Findings Of Fact Petitioner, Kimberly D. Coyle, filed her first application for licensure as a real estate salesman in 1979 with Respondent, Department of professional Regulation, Florida Real Estate Commission. She did not pass the examination and resubmitted a second application in February, 1980. However, she did not take the examination at that time. By application dated November 2, 1981, she filed another application for licensure with Respondent. All responses on the application at that time were complete and correct. The application was returned to Petitioner in January, 1982 with a request that she resubmit the same and enclose a passport photograph and a set of her fingerprints which had been previously omitted. Because Petitioner was in a hospital at that time, her mother returned the original application together with the requested fingerprints and photograph. These were received by the Commission on February 10, 1982. The November application was refiled a third time on March 4, 1982 because the required $25 application fee had not been included with the prior two submissions. Applicant was thereafter approved for licensure, and successfully passed the salesman examination. On December 8, 1981, Petitioner was arrested in Dade County and charged with three counts of possessing a controlled substance. She was later placed in the South Miami Hospital Addiction Treatment Program on December 11, 1981 where she remained for six weeks. On March 1, 1982, Coyle was accepted as a participant in the State Attorney's Diversion Program and has been a successful participant since that time. As a result of her participation, adjudication on the charges has been withheld pending a successful completion of the conditions of her program. On April 30, 1982, the Commission wrote Petitioner a letter in which it advised her that the December 8 arrest had come to its attention, and requested that she forward a "complete explanation of these charges along with an explanation of (her) partial answer to. . .question (six)." Question six requires that the applicant answer whether she had ever been arrested without regard to whether she was convicted, sentenced, pardoned or paroled. Petitioner furnished a reply to the Commission's inquiry on June 8, 1982. She gave a full explanation of the charges and stated that a partial answer to question six was given on the March 4 submission because "as of March 4, 1982. . .(she) had not yet appeared in court." On July 2, 1982, Respondent notified petitioner that her application was denied on the ground that her answer to question six on the application "failed to reveal the 1981 drug charge." The denial precipitated the instant case. 1/ Petitioner is twenty-one years old. She is currently employed as a waitress in Miami. If her application is approved, she intends to work for her mother's real estate firm in Marco Island, Florida. Coyle stated that when her application was originally submitted in November, 1981, it was complete and accurate. The resubmissions in February and March, 1982 were made by her mother, and simply involved the refiling of the November application with the additional items (photograph, fingerprints and check) requested by the Commission. There was no intent on the part of Coyle to deceive the Commission, and when asked to clarify her response to question six, she did so in a full and truthful manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kimberly D. Coyle for licensure as a real estate salesman be GRANTED. DONE and ENTERED this 28th day of September, 1982, 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 28th day of September, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
Findings Of Fact Florida Development and Sales Corporation (FDS) at all times here involved was a registered real estate corporate broker. Lawrence F. Taylor, at all times here involved, was a registered real estate broker and an Active Firm Member for FDS and Universal Realmark, Inc. Michael W. Levine, at all times here involved, was a registered real estate salesman for Universal Realmark, Inc., corporate broker. Florida Development and Sales was a wholly owned subsidiary of Universal Realmark, Inc. The two corporations occupied the same offices, had the same corporate officers, and used the same telephone numbers. Correspondence went out from either corporation on FDS stationery, and all employees of both corporations were paid by check drawn on FDS account. FDS entered into a non-exclusive brokerage agreement on August 2, 1971 (Exhibit 5) with Lake Lucie Estates, Inc., the owner of unimproved land it desired to sell in 1 1/4 acre tracts. Pursuant to said agreement the broker advertised and sold, generally by agreement or contract for deed and generally to out-of-state buyers, these 1 1/4 acre tracts. In 1973 Universal Realmark, Inc. acquired all of the stock of FDS and accepted the obligations of FDS under supplemental agreement dated May 23, 1973 (Exhibit 6). The brokerage agreement above referred to was undisturbed. By order dated May 6, 1974 the Commissioner of Securities, State of Missouri ordered St. Lucie Estates, Inc., and FDS, their representatives, inter alia, to cease and desist the offer and/or sale in Missouri of any agreement for deed securities. Chapter 409, Laws of Missouri, contain the Missouri Uniform Securities Act. Therein security, in 409.401(1), is defined to mean any contract or bond for the sale of any interest in real estate on deferred payments or on installment plans when such real estate is not situated in this state Section 409.201 makes it unlawful for any person to sell or offer for sale securities in Missouri without being registered to do so and Section 409.301 makes it unlawful for any person to offer or sell any security in Missouri unless: (1) The security is registered, or (2) The security or transaction is exempted under Section 409.402. Pursuant to these and other provisions of the securities law the cease and desist order was issued and served by certified mail on Lake Lucie Estates, Inc. and FDS. Section 409.410 of the Missouri Statutes provides that any person who has been personally served with a cease and desist order and thereafter willfully violates same shall, upon conviction, be fined not more than $5,000 or imprisoned not more than three year, or both. The Act further provides for personal service upon an out-of-state violator of the act by serving the commissioner who sends notice of the service to the out-of-state violator. Here the Respondents acknowledged receipt of the cease and desist order. Subsequent to the receipt of the Missouri cease and desist order Levine negotiated agreement for deeds with three purchasers in Missouri of Lake Lucie Estates, Inc. property. On one of these the purchaser's check was made payable to Lake Lucie Estates, Inc. and the checks for the other two were made payable to FDS. During his interrogation by the investigator, Levine acknowledged that he was aware of the cease and desist order at the time he negotiated the three agreements for deed. He obtained his list of people to call from the office, i.e. FDS/Universal Realmark. At the hearing Levine did not remember whether or not he was aware of the cease and desist order at the time he negotiated the Missouri contracts. He did remember receiving a commission on each sale by check drawn by FDS although he was registered as a salesman under Universal Realmark, Inc. As noted above Lake Lucie Estates had a brokerage agreement with FDS and no such agreement was ever negotiated with Universal Realmark. Lake Lucie Estates would have no objection to Universal Realmark selling its property. Respondent Taylor was the Active Firm Member of FDS and Universal Realmark. He was serving in that capacity with Universal Realmark when FDS was acquired. At the same time he operated his own real estate broker's office on Miami Beach, spending part of his time supervising the activities of each office. Taylor's initial statements to the investigator that he learned of the Missouri cease and desist order in June 1974 upon his return to the office from a stay in the hospital was repudiated at the hearing when he stated he learned of the Missouri order only a few hours before he talked to the investigator in October, 1974. Taylor also testified that he never authorized Levine to sell under his brokerage even though Taylor was the Active Firm Member of Universal Realmark and Levine was registered under the corporate broker, Universal Realmark. Taylor's main concern appeared to be to insure that the salesmen for these out-of-state land sales adhered to the script that had been prepared for them and from time to time he monitored their conversations. When he realized that the alleged violations of the real estate license law were being investigated he resigned from FDS and Universal Realmark because "they were violating my trust". When the requests for renewal of the FDS corporate broker's registration was submitted in September, 1974, Taylor signed same a Vice President of FDS and the Active Broker of the corporation.
Findings Of Fact At all material times, the Respondent Tremone Rudman was an active real estate salesman having been issued license number, 0201202. The Respondent Rudman was employed by Fantastic Properties, Inc., as a salesman from February 6, 1979 until September 6, 1979. The broker and owner of Fantastic Properties, Inc., from February 6, 1979 through September 6, 1979, was Elaine Mueller. In July 1979, the Respondent Rudman negotiated a contract between Barbara Medema, seller, and Eugene and LaLita Mascarenhas, buyers, for two separate parcels of property described as Lot 14, Block Y, Coral Springs Subdivision Number 1 (parcel number 1) and Lot 13, Block Y, Coral Springs Subdivision Number 1 (parcel number 2). The transaction involving the properties was scheduled to close on November 12, 1979, at Taylor Title and Abstract in Sunrise, Florida. At the time of the closing, the Respondent Rudman and Elaine Mueller had terminated their business relationship due to personal differences. The Respondent was concerned that he would not receive his share of the Mascarenhas commission because of difficulties he was having collecting his share of other commissions from Mueller. In response to his actual or perceived difficulties in obtaining pending commissions, the Respondent Rudman made demands upon Mueller, his broker, and Pat Taylor, the title agent handling the closing, to disburse the Respondent's portion of the Mascarenhas commission directly to him rather than through the broker at closing. The closing, which occurred on November 12, 1979, was difficult and lasted long into the afternoon. During the course of the closing the Respondent placed calls to Taylor Title Company to ascertain when he could pick up his commission check. Elaine Mueller indicated to Taylor that the proper procedure should be that the check would be made payable to Fantastic Properties, Inc., as the broker, and that Fantastic Properties would then write a check to the Respondent, as the salesman. The procedure suggested to Taylor was not acceptable to the Respondent due to his belief that Mueller might delay his check. The Respondent contacted his attorney, David Hoines, and instructed him to demand that the commission check be issued directly to the Respondent. On November 12, 1979, at approximately 5:30 p.m., Hoines called Taylor Title Company, and in conversation with Mueller and Taylor, demanded that the commission check in question be paid directly to the Respondent per his client's request. Both Mueller and Taylor expressed apprehension concerning such a procedure and advised Hoines that in their opinion, they could not legally issue a commission check directly to the Respondent, a salesman. Hoines reiterated his demand on behalf of his client and threatened to institute legal proceedings which could stop the closing and/or create problems for both the buyer and the seller. Hoines indicated to Taylor that he had the means at his disposal to bring the closing to a halt if the commission check was not distributed to his client as he demanded. When Taylor inquired concerning what those means were, Hoines refused to elaborate. Hoines acknowledged that he had specifically made reference to a declaratory judgment action and in that sense, threatened legal action. He also stated that he ignored the statements made to him by Mueller and Taylor that the procedure he demanded that they follow was illegal. As a consequence of the actions taken by the Respondent Rudman and his attorney at his initiation, Mueller was placed in an untenable position. On one hand, Mueller was threatened with legal action if she did not pay the commission to the Respondent and on the other, she knew that if the closing did not take place that day, it would probably never occur since the outstanding mortgages on the two parcels were months in arrears. Mueller's problems with the mortgages on the property were also known to the Respondent when he and his attorney demanded the commission check. Mueller objected to issuing a check to the Respondent but was concerned that withholding the check could result in stopping the closing as a result of the threatened legal proceedings. Under such circumstances, Mueller did not voluntarily consent to the issuance of the check to the Respondent. As characterized by counsel for Petitioner, Mueller "acquiesced" rather than risk the possibility that the Respondent or his attorney would initiate action which could have affected the sale. Thus, the "consent" given by Mueller was under protest, the result of coercion and was not free and voluntary. As a result of Respondent's demands, Pat Taylor contacted her attorney, Mr. Finn, who instructed her to type the document dated November 13, 1979, Petitioner's Exhibit 10. Mueller did not see this document nor did she assist in its preparation. On November 13, 1979, Taylor presented the document, together with a check for the Respondent's share of the commission to Respondent at his office. The Respondent accepted the check which was made payable to "Tremone Rudman". The Respondent then signed the document and added, "I do not agree to the foregoing." The Respondent subsequently negotiated the check. The Respondent Rudman acknowledged that he was not collecting on behalf of the broker with whom he was employed when he received this commission, nor did he collect the funds on behalf of Fantastic Properties, Inc., for whom he was no longer employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order finding the Respondent Rudman guilty of violating Sections 475.25(1)(b) and 475.42(1)(b) and (d), Florida Statutes (1979), and suspending his real estate salesman's license for ninety (90) days. DONE and ORDERED this 2nd day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of March, 1983. COPIES FURNISHED: John G. DeLancett, Esquire 801 North Magnolia Avenue Suite 402 Post Office Box 6171-C Orlando, Florida 32803 Richard H. Adams, Jr., Esquire Carlos B. Stafford, Executive PLEUS ADAMS FASSETT & DIVINE Director 220 North Palmetto Avenue Florida Real Estate Commission Post Office Box 2747 Post Office Box 1900 Orlando, Florida 32802 Orlando, Florida 32802 William M. Furlow, Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation - Legal Section Regulation 400 West Robinson Street 130 North Monroe Street Orlando, Florida 32801 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0000925 DOAH NO. 81-2152 TREMONE RUDMAN, Respondent. /
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following findings of fact: On January 9, 1980, Richard Morgentaler, Trustee, obtained title to 574 lots in Pinecrest Estates, a subdivision located in St. Johns County, Florida. Pinecrest Estates is registered with the Division. (Pet. Ex. 1) Richard Morgentaler paid 22,960.00 for the 574 lots, or approximately $40 per lot. (Pet. Ex. 23) On July 21, 1980, Richard Morgentaler conveyed 44 lots to Florida Crown Corporation. (Pet. Ex. 15) The deed reflects a documentary stamp tax of 8.80. Murray Fields was the president and sole stockholder of Florida Crown Corporation. (Pet. Ex. 20) The Corporation was formed on July 17, 1980, only 4 days before the corporation obtained title to the 44 lots from Richard Morgentaler. On August 29, 1980, Richard Morgentaler also conveyed 10 lots in Pinecrest Estates to Murray Fields. (Pet. Ex. 18) Neither Florida Crown Corporation nor Murray Fields has ever been registered with the Division to offer or sell subdivided lands. (Pet. Ex. 2) On August 29, 1980, Shirley Arthur purchased 9 lots in Pinecrest Estates from Richard Morgentaler, Trustee, for $21,860.00. (Pet. Ex. 16 & 22) Present at the closing in Morgentaler's office were Shirley Arthur, Murray Fields, Barry Shelomith and Richard Morgentaler. Shirley Arthur had previously met Murray Fields when Murray Fields became her driving instructor. As a friendship developed between Shirley Arthur and Murray Fields, Shirley Arthur placed a great deal of trust and confidence in Murray Fields. Murray Fields told Shirley Arthur about some allegedly great investments in land through Barry Shelomith, who was described by Fields as "liquidator of estates." Fields and Shelomith presented brochures about Pinecrest Estates and the surrounding area and made many representations to Shirley Arthur about the value of the land as well as potential development in the area. (Pet. Ex. 21) Murray Fields also told Shirley Arthur that he was buying 10 lots in Pinecrest Estates at the same time. Shirley Arthur's belief that Murray Fields was buying lots at the same time was a major factor in her decision to purchase, because of the trust she placed in Murray Fields. Shirley Arthur was not given a public offering statement prior to or at the closing. At no time did Murray Fields disclose to Shirley Arthur the adverse features of the land, the absence of roads to the subdivision, the absence of roads in the subdivision, or the amount of water continually covering the subdivided land. (Testimony of Shirley Arthur; Pet. Ex 4) As president of Florida Crown Corporation, Murray Fields sold subdivision lots to many individuals from July 1980 to July 1981. (Pet. Ex. 5 through 14) Most of these deeds reflect documentary stamp taxes in the amount of $5.20 to $13.60). 1/
Recommendation On the basis of all of the foregoing it is recommended that the Department of Business Regulation, Division of Florida Land Sales and Condominiums, issue a Final Order as follows: Ordering Murray Fields to cease and desist from offering or disposing and from partici pating in the offer or disposition of interests in Pinecrest Estates or any other subdivided lands until he has a valid order or registration, delivers a current public offering statement, and otherwise complies with Chapter 498, Florida Statutes: and Ordering Murray Fields to pay to the Division, within 30 days from the entry of the Final Order, a civil penalty in the amount of $5,000 for violation of Section 498.023(1) and Section 498.023(2), Florida Statutes. DONE and ORDERED this 28th day of September, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 28th day of September, 1984.
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order dismissing Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. Respondent Villanueva was registered as a real estate salesman on July 12, 1974. For the registration year October 1, 1976, through September 30, 1977, his status changed to a nonactive salesman. Upon respondent's plea of guilty to the offense of possession of marijuana in Case No. 74-725C, the Circuit Court of Hillsborough County entered an order on June 7, 1974, withholding adjudication of guilt and placing respondent on probation for a period of one year. By an administrative complaint filed on October 7, 1976, the Florida Real Estate Commission charged respondent with being guilty of a crime of moral turpitude, fraudulent or dishonest dealing in violation of Florida Statutes s475.25(1)(e). The matter was referred to the Division of Administrative Hearings for a hearing, and the undersigned was duly designated as the Hearing Officer. On March 31, 1977, the Circuit Court of Hillsborough County entered an order on respondent's motion to withdraw his plea of guilty previously entered in Case No. 74-725C. By this Order, it was adjudged that the plea of guilty previously entered "be and the same is hereby stricken from the records and shall be of no force and effect and in lieu thereof a plea of nolo contendere is accepted in this cause." The Court reconsidered, and reaffirmed its action taken with regard to sentence.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the administrative complaint filed by petitioner on October 7, 1976, be dismissed. Respectfully submitted and entered this 12th day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR 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 12th day of May, 1977. COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William F. Garcia, Esquire 512 East Kennedy Boulevard Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= August 4, 1977 TO: Renata M. Hendrick, Supervisor FM: Manuel E. Oliver, Staff Attorney, Legal Section RE: PD 3024 Richard R. Villanueva Registration Certificate No. 0136894 Attached please find registration certificate in the name of Richard R. Villanueva, No. 0136894. The effective date of the Final Order is August 11, 1977, however, this certificate was received by us on Monday, August 1, 1977, and therefore his suspension period will begin on that date, and end on September 1, 1977 at which time he may re-apply for registration with the Florida Real Estate Commission. Also attached for your reference and record is a copy of the Final Order filed by the Commission on July 12, 1977.* * NOTE: The Attachment is not on file with this Division and therefore not a part of this ACCESS document. The July 12, 1977 date has been used as the Agency Final Order Issue date in the ACCESS index.
The Issue Whether Respondent's renewal application for registration as an intrastate mover should be denied for the reasons set forth in the September 23, 2019, Denial of Application Letter.
Findings Of Fact The Department is the state agency responsible for permitting and regulating household moving services in the State of Florida. Respondent is a Florida corporation and conducts household moving services to the general public. Harwood Case Respondent is a named Defendant in the case of Susan Harwood v Licensed Interstate Transport Corporation and Florida Licensed Moving Corporation, filed in Seminole County Circuit Court, under Case No. 2019- CA-000309-16-G (“Harwood Case”). The case alleged a breach of contract action for damages and violations of chapter 507. On June 20, 2019, a default judgment was entered against Respondent in the Harwood Case in the amount of $30,000.00, representing a $5,000.00 civil penalty for each of the six separate violations of chapter 507, which also constitute deceptive and unfair trade practices under sections 501.201- 501.213, Florida Statutes, the "Florida Deceptive and Unfair Trade Practices Act," $800.00 in actual damages for breach of contract, plus an award of costs, and interest. Respondent asserts it was not properly served in the Harwood Case and was not aware of the judgment until notified by the Denial Letter issued in this case on September 23, 2019. After receipt of the Denial Letter, Respondent immediately filed a Motion to Set Aside Default Judgment in the Harwood Case, which as of the date of the final hearing, had not been set for hearing. The judgment remains unpaid by Respondent. Enforcement Action On September 14, 2018, the Department filed an enforcement action against Respondent in Seminole County Case No. 2018-CA-002516. The allegations contained in the pleading allege multiple violations of chapter 507, including allegations that Respondent engaged in fraudulent and dishonest acts while operating as a mover. This case is currently pending. More specifically, this action alleges multiple acts of fraud, misrepresentation, or failure to disclose material facts to customers in violation of chapter 507. Respondent allegedly engaged in “hostage moves” – the practice of providing a low-ball cost estimates for moving and storage, then refusing to relinquish the goods without requiring greater amounts. Respondent also allegedly resorted to threats for excessive payments, failed to provide estimates or contracts prior to moves, refused to accept credit card payments, and failed to maintain insurance coverage. Alleged False Statements in Application As part of its basis to deny Respondent’s application, the Department asserts that Respondent was dishonest in the renewal application to be a registered mover. It is a violation of section 507.02 to knowingly make a false statement, representation, or certification in any application required to be submitted under chapter 507. The application contained two questions upon which the Department based its denial, which read as follows: Has this person not satisfied a civil fine or penalty arising out of any administrative or enforcement action brought by any government agency or private person based upon conduct involving fraud, dishonest dealing or any act of moral turpitude? Does this person have a pending criminal, administrative, or enforcement proceeding in any jurisdiction, based upon conduct involving fraud, dishonest dealing, or any act of moral turpitude? (emphasis added). Respondent’s President, James Fischer, answered “no” to these questions, which were truthful and accurate. He understood the questions to be specifically asked to the individual submitting the application on behalf of the entity applying. In fact, these questions appear on the application under the heading, “Owner/Management Information.” Mr. Fischer did not knowingly make any false statements. There was no unsatisfied judgment against Mr. Fischer, nor was there a pending case against him when the application was made. As to question (a) above, Mr. Fischer had no knowledge that there was a judgment from the Harwood Case when he answered the question truthfully. The questions were poorly worded and used the word “person” instead of using the word “applicant.” The failure of the wording should not be construed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Respondent’s renewal application to provide household moving services. DONE AND ENTERED this 5th day of May, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of May, 2020. COPIES FURNISHED: Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Donald Goldrich, Esquire Donald S. Goldrich, P.A. 5177 Northwest 74th Manor Coconut Creek, Florida 33073-2734 (eServed) Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
