Findings Of Fact The Respondent, Susan Ellen Walton, was a registered and licensed real estate broker at all times material hereto. The Respondent, Walton Associates, Inc., was a licensed real estate broker at all times material hereto. The Respondents have been issued licenses numbered 0092944 and 0111791, respectively. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and practice of real estate brokers, broker salesmen and salesmen in the State of Florida. In October of 1979, Richard E. Turner, Jr. was moving from Gainesville, Florida, to the Daytona Beach, Florida, area. Mr. Turner took two days in October, 1979, and went to Daytona Beach to look for some rentals. He was unable to find any suitable housing through his own efforts so he went to the Respondents' rental agency asking for information regarding residential rental property. Mr. Turner ultimately entered into a written agreement with the Respondents whereby the Respondents would supply him with a list of rental homes that were within his stated financial means. In return for this service, Mr. Turner paid a $40.00 fee to the Respondents. The Respondents supplied Mr. Turner with a list of approximately four homes in the $175.00 to $225.00 per month rental price range. These homes proved to be unsuitable to live in or, on the day in question, were already rented. Mr. Turner therefore returned to the Respondents' office to obtain a second list of homes. He encountered the same problem with the second list of homes supplied him by the Respondents. Mr. Turner then went back to the Respondents' office the third time and was given three or four more houses to survey. On this list, one listing in particular was a house located at 118 Rio Way in Riviera Oaks Subdivision. The rental price stated for that house was approximately $375.00 per month. Mr. Turner made an extensive search to look for 118 Rio Way, but was unable to find the address. He drove all the way around Rio Way and, being unable to locate 118, went to the Riviera Oaks Subdivision sales office on Calle Grande, which was the street on the other side of the Rio Way circle. Riviera Oaks is a Tompkins Development subdivision. Mr. Turner stopped at the Tompkins Development office and talked to a saleswoman, Debbie Snowden, to see if there was a 118 Rio Way address in the subdivision. Ms. Snowden showed him a map of the subdivision in her office which revealed that there was not a 118 Rio Way address listed. Being therefore unable to locate a 118 Rio Way address and rental house, Mr. Turner returned to the Respondents' office. The person who had been helping him in the Respondents' office indicated that the card in their file describing the rental property supposedly at 118 Rio Way showed that a Mr. Frank Kenney was the individual to contact concerning information on that residence. Mr. Turner attempted to reach Frank Kenney but was unable to do so. He returned to Riviera Oaks to see if he could locate Frank Kenney in that subdivision. He went to the sales office and was told by Ms. Snowden that she knew Mr. Kenney, who had formerly worked at her office and, in fact, she now held his former job. With Ms. Snowden's help, Mr. Turner attempted to locate Mr. Kenney once again and was unable to do so. On this occasion, Ms. Snowden attempted to sell Mr. Turner a house and he told her that he would consider it. That same evening, Mr. Turner continued his attempt to find Frank Kenney and was unable to do so. Turner was becoming irritated regarding finding any available rental property. He accordingly returned to see Ms. Snowden at the Riviera Oaks Subdivision and had her show him and his wife a house for possible purchase. They ultimately signed a Contract of Sale for a residence located at 108 Rio Way in the Riviera Oaks Subdivision. That contract was dated October 4, 1979. The Turners gave the Tompkins Development Company a $100.00 deposit on the purchase of this house. After signing the Contract for Sale, the Turners contacted the Respondents about receiving a refund on the rental fee arrangement. Mr. Turner filled out the necessary form in order to obtain the refund of his $40.00. This form was sent to the Respondents and the Respondents were otherwise informed by Mr. Turner that he wished his $40.00 refunded within 30 days from the date Mr. Turner first contacted the Respondents regarding obtaining information about rental property. Mr. Turner subsequently received a speed message bearing the date November 30, 1979, from the Respondents stating that his request for refund had been refused. The speed message was signed by S. Walton of Walton Associates, Inc. (see Petitioner's Exhibit 10). Before denying a refund to the Turners, the Respondent, Walton, contacted Debbie Snowden at Riviera Oaks Subdivision office and asked her if the Turners were indeed renting a house from her, and she responded that they were not renting a house, but were temporarily leasing a house at 108 Rio Way until they could effect the closing of a loan so they could consummate the purchase of that same house. Prior to the execution of the contract, Mr. Turner had told Ms. Snowden that they needed a place to live until the closing of the conveyance of the house and it was agreed by all parties that they could move into the house while awaiting approval on their loan and the subsequent closing, provided the Turners signed a Lease and Occupancy Agreement. The Lease and Occupancy Agreement was required because on past occasions people had put up a deposit of $100.00 on a house and stayed in that house for several months and then left without paying any further for the use of the house. The Lease Occupancy Agreement from Tompkins Development is not a normal procedure, but the general manager for Tompkins Development, Pat Gallo, occasionally lets people move into homes under a Lease and Occupancy Agreement pending closing on that same home for which they have already contracted to purchase. Under the Lease and Occupancy Agreement in question, the Turners were required to pay the costs of the construction loan, which was $10.48 per day. Further, Tompkins Development was shown to be a sales company, dealing only in sales or residential real estate and not engaging in rental of rental property management at all. The only way Tompkins Development would have leased a house such as this one to someone is if the parties seeking to lease the house were under a contract to purchase that house. Tompkins Development simply did not make a practice of advertising homes for rental and did not seek to service individual families coming to them looking for rental housing. After signing the Contract of Sale for the house on October 24, 1979, the Turners moved into the house at 108 Rio Way. One day after they moved into that house, a rain storm flooded the street and so they approached Ms. Snowden regarding that problem and advised her that they did not then wish to buy the house if it was going to be subject to periodic flooding after each heavy rain. After some negotiation, they then signed the contract for 1018 Calle Grande, but this contract was apparently not accepted by the home office of Tompkins Development. The Turners ultimately entered into a contract on March 29, 1980, for a home located at 112 Camino Circle. This contract was subsequently renegotiated and re-executed on May 12, 1980, due to a change in the type of FHA mortgage loan the Turners were obtaining. On July 31, 1980, the Turners closed and completed the conveyance on the house located at 112 Camino Circle. At no time during this series of events did the Turners nor Ms. Snowden nor Tompkins Development mutually agree or understand that the contractural arrangement they had undertaken was for a rental of the house at 108 Rio Way, rather it was, as described above, merely a convenient method whereby the Turners could pay the cost of the construction loan pending the closing of the permanent financing on the dwelling in return for living in it as a convenience to them until time for closing. It was established that prior to October, 1979, neither Debbie Snowden, the saleswoman who negotiated the sale of the residence at 108 Rio Way with the Turners, nor the previous salesman, Frank Kenney, had ever heard of the Respondents, nor did Tompkins Development have a non-exclusive rental agreement (or any other kind) with any rental agency in the Daytona Beach area, including Respondents. The Respondents' real estate brokers licenses have previously been suspended on one occasion in December of 1981 by the Board of Real Estate, now the Florida Real Estate Commission. Their licenses were suspended for a period of 120 days, with 30 days of that penalty period being suspended upon the Respondent, Susan Ellen Walton, making full restitution of a $40.00 rental fee to one Narenda H. Patel. That suspension stemmed from the Respondents' failure to make a refund of a $40.00 rental fee upon demand by Narenda H. Patel within 30 days of the rental fee agreement after Patel was unable to secure a rental using the Respondents' rental fee service.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Respondents, Susan Ellen Walton and Walton Associates, Inc., have their licensure status suspended for a period of ninety (90) days, with thirty (30) days of that period suspended provided that the Respondent, Susan Ellen Walton, makes full restitution of the $40.00 due and owing to Richard Turner within ten (10) days of the entry of the Final Order herein. DONE and ENTERED this 8th day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF 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 December, 1982. COPIES FURNISHED: John G. DeLancett, Esquire and James R. Mitchell, Esquire 801 North Magnolia Avenue, Suite 402 Post Office Box 6171-C Orlando, Florida 32853 Edward L. Cook, Esquire 1885 Lee Road Winter Park, Florida 32789 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 28th day of February, 2011.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondents promptly return the rental agreement fee to Narendra Patel in accordance with their agreement on the record in this cause. DONE AND ENTERED this 22nd day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of October, 1981.
The Issue The issues in this case are: (1) whether, on three separate occasions, the Respondent raised the rent at Minerva Mobile Home Park without first delivering to the lessees an approved prospectus, as alleged in the Notice to Show Cause, Docket No. MH89446, issued on November 1, 1989; and (2), if so, what is the appropriate penalty.
Findings Of Fact The Respondent, Haines City Investment, Inc., is the owner of Minerva Mobile Home Park located in Haines City, Florida. There are approximately 72 lots for lease in Minerva Mobile Home Park. On or about January 6, 1988, a Final Order was entered by the Petitioner finding, among other things, that the Respondent had raised the rent on lots in Minerva Mobile Home Park, effective January 1, 1986, without first filing a prospectus with the Petitioner (and therefore also without delivering to the homeowners an approved prospectus.) Among other things, the Final Order fined the Respondent $3,000 and ordered the Respondent to deliver an approved prospectus to each homeowner entitled to receive one within 15 days. During the pendency of a court appeal of the Final Order, on or about April 29, 1988, the Respondent entered into an Agreement to Remit Civil Penalty and Annual Fees. Effective January 1, 1987, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $11. Effective January 1, 1988, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $4.50. Effective January 1, 1989, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $6. Effective January 1, 1990, the Respondent increased the monthly lot rental in Minerva Mobile Home Park by $12.50, to $134.50 per month. The 11 homeowners who testified all paid all rent increases charged by the Respondent. The Respondent first filed a prospectus for Minerva Mobile Home Park for approval by the Petitioner in October, 1986. By this time, the Respondent had given the homeowners a copy of the proposed, but unapproved prospectus. However, the proposed prospectus was not approved by the Petitioner, and several revisions were made. The final revision was not approved until May 20, 1987. The approved prospectus was not delivered to the homeowners of the Minerva Mobile Home Park until some time in March, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order requiring that the Respondent refund the illegal rent increases to the homeowners (or former homeowners) in Minerva Mobile Home Park and requiring the Respondent to pay a $1,500 civil penalty. RECOMMENDED this 26th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1990. COPIES FURNISHED: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Albert Labossiere, President Haines City Investment, Inc. 2800 Minerva Park Haines City, Florida 33844 E. James Kearney, Director Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
Findings Of Fact At all times pertinent to the allegations of the Administrative Complaint, Gerald Schultz was a real estate broker holding License #0215135 and active firm broker for Choice Rentals and Realty Corporation (formerly Choice Rentals, Inc., and hereinafter "Choice Rentals"), which was a corporate broker holding License #0195222. Rosemary Hufcut entered into a contract with Choice Rentals on July 30, 1980, for Choice Rentals to provide her with rental information based upon criteria she gave Choice Rentals. Hufcut paid a fee of $50 to Choice Rentals for its services. Hufcut was looking for an apartment for herself and her two daughters. She specified she wanted a good neighborhood with good schools. Hufcut was given rental data by Choice Rentals and, with her father, visited a number of the apartments listed. The apartments were not suitable. On the following day, Hufcut requested a refund and submitted a written request for a refund on August 6, 1980. On August 26, 1980, Hufcut's refund request was denied by a letter from Choice Rentals (Petitioner's Exhibit #6). This letter provided in part: Refusal to accept available rental properties meeting the requirements as set forth in your contract with us, does not constitute cancellation of contractual agreement. (This is pursuant to the Florida Law regarding "obtaining a rental".) note - produced available rental property meeting the requirements stated on contract. Hufcut has never received a refund from Choice Rentals. The Board introduced Petitioner's Exhibits #1 through #6, which were received in evidence.
Recommendation Having found the Respondents guilty of violating Section 475.25(1)(b), Florida Statutes, the Hearing Officer recommends that the Board of Real Estate suspend the licenses of Respondents for ten years. DONE and ORDERED this 25th day of March, 1982, 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 25th day of March, 1982. COPIES FURNISHED: Theodore J. Silver, Esquire 9445 Bird Road Miami, Florida 33165 Mr. Gerald Schultz c/o John Hume, Esquire 5100 North Federal Highway, Suite 405 Fort Lauderdale, Florida 33308 Choice Rentals & Realty 3367 North Federal Highway Fort Lauderdale, Florida 33308 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Ordinance No. 06-03, as adopted by the Village of Islamorada, Village of Islands (Village), is consistent with the Principles for Guiding Development set forth in Section 380.0552, Florida Statutes (2006) (Guiding Principles).1
Findings Of Fact The Florida Keys were originally designated an Area of Critical State Concern (ACSC) by the Administration Commission in 1975 and were re-designated by the Legislature in 1986. See § 380.0552, Fla. Stat. The Legislative Intent Subsection (2) of the statute and the Guiding Principles together require an effective land use management system that protects the natural environment and character of the Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, and provides adequate emergency and post-disaster planning to ensure public safety. The Village's Comprehensive Plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, as well as the authority of Section 380.0552(9), Florida Statutes. Provisions pertaining to vacation rentals are established in Policies 1-2.1.10, 1-2.4.7, 1-2.4.8, and 1-2.4.9. The policies allow vacation rentals but provide limits for such uses within single-family and multi-family residential properties within the Village. In addition, these policies also provide for the establishment of land development regulations (LDRs), which address enforcement and implementation of those policies. The applicable Village Comprehensive Plan Policies are as follows: Policy 1-2.1.10: Restrict Development of New Transient Units. Transient use shall be defined as any use of any structure for a tenancy of 28 days or less. Transient uses shall be considered as residential uses for the purposes of transferring development rights pursuant to conditions established in Policy 1-3.1.4 of this Plan. Islamorada, Village of Islands shall cap the number of new transient units at the number of current and vested hotel and motel rooms, campground and recreational vehicle spaces existing within the Village as of December 6, 2001. Single family and multifamily residences shall not be considered part of the above cap but instead may be used for transient rental use as provided for in Comprehensive Plan Policies 1-2.4.7 and 1-2.4.8. Policy 1-2.4.7: Limit Transient Rental Use of Residential Properties. Islamorada, Village of Islands shall continue to allow the transient rental use of 28 days or less, of single family and multifamily residential properties within the Village, including properties located within the Residential Conservation (RC), Residential Low (RL), Residential Medium (RM), Residential High (RH), Mixed Use (MU) and Airport (A) Future Land Use Map categories. Property owners located in the RL, RM, RC, MU, RH and A Future Land Use Map categories may continue transient rental subject to the following requirements: Owners of such properties shall annually register with the Village and shall demonstrate at the time of registration: That since December 6, 2001 the owner had continuously either paid or filed for all County tourist development taxes due, and paid local impact fees, for the property it wishes to register; That owner has applied for appropriate state licensure to conduct transient rental for the property it wishes to register and shall receive the license within six months of application; That the property is not registered for a homestead tax exemption pursuant to Article VII, Section 6 of the Constitution of the State of Florida; and That the property otherwise meets all requirements of the Village Land Development Regulations. The annual registration shall allow up to a total of 331 single family and multifamily transient rental units. For each annual registration period after the initial registration period, the following shall additionally apply: No new transient rental unit shall be allowed in any Residential Medium (RM) Future Land Use Map category, in mobile home parks or in the Settler's Residential zoning district. No new transient rental unit in the RH and MU Future Land Use Map categories may be registered unless it is assessed by the Monroe County Property Appraiser at a value in excess of 600% of the median adjusted gross annual income for households within Monroe County. No new transient rental unit in the RC, RL, or A Future Land Use Map categories may be registered unless it is assessed by the Monroe County Property Appraiser at a value in excess of 900% of the median adjusted gross annual income for households within Monroe County. The priority of registration for transient rental units for all registration periods, for purpose of the 311 unit cap, shall be based upon the total number of months that the unit owner has paid the Monroe County tourist development tax, with units registered in ascending order (i.e., those licenses demonstrating the most months of payment shall be the last retired). Notwithstanding paragraph 1.a. above, if the 331 unit cap is not reached in any year by those units that have paid the Monroe County tourist development tax, new units may be given priority by registration date. Property owners permitted transient rental use pursuant to this policy shall lose their privileges and retire their licenses when ownership (in whole or in part) of the unit is transferred, through an arm's length sale of the property or the asset. If the unit is owned by a natural person, the transfer of the fee simple ownership of the unit to the owner's spouse or children shall not result in termination of the license. Policy 1-2.4.8: Enforcement and Implementation of Transient Rental Regulations. Property owners permitted transient rental use pursuant to Policy 1- 2.4.7 shall pay an annual fee to the Village as established by resolution to be used for code compliance related to transient rental uses, with any excess funds to be used to further affordable housing programs. Transient rental unit owners shall lose their privileges and their permits shall be revoked for a property being used for transient rental if the property had been found by non- appealable Final Order on two occasions to have violated the Village Code regarding vacation renal units as provided for in the land development regulations. The Village shall establish land development regulations which shall address enforcement and implementation of transient rental use, including, but not limited to, the following: conspicuous notification on transient rental properties; requiring each unit to identify the unit manager who resides within the village; regulating the number and location of watercraft and automobiles on site; lease agreements to disclose village regulatory requirements and provide for access for adequate code enforcement; advertising to require identification of state and village license numbers; notification to adjacent property owners; and fines, penalties, revocation of license for violation of the regulations including but not limited to the advertising of units that are not lawfully licensed by the Village. Policy 1-2.4.9: Affordable Housing Study. The Village, based on its 2004 Workforce Housing Study, shall analyze appropriate policy revisions to the transient rental comprehensive plan policies and prepare a report no later than December 31, 2005. The Village shall establish and support the efforts of an Affordable/Workforce Housing Citizen Advisory Committee to address the relationship between affordable housing needs and transient rental uses within the Village. The applicable Village LDR, as modified by Ordinance No. 06-03 provides the following2: Section 30-1294. Vacation rental uses permitted within certain multifamily developments. Vacation rental uses shall be permitted to continue after May 1, 2003, in properly located in the Residential High (RH) future land use category of the Village Comprehensive Plan within multifamily developments with mandatory property associations, and if the member properly owners pursuant to applicable association requirements approve vacation rental uses within such multifamily development. Registration of Existing Vacation Rental Units. The owner of a property located in the RC, RL, RM, RH, MU, and A Future Land Use Map categories may continue vacation rental use provided that the owner's use of the unit meets all of the following conditions: Since December 6, 2001, the owner had continuously either paid or filed for all County tourist development taxes due and paid local impact fees for the unit it wishes to register as a vacation rental use; The owner has applied for and received the appropriate state licensure to conduct vacation rental use for the unit; The property is not registered for a homestead tax exemption pursuant to Article VII, Section 6 of the Constitution of the State of Florida; The unit is not a deed restricted affordable housing unit; and The property otherwise meets all requirements of the Village Land Development Regulations. The Florida Keys Principles for Guiding Development are set out in Section 380.0552(7), Florida Statutes: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objections without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Section 30-1294(a)(5) of Ordinance 06-03 has little to no impact on the Guiding Principles, except Principles (a), (d), (j), and (l). All it does it add to the Comprehensive Plan's vacation rental provisions authorizing properties in certain future land use categories to continued pre-existing vacation rental use the requirement those properties "otherwise meet all the requirements of the [LDRs]." In regard to Principle (a), Section 30-1294(a)(5) clearly provides further authority to the local government to regulate land use and development. The evidence also proved that this increased authority will strengthen the Village's capabilities for managing land use and development and achieving the objectives of the Guiding Principles without the continuation of the ACSC designation. Petitioners essentially make the argument that Section 30-1294(a)(5) is inconsistent with Principle (a) because "all requirements" of the Village's LDRs is too broad, too difficult to interpret, gives the planning director too much discretion to interpret the requirement, and places an impossible burden on applicants for vacation rental licenses, which ultimately will discourage compliance and undermine the vacation rental ordinance. The evidence did not prove any of those arguments. In regard to Principle (d), Section 30-1294(a)(5) further ensures the maximum well-being of the Florida Keys and its citizens through sound economic development. In regard to Principle (j), Section 30-1294(a)(5) addresses the critical need for affordable housing within the Florida Keys. With regard to Principle (l), Section 30-1294(a)(5) clearly demonstrates and provides for the public health, safety, and welfare of the citizens of the Florida Keys and maintains the Florida Keys as a unique Florida resource. When the legislative intent behind Chapter 380, Florida Statutes, is taken in account, it is clear that Section 30- 1294(a)(5) is not the type of land use decision that Chapter 380 is most concerned with. Because this provision does no harm to the natural environment and waters of the Florida Keys ACSC, the State's interest is protected. The issue is essentially local, and deference should be afforded the Village in establishing such regulations through its police powers. Given the purpose of DCA's involvement in this matter, the legislative intent of Chapter 380, Florida Statutes, and the evidence presented in this proceeding, it is clear that Section 30-1294(a)(5) is consistent with the Guiding Principles, considered as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order approving Ordinance No. 06-03 as consistent with the Principles for Guiding Development set out in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of January, 2007.
The Issue Whether Respondent Homes-R-Us, Inc.'s license as a corporate real estate broker, Respondent Vera McWeeney's license as a real estate broker, and Respondent Anthony Cutrona's license as a real estate salesman should be suspended or revoked, or the licensees otherwise disciplined for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint dated September 3, 1981. The Administrative Complaint herein alleges that the Respondents utilized a contract form in their business of negotiating rentals and furnishing information to prospective tenants which did not conform to Rule 2IV-10.30, Florida Administrative Code, therefore being in violation of various provisions of Chapter 475, Florida Statutes. The Complaint also alleges that Respondents employed various persons to conduct the business who were not licensed by Petitioner, and who were paid compensation, in violation of various provisions of Chapter 475, Florida Statutes. At the commencement of the hearing, the parties stipulated to the facts set forth in Paragraphs 2-4 of the Administrative Complaint, and that Respondents, in their business of furnishing rental information to prospective tenants for a fee, utilized a contract form which did not conform to Rule 2IV-10.30, Florida Administrative Code. As to Count II, the parties stipulated that during the times alleged in the Administrative Complaint, the corporate Respondent employed unlicensed personnel who performed certain activities, to include (1) acceptance of a rental fee provided in the contract, (2) receipting of the rental contract, delivery to the prospective customer of the "vacancy book" containing available rental properties, and (4) verifying the availability of various rental properties after selection by the customer by telephoning the prospective lessor of the property. Respondents Anthony R. Cutrona and Vera McWeeney testified at the hearing, and Petitioner called its investigator, Francis A. Maye, and a former investigator, Debbie J. Minutoli, as witnesses. Petitioner submitted eight exhibits in evidence and Respondent submitted one exhibit.
Findings Of Fact Respondent Homes-R-Us, Inc. is now, and was at all times relevant to the matters alleged in the Administrative Complaint, licensed as a corporate real estate broker, License No. 0212520, at 9000A North Florida Avenue, Tampa, Florida. (Stipulation) Respondent Vera McWeeney is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate broker, License Nos. MI4 0058950 and MI4 021252, and the active firm member and officer of Homes-R-Us, Inc. (Stipulation) Respondent Anthony R. Cutrona is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate salesman for Homes-R-Us, Inc., with License No. MI4 0328427. (Stipulation) Homes-R-Us, Inc. is a firm that solicits or otherwise receives from prospective lessors of residential property, information about such rentals which is then placed in a book and provided to prospective tenants who pay a fee to the firm in order to locate appropriate rental property. The firm advertises such available rentals in newspapers and secures customers in this manner. No fee is charged to the owner or prospective lessor of the property. The normal procedure employed by the firm is to receive payment of the fee from a customer, permit the customer to select any suitable properties from the descriptive information, and then seek telephonic confirmation of the continuing availability of the selected properties. The customer then proceeds to visit the property or otherwise contact the owner and negotiate a rental, if desired. If unsuccessful or unsatisfied with the properties, the customer can continue to avail himself of the "listings" maintained by Homes-R-Us, Inc. for a period of three months on a daily basis. (Testimony of Cutrona, Stipulation, Petitioner's Exhibits 2-3, 8) Respondent Cutrona has been the general manager of Homes-R-Us, Inc. since it was established in November, 1979. Respondent McWeeney was obtained as the firm broker on a gratuitous basis to supervise the activities of the firm. A form contract is used between Homes-R-Us, Inc. and the customer at the time the fee is paid by the customer to obtain rental information. The form was designed by Cutrona when the firm commenced business and was approved by McWeeney. The contract contained a provision that purportedly was included pursuant to law that read in part "If you do not obtain a rental, you are entitled to receive a return of 26 percent of the fee paid, if you make demand within 30 days of this contract date". Respondents used the figure of 26 percent for refund purposes based upon their interpretations of the requirements of Subsection 475.453(1), Florida Statutes. They were not aware of the fact that Petitioner's Rule 21V-10.30, Florida Administrative Code, (formerly Rule 21V-10.15) provided that such contracts should provide for a refund of 75 percent of the fee. Accordingly, the contract form was in violation of the applicable rule. (Testimony of Cutrona, McWeeney, Petitioner's Exhibits 2-3, Respondents' Exhibit 1) At the time Homes-R-Us, Inc. commenced business, in November, 1979, Respondent McWeeney was the only licensed employee in the firm. Cutrona received his license as a salesman in January, 1980. During the period February to August, 1980, the firm employed another licensed real estate salesman, but during the period from August to November 21, 1980, Respondents were the only licensed personnel. On the latter date, an employee, Brenda Serino, received her license as a real estate salesman. A branch office in Tampa had been opened in the spring of 1980, and Cutrona spent one day a week in that office. He was at the original Largo office during the other six days of the week. Respondent McWeeney periodically visited the office and kept in touch with activities by telephone communications. (Testimony of Cutrona) On November 10, 1980, Deborah Minutoli, an investigator for Petitioner, visited Respondents' office in an "undercover" capacity. Her investigation was prompted by several complaints that had been filed against the firm. She posed as a customer, signed the contract and paid a $45 fee to look through their listing book. She dealt with Brenda Serino, who was at that time an unlicensed employee of Homes-R-Us, Inc. Ms. Serino signed the contract on behalf of the Respondent firm. Ms. Minutoli told the employee that she was looking for a one- bedroom or efficiency-type, apartment and could pay about $180 rent per month. Ms. Serino explained a sample listing in the book and the type of information included in the listings. Ms. Minutoli then looked through the book and found five listings which she wrote on a piece of paper and gave to Ms. Serino. Several persons in the office, including Respondent Cutrona, made telephone calls to verify the listings, but only one person was able to be contacted at that time. An employee, Jackie Mourey, then presented Ms. Minutoli with a form showing the five rentals with addresses, telephone numbers, and rental prices, which both signed. The form also included a sixth rental which Ms. Mourey said was a new listing that had just come in and had not been placed in the book as yet, but since it was within the requested price range and location, it was placed on the form. Ms. Minutoli departed from the office and several days later examined one of the rental properties, drove past the other ones and returned to Respondents' office the following day. At this time, she requested that her fee be returned because the properties were unsatisfactory. Respondent Cutrona urged her to continue using the service, but gave her an "adjustment form" to fill out and told her that they would decide whether or not a refund was in order. She subsequently attempted to reach Cutrona by telephone, but was unsuccessful on several occasions. On November 21st, she spoke to him over the phone and he suggested that she fill out the "adjustment form". On November 24th, she, together with investigator Greg Clift, went to Respondents' office and gave the "adjustment form" to Cutrona, but he declined to make the refund. Subsequently, during the same month, Ms. Minutoli, together with another of Petitioner's investigators, Francis Maye, went back to Respondents' office. Maye posed as her uncle and again they sought a refund of the fee which had previously been paid, but again were unsuccessful. (Testimony of Minutoli, Maye, Petitioner's Exhibits 2-7) Investigator Maye had previously talked to Respondent Cutrona's wife at one of the offices concerning a refund complaint from another customer. At that time a refund was made in full. Maye had a conversation with Respondent Cutrona on November 25, 1980 concerning the percentage of fees payable to a customer on a refund. According to Cutrona, Maye questioned the use of a 26 percent refund amount, and told Cutrona he would get back to him later and verify the correct percentage of any refund, but never did so. Cutrona's testimony in this respect is considered credible. During the conversation, Maye did not advise Cutrona to cease using the 26 percent figure or to revise the contract form. Cutrona later talked to another employee of Petitioner who convinced him that Petitioner's regulations required a 75 percent refund and the firm thereupon revised its form to reflect the correct percentage. Investigator Maye also spoke to Respondent McWeeney in November, 1980 concerning the "seven services of real estate" and what services could be performed by unlicensed personnel in the rental office, but did not inform her concerning any suspected irregularities in the operation of Homes-R-Us, Inc. (Testimony of Maye, Cutrona, McWeeney) Respondents' employees were mostly part-time help who were compensated on an hourly basis, and it was therefore difficult to obtain licensed personnel who would remain with the firm. The clerical personnel do not provide any information to customers regarding leasing arrangements, but do receive listings called in to the office by landlords. Only licensed personnel solicit listings from prospective lessors, or owners of property. Additionally, unlicensed clerical personnel accept rental fees, prepare rental contracts, deliver the "vacancy book" to customers, and verify rental availabilities by telephone to the prospective lessors. (Testimony of Cutrona, Stipulation)
Recommendation That an administrative fine of $250.00 be imposed against Respondent Homes- R-Us, Inc., and that a public reprimand be issued to Respondent Vera McWeeney and Anthony Cutrona for violation of Subsection 475.25(1)(e), Florida Statutes. DONE and ENTERED this 25th day of February, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 25th day of February, 1982. COPIES FURNISHED: Salvatore A. Carpino, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph R. Park, Esquire 33 North Ft. Harrison Avenue Clearwater, Florida 33515 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioners' rental property was licensed under Chapter 509, Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioners, Robert Meller, Jr., and Kristine M. Meller, were owners of a rental property (a house located at 4516 Bowan Bayou) in Sanibel, Florida. In addition, they owned a condominium in the same area. Respondent Cross held a valid real estate license at all times material to matters at issue. Respondent Cross had a business relationship with Petitioners, which antedated the purchase of the Bowen Bayou house as a result of being the leasing agent for a condominium association with which Petitioners were associated. Respondent DBPR is the State of Florida agency which represents the FREC in matters such as this matter. In January 2000, Petitioners purchased the house in Sanibel located at 4516 Bowan Bayou. On or about January 20, 2000, Respondent Cross mailed a Rental Property Management Agreement to Petitioners for the property located at 4516 Bowan Bayou, Sanibel, Florida. The parties to this contract were Petitioners and Properties in Paradise, Inc. Petitioner, Robert Meller, Jr., signed the contract and returned the contract to Respondent Cross. Petitioners maintain that the Rental Property Management Agreement was not signed by Petitioner, Robert Meller, Jr., and that his name is forged. He maintains that he entered into an oral agreement with Respondent Cross, individually, to manage the property. From the purchase of the house in January 2000 through April 2001, Petitioners received correspondence, including a monthly "owner statement" reflecting short-term rental income, commissions, and debits for maintenance, from Properties in Paradise, Inc., regarding all aspects of the business relationship contemplated by the Rental Property Management Agreement. By letter dated January 20, 2000, Petitioner, Robert Meller, Jr., authorized "Revonda Cross of Properties in Paradise as my agent in establishing telephone and electrical service and so forth for my property on Sanibel Island at 4516 Bowen's [sic] Bayou Road." Thereafter, Petitioners received correspondence from Respondent Cross relative to the subject property wherein she is identified as "Operations Manager, Properties in Paradise, Inc." During the relevant time period, Petitioners' property was rented at least 22 times; once for 17 days, four times for 14 days, once for nine days, thirteen times for seven days, and once for five days. The frequency and term of these rentals qualify for the statutory definition of a "resort dwelling" and transient rental dwelling. Properties in Paradise, Inc., listed the property located at 4516 Bowan Bayou in the list of properties it provided the Division of Hotels and Restaurants as licensed in accordance with Chapter 509, Florida Statutes (2005). In April 2001, Properties in Paradise, Inc., through an attorney, notified clients that it had effectively ceased doing business. At that time, Petitioners were owed $11,588.06, which went unpaid. Petitioners made a claim in July 2001, against Respondent Cross to recover their loss from the Florida Real Estate Recovery Fund. In October 2003, Petitioners' claim was denied by the Florida Real Estate Recovery Fund.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, enter a final order denying Petitioners' claim for recovery from the Florida Real Estate Recovery Fund. DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida. S JEFF B. 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 21st day of February, 2006. COPIES FURNISHED: Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Robert L. Meller, Jr., Esquire Best & Flanagan, LLP 225 South 6th Street, Suite 4000 Minneapolis, Minnesota 55402-4690 Revonda Stewart Cross 1102 South East 39th Terrace, No. 104 Cape Coral, Florida 33904 Nancy B. Hogan, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Appellants raised two issues for resolution in this appeal. First, Appellants seek reversal of the LOU and Resolution No. 06-20, and recognition of a lawful non-conforming vacation rental use of the Property. Second, Appellants seek clarification that they are not subject to any provisions of section 134-1, Monroe County LDC, regarding the Property.
The Issue The issues in this cause are those as set forth in the attached copy of the administrative complaint, which is made a part of this recommended order for purposes of setting out the issues to be considered.
Findings Of Fact The Florida Real Estate Commission, is an agency of the State of Florida, and has filed this administrative complaint as Petitioner against the licensee, United Jax Rentals, Inc., a registered corporate broker which holds license number 069690; Thomas J. Capobianco, a registered broker and active firm member of United Jax Rentals, Inc., who holds license nos. 0157568, 0157767, 0168549, 0168551 and 0169691; Bruce K. Lammert, who holds license no. 0177625 as a salesman; Richard L. Levinger, who holds license no. 0175791, as a salesman; Deborah K. Parnell, who holds license no. 0177268, as a salesman and Rose J. Vines, who holds license no. 0139543, as a salesman. This action is for the suspension or revocation or other discipline of the above named Respondents who are holders of the referenced licenses. The administrative complaint contains 27 counts which are more specifically detailed in the attached copy of the administrative complaint. Count one of the administrative complaint is an allegation against United Jax Rentals, Inc. and Thomas J Capobianco for matters pertaining to transactions between United Jax Rentals, Inc. and Reaves L. Mathison and Nancy A. Mathison. To prove the material facts found in the allegation which is count one, the Petitioner offered as evidence the depositions of Trenner J. Thompkins and Kathleen E. McDavid. These depositions are found as Petitioner's Exhibits 1 and 2, denied admission as evidence. The reason for the denial of the depositions was based, upon the fact that the depositions are a heresy report of a conversation between the Mathisons and representatives of United Jax Rentals, Inc., as made by the witnesses Thompkins and McDavid. Because these depositions are the only testimony offered to prove the allegations of count one and are not offered for the purpose of supplementing competent evidence, they may not be relied upon to arrive at conclusions about material disputes in fact. This prohibition is set out in Chapter 120.58, Florida Statutes. Therefore, there has been insufficient proof to establish any violations as alleged in count one of the administrative complaint. Count two accuses Thomas J. Capobianco and United Jax Rentals, Inc. of violating Sections 475.25(1)(d) and (2), Florida Statutes. This violation is alleged to have occurred when the Respondent Thomas J. Capobianco submitted an application to be the corporate broker for United Jax Rentals, Inc., in October, 1976. Through that application, Capobianco listed the residence of the President of the corporation, who at that time was John MacDermott, as being 1642 North Main Street, Jacksonville, Florida. In fact that address was the business address of the corporation, United Jax Rentals, Inc. as opposed to the residence address of John MacDermott. Although this is a misstatement, it is not the type of misstatement which when considered in view of the truth of the matter, should have caused the rejection of the application. Therefore, the Petitioner has failed to demonstrate that there is any violation of Sections 477.25(1)(d) and (2), Florida Statutes. (The matters set out in the application may be found as part of Petitioners Composite Exhibit 3, which is admitted into evidence.) Count three pertains to a certain transaction between United Jax Rentals, Inc. and J.P. and Anna Williams. Mrs. Williams testified that she had contacted Rose J. Vines, one of the employees of United Jax Rentals, Inc. Mrs. Williams explained to Ms. Vines that she had a house for rent and after discussion was entered into, Ms. Vines advised her what she considered to be a reasonable rental price that should be placed. That amount of rental was $250. Mrs. Williams testified that Ms. Vines stated that there would be no charged by the United Jax Rentals, Inc. for renting Mrs. Williams' house. A tenant was found and a contract was entered into with that tenant. A copy of the contract may be found as Petitioner's Exhibit 5, admitted into evidence. (The contract was with one David Ebanks who had paid United Jax Rentals, Inc. for finding him a place to live.) The Petitioner's Exhibit 9, admitted into evidence, shows the disbursement of certain funds collected from Ebanks and reflects a $250 commission in behalf of United Jax Rentals, Inc. The signature on that form is that of Richard L. Levinger an employee of United Jax Rentals, Inc. and a Respondent in this cause. Mrs. Williams also indicated that someone named Bruce took Mr. Ebanks to see the property prior to the rental contract being consummated. Beyond this testimony, no information was given about the involvement of United Jax Rentals, Inc., Thomas J. Capobianco or other members of the firm as alleged in the action clause of the count. In the absence of more specific information which tended to describe the involvement of United Jax Rentals, Inc., Thomas J Capobianco, Bruce K. Lammert, and Richard L. Levinger, the Petitioner has failed to make a sufficient showing of a violation of Section 475(1)(a) and (d), Florida Statutes, or Rule 21V-10.13, Florida Administrative Code. No testimony was offered on the allegations set forth in count four, consequently no proof of violations of Section 475.25(1)(a) and (d), Florida Statutes, has been established. Count five alleges that one Delores Logan paid an agent of the Respondent United Jax Rentals, Inc. $50 as a fee to find a rental property for her. The terms of the agreement between the representative of United Jax Rentals, Inc. and Ms. Logan may be found in the Petitioner's Exhibit 19, admitted into evidence. One of the special conditions of that agreement was that the property must fit the requirements of Ms. Logan or $45 of the $50 fee would be refunded. The particular requirement was that the dwelling be a single level home. Testimony shows that the property was actually for the benefit of one of her sisters; however, that is not a factor so crucial in nature that it would cause the proof of the allegation to fail. The contract document also gave the appearance that the refund should have been rendered by September 15, 1977. It was hard to determine from the testimony whether that condition was absolute; nonetheless, it is apparent that Ms. Logan had requested the refund in and around the month of September, 1977 and was not afforded the refund until November, 1977. Ms. Logan dealt with someone at the United Jax Rentals, Inc. office whom she referred to as being "Larry". "Larry" gave her three addresses and she went to the first one and discovered someone was already residing there. She went to another address on that list of three or four addresses and found the house was a two-story house. The third location of the group of listings was also a two-story house and was thus unsatisfactory. She went back to United Jax Rentals, Inc. and got another list and one of the addresses on Crestwood, Jacksonville, Florida, was found to be occupied. She went to a second place on the second list which was located at 16th Street and evidently did not find that listing to be satisfactory. After having no success with the two initial lists which were given to her by "Larry" she spoke to a person identified as "Bruce". "Bruce" said that he would get her a house, in the sense of giving her more listings. After a discussion, she demanded a refund from Bruce Lammert, whom she later determined was the "Bruce" that she had been dealing with. This is the same Bruce Lammert who is a named Respondent in this cause. Ms. Logan subsequently located a residence by means unrelated to the service of United Jax Rentals, Inc. After considering the allegations set forth in count five in view of the overall facts in the case to include the testimony pertaining to other counts within the complaint, it is concluded that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes. No other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown. In consideration of the facts offered in the discussion of count five of the administrative complaint, it is concluded that the Petitioner has failed to show violations as alleged in count six, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(c) and (d), Florida Statutes. Count seven alleges that Deborah K. Parnell received a commission for showing houses to Larry and Clair Wells, after the Wellses had paid $40 on September 22, 1977 to the Respondent United Jax Rentals, Inc. This is felt to be a violation of the Petitioner's laws because at the time Respondent Parnell was registered as a salesman for Rental Finders, Inc. of Ft. Lauderdale, Florida. The Specific allegation is that it is a violation to operate as a salesman for a person or organization not registered as your employer. Consequently this constitutes a violation, according to the Petitioner, of Section 475.42(1) Florida Statutes, and Section 475.25(1)(d), Florida Statutes. The rental contract between the Wellses and the landlord, H. G. Johnson may be found as Petitioner's Exhibit 7 and Respondent's Exhibit 1, admitted into evidence. The property had been shown to the Wellses by a member of United Jax Rentals, Inc. and the contract was signed by the Wellses at a time different than that when it was signed by Mr. Johnson. Nonetheless, the testimony by Mr. Johnson demonstrated that a person, established as being Deborah Parnell, did coordinate the matters of consummating the rental contract between Johnson and the Wellses and did this work in behalf of United Jax Rentals, Inc. at a time when Parnell was registered as a salesman for Rental Finders, Inc. in Ft. Lauderdale. This registration may be found as part of Petitioner's Composite Exhibit 3, admitted into evidence. Therefore, Deborah Parnell is in violation of Section 475.42(1)(b), Florida Statutes, as implemented by Section 475.25(1)(d), Florida Statutes. The violation by Deborah Parnell established herein, also would cause a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco of the conditions found in Section 475.42(1)(c), Florida Statutes, as implemented by 475.25(1)(d), Florida Statutes; in that the corporation and acting broker were employing Deborah Parnell as a real estate salesman, who is not the holder of a valid current registration certificate as salesman for United Jax Rentals, Inc. These allegations pertain to count eight. Counts nine and ten charge violations for transactions involving James Weinheimer and his wife, in their dealings with United Jax Rentals, Inc. and employees of that firm. No testimony was offered concerning the transaction with James Weinheimer and his wife and consequently there was insufficient proof to establish a violation on the part of any of the named Respondents, concerning counts nine and ten. Likewise, in discussing counts eleven and twelve, involving Joyce Elifritz, there was no testimony offered concerning the transactions between United Jax Rentals, Inc. and Joyce Elifritz. Therefore, no violation has been established pertaining to counts eleven and twelve. Counts thirteen and fourteen pertain to a transaction between Beverly Morris and United Jax Rentals, Inc. On August 31, 1977 Beverly Morris paid United Jax Rentals, Inc. in the person of one "Larry", an employee of United Jax Rentals, Inc. the amount of $50 to attempt to obtain housing for her. The contract involved in this transaction, which is a second contract drawn between the parties, is found as Petitioner's Exhibit 17, admitted into evidence. This contract entitles her to receive listings from the United Jax Rentals, Inc. for a period of one year. The contract also indicated the method by which Ms. Morris could receive listings from the Respondent United Jax Rentals, Inc. Those listings would be given upon request. Sometime in September, 1977 Ms. Morris told the Respondent to cease honoring their contract with her and refund her money. She was unable to contact "Larry", but did speak with Bruce Lammert who advised her that she could see listings under the terms of her contract. She went back to United Jax Rentals, Inc. several times to get the money back and wrote a letter, but has never received a refund. She moved into an apartment in Jacksonville, Florida, in October, 1977 after locating this rental on her own. Upon consideration of the facts and the date of the transaction, Petitioner has failed to show that the Respondent Thomas J. Capobianco as active firm member and as a responsible agent of the Respondent United Jax Rentals, Inc. is guilty of a violation of Section 475.25(1)(a) and (d), Florida Statutes, or that the named Respondents are in violation of Section 475.25 (1)(c) and (d), Florida Statutes, as alleged in counts thirteen and fourteen respectively. The Respondents were not directly involved in the transactions, and an examination of the contract does not demonstrate that Ms. Morris was entitled to any refund of the $50 fee. Count fifteen pertains to transactions between Jack and Solette Jones and United Jax Rentals, Inc. This involved the payment of a $40 fee on September 12, 1977 in return for guaranteeing to show five prospective rentals which would meet with the requirements expressed by the Joneses. Among those requirements was that the rental property be air conditioned. This requirement is expressed in Petitioner's Exhibit 27, admitted into evidence. The parties discussed possible locations with the representatives of United Jax Rentals, Inc. They were told that one of the houses could not be seen until the next day; however, when they saw the house it was not satisfactory because it was unair- conditioned. The second house that they looked at was out of the price range that they had indicated and also unavailable for six weeks. The next day Ms. Jones called and found that there were no listings available. She called many times after that and tried to get her money back because she had been advised by one "John" that she could receive a refund. "John", who is an employee with United Jax Rentals, Inc., said that he would have to speak to the broker about getting the refund. Mrs. Jones additionally spoke to Rick Levinger, an employee with United Jax Rentals, Inc. Finally, she received a refund after a conversation with Bruce Lammert, who worked for United Jax Rentals, Inc. The efforts by the employees of United Jax Rentals, Inc. to honor the terms of the contract were not satisfactory to the extent that it is concluded that the Petitioner has shown violations as alleged in count fifteen, on the part of United Jax Rentals, Inc. and Thomas J. Capobianco, such actions having been alleged to be in violation of Section 475.25(1)(a) and (d), Florida Statutes. The violations are as to Section 475.25(1)(a), Florida Statutes, only. Counts sixteen and seventeen allege violations of Chapter 475, Florida Statutes, pertaining to transactions between United Jax Rentals, Inc. and Howard Peake. No testimony was given about the matter of Howard Peake, therefore counts sixteen and seventeen have not been proven. Counts eighteen and nineteen of the administrative complaint pertain to the transaction between Betty Ross and United Jax Rentals, Inc. Ms. Ross paid $35 to an employee of United Jax Rentals, Inc. whose name was "Rose". The payment of $35 was for purposes of having United Jax Rentals, Inc. locate a residence for Ms. Ross. The contract period was for one month in which the Respondent United Jax Rentals, Inc. was to find a residence for Ms. Ross. The first location address given already had someone living there. The second location on Division Street, Jacksonville, Florida, was provided by United Jax Rentals, Inc. Ms. Ross did not bother to call that address. The next day she saw the address of Division Street in the paper under a separate listing than that of United Jax Rentals, Inc. The Division Street address was not going to be vacant for a month. Consequently, Ms. Ross, on the Saturday following the initial contact with United Jax Rentals, Inc. went and demanded her money back from "Rose". The following week after the Saturday contact, Ms. Ross continued to make inquiry about having her money returned but that refund was never forthcoming from United Jax Rentals, Inc. The contact included discussions with Bruce Lammert. The contract that was signed was not produced in the hearing, nonetheless, the form of contract was one for providing listings, such as has been entered in the case of the named individuals in the previous counts. Ms. Ross finally moved in with her sister in October, 1977 and subsequently located her own apartment prior to Christmas, 1977. The Respondent United Jax Rentals, Inc. had been given two days to try to locate a residence for Ms. Ross. After a full consideration of the testimony by Ms. Ross it is concluded that only Rose J. Vines of the Respondent who are alleged to have violated Section 475.25(1)(a) and (d) Florida Statutes, as alleged in count eighteen is guilty of a violation and she only as to Section 475.25(1)(a), Florida Statutes. No showing has been made that the other Respondents did not perform their part of the contract or that they failed to deliver money which was due and owing to Betty Ross, as alleged in count nineteen pertaining to Section 475.25(1)(c) and (d), Florida Statutes. Count twenty pertains to transactions between Linda Johnson and United Jax Rentals, Inc. which took place on August 21, 1977. The parties entered into an agreement between United Jax Rentals, Inc. and Linda Johnson to locate a residence for Ms. Johnson. Ms. Johnson Paid $40 for the service which would allow her to receive six months worth of listings from the Respondent United Jax Rentals, Inc. A copy of this contract may be found as Petitioner's Exhibit 21, admitted into evidence. Ms. Johnson was of the opinion that the United Jax Rentals, Inc. would provide the services without her having to request anything from them. When no action was forthcoming by United Jax Rentals, Inc. Ms. Johnson cancelled payment of the $40 check that she had given United Jax Rentals, Inc., thus ending the transaction. There was never any attempt on the part of Ms. Johnson to avail herself of listings as provided by her rights under the contract. It is clear that there was some misunderstanding between Ms. Johnson and the representative of United Jax Rentals, Inc. on the question of what rights she did have for the payment of her $40 fee, be those rights; one, a right to receive listings; or two, to have United Jax Rentals, Inc. make the contacts under the listings. Nonetheless, there is no indication that Thomas J. Capobianco, as active firm member, or United Jax Rentals, Inc. through the person of their active firm member, were in violation of Section 475.25(1)(a) and (d) Florida Statutes. Count twenty-one involves the October 3, 1977 transaction between Steve Mercer and United Jax Rentals, Inc. Mercer paid $40 for obtaining listings from United Jax Rentals, Inc. He was told by an employee of United Jax Rentals, Inc. whose name is "Dave" that he would be shown listings if he would wait in the office of United Jax Rentals, Inc. until "Dave" had concluded other business. Mr. Mercer did not wait and took three listings that were provided him to pursue his efforts at finding a residence. The first location was at a number that did not exist; the second location was not acceptable the third location was acceptable but it had already been rented. He talked to Bruce Lammert about the matter and asked that his money be returned. Mr. Mercer never received his money, he never was given the address of the location that first attracted him when he had seen it in the United Jax Rentals, Inc. advertisement in the paper and he was never given the opportunity to speak to the manager who might have given him a refund. The factual situation involving Steve Mercer, when considered in view of the other facts and cases reported in this recommended order, leads to the conclusion that Thomas J. Capobianco as active firm member of United Jax Rentals, Inc. and United Jax Rentals, Inc. through Mr. Capobianco are both guilty of culpable negligence as set out in Section 475.25(1)(a), Florida Statutes, no other violation of Section 475.25(1)(a), Florida Statutes, has been shown. No violation of Section 475.25(1)(d), Florida Statutes, has been shown. The facts in the Mercer transaction do not show a violation on the part of United Jax Rentals, Inc. and Thomas J. Capobianco as alleged in count twenty-two. There has been no showing under terms of the contract document or by legal determination that Mercer was entitled to a refund of the $40 fee that he had paid for the services, therefore there is no violation of Section 475.25(1)(c) and (d), Florida Statutes. Count twenty-three involves the transaction of August 15, 1977 between William Machalski and United Jax Rentals, Inc. This involved the efforts by United Jax Rentals, Inc. to obtain a residence location for Machalski who had paid them $40 for such service. The terms and conditions of the agreement are found in Petitioner's Exhibit 26, admitted into evidence. The firm member who had discussed this transaction and service with Machalski was a person named "Larry". Six addresses were checked by Mr. Machalski and those addresses had either been rented or were not available for a period of time, or were unfit. Mr. Machalski went back to the agency and talked to a person named "John". He also spoke later with a person named "Rick". Attempts were made to reach Mr. Capobianco but the employees in the office did not provide his telephone number. The attempts to reach Mr. Capobianco were made on the part of Clara Mitchell, the sister of Mr. Machalski. During this period, members of United Jax Rentals, Inc. indicated to Machalski and his sister that efforts would be made to get new listings. However, shortly thereafter, Mr. Machalski located a residence through another broker unrelated to United Jax Rentals, Inc. Although the employees of United Jax Rentals, Inc. have been aware of the development and problems with this service that was being offered to Mr. Machalski, when this fact pattern is considered in view of the facts and circumstances outlined in the recommended order herein, it does not demonstrate that United Jax Rentals, Inc. in the person of its active broker, Mr. Thomas J. Capobianco or other officers or directors of the corporation were, at the time of the occurrence, aware of the problem, or should have been aware of the problems, such that they would be in violation of Section 475.25(1)(a) and (d), Florida Statutes. Moreover, no showing has been made as alleged in count twenty-four that the contract conditions under which Mr. Machalski was being given service or by any declaration by a court of competent jurisdiction that the $40 fee should have been returned to Mr. Machalski as alleged. Consequently, no violation of Section 475.25(1)(c) and (d), Florida Statutes, has been shown. The Petitioner's Composite Exhibits 22, 23, 24 and 25 are actual or copies of newspaper advertisements placed by United Jax Rentals, Inc. in October and November, 1977. As shown in Petitioner's Exhibit 25, some of the advertising placed with the Florida Times Union, a paper of general circulation in Jacksonville, Florida, listed the general location and description of property, in terms of the accommodations and gave the phone number and listed the word "Broker" only, with no name. Petitioner's Exhibit 22, admitted into evidence contained a listing in the same newspaper with the indication that the registered name was United Jax Rental Broker, Inc., not United Jax Rentals, Inc., showing the same telephone number as was shown with the advertising in Petitioner's Exhibit 25 that contained the word "Broker". The same exhibits contained advertisements in newspapers in which landlords were solicited and given a telephone number which was the number of United Jax Rentals, Inc., where again the name United Jax Rentals, Inc. is missing. This form of advertising spoken of was in violation of Section 475.25(1)(b), Florida Statutes, and those which did not list the broker's name were in violation of Rule 21V-10.10, Florida Administrative Code, as implemented by Section 475.25(1)(d), Florida Statutes. Count twenty-six pertains to allegations that various employees within the firm of United Jax Rentals, Inc., were guilty of operating as real estate salesmen who are not holders of valid, current registration certificates as salesmen, held with the Florida Real Estate Commission. There was no testimony to that effect that they were not the holders of valid, current registration certificates. Consequently, no violation of Section 475.42(1)(c), Florida Statutes, has been shown. County twenty-seven alleges that United Jax Rentals, Inc., Thomas J. Capobianco, Bruce K. Lammert, Richard L. Levinger, Deborah K. Parnell and Rose J. Vines are guilty of violations of Section 475.25(3), Florida Statutes. After considering the testimony in this cause it is determined that the necessary proof has been shown to find United Jax Rentals, Inc., Thomas J. Capobianco and Richard L. Levinger in violation of Section 475.25(3), Florida Statutes. There is insufficient showing to establish such a violation on the part of Bruce K. Lammert, Deborah K. Parnell and Rose J. Vines.
Recommendation It is recommended that the applicable licenses of United Jax Rentals, Inc.; Thomas J. Capobianco; Richard L. Levinger and Rose J. Vines be suspended for a period of six months. It is recommended that Deborah K. Parnell be given a letter of reprimand. (This recommendation is in keeping with the offer that has been entertained by the Florida Real Estate Commission by agreement of the parties). Finally, it is recommended that the action against Bruce K. Lammert be dismissed. DONE AND ENTERED this 1st day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 John S. Winnie, Esquire Post Office Box 682 Gainesville, Florida 32602 Richard L. Levinger 2243 Southeast 10th Street Pompano Beach, Florida 33062 Rose J. Vines c/o United Jax Rentals, Inc. 1642 North Main Street Jacksonville, Florida 32206 =================================================================
