Findings Of Fact Joseph Rodriguez, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 to 604.30, Florida Statutes, and acts as a negotiating broker between the producer and the buyer. Respondent is bonded through Aetna Casualty & Surety Company, co-Respondent in this case, as required by Section 604.19, Florida Statutes. Respondent acted as broker on thirty sales of Petitioner's cabbage between May 21 and June 7, 1984. On each occasion, Respondent provided Petitioner with a written confirmation of sale which specified the buyer, the place of delivery, the amount of cabbage sold and the terms of the sale, the name of the company supplying the truck to pick up the cabbage and who was supplying the truck. On several occasions, Respondent supplied the truck. However, on all written confirmations provided by Respondent, the following appears: BROKER ARRANGES TRUCK FOR GROWER FOR CONVENIENCE PURPOSES ONLY. On June 8, 1984, Respondent contacted Petitioner's salesman, Donald Waters and ordered 150 bags of cabbage to be sold to Harvey Kaiser, Inc. Respondent was acting as a broker in this transaction between the buyer and seller. Respondent contacted Patterson Truck Brokers and ordered a truck to pick up the cabbage at Petitioner's farm on June 9 and make delivery under the terms of the sale. Petitioner could only provide 121 bags of cabbage. Respondent agreed to this lesser amount and was invoiced accordingly by Petitioner on June 9 in the amount of $272.25. The truck from Patterson Truck Brokers never arrived to pick up the cabbage. Petitioner's father, Donald A. Dunn, Jr., testified that he contacted Joseph Rodriguez on two occasions by telephone to find out where the truck was, and was told that Patterson would be sending it. Rodriguez testified that Patterson Truck Brothers had agreed to provide a truck but when they were unable, he then contacted other trucking companies, as well as other buyers, in an attempt to get a truck on June 9 or 10, or to arrange another sale of Petitioner's cabbage. However, he was not successful and the cabbage went bad. Although there was no completed sale of this cabbage and therefore he earned no brokerage fee on the transaction, Respondent paid Petitioner one-third of the invoice amount for this cabbage, $86.21, on July 23, 1984, as an act of "good faith" and in recognition of the good business relationship they had. He also informed Petitioner that Patterson Truck Brothers and Donald Waters had each also agreed to pay one-third and Petitioner should contact them for payment. Petitioner contends that it should be Respondent's responsibility to pay the entire amount still owing, $172.43. Acting as a broker, Respondent earns no commission for making arrangements to supply a truck for the convenience of the seller. He invoices the buyer, collects the total amount due from the buyer, remits the freight charge to the shipping company, and pays the seller minus his brokerage fee.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture issue a Final Order dismissing the complaint. DONE and ORDERED this 30th day of May, 1985, in Tallahassee, Florida. DONALD D. CONN 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 30th day of May, 1985. COPIES FURNISHED: Joseph Rodriguez President Golden Touch Corporation 950 Colorado Avenue Stuart, FL 33497 The Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, CT 06115 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee FL 32301 Donald A. Dunn, III Route 2, Box 68 Sanford, FL 32771 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32301
Findings Of Fact Respondent, Paul E. Flasher, II, was certified as a certified public accountant by the Florida Board of Accountancy under License No. 4739 in 1975. His license reverted to inactive status on January 1, 1982, for failure to meet continuing professional educational requirements. On May 31, 1979, Respondent was charged under a direct information for fraud license (seven counts) and grand theft in the second degree (seven counts) in the Circuit Court for the Thirteenth Judicial Circuit of the State of Florida, alleging his improper taking or using various sums of cash from the Terrace Village Apartments Partnership by which he was employed during the period July 5, 1977, through October 10, 1978. On February 15, 1980, the Direct Information was amended in an action which dismissed the first seven counts (grand larceny) and recharged the seven counts of grand theft in the second degree. Respondent was tried on the remaining seven counts and convicted of four separate counts, which alleged grand theft in the second degree on February 3, 1978; April 10, 1978; June 13, 1978; and October 10, 1978, respectively. He was thereafter sentenced to be imprisoned for the term of five years on each of the four counts of which he was convicted, each count to run concurrently. The conviction was affirmed on appeal to the District Court of Appeal for the Second District in an opinion filed November 25, 1981. A petition for review to the Supreme Court of Florida was dismissed on January 27, 1982. The crimes of which the Respondent was convicted arose out of his use of partnership monies for his personal purposes. Mr. Flasher indicated that the partnership monies he utilized by purchasing items for his personal use and then writing a partnership check in payment were in fact owed to him as payment for his managerial services and that he paid by partnership check to take advantage of the partnership quantity discounts. Mr. Flasher also contended that at the times he converted the monies in question, he was acting as a manager/partner in the organization, and not in the capacity as a certified public accountant. The documents to support this managerial relationship were never drafted, nor was the partnership ever legally constituted, however, Therefore, his relationship to the other principals was not as a partner, but as an employee, the primary entree to which was his certified public accountant status for his former client, Mr. Ed Roseman. On February 4, 1982, Respondent offered to make restitution in the amount of $1,469.74.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of repeated violations of the statutes cited in the Administrative Complaint. That Respondent's license to practice as a certified public accountant be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of February, 1983. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argument of counsel, and the entire record compiled herein, the following relevant facts are found. 1/ By its one count Administrative Complaint filed herein on approximately October 13, 1981, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to take disciplinary action against Respondent, Harold O. Polson, a licensed real estate salesman and broker. During times material, Respondent was a licensed real estate salesman and holds License No. 0179858. Respondent is also a licensed real estate broker and has been since April 17, 1981. During October of 1979, Respondent secured a listing from Wayne and Linda Overby to sell certain real property which they owned, located at 241 Coral Drive, Fort Walton Beach, Florida. (Tr. pp. 43 & 44.) Mrs. Addie Simmons, a licensed real estate salesman who was then affiliated with the same office as Respondent, obtained a contract to purchase the Overby residence from Mary Theresa Dickson on September 30, 1979. (Petitioner's Exhibit 1.) The transaction closed on November 19, 1979, however, Mrs. Dickson took possession of the residence pursuant to an occupancy agreement which the parties executed on October 12, 1979. (Respondent's Exhibit 1.) The offer to purchase and contract for sale which was executed by Mrs. Dickson on September 30, 1979, fixed the closing date for this subject transaction on or before December 1, 1979. According to the terms of the contract to purchase, Mrs. Dickson was obligated to satisfy herself that all heating, air-conditioning, electrical, plumbing, appliances and lawn pumps were in normal working order at the time of closing or prior thereto. (Petitioner's Exhibit 1, paragraph 13.) According to an inspection and acceptance of property executed by Mrs. Dickson on November 19, 1979 (Petitioner's Exhibit 2), Mrs. Dickson indicated that all of the above appliances, equipment and systems were in normal operating condition on the date of closing with the exception that a discrepancy existed in the following items: Kitchen faucet leaking; Living room window could not be opened or closed; Main bath vanity faucet dripped; Bedroom window would not crank, Tub ring missing; The bath adjoining the master bedroom leaked water; and Two range burners were inoperable. Salesman Simmons who represented purchaser Dickson and Respondent orally agreed to correct the deficiencies noted in Petitioner's Exhibit 2 to "have a happy buyer and happy seller." (Tr. p. 74.) This representation was made by Ms. Simmons although Respondent was not legally obligated to make such repairs pursuant to the terms of the deposit receipt and offer to purchase (contract for sale) which was executed by Mrs. Dickson on September 30, 1979. Subsequent to the closing on November 19, 1979, Respondent commenced making the repairs which were listed in the inspection and acceptance of property executed by Mrs. Dickson. A majority of the deficiencies were corrected within several months of the closing. As example of Respondent's efforts, documentary evidence received indicates that Respondent purchased materials to correct the deficiencies to the plumbing which were noted by the purchaser during November and December of 1979. (Respondent's Exhibits 1-A and 2.) The repairs to the windows were not finally completed until September of 1980, due to the age of the windows and the resulting difficulty experienced by Respondent in obtaining suitable replacement parts. (See Respondent's Exhibits 3, 4 and 5.) Respondent completed the repairs to Mrs. Dickson's range in January of 1980. (Respondent's Exhibit 7.) Respondent had made an earlier attempt to correct the range and ultimately had to order additional parts to complete the needed repairs. (Respondent's Exhibit 7.) Contrary to the allegations contained in the Administrative Complaint, evidence revealed that Respondent had no dealing with Mrs. Dickson until the date of closing nor did Mrs. Dickson enter into the sales contract upon the reliance and trust placed in statements alleged to have been made by Respondent to Mrs. Dickson. (Testimony of Dickson and Respondent.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 7th day of April, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 7th day of April, 1982.
