Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050 and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. The date this order was filed appears in the upper right-hand corner of the first page of the order. ; Copies furnished to: Eric M. Lipman Assistant General Counsel Eric Ruiz, Respondent (certified mail) Division of Elections, Filing Officer
The Issue The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part: COUNT ONE "(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows: 16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress? The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration. That thereafter the application of defendant, Claude Talmadge Bray, was approved and he subsequently received his registration as a real estate broker, being initially registered as1 such with the Commission on or about September 18, 1974. That, at the time of the execution of the application as aforesaid, the defendant knew or should have known that his answers to question numbered 16(a) thereof were false and untrue in that: From September 10, 1971, to June 30, 1974, inclusive, defendant Claude Talmadge Bray was a full-time employee of Hallmark Leisure Homes, Inc., a construction company with offices at 3744 North 40th Street, Tampa, Florida 33610. While the defendant did register with the Commission as a real estate salesman employed by Lester Tony Vaughan, a registered real estate broker whose last business address is registered with the Commission as Division Street, Monteverde, Florida, 32756, said registration was effected solely for the purpose of attempting to show to the Commission that the defendant wads in compliance with the apprenticeship requirements of Subsection 475.17(3), Florida Statutes; but that, in truth and fact, the defendant Claude Talmadge Bray had served no apprenticeship as required by, and within the intent and meaning of said Subsection 475.17(3), Florida Statutes, with the said Lester Tony Vaughan or any other registered real estate broker, and that the defendant, during said period of purported apprenticeship, had not handled any real estate transactions participated in any closings or received any instructions from, for or on behalf of the said Lester Tony Vaughan, Registered Broker. That by reason therof, it appears that the defendant1 Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trust worthiness and good character as required by Subsection 475.17(1), Florida Statutes; has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or device, in violation of Subsection 475.25(1)(a), Florida Statutes; and that the defendant obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation Of Subsection 475.25(2), Florida Statutes. WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked." The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner. The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause. Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974. During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed. In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots. The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent. In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent. While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation. When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge. In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement. The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals). Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate. Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location. Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters. At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW. The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief). The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness. When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation. The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous. His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not. By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E". The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship. Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth. Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy. Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission. Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission. Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
Recommendation Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
The Issue Whether Petitioner transferred to the Florida Retirement System (FRS) Investment Plan from the FRS Pension Plan, pursuant to section 121.4501, Florida Statutes (2012).1/
Findings Of Fact Petitioner is a 32-year-old former employee of the Florida Department of Corrections. Petitioner was employed as a correctional officer at the Northwest Florida Reception Center in Washington County, Florida from June 14, 2004, until he resigned on July 23, 2012. Petitioner is a fully vested member of the State of Florida Retirement System (FRS). Respondent, State Board of Administration, is the agency with the duty and responsibility to administer the State of Florida Retirement System Investment Plan. See § 121.4501(8), Fla. Stat. In mid-2011, Petitioner decided to look for other employment and began researching his retirement options. Petitioner discovered he needed to be employed by the State for six years to be fully vested in the FRS and have the option to transfer from the FRS Pension Plan (a defined benefit plan) to the FRS Investment Plan (a defined contribution plan). Sometime between May 1 and 10, 2012, Petitioner accessed the FRS website, either downloaded or printed the FRS “second election form” –- the paperwork required to transfer his retirement account to the Investment Plan -- and completed the form. Although Petitioner does not remember the exact date, Petitioner approached Ms. Charity Pleas, Secretary Specialist for the Chief of Security, and asked her to file his second election form for him by facsimile transmission (fax). Ms. Pleas testified she faxed the document to the number on the form. Petitioner observed Ms. Pleas place the paperwork into the fax machine, dial a fax number, complete the fax transmission, and retrieve a fax transmission confirmation report. Ms. Pleas handed the confirmation report to Petitioner. Petitioner cannot be certain what became of the confirmation report or his original second election form. Petitioner did not contact anyone with the Florida Retirement System to confirm receipt of his second election form. Ms. Pleas often sends faxes on behalf of employees at the Reception Center where she has been employed since 2007. Ms. Pleas occasionally receives complaints from employees that a fax she has sent on their behalf was not received by the other party. Sometimes this happens despite the fact that she has received a fax confirmation report. Petitioner began employment in the private sector with Power South on July 30, 2012. In early August 2012, Petitioner contacted the FRS to find out if the retirement funds were available to move into a 401K account with his new employer. He spoke with someone named “Jason” who said there was no record of a second election having been made by Petitioner. An investigation ensued. Aon Hewitt is the Plan Choice Administrator for the FRS Investment Plan. Aon Hewitt provides services to the SBA in connection with the Investment Plan, including processing enrollments and second elections. Lynette Murphy is Benefits Operations Manager for Hewitt Associates, LLC, a division of Aon Hewitt. Ms. Murphy researched the issue of whether Petitioner’s second election form was received by Aon Hewitt. She conducted several searches of the company’s files, including a search by Petitioner’s name (both first and last names) and social security number. In case the second election form had been received without a member name or social security number, Ms. Murphy also conducted a search on the numbers “99” and “90,” the codes assigned to forms received which are unidentifiable. Ms. Murphy’s search included not only forms received between April 1, 2012 and July 30, 2012, but also all dates covering the life of Petitioner’s eligibility and enrollment in the FRS. Ms. Murphy was unable to find any record of a second election form filed by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order denying the relief requested in Petitioner’s Petition for Hearing. DONE AND ENTERED this <day> day of <month>, <year>, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 <day> day of <month>, <year>.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is and was at all times material hereto a registered real estate salesman in the State of Florida having been issued license no. 0390547. In March of 1985, the Respondent's real estate salesman's license was placed with Raymond Joseph Deangelis Investments (RDI) in Naples, Florida. Since March of 1985, Respondent has had a couple of transactions that have actually closed with Mr. Deangelis. Prior to being placed with RDI, the Respondent's registration certificate was placed with EVI Properties, Inc., in Naples, Florida. EVI was a registered corporation. On March 31, 1984, the corporate registration of EVI Properties, Inc was canceled due to non-renewal. Some confusion exists in the Florida Real Estate Commission's records as to when the licenses of the associates of EVI were cancelled. By letter dated January 4, 1985, to EVI Properties, Inc., the Records Section stated: "In reviewing the Division's Records, I find that registration held by your corporation/ partnership expired on 3/31/84 and no renewal has been processed as of the above date. For your convenience, I am enclosing proper form 400.3 on which to request renewal of your corporation/partnership. I suggest that same be filed within 20 days from the date of this letter, otherwise we have no alternative than to cancel the licenses of all associates with your corporation/ partnership. . ." (Emphasis Added) Further, the Respondent was issued a salesman's license effective November 17, 1984, expiration date 3/31/86, registered with EVI Properties, Inc. Although that license was apparently issued in error, the Respondent received no further communication regarding it from the Record's Section. Nevertheless, the Respondent was aware that he did not possess a valid current registration certificate as a salesman during the times material to this complaint. The Respondent enrolled in and completed a 12 hour Bert Rodgers Schools of Real Estate course and re-applied for a current registration certificate. The new registration certificate was issued effective March 18, 1985. During the time that Respondent's registration certificate with EVI Properties was cancelled, he was also employed as vice-president of American Home Funding, a large New York based mortgage firm. As vice-president with American Home Funding, the Respondent was in charge of their Florida organization as a mortgage broker. The Respondent has been licensed as a mortgage broker in Florida since 1981. While the Respondent was associated with EVI Properties no transactions transpired and he inadvertently failed to maintain a valid and current registration certificate as a real estate salesman. From April 1, 1984 through March 17, 1985, Respondent did not possess a valid and current registration as a real estate salesman. In June 1984, the Respondent met Mr. James D. Peterson. Mr. Peterson is the owner of several nursing home facilities located in Rhinelander, Wisconsin, Florida, and Illinois. The Respondent attempted to arrange permanent financing for Mr. Peterson for Some property known as Buena Vida, in Naples. However, the transaction was never consummated. The Respondent, in reviewing Mr. Peterson's financial statements while attempting to arrange financing for him, became aware of a nursing home facility owned by Peterson in Rhinelander, Wisconsin. At the time, the Rhinelander nursing facility was not for sale. In October 1984, the Respondent met Deborah M. Maclean, a real estate sales person at a cocktail party. The party was attended by the Respondent, Mr. Corcelli an attorney and CPA, Mr. Corcelli's partner, Joseph Moore, an, attorney and the owner of Naples Title Company and Ms. Debra Maclean. The Respondent had arranged a S1.8 million dollar construction loan for Mr. Corcelli and Mr. Moore to build a facility on Vanderbilt Beach. As a result of obtaining that mortgage loan commitment, and following the closing, the Respondent invited Mr. Corcelli and Mr. Moore and his wife to his home for cocktails. As his guest, Mr. Corcelli brought Deborah Maclean. During the course of the evening at the dinner party, Respondent and Mr. Corcelli were discussing the real estate industry and Respondent mentioned Mr. Peterson. The following day, Ms. Maclean called Respondent and informed him that she was aware of a company which had a strong interest in purchasing nursing home facilities anywhere in the United States. The firm was called Canadian International Health Services' Inc. Ms. Maclean related to the Respondent that she had all cash buyers". Ms. Maclean contacted the Respondent several times requesting that she be introduced to Mr. Peterson, but Respondent refused. Apparently, Respondent was concerned that he might lose an anticipated mortgage brokerage commission because Ms. Maclean had "all cash" buyers. At some point, Ms. Maclean went to the Rhinelander facility and told one of Mr. Peterson's key employees that she had a buyer for any, end all of their facilities, and in particular the Rhinelander facility. Mr. Peterson decided to sell the Rhinelander nursing home facility, but preferred to deal with Respondent rather than Ms. Maclean. Mr. Peterson, therefore, employed Respondent to serve as a shield between he, Mr. Peterson, and Ms. Maclean during negotiations for the sale of the nursing home facility. If a sale had resulted, Respondent expected to be compensated by the sellers at the rate of 4% of the selling price of $13,000,000 less the value of the inventory. The Respondent agreed to share his commission 50/50 with Deborah Maclean. In December of 1984 and May of 1985, a meeting was held between Ms. Maclean, her attorney George P. Langford, and Respondent to further discuss the sale of the facility and any fee arrangements. Respondent informed Mr. Langford that he did not have a current license, but Respondent stated that he felt that the transaction primarily involved a business and not real property. Respondent did not state to any of the persons involved that he had the "listing" for the Rhinelander property. However, Mr. Peterson informed Ms. Maclean that there was a detailed listing for the property. Respondent's employing broker, Raymond J. Deangelis, did not discover that Respondent was attempting to obtain a purchaser for the Wisconsin property through sales negotiations with Deborah Maclean until May, 1985. None of the negotiations or documents involved in the attempted sale of the Rhinelander property were routed through Respondent's broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that The Florida Real Estate Commission suspend the real estate salesman's license of Respondent Ronald Gilbert Rice for a period of 6 months and that an administrative fine of $500 be assessed. DONE and ORDERED this 8th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: James H. Gillis Esquire Department of Professional Regulation Division of Real Estate/Legal 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 J. Stephen Crawford, Esquire 12751 Cleveland Avenue Suite 207 Ft. Myers, Florida 33907 Fred Roche Secretary 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
The Issue Whether Respondent discriminated in its hiring and employment practices against Petitioner based upon his age.
Findings Of Fact Petitioner, Timothy Cahill, is a 1976 graduate of the University of Iowa with a degree in education. He spent ten years working as a manager for Hy-Vee Foods, Inc. (Hy-Vee), one of the larger privately held food and grocery chain stores in the country. Petitioner was also a skilled, competitive golfer. After working for Hy-Vee for ten years, Petitioner decided to change careers and pursue a career as a golf professional. In 1986, he began working as an assistant golf professional at a private golf club in Omaha, Nebraska. The following year, he was hired as an assistant golf pro at Tiger Point Golf and Country Club in Gulf Breeze, Florida, which was owned by Jerry Pate, a well-known playing professional and golf course architect. Petitioner worked at Tiger Point for two years completing the Professional Golf Association’s (PGA) Golf School Business School curriculum, the player’s ability test, oral comprehensives, and apprenticeship program. This certified him as a PGA “Class A” Professional (Class A Professional). Petitioner was employed as the Head Golf Professional at Musgrove Country Club an 18-hole facility in Jasper, Alabama, from 1989-1992. There was an average of 15,000 rounds of golf played at this club annually when he resigned to take a position at Oxmoor Valley. Petitioner was employed in 1992 as the property manager and director of golf at Oxmoor Valley, the first of the Robert Trent Jones Golf Trail courses in Alabama. In this position he coordinated and developed a $2.1 million budget for the facility in Birmingham, Alabama. This course was a 36-hole course that immediately drew 83,000 rounds of golf a year. In 1994, Petitioner was recruited to return to Tiger Point, which had been purchased by K.S.L. Fairways Group (KSL), as the “Director of Golf/Head Golf Professional.” He managed golf operations at Tiger Point. At this time, Petitioner was 39 years old. He reported directly to the property manager at Tiger Point, Lance Guidry. The property manager’s office was in the club’s clubhouse, and Guidry was primarily responsible for club operations including food and beverage, coordinating course maintenance, and golf operations. Petitioner was primarily involved with operations of the golf store, where his office was located, scheduling golfing events, and golfing operations. He eventually oversaw the golf operations at affiliated courses as head golf professional. This permitted young golf professionals to apprentice under him, and he was a resource person for managing their operations. During all times material to Petitioner’s complaint, KSL owned and operated Tiger Point and 27 other golf courses and clubs around the country. At the time Petitioner was hired, KSL owned two smaller, 18-hole courses in the panhandle of Florida: Scenic Hills in Pensacola and Shalimar Point in Shalimar/Ft. Walton Beach. Shortly after August 1995, KSL purchased a fourth 18-hole course named Hidden Creek in Navarre. KSL is subject to the Florida Civil Rights Act. Tiger Point was typical of KSL’s operation. It was a country club; however, it was open to public play. In this regard, it was a drawing card to visitors enjoying golfing junkets to the region. Tiger Point drew over twice as many package rounds as the other clubs owned by KSL in the region. It was the primary draw, and Petitioner, as mentioned above, functioned as the PGA golf professional for the other clubs. This meant that the golf professionals at the other facilities could apprentice under him as a Class A Professional, and earn credit towards becoming Class A Professionals. This was a drawing card for these professionals, who were mostly young, former college golfers attempting to make careers as touring or club professionals. Joey Garon was the District Manager for club operations in the panhandle. When Petitioner was hired, Garon was physically located at the Scenic Hills golf course where he was also the property manager. In January 1995, Garon moved to Tiger Point, transferred Guidry to Shalimar Point, and took over as the property manager at Tiger Point. On March 29, 1995, Garon performed an evaluation of Petitioner’s performance of his duties as Head Golf Pro. See Petitioner’s Exhibit 5. Garon rated him highly; the sales from his golf store were among the highest in KSL. He was well respected by members, young professionals who worked under him, and guests at the facility. Property managers averaged $45,000 per year, and the Tiger Point Property Manager made $50,000 a year. Garon had additional duties and made more. Petitioner was making $40,000 in the early fall of 1995. In the late summer of 1995, Hurricane Erin stuck the Florida panhandle and did serious damage to the area, including Tiger Point. Damage was done to the club, to the course, and to facilities in the area such as hotels and motels. Power was lost in many areas for two to three weeks. Traffic was restricted to Santa Rosa Island. Less than two months later, Hurricane Opal struck the same region causing greater damage. Because of the nature of Tiger Point’s business, these storms seriously impacted business. Various cost-cutting measures were instituted and some assets were sold to reduce losses. A review of all the positions in the panhandle was conducted. Personnel expense on hourly employees was reduced by sending non-essential personnel home early. Garon and the President of KSL, Eric Affeldt, decided to reduce Petitioner’s salary by 25 percent, from $40,000 to $30,000. Petitioner was told in November that his salary would be reduced in this manner, and if he did not like it, he could leave. At the same time, his assistant club professional, Sam Harrell, was discharged. Garon explained to Petitioner that Harrell was being fired because “new blood was needed,” “Harrell did not fit the image,” and “new faces” and “younger legs” were needed. Harrell was in his late 30’s. No evidence was received that other salaried employees at Tiger Point or the other clubs were discharged or had their salaries reduced although there were salaried employees at the other KSL facilities whose profits had been impacted adversely by the storms. Petitioner accepted the salary cut because the holidays were coming up; he had a family to feed; and there was no way he could quit so abruptly. Sam Harrell was permitted to stay on at the facility at give golf lessons, however, as an independent contractor. In December 1995, while on a golfing trip to a KSL course in South Florida, Garon advised Petitioner that Eric Affeldt had decided to restore his former salary. Petitioner was not offered his lost salary. Garon stated at hearing that the reason this was done was that it was the right thing to do; his testimony in this latter regard is not credible. Nothing was mentioned to Petitioner at this time or at any other time about plans to eliminate or consolidate positions within the company because of the bad earnings. Two weeks after Petitioner’s pay was cut, KSL transferred Patrick Barrett to Tiger Point as the property manager and increased his salary to $50,000 year. Garon stayed on as Regional Manager until June of 1996. His pay was charged to Tiger Point for 60 days after he departed and assumed duties at a new KSL facility. On the morning of March 26, 1996, there was a staff meeting at Tiger Point chaired by Barrett. Barrett mentioned that there might be personnel reductions; however, after the meeting, Petitioner specifically asked Barrett about him and his staff. Barrett stated that they had done well and had added to the facilities' bottom line. Petitioner had worked to increase dues-paying club memberships as a means to offset financial losses from the loss of tourists’ dollars. That afternoon, Garon announced to Petitioner that Petitioner was terminated immediately. KSL wrote a letter that indicates that Petitioner’s discharge was in no way performance related. Garon testified at hearing that Petitioner had indicated in early 1995, before the storms and before the financial problems, that he did not want a club management position based upon his experience with these positions in Alabama. This was Garon’s rationale for not offering the property manager’s position to Petitioner, and promoting Barrett. It is not credible that Garon held an honest belief that Petitioner would not accept the position of property manager at an increase of $10,000 a year in salary as an alternative to discharge. Petitioner stated that he did not want to be in management in two off-hand remarks to an abstract inquiry about his interest in a management position. Petitioner's comments were irrelevant to the post-storm situation facing Petitioner. It is not controverted that Barrett is younger than Petitioner. Garon testified that Barrett performed the duties of Director of Golf and Property Manager. This is not supported by the facts. The testimony of those who were in a position to observe golf operations before and after Petitioner’s discharge indicated that Barrett was seldom in the golf store and had nothing to do with the day-to-day duties of the Director of Golf. He did not run the store; he did not organize events; he did not supervise the employees directly. The budget for 1996 had been prepared by Petitioner before his discharge. The duties previously performed by Petitioner were performed by a succession of younger, less qualified employees all of whom were paid substantially less than Petitioner. From March 26 until June 3, 1996, John Fell performed the duties. Fell was 29 or 30 years old. He ran the golf shop, he conducted tournaments, and he supervised the other employees. When he resigned in June, John Ferrel was brought in. Ferrel was approximately the same age as Fell. Ferrel handled golfing play; and Gary James was retail coordinator, ordering and selling merchandize. These men did what Petitioner had done at Tiger Point. Leah Head transferred to Tiger Point in late 1996. She was in her late 20’s or early 30’s. She started at $25,000 as the head golf pro, but when she realized that she was to be responsible for all of the shop and golf, she demanded and got a salary of $30,000. Her performance evaluation indicates that she was performing the duties of Director of Golf to include improving sales and service, managing inventory, golf operations, tournaments, conducting employee/department meetings, setting goals for the department, and taking responsibility for poor staff performance. She was unaware that Barrett was calling himself “Director of Golf,” and considered him the general manager of the property. Head and others testified there was no essential difference between the titles Director of Golf and Head Golf Professional. The facts reveal that Petitioner’s duties were performed by younger persons, in some instances, transferred to Tiger Point for that purpose. Barrett did not really assume responsibility for the golf, and was Director of Golf in name only as reflected in Head’s designation of duties on her performance evaluation by Barrett. Tamara Bass testified regarding her experience at Tiger Point. Bass was in her 20’s. She had begun at Tiger Point a month before Petitioner’s discharge. His discharge adversely impacted her plans for obtaining her Class A Professional’s certification. She spoke with Barrett about this, and Barrett stated to her that he was interviewing to replace Petitioner with someone younger, cheaper and less experienced. Within several months, Head was hired. Following his discharge, Petitioner sought employment in the Panhandle area. He owned a house adjoining the Tiger Point course, his wife was employed at a local hospital, and his school age children were in local schools. It was not practical to uproot the family at this juncture. His job search was not helped by the fact that KSL owned several of the courses in the area; however, he did find employment, and eventually reached the salary he was making when discharged by KSL. However, he was without meaningful employment for several months; he was under-employed for several months, and it was several years before he reached the salary he was making when he was discharged, and, then, had to commute 86 miles to work. Petitioner received unemployment from April until October 12, 1996, in the amount of $11,141. He would have made $19,994 at Tiger Point during that period, his expenses were estimated (See Exhibit 16) and are disallowed. His economic loss was $8,853 for this period. From October 13, 1996 until December 1996, Petitioner made $7,296 at Ft. Walton Beach Golf Club. He worked 66 days, and commuted each working day 76 miles. At $.31/mile he had $1,555 in travel expenses. His meals were included in his compensation at Tiger Point, and he had to pay for his meals at Ft. Walton Beach Golf Club. His lunch was $3.00 each working day for a total of $198. He would have earned $9,228 at Tiger Point. Petitioner’s economic loss for this period was $3,685. From January until October 1997, Petitioner made $24,320 at Ft. Walton Beach Golf Club. He would have made $30,760 at Tiger Point. His economic loss for the period was $6,440. From November until December 1997, Petitioner made $7,668 at Ft. Walton Beach Golf Club. He would have made $9,228 at Tiger Point. His lost wages for November and December are $1,560. His expenses to commute to Ft. Walton Beach for the year were based upon a 50-week year, working six days a week, and commuting 76 miles each day at $.31/mile. This was a total of $7,068. His meals for 298 days at $3.00 a day were $894. His total economic loss for 1997 was $15,962. From January until April 25, 1998, Petitioner made $12,780 at Ft. Walton Beach Golf Club. He would have made $15,380 at Tiger Point. He commuted a total of 96 days, 76 miles each day at a cost of $.31/mile. This was a total of $2,261.61. His meals for 96 days at $3.00/ day were $288. His total economic loss for the period was $5,149.61. From May until December 1998, Petitioner made $29,536 at Glen Lakes Golf and Country Club. He would have made $24,608 at Tiger Point. He commuted a total of 192 days, 86 miles each day at a cost of $.31/mile. This is a total of $5,118.72. His total economic loss for the period was $190.72. For 1999, Petitioner made $48,000 at Glen Lakes Golf and Country Club. He would have made $40,000 at Tiger Point. He commuted a total of 275 days, 86 miles a day at $.31/mile. This was a total of $7,331.50. For the first time since his discharge, Petitioner exceeded his prior salary by $668.50.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order finding that Respondent engaged in age discrimination, directing Respondent to pay Petitioner the amount of Petitioner's economic losses and directing Respondent to cease and desist from discriminatory employment practices in its businesses. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 30th day of April, 2002. COPIES FURNISHED: John C. Barrett, Esquire 5 Calle Traviesa Pensacola Beach, Florida 32561 David S. Shankman, Esquire Post Office Box 172907 Tampa, Florida 33672-0907 Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149
