Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0008633, and is the qualifier for Merkle Custom Homes Inc. Respondent's last known address is 877 SW 124th Street, Miami, Florida 33176. Sunshine Ready Mix Concrete Company ("Sunshine") provided Respondent with the materials to be used on construction jobs located at 9600 SW 103rd Street and 8715 SW 129th Terrace, both in Miami, Florida. Respondent did not pay in full for such materials. Sunshine sued Merkle Custom Homes and obtained a judgment against that Florida corporation in the amount of $4,379.24 for money owed by the corporation on various jobs, to include the two projects referred to in paragraph 2 of this order. Said judgment has not been satisfied. One of the subject construction projects was undertaken for Dr. Robert Boyett and-his wife. This project was at 8715 SW 129th Terrace, and was the Boyett home. The other project at 9600 SW 103rd Street was an investment for Henry Arman and Errol Eisinger, a general partnership known as Ski Investors. This project was known as the "Ski Job." The contract between Boyett and Respondent was a standard contract, and the contractor would be responsible to make disbursements to subcontractors and materialmen. After the commencement of construction on the Boyett job, a disagreement arose between Boyett and Respondent. Boyett had the checks from the lending institution cut to him and Respondent, and did not pass all of the draw to Respondent. Boyett assumed responsibility for paying the subcontractors and materialmen. Prior to the Boyett and Ski Job projects, the Respondent applied for and established an open account for Merkle Custom Homes with Sunshine. The concrete for the Boyett job was charged to the Merkle Custom Homes account. Respondent's uncontroverted testimony was that he phoned Mr. Iglesias of Sunshine and advised him that Boyett was responsible for the concrete. The situation between Boyett and the Respondent worsened, and they eventually severed their contract. Boyett owed Respondent substantial sums of money at that time from draws paid to Boyett by the lender. In settlement of their dispute, Respondent waived any claims on the money Boyett held in return for Boyett's promise to assume all financial responsibility to the subcontractors and materialmen. Boyett did pay some $1500 to Sunshine on this debt but refused to pay all of the Sunshine bills, even though Respondent urged Boyett to honor his commitment. As a result, the Respondent received a partial satisfaction of judgment. Boyett and the contractor who took over from Respondent and assumed responsibility for the project both executed documents indicating that all materialmen had been paid. Sunshine failed to file and perfect a materialman's lien on the Boyett job. On the Ski Job, Respondent never had any control over the distribution of funds. Although the first checks were made out to the partners and the Respondent, control over payments to subcontractors and materialmen was exercised by the financial institution and Arman and Eisinger, the two individuals in the partnership for whom the project was done. The money was controlled by the partnership, who paid subcontractors directly. Respondent told Mr. Iglesias by phone that the partners were responsible for payment of the materialmen. Sunshine delivered to the Ski Job and billed to Merkle Custom Homes 40 yards of concrete at $27.75 per yard, for a total (including tax) of $1,154.40. Sunshine was paid for this concrete, and Respondent obtained a release from Sunshine for this amount. Sunshine delivered an additional 39 yards of concrete to the Ski Job after the date of the release at $34 per yard for a total (including tax) of $1,409.04. There is no evidence that the partners ever received a bill for the remainder of the concrete from Sunshine or the Respondent. No request for payment was made to the savings and loan for money to pay Sunshine for concrete. Merkle Custom Homes was replaced as the contractor, on this project, and the new contractor and owners agreed to assume responsibility for money owed to any subcontractors or materialmen. Sunshine did not file or perfect a materialman's lien on the Ski Job.
Recommendation Having found Respondent not guilty of violating Section 489.129(1)(d), Florida Statutes, it is recommended that the Amended Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 24th day of February, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 24th day of February, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Robert C. Eber, Esquire 9595 North Kendall Drive, Suite 102 Miami, Florida 33176 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent, the developer of Hidden Banyan Condominium, violated provisions of Chapter 718, Florida Statutes, and implementing rules by failing to timely call a meeting to allow unit owners, other than the developer, to elect one-third of the members of the board of directors; by failing to include reserve accounts in the condominium association's 1982 and 1983 budgets; by failing to call an annual meeting in 1981, 1982 and 1983; and by failing to pay its share of common expenses.
Findings Of Fact Respondent is the developer of Hidden Banyan Condominium, a 24-unit condominium located in Lantana, Florida. This condominium was created, in law, on March 6, 1980, with the filing of a Declaration of Condominium, and construction was completed soon thereafter. Under the Declaration of Condominium, Hidden Banyan Condominium Association, Inc., a Florida not-for- profit corporation, was responsible for the operation of the condominium. Respondent sold the first condominium units on April 18, 1980, May 15, 1980, July 1, 1980, and two units on August 1, 1980. Consequently on August 1, 1980, unit owners other than Respondent owned more than 15 percent of the condominium units. Respondent controlled the condominium association until September 26, 1983, when a duly noticed condominium association meeting was held. Four non- developer unit owners were elected to the five seats on the governing board. Sam Seppala, a contractor and president of the Respondent corporation, was formerly director of the condominium association's governing board. Although several informal meetings of unit owners were held, no duly noticed annual meeting was held in 1982 or in February, 1983. 1/ As Mr. Seppala explained, he was "too busy" and unaware of the February annual meeting date designated by the Declaration. Respondent admits that, during the time it controlled the association, it failed to call a meeting of the unit owners within sixty days of August 1, 1980, to allow unit owners (other than the developer) to elect one-third of the membership of the governing board. The budgets for the condominium association during 1982 and 1983, when the association was controlled by the developer, contained reserve accounts but did not separately designate or "line itemize" reserve accounts for roof replacement, building painting, and pavement resurfacing. Both before and after July 1, 1980, 2/ - until August 5, 1983, when the Notice to Show Cause was issued - Respondent paid no monthly common expense assessments for the units which it owned. It did, however, pay all of the condominium association's budgetary deficits during that period, and no net amount is now owed by it to the association. There is no evidence that the condominium association suffered any monetary loss from Respondent's failure to itemize reserve accounts for roof replacement, building painting, and pavement resurfacing, or from its failure to pay common expenses otherwise due for the units which it owns. Beginning in March, 1982, the Division notified Respondent - on four separate occasions - of the alleged violations which later became the subject of its Notice to Show Cause, resulting in this proceeding. Respondent was given ample opportunity to voluntarily comply with the statute, yet did not do so until September 1, 1983.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $3000 for multiple violations of Ch. 718, Florida Statutes. DONE and ENTERED this 5th 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 5th day of June, 1984.
The Issue The issues are as follows: (a) whether Respondents committed an unlawful employment practice by discriminating against Petitioner based on her sex and national origin; whether Respondents retaliated against Petitioner for complaining about the alleged discrimination; and, if so, what relief should be granted.
Findings Of Fact Petitioner is a female of Hispanic origin. She came to the United States from Cuba. Respondents are employers within the meaning of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Respondent Furniture Enterprises, LLC (Furniture Enterprises) is a Florida limited liability company. Its mailing address is 4200 Church Street, Suite 1030, Sanford, Florida. The managing partners of Furniture Enterprises are Dominic Persampiere, and his father, Anthony Persampiere. During the hearing, Dominic Persampiere testified that Furniture Enterprises, LLC, had no assets. In support of this testimony, Respondents offered a copy of an Order Authorizing Possession of Collateral that was entered on January 15, 2009, in Lane Furniture Industries, Inc. a/k/a Lane Home Furnishings Retail, Inc. v. Furniture Enterprises, L.L.C., in Case No. 08- CA-6968-16-W in the Circuit Court of the 18th Judicial Circuit, in and for Seminole County, Florida. Mr. Persampiere also testified that Furniture Enterprises conducted its last day of business on November 30, 2008, and was subsequently dissolved. However, there is no competent evidence that Furniture Enterprises was dissolved pursuant to Chapter 608, Florida Statutes, so as to discharge it from liability for all known and unknown claims, including the one at issue here. At all times relevant here, Furniture Enterprises conducted business in the fictitious name of Lane Home Furnishings. Furniture Enterprises was a licensed retailer for Lane Furniture Industries, Inc. a/k/a Lane Home Furnishings Retail, Inc. Respondent, The Leather Galleries, Inc. (Leather Galleries), is a Florida for-profit corporation. Its mailing address is 4200 Church Street, Suite 1030, Sanford, Florida 32771. Dominic and Anthony Persampiere are the officers/ directors of Leather Galleries. Persuasive evidence indicates that Leather Galleries was dissolved effective September 30, 2008. However, there is no competent evidence that Leather Galleries was dissolved pursuant to Chapter 607, Florida Statutes, so as to discharge it from liability for all known and unknown claims, including the one at issue here. T.L.G. Furniture, Inc., is a Florida for-profit corporation that is located at 4200 Church Street, Suite 1030, Sanford, Florida. T.L.G Furniture, Inc., owns Leather Galleries. Dominic and Anthony Persampiere are the owners/officers/directors of T.L.G. Furniture, Inc. Persuasive evidence indicates that T.L.G. Furniture, Inc. was voluntarily dissolved effective September 30, 2008. However, there is no competent evidence that Leather Galleries was dissolved pursuant to Chapter 607, Florida Statutes, so as to discharge it from liability for all known and unknown claims, including the one at issue here. Furniture Enterprises and Leather Galleries had common management, ownership, and financial control. They shared a centralized control of labor relations. Even so, the two business organizations do not constitute an integrated enterprise because they sold different merchandise, kept separate books, filed their taxes using different FEIN and sales tax numbers and, most importantly, maintained separate operations, including using separate delivery trucks. There is no competent evidence to show that merchandise was moved from one entity to the other. Petitioner interviewed with Anthony Persampiere at 4200 Church Street, Suite 1030, Sanford, Florida, for a job as a retail sales consultant for Furniture Enterprises. In September 2007, Anthony Persampiere hired Petitioner to work for Furniture Enterprises in the Lane Home Furnishings store located in Kissimmee, Florida. A person by the name of Todd was the manager of the Kissimmee store. Petitioner had no trouble getting along with the manager and sales staff in Kissimmee. There is no competent evidence to the contrary. After several weeks, Anthony Persampiere gave Petitioner the opportunity to transfer to another Lane Home Furnishings store. Petitioner subsequently began working at the Lane Home Furnishings store located in Altamonte Springs, Florida. The Altamonte Springs store was closer to Petitioner's home. Al Persampiere, the brother of Dominic Persampiere and son of Anthony Persampiere, was the manager of the Lane Home Furnishings Store in Altamonte Springs. Petitioner wrote two memoranda to Al Persampiere to complain about the "mishandling of the up-list" by sales consultants Gary David and Charles McCormick. The up-list is a rotating list of names that determines which salesperson gets the next customer. Petitioner later referred to her co-workers at the Lane Home Furnishings store in Altamonte Springs as a "rebellious duo." She referred to Gary David as "poisonous and distant" after Al attempted to correct the "list trickery." Petitioner was the top salesman in the Lane Home Furnishings Altamonte Springs store at one point in December 2007. Nevertheless, Anthony Persampiere transferred Petitioner to the Leather Galleries in January 2008 in part as a result of her complaints and her inability to get along with her co- workers. Petitioner's testimony to the contrary is not persuasive because her testimony is inconsistent with her statements in Petitioner's Exhibit P3. Petitioner did not have to fill out any papers to make the transfer to Leather Galleries. She continued to receive her paychecks prepared by PBS (Paycheck Business Systems) of Central Florida, Inc. The paychecks from Furniture Enterprises and Leather Galleries had different employer identification numbers. The Leather Galleries store was located across the street from the Lane Home Furnishings store in Altamonte Springs. A person named Dan was the manager at the Leather Galleries. A person named Ben was a male Caucasian sales consultant. On or about February 8, 2008, Ben called Petitioner stupid because she came from an island. He stated that all such people are stupid and ignorant and that everyone should speak Spanish to Petitioner. Ben also spoke about the size of his penis, telling Petitioner and a co-worker named Brenda what he had done with it. Dan was present at the time of the verbal abuse on February 8, 2008, but said nothing to Ben. When Petitioner complained, Dan stated, "I told you Ben was like that. One minute he is nice and the next minute he changes. " On February 9, 2008, Brenda and Petitioner went to Dan to complain and make Dan aware about Ben's use of the "f" word. Petitioner wanted Dan to make Ben stop embarrassing her in front of other associates and customers. On February 11, 2008, Petitioner wrote Dan a memorandum describing Ben's constant harassing behavior as set forth above. Petitioner requested that Dan take care of the matter without delay. There is no evidence that Dan took any corrective action. On the morning of February 15, 2008, Petitioner was at work by 9:35 a.m., ready to take the first customer. Ben signed in as the second salesperson on the up-list. The first customer to arrive wanted to speak to the manager. Petitioner then decided to take the second customer. Ben immediately began accusing Petitioner of taking his customer. Ben began cursing Petitioner, saying the "f" word, stating she was a piece of "s," and claiming that he was going to kick her ass. Ben told Petitioner that she would see who would leave first because she was a troublemaker that no one, including Al and Todd, wanted. Petitioner immediately went to Dan's office and found the room empty. Realizing that she was alone with Ben, Petitioner called the corporate office located at 4200 Church Street, Suite 1030, Sanford, Florida. She also called the police and filed an electronic complaint against Ben. Petitioner then waited outside for the police to arrive. When the police arrived, Al came across the street from the Lane Home Furnishings store to speak to them. Al represented himself as manager of the Leather Galleries. Al told the police that he had problems with Petitioner in the past. Al then sent Petitioner home, telling her to "go home, take a bubble bath, and relax." On February 15, 2008, Petitioner wrote a memorandum to Dominic, Anthony, and Al Persampiere regarding the police report dated that same day. In the statement, Petitioner reviewed the facts of the incident with Ben earlier that day and other incidences involving Ben's inappropriate behavior. Petitioner's memorandum stated that she was a threat to Ben, who wanted her out. Petitioner complained that she, and not Ben, had been sent home. Petitioner also wanted Dominic, Anthony, and Al to remove Al's comment, about her being a problem in past, from the police report. Petitioner faxed the memorandum to the corporate office at 4200 Church Street, Sanford, Florida. The next day, Petitioner went to work at the Leather Galleries. Dan and all the other sales associates, including Ben, were at the store. Petitioner was waiting for a customer when she got a telephone call from Anthony Persampiere, telling her that she was terminated. Ben was not disciplined for his inappropriate behavior on February 15, 2008. Petitioner has not been able to find a job after being terminated by Leather Galleries. She has looked for jobs in retail sales and telemarketing. She has applied for 20-to-30 jobs a week, receiving no interviews or call backs. While Petitioner was employed with Respondents, she earned a draw of $300 per 40-hour week plus commissions in excess of the draw. She has suffered a minimum of $26,400 in lost wages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief against Respondent Furniture Enterprises, LLC, granting the Petition for Relief against Leather Galleries, Inc., and awarding Petitioner lost wages in the amount of $26,400. DONE AND ENTERED this 16th day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2009. COPIES FURNISHED: David W. Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Dominic Persampiere The Furniture Enterprises, LLC, d/b/a Lane Home Furniture 485 Suncrest Court Oviedo, Florida 32765 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times here relevant Charles E. Morris, Respondent, was duly licensed by the Florida Board of Real Estate as a real estate salesman. He is presently licensed as a broker-salesman. Michael E. Weber and Janet Weber, his wife, while vacationing in Florida during the latter part of March 1980, decided they would like to move to Florida. Upon their return to Illinois in early April, they contacted a local realtor who referred them to Tam Bay Realty in Tampa to provide assistance in acquiring a business in the Clearwater-Dunedin area. The Tam Bay main office in Tampa passed the referral to its Clearwater Branch Office. Barbara Morris, then wife of Respondent, who was acting as branch manager of the Tam Bay Office at 3168 U.S. Highway 19 North, Clearwater, Florida, contacted the Webers to ascertain their desires regarding the purchase of a business. Several telephone calls were made in which the Webers talked to Barbara Morris and to Respondent. During these conversations, the Webers generally outlined their financial situation and the magnitude of the business (from a profit standpoint) in which they were interested. Barbara Morris turned the Webers over to Respondent after advising them that he was more experienced in commercial sales. The Webers were told of a bakery that might suit their needs but, before they could look into it, the business became unavailable. The Webers returned to Florida in late June and contacted Respondent, who first met them June 23, 1980, and showed them a toy store in a mall which, it turned out, would not produce enough income to satisfy their needs. Immediately thereafter, on June 24, 1980, the Webers were shown Direct Factory Mattress Sales, a company listed with Tam Bay Realty on 23 June and which was for sale for $37,500. When the Webers arrived in Florida in June 1980 they had $17,000 which Michael Weber had accumulated in a profit-sharing plan with the company he worked for before quitting to come to Florida. The Webers also owned a home in Illinois which they were in the process of selling. Out of the sale of that residence, they expected to realize approximately $20,000. This information was passed to Respondent, as was the information that they had no other resources and expected the business they acquired to immediately generate earnings from which they could support themselves. To meet their expected requirements, approximately $40,000 per year was needed from the business they would acquire. Prior to 24 June 1980 Respondent had never visited Direct Factory Mattress Sales and had never met the owner, Joseph Afonso. The listing agreement held by Tam Bay Realty (Exhibit 10) had attached thereto a multiple listing form on which various details of the business were contained. That form showed gross income for 1979 of $135,042 with expenses of $113,069, leaving net before taxes of under $22,000. Upon arrival at Direct Factory Mattress Sales, Respondent and the Webers met the owner, Joseph Afonso, who showed them around the business. When the Webers told Afonso how much they needed from the business for living expenses and that some income would be needed immediately, he told them that he had similar expenses and the mattress business had satisfied those needs. When asked about the discrepancy between $40,000 and the profits generated on the profit and loss statement, Afonso told Weber that cash sales for used mattresses generated a significant part of his income and they were not included on the profit and loss statement. When asked to see his income tax returns, Afonso demurred, saying those were his private records and he would not produce them. Respondent made no independent inquiry or investigation but relied upon the statements of Afonso, to assure the Webers that Direct Factory Mattress Sales would meet their requirements and urged them to sign the Contract to Purchase. On 24 June 1980 Weber executed a contract (Exhibit 5) prepared by Respondent in which he agreed to purchase Direct Factory Mattress Sales for $37,500 and paid $10,000 cash as a deposit. The seller agreed to take a purchase money mortgage for the $27,500 balance, $10,000 of which was to be repaid when the Webers sold their house in Illinois. Shortly thereafter the Webers contracted to purchase a residence on which they made a $3,000 down payment and agreed to execute a mortgage, to be held by seller, payable at the rate of $750 per month. Respondent accompanied the Webers to see this house and assured them at the time they executed this contract that the income from Direct Factory Mattress Sale would be sufficient to make those payments. The form on which the contract for the purchase and sale of Direct Factory Mattress Sales was written was a form adopted for residential sales; however, it was the only form available to Respondent in his office. After preparing the contract and getting it signed by the parties, Respondent signed as witness for all signatures and he also signed for Tam Bay Realty, Inc. in the space advising that the undersigned realtor procuring the contract is the agent of the seller. It was customary for experienced salesmen working for Tam Bay Realty in this branch office to sign contracts in this manner. Such contracts are forwarded to the main office where the active broker is located but no evidence was presented that he countersigns those contracts signed by the salesman (or office manager in some offices) as agent for Tam Bay Realty, Inc. The evidence was conflicting whether the office manager signs all of these contracts before they are sent to the main office. One witness testified (Exhibit 13) that the policy was for the manager to sign all of these contracts; however, the written policy manuals and training manuals for Tam Bay Realty do not contain such a requirement. The evidence was not disputed that the office manager is supposed to review all contracts before they are sent to the main office. Failure to do so would not impair the validity of the contract. Here, the office manager, in the branch office in which Respondent works, was the wife of Respondent, and she testified that she reviewed the contract here involved which was prepared and signed by Respondent. Although she testified that she had no independent recollection of this particular contract, her testimony that she reviewed the contract in compliance with company policy was unrebutted. Apparently good rapport was established between Respondent and Michael Weber, and the Webers relied on Respondent to "take good care of them" in this transaction as he assured them he would. When asked by the Webers if they should have an attorney to represent them, Respondent advised that he did not think it necessary and that the attorney who handled the closing would be impartial and not represent either party. Weber and Afonso had toured the store and checked the inventory but no list was made of the inventory and presented to the Webers until the closing on 15 July 1980. Respondent had suggested provisions in the contract that Afonso would stay around for three weeks after the closing to help them get started in business and that he would not open a competing store within a seven-mile radius for at least three years. These provisions were included in the contract. Afonso agreed with Weber that he (Afonso) would pay the rent for July and that Weber could occupy the premises after the closing for the balance of July without cost. This provision was not inserted in the contract and at closing Weber found himself having to pay one-half of the July rent. Prior to closing Weber negotiated a new lease with the landlord as Afonso's lease expired July 31, 1980. At Respondent's suggestion he asked for and was given a three-year lease at a cost of $25 per month more than Afonso had paid. However, this increase would have been applied to Afonso's rent had he not sold the business. In addition, the landlord had recently instituted a policy which required damage deposits equal to one month's rent and this policy was applied to Weber's lease (Exhibit 12) At the closing on 15 July 1980 Weber did not have enough cash to cover the $437.50 in closing costs and Respondent loaned him $100. Also at the closing Afonso could not produce the title to the step-van that was included in the sale and attorney told him that he would have to get the title "squared away" and provide the buyers with title to the step-van. The written inventory provided at the closing was less than seen and agreed to at the time the contract was executed but the Webers accepted this inventory without complaint and without comment from Respondent. At the time this contract was entered into the Webers were in a hurry to get established in a business. After executing the contracts to purchase Direct Factory Mattress Sales and a house, they returned to Illinois to move their belongings to Florida. Their primary concern appears to have been to get started in business so they could generate income with which to provide the necessities of life. However, during the first week they were in business their gross sales were less than $1,800. On August 1, 1980, they were unable to pay their rent due for August or the damage deposit. On 7 August 1980 the landlord padlocked the door for nonpayment of the rent. The Webers removed the inventory, which they sold, and closed the business and returned to Illinois.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order imposing on Respondent, J. Kent Staley, a $1500 fine, payable within six months, and, starting in six months, suspending his license as a real estate broker for up to 10 years or until the fine is paid in full, whichever first occurs. RECOMMENDED this 9th day of June, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of June, 1987.
The Issue The issue framed by the Notice to Show Cause is whether Allison on the Ocean, Inc., violated Section 718.502(2)(a), Florida Statutes (1984 Supp.) by accepting a deposit of $85,000 and executing a "Memorandum of Agreement" with Hildagard Waltraud Bitton when that Memorandum of Agreement had not been approved for use as a reservation agreement form by the Division of Land Sales Condominium and Mobile Homes?
Findings Of Fact Allison on the Ocean, Inc., is an active, for profit Florida Corporation (PX 4). 1/ Ms. Chantal Fianson is the owner of all five hundred shares of authorized stock in Respondent (PX 4; testimony of Ms. Fianson). The Allison Hotel in Miami Beach, consisting of studio apartments, was leased by Ms. Fianson. She intended to convert it to condominium ownership. Apparently the lease was held in the name of Allison on the ocean, Inc. An attorney was retained by Ms. Fianson to prepare the necessary papers for the condominium conversion. In connection with that conversion application, a reservation deposit agreement had been submitted to the Department of Business Regulation, copy of which was entered into evidence as PX 2. After those conversion papers were submitted to the Division in Tallahassee, Ms. Fianson was informed in April 1954 that the condominium conversion would not be approved because although she had a long-term lease, a condominium project required ownership of the land on which the building stood (testimony of Ms. Fianson). Before the Department of Business Regulation declined to approve the condominium project as originally proposed by Ms. Fianson, on March 2, 1984, an agreement entitled "Memorandum of Agreement" was executed between Allison on the ocean, Inc., and Hildagard Waltraud Bitton by their respective representatives stating Ms. Bitton's intent to purchase or sublease three units in the property (PX 1). That memorandum shows by its terms that it was not intended to be the contract for the purchase and sale of the units. It provided for the cancellation of the agreement within ninety days, at the buyer's option, and stated that the validity and the interpretation of the agreement would be governed by Florida law (PX 1 paragraph 7). Ms. Bitton paid $85,000 to Allison on the Ocean, Inc., in connection with this Memorandum of Agreement, which money was then used for expenses related to the conversion of the building to a condominium (testimony of Ms. Fianson). Significantly, the prefatory "whereas" clauses in the agreement stated that "Developer is in the process of converting the Allison Hotel, located at 6261 Collins Avenue, Miami Beach, Florida to a Condominium . . ." after which by hand interlineation was written "or SUB LEASE" and the initials of the representatives of both parties appear. The memorandum expressed the intention of the parties that if the proposed condominium conversion were not approved, Ms. Bitten would receive not a fee ownership in condominium units, but a sublease of an unspecified term from the lessee-developer, under the long-term lease which the Respondent did have on the Allison Hotel. The attorney for the purchaser/lessee Ms. Bitten drew up the Memorandum of Agreement (PX 1), and it was not submitted to the Division for review before it was executed. After learning in April 1984 that the condominium project would not be approved, Ms. Fianson did arrange to purchase the land from its owner, and another lawyer was obtained to file condominium documents reflecting the fee ownership by the developer. In the interim, the condominium market became very bad, and ultimately the bank which had provided the Respondent the purchase money mortgage for the property foreclosed on the Allison Hotel. The evidence does not show whether the $85,000 which was used in the conversion process was ever returned to Ms. Bitton.
Recommendation It is recommended that the notice to show case issued in this case be dismissed. DONE AND ORDERED this 5th day of September 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 5th day of September 1986.
Findings Of Fact Petitioner owns property located at 530 Mandalay Avenue, Clearwater, Florida, on which a 14-unit, two-story hotel is located. The property is zoned CTF-28. The existing motel is non-conforming to the building and zoning regulations in the following specifics: Density. The zoning regulations allow 42 motel units per net acre. The property is now developed with a density of 70 units per net acre. Lot area. Minimum size lot on which a motel may be constructed is 10,000 square feet. This lot size is 8700 square feet. Setbacks. Required setback is 15 feet. The existing setback from public right-of-way is virtually zero and on the south and west sides the building is within five feet of the property line and stairways encroach into those areas. Impermeable surfacing. Maximum permissible impermeable surfacing is 75 percent of the property. At this site impermeable surfacing occupies 85 percent of the property. Parking. Regulations require 14 parking spaces. Here there are only seven spaces and some of those are located in the public right-of-way. Petitioner is requesting a variance to construct a storage/office building within three feet of the east property line and construct a roof and sundeck with zero clearance from the property line at Mandalay Avenue. Granting this variance will make the property more non-conforming than it is at present. Petitioner contends that the property will be upgraded if the variances requested are granted. No credible evidence was presented to justify the variances requested.
Findings Of Fact On August 1, 1979, Deputy Alvin Pollock of the Broward County Sheriff's Department went to the Black Cat Lounge with an informant who had furnished information previously that had led to the arrest of six individuals. Before leaving for the Black Cat Lounge, Deputy Pollock searched the informant and determined that he had no money or contraband on his person. Deputy Pollock then gave him some money. At the Black Cat Lounge, Deputy Pollock waited outside in the car while the informant went inside. After the informant returned, Deputy Pollock drove him to another location and searched him. He found no money but did find a foil packet containing heroin. Deputy Pollock subsequently executed an affidavit and applied for a search warrant which was issued on August 10, 1979. Petitioner's exhibit No. 1. On the night of August 10, 1979, Deputy Pollock., Sgt. Robert Dietrich of the Fort Lauderdale Police Department, Deputy Dennis Robert Gavalier of the Broward County Sheriff's Department, petitioner's Sgt. Russell R. Smith, Beverage Officer David William Shomers and more than a half dozen other law enforcement officers assembled at the Black Cat Lounge. Deputy Pollock gave the same informant who had accompanied him on August 1, 1979, a marked ten dollar bill with which to effect a second "controlled buy." After the informant had completed this mission, the law enforcement officers prepared to enter the bar. Deputy Pollock called out, "Deputy Sheriff. I have a search warrant for the promises. Everybody freeze." He then led a group of law enforcement officers through one door of the Black Cat Lounge while another group entered through another door. Respondent Richard Morgan was thrown to the floor and his hands were handcuffed behind him. "For safety reasons," more than ten patrons on the premises received similar treatment. On top of a ledge formed by a false ceiling over two bathrooms inside the Black Cat Lounge, law enforcement officers found a light brown purse, a dark brown purse, and a black pouch with the word "Kawasaki" printed on it. Inside the pouch were nine manila envelopes containing marijuana. Inside the light brown purse were thirteen foil packets containing heroin. Inside the dark brown purse were twenty-eight foil packets containing cocaine. Petitioner's Sgt. Russell R. Smith discovered a single marijuana cigarette on the floor near the west wall of the establishment. The cigarette was unlighted and unburnt. Detective Sgt. Robert Dietrich discovered a Smith & Wesson .38 revolver under a baseball cap on a shelf behind the bar. Although respondent Richard Morgan told Sgt. Dietrich that the gun belonged to him, he testified at the hearing that he had taken the pistol as collateral for repayment of a loan of $10.00 he had made earlier on August 10, 1979, to a man named George, whom he knew well but has not seen since. The gun belonged to Ranion Osmond and was stolen from Mr. Osmond's residence at 704 Northwest 20th Avenue, Fort Lauderdale, on or before April 14, 1979. Petitioner's exhibit No. 2. Before petitioner shut it down, tide Black Cat Lounge was the meeting place for a motorcycle club whose members numbered 32 on the Saturday the search warrant was executed. The club had last met on the preceding Wednesday. All members of the club had access to a storage space near the bar in the northeast corner of the Black Cat Lounge, which contained a stove and a refrigerator. In this storage space, the officers executing the search warrant found two books of financial records. In one book the members of the motorcycle club were listed opposite the amounts of dues they had paid. One of the books held about $150.00 in five, ten and twenty dollar bills. The searching officers found a bag of twenty dollar bills inside the oven. They also discovered an open bag of marijuana resting on a horizontal board in the wall. A search of respondent Richard Morgan yielded some $400.00 in cash, including the marked ten dollar bill which had entered the premises in the custody of the informant. Respondent Richard Morgan's left thumb print was discovered on a foil packet found in one of the purses. The packet contained heroin or cocaine; it was not clear from the evidence which. Respondent Richard Morgan used aluminum foil to wrap the fish sandwiches he sold to bar patrons. Mr. Morgan owns a Kawasaki motorcycle which was parked inside the Black Cat Lounge on the night of August 10, 1979. Respondent Ella Morgan left the running of the Black Cat Lounge to her husband and spent less than an hour a week on the premises, on the average.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondents' license. DONE and ENTERED this 7th day of August, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James M. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301 Martin Moncarz, Esquire 200 S.E. 6th Street Suite 204 Fort Lauderdale, Florida 33301
