The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact Respondent James G. Adair is and at all material times has been licensed as a real estate broker, Florida license number 0409004, t/a Investor's Equity, 415 Beckwith Road, Suite 210, Panama City, Florida 23407 In November, 1988, Respondent negotiated a contract for the sale of real property identified as the Stopway Grocery. Said contract identified the purchasers of the property as Pakesh Jethani and Suresh S. Satiana. The Stopway Grocery property was owned by James A. White and located in Panama City, Florida. Respondent obtained an earnest money deposit in the amount of $5,000, allegedly from the purchasers, which was deposited into the Investor's Equity escrow account. Subsequently to the execution of the original contract, addenda to the contract were negotiated and agreed between the parties. The sale was to scheduled to close in December, 1988. During the period of time between the contract execution and the scheduled date upon which the sale was to close, the seller repeatedly contacted the Respondent to assure himself that the sale and closing were proceeding appropriately. At no time did Respondent inform the seller of any problems with the transaction or suggest that the sale would not close in December, 1988. The transaction did not close on the scheduled date. Neither the Respondent nor the purchasers attended the scheduled closing. Subsequent to the closing date, the seller contacted the buyers identified in the contract, at which time the seller learned that the buyers would not complete the transaction. The seller obtained legal representation. A demand for the escrow deposit was made on behalf of the seller. By letter dated May 1, 1989, Respondent informed the Petitioner that a dispute related to the escrow deposit had arisen between the parties to the transaction. By letter dated May 15, 1989, Petitioner advised Respondent of alternative methods by which the dispute could be resolved, and requested that Respondent notify Petitioner of the method chosen. After receiving no response, Petitioner, by letter dated July 14, 1989, again requested that Respondent notify Petitioner of the dispute resolution method chosen. As of July 1, 1991, Petitioner has received no further information from Respondent. Subsequent to the July 14, 1989 letter, an investigator for the Petitioner went to the Investor's Equity office in order to review the escrow account documentation. 1/ He was unable to do so because the books and records were not at the office but rather were allegedly in the Respondent's possession. The investigator attempted to contact both the Respondent and the alleged buyers in order to ascertain the disposition of the escrow deposit, but was unable to locate any of them. The Respondent's partner in the Investor's Equity operation, Robert Hodges handled mortgage brokerage activities for the business. The Respondent performed the real estate brokerage activities. Hodges testified that the referenced escrow deposit was received, but stated that the Respondent had stopped coming to the office during this time and was absent from the premises for more than one year. Hodges eventually closed the Investor's Equity operation. He stated that the relevant deposited funds were not in the escrow account, but was unable to otherwise identify the disposition of the deposit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order revoking the real estate broker licensure of James G. Adair. DONE and ENTERED this 1st day of August, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1991.
The Issue The issue in this case is whether the methodology that Respondent uses to determine the amounts payable to pharmacies for prescription drugs dispensed to Medicaid beneficiaries constitutes an invalid exercise of delegated legislative authority on the ground that the methodology in question, which is incorporated by reference in Florida Administrative Code Rule 59G-4.250, enlarges, modifies, or contravenes the specific provisions of law implemented.
Findings Of Fact The Parties Medicaid is a cooperative federal-state program in which Florida participates in partnership with the national government. Medicaid provides medically necessary health care—— including, relevantly, prescription drugs——to lower income persons. In addition to shouldering administrative and regulatory responsibilities, Florida partially funds the Florida Medicaid Program, contributing about 42 percent of the money budgeted for the program's operation in this state. Federal funds make up the balance. Respondent Agency for Health Care Administration (the "Agency") is the state agency charged with administering the Medicaid Program in Florida. (At the federal level, the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services, known collectively as "CMS," is the agency authorized to administer Medicaid.) Among other things, the Agency is responsible for reimbursing Medicaid providers in accordance with state and federal law, subject to specific appropriations. In this connection, the Agency is authorized and required to prescribe, by rule, reimbursement methodologies. The Agency is permitted to publish such methodologies in policy manuals and handbooks, provided the latter are incorporated by reference in duly promulgated rules. Petitioner, The Florida Retail Federation, Inc. (the "Federation"), is a trade association whose members include all or most of the major drugstore chains doing business in Florida. These drugstore chains, which include Walgreen's, CVS, Eckerd's, Albertson's, Publix, Winn-Dixie, Target, and Wal-Mart, participate in the Federation's Chain Drugstore Council, which is the only organization in this state representing the interests of drugstore chains. Members of the Federation's Chain Drugstore Council operate more than 2,500 separate pharmacies, each of which is an enrolled Medicaid provider of prescription drugs. Given that there are approximately 4,000 pharmacy-providers participating in the Florida Medicaid Program, the Federation represents a significant percentage of the enrolled pharmacies. The Federation advocates on behalf of its members before the Florida Legislature and the state regulatory agencies. Medicaid funding is one of the organization's top priorities. The Federation brought the instant proceeding because it believes that the Medicaid Program has been under- reimbursing its members based on a methodology that contravenes the applicable Florida statutes. The Disputed Rule The Medicaid reimbursement methodology for prescribed drugs is set forth in the Florida Medicaid Prescribed Drugs Services Coverage, Limitations, and Reimbursement Handbook, July 2001 (the "Handbook), which Handbook was incorporated by reference in, and hence adopted via Section 120.54(1)(i)1., Florida Statutes, as, Florida Administrative Code Rule 59G- 4.250. The methodology, which will be referred to hereafter as the "Reimbursement Rule," limits the amount that the Medicaid Program will pay for prescription drugs, as follows: Reimbursement for covered drugs dispensed by a licensed pharmacy that has been approved to be an eligible provider, or a physician filling his own prescriptions if there is no licensed pharmacy within a ten mile radius of his office, shall not exceed the lowest of: Average Wholesale Price (AWP) minus 13.25 per cent of the drug, (also known as the Estimated Acquisition Cost or EAC) plus the dispensing fee; Wholesaler Acquisition Cost (WAC) plus 7 per cent plus the dispensing fee; Federal Upper Limit (FUL) price plus the dispensing fee; The State Maximum Allowable Cost (SMAC) plus a dispensing fee established by the state on certain categories of drugs not reviewed by CMS (formerly HCFA); or Amount billed by the pharmacy, which cannot exceed the pharmacy’s average charge to the public (non-Medicaid) in any calendar quarter, for the same drug, quality, and strength. This average is known as the pharmacy’s usual and customary charge for the prescription. By its plain terms, the Reimbursement Rule (a) requires that five separate methods for determining reimbursement be applied with respect to each prescription and (b) mandates that the maximum allowable payment for each prescription be the lowest dollar amount resulting from the application of these five methods to the claim at hand.1 For ease of reference, the five separate methods enumerated in the Reimbursement Rule will be referred to collectively as the "Limits." Individually, the Limits will be called the "First Limit," "Second Limit," etc., with the numerical adjective corresponding to the order in which the Reimbursement Rule lists the respective Limits. (Thus, for example, the First Limit is the one based on average wholesale price; the Fourth Limit references the state maximum allowable cost.)2 The Reimbursement Rule was promulgated to implement two statutes in particular. One of these was Section 409.908, Florida Statutes, which provided in pertinent part as follows: A provider of prescribed drugs shall be reimbursed the least of the amount billed by the provider, the provider's usual and customary charge, or the Medicaid maximum allowable fee established by the agency, plus a dispensing fee. § 409.908(14), Fla. Stat. (2003). The other was Section 409.912, Florida Statute, which directed, in relevant part, that "[r]eimbursement to pharmacies for Medicaid prescribed drugs shall be set at the average wholesale price less 13.25 percent." § 409.912(40)(a)2., Fla. Stat. (2003). The Challenge The Federation filed its Petition for Invalidity of Rule ("Petition") on May 19, 2004, initiating the instant proceeding. The Petition describes a straightforward objection to the Reimbursement Rule, namely that the prescribed Limits include methods for determining reimbursement in addition to "average wholesale cost less 13.25 percent," which latter, according to the Petition, constitutes the exclusive method for reimbursing pharmacies, pursuant to Section 409.912(40)(a)2., Florida Statutes (2003). Thus, the Federation alleged, only the First Limit is permissible; the rest are unauthorized, and the Reimbursement Rule enlarges, modifies, or contravenes Section 409.912(40)(a)2. for using them, making the Reimbursement Rule an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c), Florida Statutes. As this proceeding progressed, the Federation's position became a bit more complicated. Forced to deal with Section 409.908(14), Florida Statutes (2003), which was not mentioned in the Petition, the Federation effectively conceded (assuming it ever disputed) that "amount billed" and "usual and customary charge" are statutorily authorized methods for calculating reimbursement, in addition to discounted average wholesale price. Unable as a result to argue that the Fifth Limit should be rejected in toto, the Federation claimed instead that the Reimbursement Rule's definition of "usual and customary charge" enlarges, modifies, or contravenes the use of that term in Section 409.908(14), Florida Statutes (2003). On this point, the Federation presented expert testimony at hearing that "usual and customary charge" is a term of art used in the industry to mean the amount a pharmacy charges cash paying customers who have no insurance coverage for the prescription in question. The Reimbursement Rule's definition, in contrast, does not restrict the scope of "usual and customary charge" to uninsured customers, but rather requires that charges to all non-Medicaid customers be taken into account in determining the average charge that equals "usual and customary charge." Because private insurers and HMOs typically negotiate discounts not available to uninsured consumers, the inclusion of amounts charged to insured customers in the equation for calculating "usual and customary charge," à la the Reimbursement Rule, is likely to produce, in most instances, a lower "usual and customary charge" than would obtain were charges to insured customers excluded from the calculation. The Federation argues that the legislature intended "usual and customary charge" to have the more generous technical meaning that the industry ascribes to it, and therefore that the Reimbursement Rule enlarges, modifies, or contravenes the specific law implemented by giving the term a different, more parsimonious meaning. Confronting Section 409.908(14) also compelled the Federation to argue that, while the section imposes (and hence enables the Agency to implement) limits on reimbursement in addition to discounted average wholesale price, the reference therein to "the Medicaid maximum allowable fee established by the agency" as an alternative reimbursement limit nevertheless cannot be construed as authority for the adoption of a methodology that would result in reimbursement at less than the least of (a) the amount billed by the provider, (b) the provider's "usual and customary charge" (as the Federation would define that term), or (c) average wholesale cost less 13.25 percent. In this regard, the Federation asserts that Section 409.908(14) and Section 409.912(40)(a)2.——which might at first blush appear to be inconsistent with one another——can easily be harmonized by construing "Medicaid maximum allowable fee established by the agency" to mean "average wholesale price less 13.25 percent." The Agency's Defense of Reimbursement Rule The Agency's arguments in support of the Reimbursement Rule can be reduced to two principal propositions. First, the Agency insists that if it were to reimburse pharmacies for all prescribed drugs at average wholesale price less 13.25 percent, the resulting payments, in the aggregate, would exceed federal limits on reimbursement, for reasons that need not detain us here. Exceeding federal limits, the Agency asserts, could cause CMS to take adverse action against the Florida Medicaid Program, perhaps putting at risk Florida's continued receipt of federal matching funds. Second, the Agency contends that Section 409.912(40)(a)2., Florida Statutes (2003), which requires that reimbursement be set at the average wholesale price less 13.25 percent, does not establish a floor (as the Federation maintains) but rather, when read in conjunction with Section 409.908(14), Florida Statutes (2003), prescribes another potential ceiling in addition to the pharmacy's actual charge, "usual and customary charge," and "the Medicaid maximum allowable fee established by the agency," which are the other potential ceilings pursuant to Section 409.908(14). Under this interpretation of the statutes, application of the Reimbursement Rule always produces the Medicaid maximum allowable fee established by the Agency——a statutorily authorized limit——and if that fee happens in a given situation to be less than the discounted average wholesale price, so be it. The New Statutory Methodology The 2004 Legislature amended Sections 409.908(14) and 409.912(40)(a)2., Florida Statutes (2003), enacting a bill (House Bill No. 1843) that was signed by the governor while this case was pending, on May 28, 2004. See Laws of Florida, Ch. 2004-270, §§ 12 and 17. The relevant statutory amendments took effect on July 1, 2004, id. at § 25, which was shortly after the final hearing in this case——and prior to the date of this Final Order. As amended, Section 409.908(14), Florida Statutes (2004), reads in relevant part as follows, with the recently added language underlined: A provider of prescribed drugs shall be reimbursed the least of the amount billed by the provider, the provider's usual and customary charge, or the Medicaid maximum allowable fee established by the agency, plus a dispensing fee. The Medicaid maximum allowable fee for ingredient cost will be based upon the lower of: average wholesale price (AWP) minus 15.4 percent, wholesaler acquisition cost (WAC) plus 5.75 percent, the federal upper limit (FUL), the state maximum allowable cost (SMAC), or the usual and customary (UAC) charge billed by the provider. As amended, Section 409.912(40)(a)2., Florida Statutes (2004), provides in pertinent part as follows, with the newly added language underlined and recently deleted language stricken through: Reimbursement to pharmacies for Medicaid prescribed drugs shall be set at the lesser of: the average wholesale price (AWP) minus 15.4 percent, the wholesaler acquisition cost (WAC) plus 5.75 percent, the federal upper limit (FUL), the state maximum allowable cost (SMAC), or the usual and customary (UAC) charge billed by the provider the average wholesale price less 13.25 percent. Collectively, Sections 409.908(4) and 409.912(40)(a)2., Florida Statutes (2004), will be referred to hereafter as the "New Statutory Methodology."
The Issue An Administrative complaint dated April 13, 1999, alleges that Respondent Mr. Stevens violated several provisions of Section 475.25, Florida Statutes, when he failed to return an earnest money deposit to a buyer after being directed to do so by the seller, the U.S. Department of Veterans Affairs. The issues in this proceeding are whether Mr. Stevens committed the violation and if so what discipline is appropriate.
Findings Of Fact Respondent, Collie E. Stevens, has been licensed in the State of Florida as a real estate broker since 1986. Prior to that year he was licensed as a real estate salesperson in Florida. In 1996 Mr. Stevens represented the seller, the U.S. Department of Veterans Affairs (VA), in the sale of a home in Orange County, Florida. On October 1, 1996, Doris Wright executed an Offer to Purchase and Contract of Sale for the home. When she signed the contract Ms. Wright gave the broker, Mr. Stevens, a check for $675.00 as an earnest money deposit. Mr. Stevens deposited the check into his escrow account. Later, in October or November 1996, Ms. Wright withdrew her offer to purchase the property. The VA regional office provided a notice to Mr. Stevens dated November 20, 1996, directing him to return the earnest money deposit to Ms. Wright. Mr. Stevens never returned the money to Ms. Wright although she made several requests through his secretary and made several attempts to contact him directly. Mr. Stevens alleges that he is entitled to retain at least $250.00 of the $675.00 deposit because that was the mortgage company's fee for processing Ms. Wright's mortgage application. Mr. Stevens claims that Ms. Wright authorized him to pay that fee on her behalf when she was not in town; Ms. Wright does not dispute that claim. Mr. Stevens also argues that he should be entitled to the remainder of the deposit money because Ms. Wright cancelled a listing agreement for him to sell her house. Ms. Wright disputes this claim and Mr. Stevens did not produce any contract or document evidencing such an agreement. During the pendancy of his dispute with Ms. Wright over entitlement to the deposit Mr. Stevens never notified the Florida Real Estate Commission of the dispute nor did he submit the matter to arbitration, mediation, or any court. Mr. Stevens insists that he could have worked out his differences with Ms. Wright and that he was always willing to give her $425.00, left after deducting $250.00 for the processing fee from the $675.00 deposit. In 1996, in another case, Mr. Stevens was disciplined by the Florida Real Estate Commission for culpable negligence or breach of trust, failure to give notice of his representation of a party, failure to maintain trust funds in an escrow account, and failure to preserve and make available brokerage records.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission issue a final order finding that Collie E. Stevens is guilty of a violation of Sections 475.25(1)(d)1. and 475.25(1)(0), Florida Statutes, as charged in the Administrative Complaint, and that the Florida Real Estate Commission suspend his license for two years and require him to complete a 7-hour escrow management course and a 60-hour post-licensure course, and that he pay the costs associated with this case. DONE AND ENTERED this 19th day of June, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of June, 2000. COPIES FURNISHED: Andrea D. Perkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 308N Orlando, Florida 32801-1772 Collie E. Stevens Son Set Free Realty, Inc. 2294 North U.S. One Fort Pierce, Florida 34950 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent is guilty of dishonest dealing by trick, scheme or device in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes (2008),1 and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for issuing real estate sales associate licenses and monitoring compliance with all statutes, rules, and regulations governing such licenses. Respondent was at all times relevant to this proceeding a licensed real estate sales associate in the State of Florida and held License No. 3115665. In March 2006, Respondent was introduced to Willie Belle Lewis (Lewis) by a mutual acquaintance. Lewis was interested in selling her house, and Respondent agreed to work for Lewis in that regard. On March 13, 2006, Lewis and Respondent entered into an Exclusive Right of Sale Listing Agreement (the "Agreement"). Under the Agreement, Respondent was to act as Lewis' sales agent for sale of the house. Pursuant to paragraph 7 of the Agreement, Respondent was to receive a commission of six percent of the purchase price. Respondent initially requested a seven percent commission which was the ordinary and customary amount at that time, but agreed to six percent in deference to Lewis' request (and due to the fact that Lewis had recently lost her grandmother and Respondent empathized with her, having just lost her mother). In one version of the Agreement admitted into evidence, there is a notation that any cooperating real estate agent (presumably a buyer's agent) would receive a commission equal to three percent of the purchase price, i.e., one-half of Respondent's six percent commission. Another version of the Agreement admitted into evidence did not address sharing the commission with a cooperating agent. At some point in time (which was not clearly defined during testimony at final hearing) Lewis and Respondent re-negotiated the amount of Respondent's commission.2 Lewis maintains that the re-negotiated commission was three percent; Respondent says the re-negotiated commission was four percent. Respondent's testimony was more credible on this point. The amount of the new commission was not reduced to writing or indicated on either version of the Agreement. There is no indication, for example, what Respondent's commission would have been if a cooperating agent had been involved. It is highly unlikely that Respondent or any other agent would agree to a two percent commission, i.e., one-half of four percent (or 1.5 percent, one-half of three percent). Once the Agreement was signed, Respondent immediately began efforts to sell the Lewis house. Respondent invited Lewis to her (Respondent's) house and offered Lewis plants and flowers from Respondent's yard. Respondent and Lewis dug up various plants and transferred them to Lewis' yard to generate some "curb appeal," i.e., to dress it up for potential buyers. Within days, a potential buyer was found. A Contract for Sale and Purchase (the "Contract") was entered into between Lewis and Mrs. Bibi Khan. Respondent was listed as the seller's agent; no agent was indicated for the buyer. In fact, Respondent agreed to act as buyer's agent as well, performing services as both an agent and a broker. Again, there were two versions of the sales Contract admitted into evidence. On one version, Respondent's signature included only her first name; on the other it included her first and last name. On one version of the Contract, there appears to be "white-out" on Respondent's signature line. Contained and legible under the whited-out portion of the signature is the phrase "3%." Respondent admits she whited out the three percent figure, but that it was done after the closing occurred. The three percent figure appearing at that place in the Contract is confusing. It only makes sense if that was meant to represent Respondent's portion of a six percent commission split between a buyer's agent and a seller's agent. Respondent explained that she whited out the figure because it was not written in both places it was supposed to be. Rather than going through the process of re-doing the entire Contract and re-distributing it to all pertinent parties, she whited it out in one place. The explanation is plausible. However, it seems an unnecessary action inasmuch as the closing had already occurred. When the parties arrived at closing on April 17, 2006, the closing documents--including the HUD Settlement Statement-- indicated a six percent commission for Respondent (as originally stated on the Agreement). Lewis vehemently objected to the commission, saying that it should be three percent as verbally agreed to by her and Respondent.3 Respondent acquiesced at closing and, in front of witnesses, said the commission should be three percent. She asked that a letter be drafted by the closing agent reflecting a three percent commission. In effect, Respondent re-negotiated her commission at that time. She rues having done so and says she was confused, but she did so nonetheless. The closing was only the third closing Respondent had taken part in since becoming licensed. She was not very experienced with the process and seemed to be thinking she was getting a four percent commission, even when three percent was being discussed.4 It is clear, however, that Respondent did verbally agree to a three percent commission during the closing. The closing agent told Lewis to return on Monday and she would re-calculate the commission and provide Lewis with a final check in the appropriate amount. Meanwhile, Respondent attempted to contact Lewis over the weekend to discuss the discrepancy. Respondent wanted to remind Lewis they had agreed on four percent despite what she said at the closing. All attempts at communication with Lewis over the weekend were futile. When Lewis returned to the closing office on the following Monday, she found the check to still be in error as it reflected a four percent commission instead of a three percent commission. Apparently when Respondent advised the closing agent about her mistake regarding the amount of the commission, Respondent still maintained that the verbal agreement was for four percent. This was contrary to her statements during the closing and is not substantiated by any written documentation. Respondent directed the closing agent to issue a check reflecting a four percent commission, instead of the six percent commission reflected on the Agreement. Lewis ultimately, under protest, accepted her $74,264.92 check reflecting a four percent commission to Respondent. The check contained a shortage of $1,600, if a three percent commission had been applied. Lewis continued to seek repayment of the $1,600 she believed she was entitled to receive. Subsequently, Respondent discussed the entire dispute with her sales team and decided that the disputed amount ($1,600) was not worth fighting about. A check was then sent to Lewis in that amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, imposing a fine of One Thousand Dollars ($1,000) against Respondent, Marian Lemon Coaxum. DONE AND ENTERED this 26th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2009.
Findings Of Fact The Respondent, Eric Nartek, is now, and in the years relevant to this case, 1984 and 1985, a licensed real estate broker. On about August 6, 1984, Kenneth P. Grant and Mary E. Grant gave to Mr. Martek a deposit of $1,000 (in two payments) as deposit for the purchase of a condominium from Goldenrod Realty Company. At that time, Mr. Nartek was the broker and president of Goldenrod Realty Company. Through no fault of Mr. and Mrs. Grant, closing of the sale of the condominium was prevented due to a cloud on title. Subsequently, on March 21, 1985, Mr. and Mrs. Grant demanded return of their $1,000 deposit. Mr. Martek's office manager, who worked under Mr. Martek's supervision, disbursed the $1,000 deposit to pay interest expenses of the developer, expenses which were not in any way an expense of the Grant's contract for sale. Mr. Martek asserted that he reviewed the disbursements from the escrow account every week and that he was in Boca Raton during this period, and not physically in the office. He discovered the disbursement after the fact. The disbursement was made to the developer by the office manager upon the request of the attorney for the developer. The office manager did not contact Mr. Martek before making the disbursement. Mr. Martek allowed his office manager to make disbursements from escrowed deposits without his prior review and approval. Mr. Martek requested an escrow disbursement order from the Florida Real Estate Commission, and that request was denied by letter dated June 24, 1985, since there was no contract closing date. The letter advised Mr. Martek that he immediately use one of the other two alternatives under section 475.25(1)(d), Fla. Stat., to either arrange for arbitration or to place the dispute before a civil court. Mr. Martek received the letter of June 24, 1985. He did not initiate either alternative. The $1,000 deposit has not been returned to Mr. and Mrs. Grant.
Recommendation For these reasons, it is recommended that the Petitioner enter its final order finding the Respondent in violation of sections 475.25(1)(b) and (d), Fla. Stat., and suspending his real estate license for one (1) year. DONE and RECOMMENDED this 13th day of May, 1988, in Tallahassee, Florida. WILLIAM C. SHERILL, JR. 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 13th day of May, 1988. COPIES FURNISHED: Arthur R. Shell, Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Eric Martek 5118 South Federal Highway Stuart, Florida 33494 Darlene F. Keller Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida, 32802 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
The Issue Whether the Petitioner, Nancy L. DeGayner, demonstrated that she is qualified to be licensed as a real estate salesperson in the state of Florida.
Findings Of Fact On or about October 7, 1996, the Petitioner, Nancy L. DeGayner, filed an application for licensure as a real estate salesperson with the Division of Real Estate. The Petitioner responded in the affirmative to question nine (9) in the application which inquired whether the applicant had been convicted of a crime. The Petitioner enclosed a written statement which stated as follows: My Real Estate License was suspended July 26, 1991, due to many allegations made against me. I was placed on probation while an intensive, thorough investigation was administered by many governmental agencies. The allegations were not substantiated. There were no convictions. I was discharged from probation. The proceedings in this case were terminated pursuant to Florida Statutes August 18, 1994; Instrument #941250; Book: 3944; Page: 1025; R. Michael Hutcheson, Judge Circuit Court Volusia County, Florida. DUI 12/14/84. Question thirteen (13) of the application inquired whether the applicant had had any license to practice a regulated profession revoked in this state upon grounds of fraudulent or dishonest dealing or violation of law. The Petitioner answered no to this question. On December 14, 1990, the Department of Professional Regulation, now the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against the Petitioner. The Administrative Complaint alleged that: The Petitioner was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest by trick, scheme or device, comparable negligence, and breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes. The Petitioner failed to account for delivered trust funds in violation of Section 475.25(1)(d), Florida Statutes. The Petitioner failed to prepare and sign the required written monthly escrow reconciliation statements in violation of Rule 21V-14012(1)(2), Florida Administrative Code, and thereby violated Section 475.25(1)(e), Florida Statutes. The Petitioner failed to maintain trust funds in a brokerage escrow bank account or in some other proper depository until disbursement was properly authorized in violation of Section 475.25(1)(k), Florida Statutes. The Petitioner was guilty of a course of conduct or practice which showed that she was so incompetent, negligent, dishonest or untruthful that the money, property, transactions, and the rights of investors, or those with whom she may sustain a confidential relationship, may not safely be entrusted to her in violation of Section 475.25(1)(o), Florida Statutes. On July 16, 1991, the Florida Real Estate Commission held a hearing and issued a Final Order on the Administrative Complaint filed against the Petitioner. The Petitioner failed to appear, although she had been duly served with notice of the hearing. The Commission entered its Final Order which found that the Petitioner had been served with the Administrative Complaint, that she had failed to request a hearing, that she was in default, and that a prima facie case had been established against the Petitioner in the proceedings. The facts and legal conclusions contained in the complaint were adopted as true and the Petitioner’s license was revoked. The Administrative Complaint filed by the Department of Business and Professional Regulation against the Petitioner had arisen out of acts which were the basis for criminal charges brought in the Circuit Court of Volusia County, Florida, on or about February 20, 1991, in Case No. 90-7033. These criminal charges arose out of allegations of misfeasance by the Petitioner in the management of her real estate brokerage concerns. As a result of these charges, the business records of these concerns were seized by the law enforcement officials, and the Petitioner was charged with multiple counts of grand theft. Based upon the evidence presented at the hearing, it is clear that the Petitioner entered a plea of convenience to two (2) counts of grand theft, a third degree felony. As a result of the Petitioner's plea, the Circuit Court entered its Order withholding adjudication and placing the Petitioner on probation for a period of five (5) years. A special condition of the probation was that the Petitioner should make restitution of the funds which she had allegedly taken from accounts placed in her trust. The funds and all of the Petitioner’s business accounts were placed in the registry of the court and from those funds restitution was made to all of the Petitioner’s clients. The circumstances indicate that the Petitioner had the money on hand in her business accounts to meet all of the obligations to her clients at the time the charges were brought, and she had not taken any of the money entrusted to her. At the conclusion of the accounting and reimbursement of the clients, the court discharged the Petitioner’s probation and entered an Order to that effect on August 2, 1994. (See transcript, at page 30, et seq.) Since her conviction, the Petitioner has been continually employed. She was employed with Perkins Family Restaurant from November 1991 until November 1996. She was employed as a salesperson of advertising for WROD from December 1996 to May 1997. She was employed at the Daytona Beach Regency from May 1997 until July 1997 and has been employed with Winston/James Development since July 1997 in a non-real estate capacity. The Petitioner has been responsible for the money of her employers and the monies of others entrusted to her in all of the jobs at which she has been employed. Following her plea and the entry of the Order of Probation, the Petitioner sought the permission of her probation officer to leave the state and moved to her mother's home in Wisconsin in early 1991. She was employed thereafter in businesses unrelated to real estate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Real Estate Commission enter its Final Order approving the Petitioner’s Application for Licensure as a real estate salesperson; however, because of the previous problems related to the Petitioner’s management of professional accounts, it is recommended that an entry be made to her licensure file that she may not be granted a license as a real estate broker without the Commission’s reconsideration of her qualifications to manage such accounts. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997. COPIES FURNISHED: Michael Teal, Esquire William R. Alexander, Esquire 114 West Rich Avenue DeLand, Florida 32720 Manuel E. Oliver, Esquire Suite 107 South Tower 400 West Robinson Street Orlando, Florida 32801 Henry Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32302 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Ferrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
