Findings Of Fact Petitioner has operated an ACLF in Palatka since 1976. Her license became invalid when she relocated her facility on March 1, 1982. She herein seeks licensure at 203 Moody Road, her present location. Petitioner will purchase the Moody Road facility from the University of Florida. The National Heritage Foundation, a nonprofit organization, will obtain title to the property when the transaction is completed. Petitioner will serve as a "trustee" for the National Heritage Foundation and will operate the ACLF as a nonprofit business. The Moody Road property also contains space to be rented to non-ACLF clients. The income from these rentals is to be combined with the ACLF income to cover expenses and mortgage payments. Petitioner's agreement with the University of Florida and the National Heritage Foundation requires her to perform specified improvements on the property in lieu of certain payments. Petitioner has allocated cost free labor to building maintenance. Such labor is to be obtained from prisoners furnished by the Florida Department of Corrections to volunteer or charitable activities. Petitioner has obtained preliminary assurance that she qualifies for these services. Additionally, Petitioner will obtain operations assistance from local volunteer agencies and plans to allocate no salary for her services or those of her family members. She is also willing to commit personal and family assets to the operation if necessary. The value of these assets was not established. Petitioner's amended application fails to clarify the status of the contract with the University of Florida, and there was no legal document produced which established her trusteeship with the National Heritage Foundation. Her balance sheet and income statement indicate that the operation will generate sufficient initial income to cover anticipated expenses with the exception of depreciation. However, various deficiencies and discrepancies are apparent in these financial statements and they cannot be considered entirely reliable. Since the purchase of the property is not yet complete, and the projected income and expense figures are necessarily speculative, such deficiencies must be tolerated by reviewing authorities. Petitioner is an experienced ACLF operator and is an established member of the Palatka business and social community. She is therefore well situated to obtain assistance with any financial or operational problems she may encounter.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order granting Petitioner's application for a license to operate an Adult Congregate Living Facility at 203 Moody Road, Palatka, Florida. DONE and ENTERED this day of January, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of January, 1983. COPIES FURNISHED: Mrs. Gloria Gilbert 203 South Moody Road Palatka, Florida 32077 James A. Sawyer, Jr., Esquire District Legal Counsel 2002 Northwest 13th Street, 4th Floor Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Mike W. Trowbridge, was licensed as a real estate broker in Florida; Respondent, Barbara Cage was licensed as a broker-salesman in Florida; and Respondent, The Vacation Shoppe, Inc., (TVS), was licensed as a real estate brokerage corporation in Florida. Jean M. Paquette first met Respondent Cage when she worked as manager of the Bonita Resort Club approximately two and a half years ago. Ms. Paquette worked at that facility as manager until sometime in September, 1986. As a part of her duties, she was responsible for attempting to rent out time-share units owned by other individuals. Under the procedure in effect at the time, if a potential customer was interested in renting a unit, it was her responsibility to call Respondent, The Vacation Shoppe, to see if the unit desired was available. If so, she was to fill out a reservation form outlining the details of the rental and have it signed by the applicant. In June, 1986, Martin Petit, rented a unit in the building for a week. When he checked in, Mrs. Paquette filled out the form for the unit acknowledging payment of the rent. This form was thereafter forwarded to The Vacation Shoppe and Ms. Paquette was paid $10.00, (known as a "spif"). Up until that time, Ms. Paquette had received spif payments by check, however, when she was paid for the Petit rental, the payment was in cash, and at the time the payment was made by Keith Trowbridge, he allegedly advised her that because of a difficulty involved in the payment of spifs by check, they would be paid by cash in the future. Respondents admit to the payment of spifs but contend they were not commissions and were not paid after the Cease and Desist Order, hereinafter described. Ms. Cage described the spif program as a commission for reporting an interested renter to the rental agency and for preparing the paperwork and collecting the money. In 1986, Ms. Cage entered into an agreement resulting in the Petitioner issuing a Cease and Desist Order prohibiting the future payment of commissions to non-licensed employees for participation in the rental of apartments. Ms. Paquette was not a licensed real estate professional. From the entry of the Cease and Desist Order, no spifs were paid, either in cash or by check, according to Ms. Cage, and when that Order was issued, Ms. Cage notified all managers, either in person or by phone, of that change in operation. Mrs. Paquette, on the other hand, indicates that on one occasion, when she called Ms. Cage to see why the spifs previously earned had not been paid, Ms. Cage advised her that because of some trouble the company was having, in the future, all spifs would be paid in cash and would be delivered by Keith Trowbridge and nobody else. Thereafter, on one occasion, Keith Trowbridge came to the Bonita Resort Condominium and paid her $60.00 in cash for six rentals she had arranged. Mr. Trowbridge also gave Ms. Paquette an envelope with Ms. Minor's name on it which contained cash in the amount of $20 or $30. Mrs. Paquette's salary as manager of the Bonita Resort Club was paid by IRPM, not TVS. Keith Trowbridge, the individual who made the cash payments to her, was, at the time, the President of IRPM and is the father of Respondent Trowbridge herein. Mrs. Paquette did not consider there was anything wrong with receiving spifs for the work she did. She did not solicit rentals but merely provided information to individuals who came into the facility office and signed them up. Both Ms. and Mr. Paquette were discharged from employment with IRPM shortly after the payment of this cash spif because corporate management felt they were not loyal to the organization and were trying to secure the property management contact for themselves. Ms. Paquette denies any disloyalty or any attempt of that nature. After being discharged, she and her husband both filed for and received unemployment compensation from IRPM. They also reported the spif program to the Florida Real Estate Commission. Mrs. Paquette's testimony, however, other than as to basic facts, is not persuasive. Mr. and Mrs. Paquette were employees of IRPM, a property management company developed by Keith Trowbridge, an entrepreneur who also set up TVS, the property sales and rental agency. When she started working with IRPM, she received a manual which set forth her duties and which included a direction which required that rental inquiries be referred to TVS and indicating that if a rental was consummated, TVS would pay the spif. Mrs. Paquette does not know where the cash she received came from, however, the prior checks issued on a TVS account. It is clear that there was an informal if not formal interrelationship between IRPM and TVS, both of which, though in the names of other corporate officials, are nonetheless the brainchildren of Keith Trowbridge, recognized as the father of the timeshare vacation rental. At the time of the hearing, Keith Trowbridge, who testified on behalf of his son and the other Respondents, identified himself as a consultant for TVS, IRPM, and others. He admits that during the period in question, he was President of IRPM, a management company managing 12 timeshare properties. IRPM does no sales or rental activity. During the time in question, Mr. Trowbridge served as a consultant to TVS but did not hold an office with that company. TVS is a company arranging trades and rentals of interval apartments for the various owners. It is brokered and headed by Respondent, Mike Trowbridge. Keith Trowbridge describes the spif program as a bonus given for selling something. It is a holdover from the shoe sales business. It is commonly used in the vacation rental field now. Initially, the various apartment managers who were employees of IRPM, were paid spifs by check, but this practice was discontinued just about the time in question here, as a result of the Cease and Desist Order entered by the Real Estate Commission. Mr. Trowbridge admits to having given cash bonuses to his employees on a regular basis, usually in the range of $20 to $50 He gave such bonuses when he was President of IRPM and admits to having given one to Ms. Paquette for some extra effort she had expended. He does not now recall when or how much was given or, for that matter, what the extra special services were. These cash bonuses were a continuing course of conduct with him in addition to the spif program even while spifs were being openly paid by check. He unequivocally denies, however, that cash bonuses were paid for procuring renters. Regardless of what Ms. Paquette says, Mr. Trowbridge denies she was paid a cash bonus for procuring renters for apartments in the building she managed. Most likely she was, however, and the one cash payment made included a payment for the rental to Mr. Petit. All cash bonuses given to apartment managers and, for that matter, other employees of IRPS were paid out of Mr. Keith Trowbridge's own pocket, he claims, in an aggregate amount between five and six thousand dollars per year. He made no record of these expenditures, however, nor did he ever attempt to claim them as a business expense. He stated they were his way of "playing Santa Claus" and gave him the pleasure of being able to do something nice for employees in a tangible manner. These cash bonuses continued to be paid even after the entry of the Cease and Desist Order because, he alleges, they were not spifs and were not paid by him for rentals of apartments. In fact, TVS is owned by IRPM which, in turn is owned by a family trust set up by Mr. Trowbridge, but in which, he claims, he has no interest. Several other IRPM employees, such as Mr. Speirs, Ms. Lewis, and Mr. Favre, have received spifs in the past from TVS but all indicate that the procedure is no longer followed. At some time in the past, a memorandum was sent to all resort managers indicating that the practice was illegal and would stop and since that time, none have received a spif from TVS for any rental they have brought about. All their income comes from their salary from IRPM. They still receive cash bonuses from Mr. K. Trowbridge from time to time as a result of a good inspection or in reward of some other superior performance. Other individuals working for other companies in which Mr. K. Trowbridge is interested, such as the North American Title Insurance Agency, have received cash bonuses as well. Ms. Garner, President of the insurance agency which is owned by Mr. K. Trowbridge, has received cash from him to take herself and other employees out to dinner. Mr. Miller, formerly, Director of Resort Operations for IRPM and now manager of one of the IRPM facilities, has also received a bonus from Keith Trowbridge for "doing a good job" but has never procured a rental for his facility. Ms. Hopwood, currently President of IRPM since December, 1986, and formerly Vice-President under K. Trowbridge, indicated that she has received small cash bonuses from Keith Trowbridge for a special dinner or something of that nature, and she knows he has given such bonuses to other employees for their good work. Both Ms. Hopwood and Mr. Miller were aware of the performance of Mr. and Mrs. Paquette while they were employed at the Bonita Resort Club. The Paquettes were terminated from employment because of Mr. Paquette's substandard performance and because of their reported disloyalty in trying to steal the management contract for the facility from IRPM. When the discharge took place, both Ms. Hopwood and Mr. Miller allegedly heard Mr. Paquette threaten to get even with IRPM for discharging him. This information was offered to show the Paquettes filed their complaint with the Florida Real Estate Commission solely as a means of getting even with Mr. Trowbridge for discharging them. This has not been established, however. Mike W. Trowbridge is a broker for and currently President of TVS. He is not now connected with IRPM though he used to work in the accounting department there and is aware of the former spif program. He unequivocally denies that spifs have been paid since the company entered the Cease and Desist Order with the Commission in March, 1986. Though he is the President of TVS, he is not involved in the day to day operation of the company though he frequently talks with Respondent Cage. He spends most of his time, he contends, in his other vocation of building construction. He professes no knowledge of or acquiesce in his father's paying Ms. Paquette or Ms. Minor any spif in cash for procuring rentals after the Cease and Desist Order and had nothing to do with terminating the Paquettes. Keith Trowbridge surrendered his real estate license last year for a violation of the rules of practice. Mike Trowbridge's real estate license was disciplined for a short period recently for failing to pay over interest collected on trust accounts. 20 Though the evidence may show that unlawful spifs were paid to Ms. Paquette and Ms. Minor subsequent to the entry of the Cease and Desist Order, it nonetheless does not show that Respondents had any knowledge of or acquiesce in the practice. It would appear that any -spifs paid were paid by Keith Trowbridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints filed against the Respondents herein be dismissed. RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 4th day of December, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack P. Pankow, Esquire 2082 First Street - Fourth Floor Post Office Box 580 Ft. Myers, Florida 33902 Darlene F. Keller Acting Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Petitioner was discriminated against based upon race?
Findings Of Fact Respondent, Deland Housing Authority (the Authority), provides subsidized housing to low-income families in Deland, Florida. Linda McDonnell has been the Executive Director of the Authority since approximately 1990. Petitioner, Marjorie R. Ross, a black female, was employed by the Authority as a Project Management Aide, beginning on or about June 14, 1993. At the time of Petitioner's hire, Greg Norton, the Public Housing Manager, was her immediate supervisor. Petitioner's job duties included, among others, maintaining residents' records and files, computing and inputting utility charges, preparing and issuing monthly rent statements to residents, and preparing 14-day notices (late rent notices). Petitioner's performance evaluation, for the period August 21 to December 21, 1993, rated her overall performance as "needs improvement." In comments attached to the evaluation, it was noted that Petitioner "tried to do too many things at once," causing decreases in her productivity. The comments also stated Petitioner "needs to make an effort to straighten her office each day" and that her "greatest shortfall as an employee is the manner in which she relates to the other employees." From the date of this evaluation, tension existed between Petitioner and McDonnell. For example, McDonnell cautioned Petitioner about speaking to persons outside the organization without permission. On September 26, 1994, McDonnell approached Petitioner to introduce a visiting HUD representative to Petitioner. Petitioner did not speak with the representative, despite McDonnell's repeated requests, because of McDonnell's previous instructions not to speak without permission. Petitioner received a written reprimand for her conduct. On July 25, 1995, McDonnell gave Petitioner a memo that documented Petitioner's habit of promising to create certain projects and failing to complete them. At the end of July 1995, Norton resigned from the Authority. On July 31, 1995, McDonnell conducted a staff meeting relating to Norton's resignation. During the meeting, McDonnell instructed Petitioner to only write receipts for rent checks, but to refrain from entering the receipts into the computer. Despite this instruction, Petitioner subsequently removed rent receipts from McDonnell's secretary's desk and entered them into the computer. As a result, Petitioner received a reprimand and was given a day off without pay. Petitioner received another written reprimand on September 27, 1995, for failing to follow established Authority policy regarding reporting absences. Authority policy required employees to complete an absentee report upon returning to work from an unscheduled absence. Petitioner failed to complete an absentee report upon returning from an unscheduled absence on September 25, 1995, and was not given pay for the absence. Petitioner applied for the position vacated by Norton as Public Housing Manager. The Authority hired Connie Grobstein, a white female, in September 1995. The stated reason for hiring Grobstein was her experience in grant writing; McDonnell stated that writing grants was an important part of the job. Grobstein had little if any experience with public housing. Grobstein became Petitioner's direct supervisor and Petitioner was asked to teach her the day-to-day operations of the office. During September 1995, Grobstein wrote several memos to McDonnell regarding Petitioner's work performance and attitude. On December 21, 1995, Petitioner received a written reprimand from Grobstein for, among other infractions, failing to timely issue 14-day notices. The reprimand stated, "any additional violations of Authority procedures will lead to further disciplinary actions up to and including termination." On February 6, 1996, Grobstein and Petitioner had a confrontation in front of a tenant regarding the start date of a lease. Even though her office was several doors away, McDonnell could hear Grobstein and Petitioner arguing about the lease. As a result of the incident, McDonnell terminated Grobstein.1/ Petitioner was suspended for one day as a result of the argument with Grobstein. While Petitioner was absent, McDonnell discovered that several resident files, which Petitioner was responsible for maintaining, were missing necessary documentation. McDonnell contacted the Authority's attorney, who advised McDonnell that she had no choice but to terminate Petitioner's employment. On February 12, 1996, Petitioner's employment was terminated. The stated reasons for her termination were: consistent problems with her work performance; the incident with Grobstein on February 6, 1996; refusing to follow instructions; giving out rent credits/reductions without approval; attempting to undermine McDonnell and the Authority; demonstrating a poor attitude and an unwillingness to cooperate with others; and failing to complete her work in a timely manner. Respondent maintains a disciplinary policy for Authority employees. Pursuant to this policy, employees may be discharged for, among other reasons, insolence or insubordination; failure to obey legitimate orders from a supervisor; mistreatment (verbal, psychological or physical) of a client or fellow employee; and neglect or willful disregard of the responsibilities, duties and work rules of a position.
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. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 17th day of October, 2003.
Findings Of Fact Petitioner, E. J. Strickland Construction, Inc. (Petitioner), submitted to Respondent, Department of Transportation (Department), a bid on State Project No. 75030- 3518. Petitioner's was the lowest bid received by the Department. Petitioner's bid failed to meet the D.B.E. goals on State Project No. 75030-3518. The D.B.E. goal was 12 percent; under Petitioner's bid, only .04 percent of the contract would be performed by economically disadvantaged business enterprises. The only effort Petitioner made to secure bids of certified D.B.E. contractors to incorporate in its bid to the Department was to run a legal advertisement in the Orlando Sentinel on January 18, 19 and 20, 1986. The Department was scheduled to open all bids on January 22, 1986. Petitioner documented only the advertisements and the fact that it incorporated the only response to the advertisements in its bid in an effort to demonstrate good faith effort to meet the D.B.E. goals. 2/ There is no evidence that Petitioner acted with specific discriminatory intent in preparing its bid on State Project No. 75030-3518. Petitioner proved that it acted in this case precisely as it acted in the only other Department job on which it bid. In that case, Petitioner ordered from the Department plans and specifications and was sent plans, specifications and a bid package and was placed on the Department's list of prospective bidders. In accordance with the custom in the industry, the Florida Transportation Builders Association (FTBA) obtained from the Department the list of prospective bidders as of ten days before the bid letting date and distributed the list to its members. In accordance with the custom in the industry, several DBE and WBE contractors contacted Petitioner, verified that Petitioner was bidding on the project and submitted proposals for inclusion in Petitioner's bid. In that way, Petitioner received enough response from certified DBE and WBE contractors to meet the DBE and WBE goals on the job. In this case, in accordance with the Department's normal practice, the Department only sent Petitioner plans and specifications in response to Petitioner's December 30, 1985 request for plans and specifications. Also, since Petitioner did not specifically request a bid package, the Department did not include Petitioner on its list of prospective bidders. For that reason, no FTBA members, including the certified DBE contractor who bid on Petitioner's previous job with the Department, received notice that Petitioner was a prospective bidder on State Project No. 75030-3518. Had Petitioner been included on the FTBA list, Petitioner probably would have received enough response from certified DBE contractors to meet the DBE goals on this job, too. All four of the other bidders on State Project No. 75030-3518 met the DBE goals. One of them relied entirely on the FTBA list to notify prospective certified DBE contractors. One of them -- including the next lowest bidder, Cone Constructors, Inc. -- also sent a written request for a proposal to Pary, Inc., the same certified DBE contractor who previously had contracted with Petitioner on a Department job that was still ongoing. Another of the bidders on State Project No. 75030-3518 telephoned Pary, Inc., and asked for a proposal. Petitioner is not a member of the FTBA and did not inquire whether it was listed as a prospective bidder on the FTBA list. Petitioner did not make any effort to use the Department's DBE directory to directly contact certified DBE contractors concerning the job. Petitioner did not even contact Pary, Inc., to request a bid although Pary, Inc., was working for Petitioner at the time and had not responded to Petitioner concerning State Project No. 75030-3518. Petitioner's small effort to meet the DBE goals on State Project No. 75030-3518 did not rise to the level of good faith efforts. The evidence that Petitioner acted in this case precisely as it acted in the only other Department job on which it bid does not prove that Petitioner made a good faith effort in this case. To the contrary, it proved only that Petitioner was lucky to meet the DBE goals on the prior contract.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Transportation, dismiss the bid protest of Petitioner, E. J. Strickland Construction, Inc., and award the contract in State Project No. 75030-3518 to the lowest responsive bidder, Cone Constructors, Inc. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 April, 1986.
The Issue The issues are whether Respondents failed to comply with the requirements of keeping and producing records, committed fraud in any business transaction, and, if so, the penalty.
Findings Of Fact Respondent Noel D. Clark, Jr. (Clark), has been a licensed real estate broker at all material times. From August 24, 1994, through November 9, 1997, he was the qualifying broker for ABC Brokers, Inc. From November 10, 1997, through April 21, 1998, Clark was the qualifying broker for Respondent ABC Home Brokers, Inc. (ABC). From April 22, 1998, through the present, Clark has been an individual real estate broker. ABC was a licensed real estate brokerage corporation from November 10, 1997, through April 21, 1998. Since April 22, 1998, ABC has not held a valid registration due to the lack of a qualifying broker. Respondent Betsy L. Brennan (Brennan) has been a licensed real estate salesperson since December 8, 1997. From December 8, 1997, through April 13, 1998, she was a salesperson under ABC. Since April 14, 1998, Brennan has been a licensed real estate salesperson under Clark. At all material times, Patricia and Lauren Hanson owned a mobile home located on a rented lot in North Fort Myers. By a listing agreement entered into in October 1996, the Hansons listed the home for sale with ABC. The listing price was $34,500 cash. Charles and Cynthia Harvey contacted Brennan and expressed an interest in purchasing the mobile home. They told Brennan that they were interested in buying a home after they sold Mr. Harvey's 1977 Ford dump truck. Brennan and Clark showed them several mobile homes. The Harveys decided that they wanted to purchase the Hansons' home. Brennan told the Harveys that she, as Trustee of the Driftwood Family Trust, would sell them the mobile home after buying it from the current owner. Most of the beneficiaries of the Driftwood Family Trust are related to Clark or Brennan. On December 4, 1997, Brennan, as Trustee of the Driftwood Family Trust, as purchaser, executed an ABC dealer order form to purchase the Hansons' mobile home for $28,000, which with tax and miscellaneous items rose to $30,430. On December 6, 1997, Brennan, as Trustee of the Driftwood Family Trust, as purchaser, executed an Agreement and Promissory Note reflecting the same purchase price. ABC faxed these materials to the Hansons on or about December 6. On December 5, 1997, Brennan, as Trustee of the Driftwood Family Trust, as seller, and Charles and Cynthia Harvey, as buyers, entered into an Agreement and Promissory Note for the purchase and sale of the Hansons' mobile home. The price was $42,000 with a $12,000 down payment. In the agreement, Brennan, as Trustee, warrants that she is the lawful owner of the property with the right to convey it. For the down payment, the Harveys delivered to Brennan the executed title to the dump truck, which Brennan accepted, somewhat generously given the value of the truck, in full payment of the $12,000 down payment. The delivery of the title certificate did not take place until January 10, 1998, by which time, probably due to her awareness of problems with the deal, Brennan decided not to cause the issuance of a new title in her name. The Harveys began moving into the mobile home on December 6. The evidence is especially vague as to the dealings between Respondents and the Hansons during this period of time. Except for faxing the Driftwood Trust offer to purchase, the record reveals only that, on or about the day that the Harveys moved into her mobile home, Patricia Hanson consented to their doing so. Three or four days later, though, Patricia Hanson's sister visited the Harveys and told them that her sister had not sold the mobile home. The Harveys informed her that they had a binding contract to purchase the mobile home. That evening, the Harveys telephoned Clark. He assured them that everything would work out. However, the Harveys refused to pay on the note, and Clark called them and informed them that he would foreclose. By letter dated January 26, 1998, Brennan, as Trustee, informed the Harveys that the December 5 agreement was "void ab initio" because they had induced the agreement through fraudulent inducements of "their credit and financial situation, employability and job stability." The January 26 letter states that the December 5 agreement was contingent upon Brennan's closing on the mobile home with the Hansons and that the Harveys understood that they were not to disturb the Hansons' property or furnishings until Brennan acquired the property from the Hansons. The January 26 letter states that the Harveys misrepresented to Brennan that they had good credit, that Mr. Harvey earned $42 per hour with the truck, and that Mr. Harvey would earn $15 per hour driving a dump truck for someone else. The January 26 letter states that Brennan has hired an attorney to litigate and "will be entitled to an award of costs and attorney fees since the agreement contains a 'prevailing party' provision which by its nature survives the voiding of the agreement." The December 5 agreement contains a provision for attorneys' fees, although the provision does not appear to survive its voiding. In any event, the Harveys made no representations in the Agreement concerning their creditworthiness, and no misrepresentation concerning creditworthiness constitutes a breach of the December 5 agreement. Eventually, Brennan offered to rescind the deal and return to the Harveys their money and truck. They got the truck back several months later. In the meantime, Mr. Harvey contacted Patricia Hanson, and they agreed on a lease/purchase arrangement. The Harveys continue to occupy the mobile home under this arrangement. Analysis of the fraudulent misrepresentations in the Hanson/Harvey transactions case requires close consideration of the allegations of the Administrative Complaint in DOAH Case No. 98-4081. The first material allegation is that Brennan, as Trustee, offered to purchase the mobile home from the Hansons. Petitioner has established this fact. The second material allegation is that Clark had a verbal listing from the Hansons to sell their mobile home. Petitioner has established this fact by reasonable inference. The third material allegation is that Clark told Hanson that Brennan would offer $30,000, less the commission. Petitioner has not established Clark's role in this offer, but Petitioner has established that Brennan, as Trustee, made such an offer. The fourth material allegation is that, even though the Hansons had not agreed to sell, Clark allowed the Harveys to move into the Hansons' mobile home. Petitioner has established this fact, but the record reveals that this was with the permission of Patricia Hanson. The fifth material allegation is that Respondents "offered" to sell the mobile home to the Harveys for $42,000. Petitioner has established this fact, but the record reveals that the Harveys knew that Brennan, as Trustee, was acquiring the mobile home from a third party. However, this allegation does not inform Brennan that she is facing a charge of misrepresentation in the contract, in which she warrants title that she does not have. This allegation only states that the "Harveys had been offered the mobile home by the Respondents for $42,000, despite the fact that a bona fide sale had never taken place between . . . Brennan and the Hansons." The sixth material allegation is that the Harveys paid $12,000 down in the form of the truck and other credits. Petitioner established these facts, except that the value of the truck was less than $12,000 and no other credits existed. The seventh material allegation is that Respondents did not advise the Hansons of the price or financing on the Harvey sale. Petitioner did not establish these facts. The eighth material allegation is that Brennan tried to void the purported sale, but Respondents kept the Hansons' furniture and refused to return the truck to the Harveys. Petitioner established that Brennan tried to void the Harvey transaction. Petitioner did not establish that Respondents kept the Hansons' furniture, and the evidence established that Respondents returned the Harveys' truck. This allegation informs Brennan that she allegedly committed fraud in trying to void the transaction without returning the parties to the status quo, but this allegation does not inform her that she is facing a charge of misrepresentation for her misstatements in the letter itself. For the reasons stated, Petitioner has failed to prove the material allegations of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction. By subpoena issued March 27, 1998, Petitioner ordered "Noel D. Clark" and ABC to produce, on the same date, all records concerning a sale from Betty A. Smith, Trustee, to John E. and Elizabeth M. Crawford. The copy of the subpoena contains no return of service. Petitioner's investigator testified that he served the subpoena on Clark, who is "Noel D. Clark, Jr." Neither Clark nor ABC produced records in connection with the March 27 subpoena. Justifiably concerned with the enforceability of the subpoena, Petitioner issued two more subpoenas, both dated April 6, 1998, to produce documents relating to the Crawford transaction. One subpoena was directed to Clark and the other to ABC. The Clark subpoena bears a return of service, but it shows that the investigator served the subpoena on April 6 on Brennan, not Clark. The ABC subpoena bears no return of service, and the investigator who purportedly served the subpoena did not testify.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaints in DOAH Case Numbers 98-2722 and 98-4081. DONE AND ENTERED this 28th day of July, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 28th day of July, 1999. COPIES FURNISHED: William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Geoffrey T. Kirk, Senior Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Noel D. Clark Betsy L. Brennan ABC Home Brokers, Inc. 18060 North Tamiami Trail North Fort Myers, Florida 33917
Findings Of Fact At all times relevant hereto, respondent, Richard Kondian, was a licensed real estate salesman having been issued license number 0302230 by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an inactive status. His present address is 300 South Pine Island Road, Plantation, Florida. In July, 1984, James E. and Janis Shand, who lived at 4940 S. W. 16th Street, Fort Lauderdale, Florida, suffered extensive fire damage to their residence. Respondent approached the Shands, introduced himself as Dick Como, and offered to repair their home to its original condition. He also represented himself to be a contractor and that he was a principal in Apex Roofing, a local contracting firm. The Shands agreed to permit Kondian (Como) to perform the work, and they executed a contract prepared by Kondian on an "Apepco Corp." letterhead which authorized the work. A copy of the contract has been received in evidence as petitioner's exhibit 2. The document is a photostatic copy of the original, and is only partially legible. It does reflect July 24, 1984 as being the date of execution, and describes the repairs to be made as follows: To be effected to return Property to Pre- Fire Condition as per policy. (No extra charge to Home.) It also authorizes Allstate Insurance Company to pay for the repairs in accordance with the terms of the Shands' insurance policy. The contract was accepted by "D. Como." Como and Kondian were identified by the Shands as being one and the same. The owner of Apex Roofing and Insurance Repair Corporation was Michael Derhagopian, a licensed roofing contractor in Dania, Florida. Respondent told Derhagopian that he had procured a repair job on the Shands' residence and that he desired Apex to do the roofing portion of the work, and that a general contractor would perform the remainder of the project. He also advised Derhagopian that he needed to use Apex Roofing as the licensee on the project. Derhagopian agreed to do the work and pulled a permit for the roofing work. He also opened a checking account in which the insurance proceeds from Allstate were to be deposited. Both he and respondent had authorization to sign checks drawn on that account. On September 24, 1984, Allstate Enterprises Mortgage Corporation issued a check payable to Apex Roofing and Insurance and J. E. Shand in the amount of $18,150.66. The check was issued for the purpose of enclosing the house, cleaning it, and installing a new roof, trusses and windows. The check was endorsed by both the Shands and Richard Kondian who 'indicated on the endorsement that he was president of Apex. The check was then deposited into the Derhagopian Kondian joint account. Work began on the Shands' residence in September, 1984. Derhagopian completed a small flat deck in the rear of the house, and the general contractor began stripping the inside of the house and cleaning the premises. When neither was paid by Kondian they ceased work on the project. At that time Derhagopian learned that Kondian had spent the entire $18,150.66 within a week. According to Derhagopian, Kondian spent around $5,000.00 on a "nursing home" transaction, $500.00 for legal expenses, and an undisclosed amount for mortgage payments on his home. It is not known how the remainder of the funds were spent except that they were not used for their intended purpose of repairing the Shands' home. Despite demands for repayment of their monies, Kondian has never repaid the Shands. The Shands eventually had their home repaired, but still have liens on it to this date. They have pending a civil action against Kondian to recover the insurance proceeds.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, and that his license number 0302230 be REVOKED. DONE and ORDERED this 16th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer ~ Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904 ) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of December, 1985. COPIES FURNISHED: Mr. Richard Kondian 300 South Pine Island Road Plantation, FL 33324 Arthur R. Shell, Jr., Esq. P. O. Box 1900 Orlando, FL 32802
The Issue Whether Florida Power & Light Company (hereinafter referred to as "FPL") properly refused the request of Globe International Realty & Mortgage, Inc. (hereinafter referred to as "Globe") to supply electric service to the premises located at 808 Northeast Third Avenue, Fort Lauderdale, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Kenneth V. Hemmerle, Sr., is a real estate developer. Matthew Renda is a real estate and mortgage broker. Hemmerle and Renda have known each other since about 1986. At the suggestion of Hemmerle, in February of 1993, Renda, along with Hemmerle, formed Globe. At the time, Hemmerle was involved in a development project on the west coast of Florida and he wanted Renda, through Globe, to handle "the selling and so forth for the project." Globe was incorporated under the laws of Florida. The articles of incorporation filed with the Department of State, Division of Corporations (hereinafter referred to as the "Division of Corporations") reflected that: Renda was the president of the corporation; Hemmerle was its secretary; Renda and Hemmerle were the incorporators of the corporation, owning 250 shares of stock each; they also comprised the corporation's board of directors; and the corporation's place of business, as well as its principal office, were located at 808 Northeast Third Avenue in Fort Lauderdale, Florida (hereinafter referred to as the "808 Building"). Globe is now, and has been since its incorporation, an active Florida corporation. Annual reports were filed on behalf of Globe with the Division of Corporations in both 1994 (on April 19th of that year) and 1995 (on March 23rd of that year). The 1994 annual report reflected that Renda and Hemmerle remained the officers and directors of the corporation. The 1995 annual report reflected that Renda was still an officer and director of the corporation, but that Hemmerle had "resigned 9-2-93." Both the 1994 and 1995 annual reports reflected that the 808 Building remained the corporation's place of business and its corporate address. The 808 Building is a concrete block building with a stucco finish housing eight separate offices. The entire building is served by one electric meter. At all times material to the instant case, Southern Atlantic Construction Corporation of Florida (hereinafter referred to as "Southern") owned the 808 Building. Southern was incorporated under the laws of Florida in June of 1973, and administratively dissolved on October 9, 1992. Hemmerle owns a majority of the shares of the corporation's stock. The last annual report that Southern filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. From 1975 until September 6, 1994, FPL provided electric service to the 808 Building. Charges for such service were billed to an account (hereinafter referred to as the "808 account") that had been established by, and was in the name of, Hemmerle Development Corporation (hereinafter referred to as "HDC"). HDC was incorporated under the laws of Florida in 1975, and administratively dissolved on October 9, 1992. At the time of HDC's incorporation, Hemmerle owned 250 of the 500 shares of stock issued by the corporation. The last annual report that HDC filed with the Division of Corporations (which was filed on June 10, 1991) reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; Lynn Nadeau was the corporation's other officer and director; and the corporation's principal office was located in the 808 Building. Following the administrative dissolution of the corporation, Hemmerle continued to transact business with FPL in the corporation's name, notwithstanding that he was aware that the corporation had been administratively dissolved. At no time has Renda owned any shares of HDC's stock or served on its board of directors. He and Hemmerle have served together as officers and directors of only two corporations: Globe and Hemmerle's Helpers, Inc. The latter was incorporated under the laws of Florida as a nonprofit corporation in March of 1992, and was administratively dissolved on August 13, 1993. Its articles of incorporation reflected that its place of operation, as well as its principal office, were located in the 808 Building. Pursuant to arrangements Renda and Hemmerle had made (which were not reduced to writing), Globe occupied office space in the 808 Building from March of 1993, through September 6, 1994 (hereinafter referred to as the "rental period"). Renda and Hemmerle had initially agreed that the rent Globe would pay for leasing the space would come from any profits Globe made as a result of its participation in Hemmerle's Florida west coast development project. Renda and Hemmerle subsequently decided, however, that Globe would instead pay a monthly rental fee of $300 for each office it occupied in the building. 1/ Globe (which occupied only one office in the building during the rental period) did not pay in full the monies it owed under this rental agreement. The office Globe occupied in the 808 Building was the first office to the right upon entering the building. It was across the lobby from the office from which Hemmerle conducted business on behalf of his various enterprises. Globe voluntarily and knowingly accepted, used and benefited from the electric service FPL provided to its office and the common areas in the building during the rental period. Under the agreement Renda and Hemmerle had reached, Globe was not responsible for making any payments (in addition to the $300 monthly rental fee) for such service. On July 26, 1994, the 808 account was in a collectible status and an FPL field collector was dispatched to the service address. There, he encountered Hemmerle, who gave him a check made out to FPL in the amount of $2,216.37. Hemmerle had noted the following on the back of the check: "Payment made under protest due to now [sic] owning [sic] of such billing amount to prevent discontinuance of power." The check was drawn on a Sunniland Bank checking account that was in the name of Florida Kenmar, Inc., (hereinafter referred to as "Kenmar"), a Florida corporation that had been incorporated in May of 1984, 2/ and administratively dissolved on November 9, 1990. (The last annual report that Kenmar filed with the Division of Corporations, which was filed on June 10, 1991, reflected that: Hemmerle was the corporation's president and registered agent; he also served on the corporation's board of directors; and the corporation's principal office was located in the 808 Building.) Hemmerle told the field collector, upon handing him the check, that there were no funds in the Kenmar checking account. Nonetheless, the field collector accepted the check. FPL deposited the check in its account at Barnett Bank of South Florida. The check was subsequently returned due to "insufficient funds." On the same day that he was visited by the FPL field collector, Hemmerle telephoned Sandra Lowery, an FPL customer service lead representative for recovery, complaining about, among other things, a debit that he claimed had been improperly charged to the 808 account. As a result of her conversation with Hemmerle, Lowery authorized the removal of the debit and all late payment charges associated with the debit from the 808 account. Following the July 26, 1994, removal of the debit and associated late payment charges, the balance due on the account was $1,953.91, an amount that Hemmerle still disputed. In an effort to demonstrate that a lesser amount was owed, Hemmerle sent Lowery copies of cancelled checks that, he claimed, had been remitted to FPL as payment for electric service billed to the 808 account. Some of these checks, however, had been used to pay for charges billed to other accounts that Hemmerle (or corporations with which he was associated) had with FPL. As of August 29, 1994, the 808 account had a balance due of $2,387.47. These unpaid charges were for service provided between March of 1993 and August 10, 1994. On August 29, 1994, Hemmerle showed Renda a notice that he had received from FPL advising that electric service to the 808 Building would be terminated if the balance owing on the 808 account was not paid within the time frame specified in the notice. Hemmerle suggested to Renda that, in light of FPL's announced intention to close the 808 account and terminate service, Renda should either apply for electric service to the 808 Building in Globe's name or relocate to another office building. Renda decided to initially pursue the former option. Later that same day, Renda telephoned FPL to request that an account for electric service to the 808 Building be opened in Globe's name. Gigi Marshall was the FPL representative to whom he spoke. She obtained from Renda the information FPL requires from an applicant for electric service. During his telephone conversation with Marshall, Renda mentioned, among other things, that Globe had been a tenant at the 808 Building since the previous year and that it was his understanding that FPL was going to discontinue electric service to the building because of the current customer's failure to timely pay its bills. Renda claimed that Globe was not in any way responsible for payment of these past-due bills. From an examination of FPL's computerized records (to which she had access from her work station), Marshall confirmed, while still on the telephone with Renda, that the 808 account was in arrears and that FPL had sent a disconnect notice to the current customer at the service address. Marshall believed that, under such circumstances, it would be imprudent to approve Globe's application for electric service without further investigation. She therefore ended her conversation with Renda by telling him that she would conduct such an investigation and then get back with him. After speaking with Renda, Marshall went to her supervisor, Carol Sue Ryan, for guidance and direction. Like Marshall, Ryan questioned whether Globe's application for service should be approved. She suggested that Marshall telephone Renda and advise him that FPL needed additional time to complete the investigation related to Globe's application. Some time after 12:30 p.m. on that same day (August 29, 1994), Marshall followed Ryan's suggestion and telephoned Renda. Ryan was on the line when Marshall spoke with Renda and she participated in the conversation. Among the things Ryan told Renda was that a meter reader would be dispatched to the 808 Building the following day to read the meter so that the information gleaned from such a reading would be available in the event that Globe's application for service was approved. At no time did either Marshall or Ryan indicate to Renda that Globe's application was, or would be, approved. Ryan referred Globe's application to Larry Johnson of FPL's Collection Department, who, in turn, brought the matter to the attention of Thomas Eichas, an FPL fraud investigator. After completing his investigation of the matter, which included an examination of the Broward County property tax rolls (which revealed that Southern owned the 808 Building), as well a search of the records relating to Globe, HDC and Southern maintained by the Division of Corporations, Eichas determined that Globe's application for service should be denied on the basis of the "prior indebtedness rule." Eichas informed Johnson of his decision and instructed him to act accordingly. Electric service to the 808 Building was terminated on September 6, 1994. As of that date, the 808 account had a past-due balance that was still in excess of $2,000.00. Although he conducted his business activities primarily from his home following the termination of electric service to the 808 Building, Hemmerle continued to have access to the building until March of 1995 (as did Renda). 3/ During this period, Hemmerle still had office equipment in the building and he went there on almost a daily basis to see if any mail had been delivered for him. It was his intention to again actively conduct business from his office in the building if electric service to the building was restored. Hemmerle (and the corporations on whose behalf he acted) therefore would have benefited had there been such a restoration of service. After discovering that electric service to the 808 Building had been terminated, Renda telephoned FPL to inquire about the application for service he had made on behalf of Globe. He was advised that, unless FPL was paid the more than $2,000.00 it was owed for electric service previously supplied to the building, service to the building would not be restored in Globe's name. Thereafter, Renda, on behalf of Globe, telephoned the PSC and complained about FPL's refusal to approve Globe's application for service. FPL responded to the complaint in writing. In its response, it explained why it had refused to approve the application. On or about November 15, 1994, the Chief of PSC's Bureau of Complaint Resolution sent Renda a letter which read as follows: The staff has completed its review of your complaint concerning Florida Power & Light's (FPL) refusal to establish service in the name of Globe Realty, Inc. at the above- referenced location. Our review indicates that FPL appears to have complied with all applicable Commission Rules in refusing to establish service. Our review of the customer billing history indicates that the past-due balance is for service at this location and not attributable to the judgment against Mr. Hemmerle for service at another location. The interlocking directorships of Globe International Realty & Mortgage, Inc. and Hemmerle Development, Inc. suggest that the request to establish service in the name of Globe Realty is an artifice to avoid payment of the outstanding balance and not a result of any change in the use or occupancy of the building. Thus, FPL's refusal to establish service is in compliance with Rule 25-6.105(8)(a), Florida Administrative Code. Please note that this determination is subject to further review by the Florida Public Service Commission. You have the right to request an informal conference pursuant to Rule 25-22.032(4), Florida Administrative Code. Should that conference fail to resolve the matter, the staff will make a recommenda- tion to the Commissioners for decision. If you are dissatisfied with the Commission decision, you may request a formal Administrative hearing pursuant to Section 120.57(1), Florida Statutes. After receiving this letter, Renda, on behalf of Globe, requested an informal conference. The informal conference was held on November 30, 1994. At the informal conference, the parties explained their respective positions on the matter in dispute. No resolution, however, was reached. Adopting the recommendation of its staff, the PSC, in an order issued January 31, 1995, preliminarily held that there was no merit to Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. Thereafter, Renda, on behalf of Globe, requested a formal Section 120.57 hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the PSC enter a final order dismissing Globe's complaint that FPL acted improperly in refusing to provide electric service to the 808 Building pursuant to Globe's request. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1995. STUART M. LERNER 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 4th day of December, 1995.
