eventual loan or purchase is not clear. The suspicion is that the driveway value was used to inflate the requested loan amount in order to yield enough cash for a down payment. However, there was insufficient evidence to support such a conclusion since the HUD statement was unreadable. Therefore, the portions of the Administrative Complaint related to the Withey transaction against Lynn Haven should be dismissed. Betty Brown bought a home from Lynn Haven in March of 1998. The salesperson she dealt with was Randy, last name unknown. Respondent Christopher Wilson had no involvement with her purchase. Ms. Brown traded in her mobile home for a new mobile home, and she was allowed $7,000.00 for her trade in. No other cash was deposited by Ms. Brown. The new mobile home was placed on the lot owned by her where the old mobile home had been. No land improvements were required and no septic system, power pole, or well was required since those items were already present on the property. However, the salesperson for Lynn Haven told her they would add charges for a septic tank and well to account for a $10,000.00 down payment. In essence, false charges or allowances for improvements would be added to the loan amount to increase the loan amount to balance against a $10,000.00 cash down payment. Ms. Brown was uncomfortable with this process and questioned the salesperson about it. She was told that it was standard practice in purchasing a mobile home. The lender for Ms. Brown’s transaction was Unicor Mortgage, Inc., and the closing agent was Stewart Title of Northwest Florida, Inc. No one from either of these corporations testified as to this loan or who supplied the figures used in the HUD closing statement. No evidence was introduced by Petitioner demonstrating that any document signed by Ms. Brown was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that any document Ms. Brown signed was utilized by a lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Ms. Brown for the purchase of her home. Therefore, Respondent Wilson is not guilty of fraud or misrepresentation and the portions of the Administrative Complaint relating thereto should be dismissed. The evidence did show Lynn Haven charged or included in the purchase agreement amounts for a well, power pole, and septic system which were already present on her property in order to inflate the value of the loan so that a $10,000.00 down payment could be reflected for the loan. This practice is at worst fraud, at best an intentional misrepresentation of the actual down payment for the mobile home. Therefore, Lynn Haven is guilty of fraud and misrepresentation in an installment contract. Around June 1998, Maureen Pooler purchased a mobile home from Lynn Haven. The salesperson she dealt with was Randy, last name unknown. Ms. Pooler never dealt with Respondent Wilson. Ms. Pooler did not discuss any down payment requirements with the salesperson, but did tell him that she only had $2,000.00 to put down on a mobile home. While looking at the homes on Lynn Haven’s sales lot, the salesperson told Ms. Pooler that Lynn Haven would reduce the price of any mobile home on the lot because the business was moving down the road. Ms. Pooler picked out two mobile homes and gave the salesperson a check for $2,000.00. Lynn Haven ran a credit history on Ms. Pooler. Later, the salesperson called to inform Ms. Pooler that she had been approved for a loan on the lesser of the two mobile homes. The evidence did not demonstrate if any sales contract or other paperwork was submitted to gain such approval. The retail installment contract shows a down payment of $13,000.00. A separate document titled “Purchase agreement” lists no amounts for a down payment. The purchase agreement does contain a net trade amount of $13,000.00. The New Home Washout Sheet reflects a $10,000.00 over allowance. However, none of these figures can be traced through to the installment contract and the evidence did not demonstrate the relationship, if any, among these various documents. The installment contract was assigned to Green Tree Financial Center, Inc. No one from Green Tree testified at the hearing regarding this loan, any dealer agreement it had with Lynn Haven, or the representations, if any, Green Tree relied on to take assignment of this installment contract. Nor did anyone from Green Tree or elsewhere testify as to the standards in the industry regarding borrowing a cash down payment. No evidence was introduced by Petitioner demonstrating that any document signed by Ms. Pooler was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that any document Ms. Pooler signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Ms. Pooler for the purchase of her home. Therefore, the portions of the Administrative Complaint relating to the Pooler transaction against the Respondents should be dismissed. Around April 1998, Larry Laux purchased a mobile home from Lynn Haven. The salesperson he dealt with was Randy Wilson. Mr. Laux never dealt with Respondent Wilson in any material manner. Mr. Laux did not make a cash down payment on the mobile home. He did use some land he owned and had been living on as collateral. Mr. Laux told the salesperson that he could not make a cash down payment. The salesperson replied that, given Mr. Laux’s credit rating, the lack of a down payment should not be a problem. The alleged purchase agreement for the mobile home contained two signatures for Mr. Laux and his wife. However, the signatures were not those of the Laux’s, and Mr. Laux did not recognize the purchase agreement. In any event, the home was purchased and a loan was closed by Mr. Laux. The lender was Green Tree Financial Services and the closing agent was Stewart Title of Northwest Florida, Inc. No one from either corporation testified as to the Laux loan or the paperwork relied on for that loan. The HUD statement for the loan does not reflect a down payment. However, the HUD statement does reflect a disbursement of funds to Lynn Haven for land improvements in the amount of $4,450.00. The land improvement figure consisted of charges for a power pole ($1,000.00), water, and sewer hookups ($3,000.00) and land clearing ($450.00). Except for the power pole, Lynn Haven did not provide these items to Mr. Laux, and Mr. Laux was never given the money for the hookups or land clearing. Lynn Haven kept the money for services it did not provide. Therefore, Lynn Haven is guilty of fraud in a financial transaction for home improvements. No evidence was introduced by Petitioner demonstrating that any document signed by Mr. and Mrs. Laux was submitted to any lending institution. Likewise, no evidence was introduced by Petitioner demonstrating that ay document Mr. and Mrs. Laux signed was utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. and Mrs. Laux for the purchase of their home. Therefore, the portions of the Administrative Complaint related to the Laux transaction against the Respondent Wilson should be dismissed. In December 1997, Terries Mesiner bought a home from Lynn Haven. Respondent Wilson was the salesperson who dealt with Mr. Mesiner. The facts surrounding the Mesiner negotiations and eventual sale are unclear. There appears to have been some sort of prequalification or approval for a purchase of a mobile home. However, there were two different mobile homes involved. The first was the one the Mesiner’s wanted but did not purchase. At some point there were discussions for additions to a mobile home they wanted to purchase which included a whirlpool tub, large deck, and extra insulation. However, the evidence did not show to which mobile home the discussion of these additions pertained. Likewise the evidence did not demonstrate that these discussions resulted in a contractual agreement that Lynn Haven would provide these additions. What is clear is that Respondent Wilson told Mr. Mesiner he needed 15 percent of the purchase price as a down payment on the purchase of mobile home. Mr. Mesiner indicated he could only pay $3,000.00 as a down payment. Respondent Wilson told him they would "work around it." Mr. Mesiner paid $3,000.00 as a down payment on the mobile home. The down payment shown on the HUD settlement statement was $13,001.83. There was no evidence which demonstrated where the figure used for the down payment in the HUD statement came from. Neither the lender nor the closing agent testified at the hearing and none of the documents introduced into evidence pertaining to this transaction seem to relate to this figure. Moreover, the HUD statement does not list Lynn Haven as the seller, but some other individuals whose roles were not identified at the hearing. Mr. Mesiner performed a walk-through of his newly-purchased home and approved of everything as being appropriate that was included in his home. Mr. Mesiner further signed all closing documents, none of which mentioned a deck, a whirlpool, or extra insulation or charges for such items. No evidence was introduced by Petitioner demonstrating that any document signed by Mr. Mesiner was submitted to any lending institution or utilized by any lending institution for any purpose. No evidence was introduced by Petitioner which demonstrated that Respondent Wilson wrote anything on any document submitted to a lending institution regarding the source of any down payment funds provided by Mr. Mesiner for the purchase of his home. Therefore, the portions of the Administrative Complaint regarding the Mesiner transaction should be dismissed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enters a final order as: That Lynn Haven Home Center, Inc., cease and desist any and all further violations of Chapter 520, Florida Statutes, and the rules duly promulgated thereunder, including, but not limited to Section 520.995(1)(b), Florida Statutes; and That Lynn Haven Home Center, Inc., pay a fine in the amount of $1,000.00 (one thousand dollars) per violation; and That the Administrative Complaint filed against Christopher Wilson and Doyce Lindley be dismissed. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2002. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32309 Doyce Lindley 13 Warwick Drive Shalimar, Florida 32579 Michael A. Reichman, Esquire Post Office Box 41 Monticello, Florida 32345 Honorable Robert F. Milligan Office of the Comptroller Department of Banking and Finance The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350
Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 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 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in the case is whether the Manatee County School Board’s proposed contract award to General Elevator Company for maintenance of elevator and wheelchair lifts meets the requirements of law.
Findings Of Fact In early July 1998, the Manatee County School Board issued a Request for Quotation (RFQ) No. 3400, seeking to contract for provision of elevator and wheelchair lift maintenance services. The vendor’s proposals were due by July 9, 1998. The RFQ sets forth a number of "technical specifications" intended to meet various concerns of the School Board. The School Board was concerned with the response time for emergency service repairs. Technical specification no. 6 states that a "[v]endor must have a physical office located in Manatee County with adequate storage for replacement parts inventory." Technical specification no. 7 in relevant part states that a "[v]endor shall respond to reports from the School Board for unscheduled service for repairs or corrections within four (4) hours and emergency reports within one (1) hour of the initiation of such notice." Two vendors submitted proposals in response to the School Board's request: General Elevator Company (General) and Miami Elevator Company (Miami). General's proposal listed a Clearwater, Florida office address. Clearwater is in Pinellas County. Miami Elevator Company's proposal listed a Bradenton, Florida office address. Bradenton is in Manatee County. General's bid was $14,040. Miami's bid was $15,750. After the bids were opened, Miami complained to Sheryl Rhodes (an employee of the School Board's purchasing department) that General's Clearwater office did not meet the RFQ's specification. Ms. Rhodes discussed the issue with Art Johns, a general sales engineer. In response to the discussion, Mr. Johns submitted a letter on behalf of General dated July 20, 1998, to Ms. Rhodes. The letter states that the address of the "Bradenton Shop" is "2300 Whitfield Park Drive, Unit H14, Bradenton, Florida." The address identified in the July 20 letter is not an office. The location is a garage-sized rental space located in a mini-warehouse storage facility. There is no phone service or mail delivery to the facility. There are no General employees working in the location on a regular basis. There is no local phone number to General. The Bradenton phone directory lists a toll-free number in the "yellow pages." A telephone call to General is routed to the Clearwater office and relayed to technicians working from their vehicles. Parts used to repair and maintain elevators are stored at the warehouse address. When the issue of office location was raised, an employee of the School Board attempted an unscientific survey to ascertain the response level General could provide. She called the General toll-free number and advised that she would be at the warehouse in 30 minutes. When she arrived, two technicians were present to meet her. The technicians opened the warehouse and permitted her inside. She observed a desk, a chair, and assorted parts and equipment apparently used to maintain elevators and lifts. There is no evidence as to the review of the proposals by the evaluation committee. Apparently the committee determined that the General bid met the requirements, and a proposed award was announced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Manatee County School Board award the contract pursuant to Request for Quotation No. 3400 to Miami Elevator Company. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 23rd day of November, 1998. COPIES FURNISHED: S. Gene Denisar Superintendent of Schools School Board of Manatee County Post Office Box 9069 Bradenton, Florida 34206-9069 Mark Campagnano District Sales Manager Miami Elevator Company 7481 Northwest 66th Street Miami, Florida 33166 Sandra Stevens Purchasing Supervisor Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069 Art Johns Sales Engineer General Elevator Company 12739 59th Way North Clearwater, Florida 34620
Findings Of Fact James R. Johnson holds general contractor's certificate number 004762 and has been doing business as J. R. Johnson Company, a Florida corporation from a period around March 23, 1973 up to and including the time of the allegation set forth in the administrative complaint. On or about October 16, 1974, James R. Johnson, d/b/a J. R. Johnson Company, a Florida corporation, entered into a contract with The Sisters of St. Joseph, Inc., a nonprofit Florida corporation to build the Villa Folora Addition, St. Augustine, Florida, for a contract price of $177,244.00. Petitioner's Exhibit "A", admitted into evidence is a copy of the contract. During the course of the work on the project, J. R. Johnson Company supplied The Sisters of St. Joseph, Inc., with sworn certificates and applications for payment as signed by its employee and agent, one Frank Jaquett, which certified that all suppliers of labor, services and materials were being duly paid. The applications and certification of payments are found in Petitioner's Exhibit "B", admitted into evidence. At the period of about February 4, 1975, The Sisters of St. Joseph, Inc., had paid J. R. Johnson Company the sums of $31,434, $52,844, and $51,785, representing the payments for the certificates and applications for payment as set forth in Petitioner's Exhibit "B". At the time the Respondent was working on the subject project, he was also doing work in North Carolina. One of the projects in North Carolina was a shopping mall identified as Berkley Mall. This project had been started in 1974 and around June 25, 1974, the lender on that project failed financially and problems commenced. Between February 7 and February 15, 1975, the bonding agent on the mall project in North Carolina went into bankruptcy. One of the subcontractors on the St. Augustine project, was a partnership known as AAA Plastering, in which George Chandler was a 50 percent owner. On February 25, 1975, AAA Plastering placed a claim of a lien on the project in the amount of $18,000. This claim of lien is shown in Petitioner's composite Exhibit #C, admitted into evidence. In January, 1975, the AAA Plastering had been paid $1,600 for work done on the project. This payment was made by J. R. Johnson Company. Subsequent to that date, no further payment has been made by J. R. Johnson Company to AAA Plastering. After the January payment of $1,600, AAA Plastering was entitled to $16,200 further payment, based upon final calculations under the contract terms. There had been a dispute between the Respondent and AAA Plastering about the quality of the plasterer's work, and this was indicated in testimony given in the course of the hearing, and supported by Respondent's Exhibit "A", which is a letter from the architect commenting on the work itself. The Respondent's Exhibit "A" was admitted into evidence. Nonetheless, the work was completed by AAA Plastering and payment over and above the $1,600 payment was not forthcoming from the Respondent. The only additional payment which AAA Plastering company did receive was $7,620, which was a result of a court disbursement after the Respondent had failed to make the payments and the owner of the project had entered into the suit and made disbursement. AAA Plastering Company gave a satisfaction of lien in return for the payment of $7,620. Other liens had been filed against the project as shown in Petitioner's composite Exhibit "C". These liens had reached amounts as high as $76,000 in April, 1975. An amount of $41,181 was paid out through the court in satisfying these liens that had been recorded. All liens, including the AAA Plastering Company lien were for labor, services or materials supplied by the said subcontractors to the Villa Flora Addition for which J. R. Johnson Company had made application for payments in three payment requests. The J. R. Johnson Company did not pay the money received from The Sisters of St. Joseph, Inc., to the subcontractors who had filed the said liens, the liens being filed in February and March, 1975. The Petitioner's Exhibit B", shows that the stucco and drywall work, in which the AAA Platering Company was involved, was applied for and certified for payment by the representative of the Respondent in the amount of $4,967 for the period of November 25, 1974 through December 30, 1974 and in the amount of $16,143 for the period of December 30, 1974 through January 24, 1974. As indicated before, the approximate amount of the AAA Plastering Company contract was in the vicinity of $18,000, for which the AAA Plastering Company was only paid $1,600 from the Respondent. Notwithstanding the Respondent's contention that the work by the AAA Plastering Company was not up to standards and did not warrant a 100 percent satisfaction of the agreement with the AAA Plastering Company, the Respondent has not adequately explained the disparity between the $1,600 paid and the $17,800 requested. The Respondent and his bookkeeper, Robert Bensinger are unable to identify the Respondent's position on the per- centage amount of payment which they felt the AAA Plastering Company was entitled to. George Chandler, a partner in the AAA Plastering Company at the time of the contract, indicated that in February, 1975 he had approached the Respondent, in the person of Mr. Bensinger for payment over and above the $1,600 that he had been given. Mr. Chandler approached Mr. Bensinger because he felt that the AAA Plastering Company had completed the project and was entitled to payment. According to Chandler, Bensinger told him that he could not pay him the money because the money that had been paid by the owner in the Villa Flora project had been sent to the North Carolina Project and any payment would be made to AAA Plastering Company upon receipt of payment due on the North Carolina project. At the time that the North Carolina project, the Villa Flora project and several other projects were under way, the Respondent had a common bank account for all those projects, in which moneys received from the owners were kept. Based upon a review of the testimony and the documents offered into evidence and specifically of Mr. Chandler, it is determined as a matter of fact, that AAA Plastering Company was entitled to a greater portion of those funds received from the owner in the form of disbursements to the Respondent, than it received and it is further determined that money was taken from the Villa Flora project and used to honor obligations on the project in North Carolina.
Recommendation It is recommended that the Petitioner revoke the certified general contractor's license of James R. Johnson, Number 004762. DONE and ENTERED this 22nd day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Eugene Loftin, Esquire 1636 Shadowood Lane Jacksonville, Florida 32207 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 75-2073 JAMES R. JOHNSON dba J. R. JOHNSON COMPANY, CG C004762, c/o Eugene Loftin, Esquire, 1636 Shadowood Lane, Jacksonville, Florida 32207, Respondent. /
