Findings Of Fact J.D. Bligh Construction, Inc. (Petitioner), was incorporated and began doing business on or about February 18, 1974. Petitioner engaged in the construction business; erecting, repairing and remodeling buildings and structures; and performing public works. The majority of Petitioner's work is subcontracted out. At Petitioner's inception, Jack D. Bligh and his wife, Carol E. Bligh, were co-owners with each possessing 50 percent of the stock in the business. Jack Bligh was the President and the only Director. Petitioner was started as a family business. At all times material hereto, Jack Bligh was licensed as a certified Management contractor by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Petitioner is authorized by the State of Florida to engage in the construction business under his license. Petitioner had no employees other than Jack and Carol Bligh and subcontracted out work for which contracts were awarded or agreements entered into. All proposals for work and contract agreements on behalf of Petitioner were accepted and executed by Jack Bligh. Jack Bligh was the guarantor on behalf of Petitioner. For example, he was the guarantor for Petitioner's lease agreement for the site location of its business, dated June 15, 1988. Carol Bligh's duties with Petitioner were clerical and administrative, such as determining draw requests, ordering supplies and banking. She had no experience in the construction industry whether it was Management contracting or actual field experience. Jack Bligh, her husband, was responsible for the actual running of the business and handling the day-to-day operations of the business, such as contracting, estimating, bidding and hiring and firing subcontractors. On or about August 22, 1985, Jack and Carol Bligh formed J. D. Bligh Airport Construction, Inc., with Jack Bligh as the sole director and President, owning 49 percent of the stock, and Carol Bligh as Secretary, owning 51 percent of the stock. It was a wholly owned subsidiary and formed on the advice of their insurance agent and accountant for liability insurance purposes regarding a contract for work at the Fort Lauderdale International Airport, which at that time was a big project for Jack and Carol Bligh. In September 1988, Petitioner, as contractor, contracted with the Boca Raton Airport, Inc., d/b/a Boca Aviation to perform work at the airport at a cost of approximately $533,000. The subsidiary corporation, J. D. Bligh Airport Construction, Inc., was not used for this job. In July 1990, Petitioner entered into a contract as subcontractor to perform work at the Opa-Locka Airport at a cost of approximately $65,000. The subsidiary, J. D. Bligh Airport Construction, Inc., was also not used for this job. On or about August 8, 1990, J. D. Bligh Airport Construction, Inc., was changed to J. D. Bligh Caribbean Construction, Inc. The purpose of the name change was again for liability insurance purposes in order to perform work in St. Thomas, U.S. Virgin Islands. The Blighs were rebuilding apartments damaged by Hurricane Hugo. Also, in September 1992, Petitioner again contracted with Boca Raton Airport to perform work at a cost of approximately $272,000. Carol Bligh executed the contract and the performance bond. For 17 years, Jack Bligh remained Petitioner's President until on or about January 15, 1991, at which time Carol Bligh became President. She was gratuitously given additional stock in the business by her husband for her long years of service and dedication to Petitioner. With this additional stock, Carol Bligh also became the minority/majority stockholder. When Carol Bligh became President of Petitioner and minority/majority owner with 51 percent in January 1991, her main duties and responsibilities did not change. She continued with the clerical and administrative aspect of Petitioner's Management contracting business. However, her duties and responsibilities also expanded to include dealing with bonding, securing lines of credit and insurance, setting-up workers compensation, assisting in policy- making, financial planning and operational procedures, and contract negotiations. On or about October 3, 1991, Carol Bligh's duties and responsibilities relating to hiring and firing were officially increased by Petitioner's directors to include hiring and firing of all personnel, including office and field personnel. In 1990, Carol and Jack Bligh's daughter, Janice Bligh, joined the business. Using his more than 17 years experience in the construction business, Jack Bligh began training her in Petitioner's contracting business, which included taking her to job sites for observation of the work being performed. Around mid-1991, Janice Bligh was placed in control of field supervision, estimating and bidding. For the past year and a half, Jack Bligh performed these functions only when she was unable to do so. Janice Bligh received her training as a field supervisor from her father, Jack Bligh, through observing him and the subcontractors. His supervision extends over the subcontractors since the majority of Petitioner's work is subcontracted out. Janice Bligh is taking courses in contracting and has completed three; one in estimating, one in plan reading and one in the South Florida Building Code. She is not currently licensed in the construction industry but eventually wants to take the State licensing examination to become a Management contractor but that is 2 1/2 to 3 years away. She has limited knowledge of the statutory requirements placed upon a Management contractor in terms of authorized scope of work and required liability coverage. Since Carol Bligh became Petitioner's President, proposals and agreements or contracts have been signed by either Janice Bligh or Carol Bligh. Also, bonding documents have been signed by Carol Bligh. Authorized signers and users on Petitioner's bank account are Carol, Jack and Janice Bligh, individually, with either one of them being authorized to execute bank documents on behalf of Petitioner. When Petitioner needed funds for operating expenses, they came from Carol and Jack Bligh. A promissory note dated April 15, 1992, from Petitioner to Carol Bligh was signed by Carol Bligh, as President, and came from funds in Carol and Jack Bligh's joint account. However, another promissory note dated June 30, 1992, involved funds loaned to the businesses from a business owned by Jack Bligh's father. Additionally, a promissory note dated April 15, 1993, was from Petitioner to Carol and Jack Bligh, equally. On or about December 1, 1992, Janice Bligh became a shareholder and officer of Petitioner's business, acquiring 2 percent of the stock from Jack Bligh, thereby leaving him with 47 percent of the stock. Carol Bligh retained 51 percent of the stock. Even though Janice Bligh was a shareholder and part owner of Petitioner, an indemnity agreement with a bonding surety dated February 23, 1993, was signed by Carol and Jack Bligh only. Also, the agreement reflected no differentiation of liability. As to wages, Petitioner's quarterly wage report dated April 17, 1991, reflects Jack Bligh's salary as $3,650, Carol Bligh's salary as $7,250, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,209 and Lawrence Massey's salary as $4,093.76. Jill Bligh is another daughter of Carol and Jack Bligh. She performs office work, run errands and answers the telephone. She is neither an officer nor a director. Petitioner's quarterly wage report dated July 12, 1991, reflects Jack Bligh's salary as $650, Carol Bligh's salary as $650, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,698 and Lawrence Massey's salary as $1,593.77. Petitioner's quarterly wage report dated October 15, 1991, reflects Jack Bligh's salary as $440, Carol Bligh's salary as $600, Janice Bligh's salary as $5,200 and Jill Bligh's salary as $1,804.50. Petitioner's quarterly wage report dated January 27, 1992, reflects Jack Bligh's salary as $390, Carol Bligh's salary as $300, Janice Bligh's salary as $2,400 and Jill Bligh's salary as $1,522.50. Carol Bligh testified that she and Jack Bligh reduced their salary to aid the business economically in the bad economic times of the construction industry. However, her testimony is not credible in light of the salary paid their daughter Jill Bligh in relationship to the work she performed. Petitioner applied for certification by Respondent as a minority business enterprise (MBE) on March 24, 1992. An initial review of the documentation provided by Petitioner indicated that Petitioner did not meet the criteria for MBE status; however, questions remained so a telephone interview with Carol Bligh was held in July 1992. Based on the documentation provided and the telephone interview, Petitioner was denied MBE status and notified by certified letter, dated July 14, 1992. Petitioner has been certified as a MBE by local governments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order denying J. D. Bligh Construction, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1994. ERROL H. POWELL 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 21st day of February 1994.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the corporate name of the parties are confusing and, if so, whether Respondent's name reservation should he revoked.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On June 13, 1980, Respondent, Florida Department of State, issued charter number 673400 permitting the use of the corporate name Boca Financial Planning Center, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes. On September 15, 1982, Respondent, Florida Department of State, issued charter number G00060 permitting the use of the corporate name Boca Financial Planners, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner commenced its operation during 1980 and engages in a wide range of financial and tax planning and assets management. To garner business, Petitioner has advertised in the Yellow Pages of the local telephone directory and has sponsored a series of financial planning seminars during 1982 as a means to develop new business. Petitioner did not receive notice from the local telephone company that its Yellow Page ad for the year 1984 was up for renewal and, therefore, did not renew same. Petitioner blame a drop in its business on the fact that it was not notified of its Yellow Page ad renewal by the phone company and claimed that other factors confirmed its position that the two names herein are creating confusion and a marked decline in its business. To further support its conclusion that the names involved are confusing and should not be permitted, Petitioner relates that it has received mail destined for respondent's business on approximately two occasions and has received telephone calls intended for Respondent's company. Respondent, Boca Financial Planners, Inc., is also in the business of financial planning; however, the bulk of its business in financial planning comes from the managing of assets of family as legal clients as opposed to seeking financial planning business from the general public. Respondent's president and owner, Bruce Winter, is an attorney and a certified financial planner. He is also licensed to sell stocks, bonds and other investment vehicles in addition to being a real estate broker. Respondent first became involved in the financial planning business during May of 1983. Respondent does not conduct any financial planning seminars nor does he seek any financial planning business other than the "somewhat- smaller circle of friends and family that he presently serves in the financial planning business." (Testimony of Bruce Winter) Respondent placed an ad in the Yellow Pages of the Boca Raton telephone directory after opening his financial planning office during 1983. Unlike Petitioner, Respondent has not received any mail or telephone calls destined for Petitioner. Respondent attributes his ability to attract financial planning business from his success as a legal practitioner and estimates that less than ten percent of his financial planning business comes from the ad in the Yellow Pages or from the general public.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Florida Department of State, Division of Corporations, enter a Final Order finding that the corporate name Boca Financial Planning Center, Inc. is not deceptively similar to or confusing with the name Boca Financial Planners, Inc. Consequently, it is further recommended that the relief requested by Petitioner be DENIED and the Petition DISMISSED. RECOMMENDED this 14th day of November, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984.
Recommendation In light of the foregoing, it is hereby RECOMMENDED that the Department issue a final order dismissing Petitioner’s amended petition on the grounds that Petitioner lacks standing to administratively challenge the Department’s decision not to disapprove Hensler’s proposed appointment to Sunniland’s board of directors and that the Department, having failed to act within the time frame prescribed by Rule 3C-100.0385, Florida Administrative Code, does not have the authority to reconsider its decision and issue a letter of disapproval, as requested by Petitioner.16 DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April 1997
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida, holding license number BK-392077. He has held a Florida real estate license for approximately the past 20 years. At no time during this period has any disciplinary action been taken against him. Since July 13, 2000, Respondent has been the qualifying broker for Doctor's Choice Companies, Inc. (DCC), which he owns. DCC specializes in dental practice sales and purchases and related services. As the owner of DCC, Respondent is responsible for its advertising. The DCC advertisements he has "published or caused to be published" include those listing dental practices for sale. Respondent's Exhibit B is a copy of a one-page DCC advertisement that Respondent had published in the November 2006 edition of Today's FDA, a journal of the Florida Dental Association.2 At the top of advertisement appeared the following: Doctors Choice Companies, Inc. Dental Practice Sales and Purchase "Over 100 Statewide Opportunities" "LOCAL AGENTS - EXPERT SERVICE" MAIN OFFICE (EAST COAST) - (561)746-2102 SOUTHEAST, FL - (954)257-3059 NORTH, FL - (407)310-4829 NAPLES/SARASOTA, FL - (954)830-3147 CENTRAL, FL - (407)291-9311 WESTCOAST, FL - (727)323-3589 DADE/KEYS, FL - (305)904-1682 This was followed by twelve photographs of twelve different individuals: Respondent, Dr. Tony Cruz, Morcie Smith, Dr. Pyser, Mary Ann Serkin, Dr. Marshall Berger, Mary Lou Johnson, Curtis Johnson, Dr. Jack Saxonhouse, Dr. James Vandenberghe, John Lytle, and Sandy Harris. The photographs were arranged in three rows of four across. Directly under each photograph was the name of the person depicted; his or her title or function (in Respondent's case, "Lic. Real Estate Broker" and "President"; in Dr. Pyser's case, "Licensed Consultant"; in Ms. Harris' case, "Associate Placement"; and in the case of the others, "Licensed Agent"); and, except in Respondent's case, the geographic area he or she covered (in Dr. Cruz's, as well as Mr. Lytle's, case, "Dade County/Keys, FL" ; in Mr. Smith's, as well as Dr. Vandenberghe's, case, "West Coast, FL"; in Dr. Pyser's case, "Naples/Sarasota, FL"; in Ms. Serkin's case, "North, FL"; in Dr. Berger's case, "Southeast, FL"; in Ms. Johnson's, as well as Mr. Johnson's, case, "Central, FL"; in Dr. Saxonhouse's case, "Palm Beach County"; and, in Ms. Harris' case, "Statewide"). The following text was at the bottom of this one-page advertisement: FOR INFORMATION ON OPPORTUNITIES - CALL OR VISIT OUR WEBSITE www.doctorschoice1.net -Practice Sales and Purchases -Pre-Retirement Strategy -Practice Appraisals -Associate Placement (Buy-In's) -Commercial Property Sales/Leasing -Investment Real Estate To the immediate right of this text were five telephone numbers ((727)254-9707, (561)746-2102, (407)257-9841, (305)904-1682, and (954)257-3059). To the right of these telephone numbers was the DCC logo. Dr. Jerry Pyser is a licensed dentist with whom Respondent has had a 15 to 20-year business relationship. Dr. Pyser does not now, nor did he at any time material to the instant case, hold a Florida real estate license of any kind. At no time material to the instant case did Respondent believe that Dr. Pyser held such a license. Gregory Auerbach is a Florida-licensed real estate sales associate. He and his father, Stuart Auerbach, are associated with Professional Transitions, Inc. (PTI), which is a competitor of DCC's. There is "bad blood" between Respondent and Stuart Auerbach and their respective companies. In November 2006, Gregory Auerbach represented PTI at a meeting of dental professionals held in Gainesville, Florida. DCC was also represented at the meeting. On a table at the meeting site, Mr. Auerbach observed Respondent's Exhibit B, along with the second page of another DCC promotional document (Petitioner's Exhibit A2), which contained various dental practice listings. At the top of Petitioner's Exhibit A2 was a Gainesville listing, followed by a St. Augustine listing. The remaining listings were grouped under the following headings: "DADE COUNTY- Call Dr. Tony Cruz- (305)904-1682/Kenny Jones- (561)746-2102"; "WEST COAST- Morcie Smith- (727)254- 9707/Dr. Jerry Pyser- Naples to Sarasota (954)830-3147"; and "SPECIALTY- Call Kenny Jones (561)746-2102." Beneath these three categories of listings was the following: ASSOCIATE PLACEMENT OPPORTUNITIES - POSITIONS AVAILABLE NOW!! Need a Job or Need an Associate. Call Sandy Harris (561)746-2102 or Go to our website at www.doctorschoice1.net and click on the Dental Associate Placement Link. PLUMBED (BUILTOUT) SETUP SPACE'S [SIC] - Call for Statewide Locations! Email: Info@doctorschoice1.net Website: www.doctorschoice1.net We Buy - Sell - Lease Medical - Dental - Veterinary Properties Last Revised: 11/6/2006 Page 2[3] Respondent's Exhibit B and Petitioner's Exhibit A2, particularly when read together, were misleading in that they conveyed the impression that Dr. Pyser was licensed to engage in activities relating to the sale and purchase of dental practices in Florida (as a point of contact), when, in fact, as Respondent was aware, Dr. Pyser had no such license. Prospective purchasers reading these "flyers" would have been reasonable, but in error, in believing that, if they were to contact Dr. Pyser, they would be dealing with a person possessing a Florida real estate license. Mr. Auerbach picked up these two DCC "flyers" (Respondent's Exhibit B and Petitioner's Exhibit A2) from the table on which they were laying and took them with him when he left the meeting.4 He subsequently sent them, along with four pages from DCC's public website that he had printed (Petitioner's Exhibit A3-6),5 to Petitioner. The matter was investigated by Dawn Luchik, one of Petitioner's investigators. Ms. Luchik spent 11 hours (at a Petitioner-assigned hourly rate of $33.00) conducting her investigation.6 Following the completion of Ms. Luchik's investigation, Petitioner issued the Administrative Complaint against Respondent described above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order dismissing Count I of the Administrative Complaint; finding Respondent guilty of the violations alleged in Count II of the Administrative Complaint; fining him $1,000.00 for committing these violations; and ordering him to pay Petitioner's reasonable costs incurred in investigating these violations. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of February, 2008.
Findings Of Fact First Bank of Hollywood Beach is a state-chartered bank duly authorized and empowered under the laws of the State of Florida and of the United States to conduct a general banking business in and from offices in the State of Florida. First Bank's main office is located in Broward County, and it has three authorized branch offices in Broward County. (Hearing Officer's Exhibit 1) American Bank of Hollywood is a state-chartered bank duly authorized and empowered under the laws of the State of Florida and of the United States to conduct a general banking business in and from offices in the State of Florida. (Hearing Officer's Exhibit 1) It conducts business in its main office in Broward County, has a branch office in Broward County, and has applied for a second branch office in Broward County. Gerald A. Lewis is the Comptroller of the State of Florida and, as such, is the head of the Department of Banking and Finance. On August 1, 1980, the Department received request from the First Bank of Hollywood Beach for approval of an amendment to its charter changing its name to First American Bank of Broward County. On August 22, 1980, the department received an objection to the requested name change from American Bank of Hollywood. (Hearing Officer's Exhibit 1) Both banks have engaged in the banking business in Broward County, Florida, for more than eight years using their current corporate names. (Hearing Officer's Exhibit 1) Some of the principals of First Bank of Hollywood Beach, either as directors, officers, or shareholders, are and have been directors, officers, or shareholders of the First American Bank of Palm Beach County, which bank conducts a business through a main office and ten branch offices in Palm Beach County, Florida. Said principals desire to change the name of First Bank of Hollywood Beach to reflect its affiliation with the First American Bank of Palm Beach County. Additionally, substantially the same group of individuals has pending with the Department an application to organize a new bank to be named First American Bank of Broward County, which bank will also conduct its business through its main office in Broward County, Florida. If the de novo charter is approved, the new bank would also function as part of the "group" comprised of the First American Bank of Palm Beach County and the First Bank of Hollywood Beach. (Hearing Officer's Exhibit 1) As of the date of hearing in this cause, banks with the word "American" in their names were located in thirteen different counties within the State of Florida. At that time, within Broward County, the following commercial banks and savings and loan associations used the word "American" in their titles: American Bank of Hollywood + 1 branch (+ 1 branch applied for) Transamerica Bank of Florida + 1 branch Pan American Bank of Broward + 3 branches Great American Bank of Davie Great American Bank of Broward County Gulfstream American Bank & Trust Company + 5 branches AmeriFirst Federal Savings & Loan Associa- tion + 5 branches American Savings & Loon Association + 14 branches The proposed First American Bank of Broward County, together with First Bank's group if its requested name change is approved, would produce five additional locations of banks with "American" in their titles in Broward County. The sole basis for American Bank's objection to First Bank's requested name change is confusion based upon name similarity. No confusion exists between the First American Bank of Palm Beach County and the Pan American Bank of Palm Beach County or between the First American Bank of Palm Beach County and any bank in Broward County with "American" in its name, although the First American Bank of Palm Beach County has a branch within one mile of the Palm Beach/Broward County line. David Starke, an economist who specializes in consulting work with financial institutions, was not tendered as an expert witness and, accordingly, was not accepted as one. However, the surveys of banks with similar names in the State of Florida prepared by him reveal that all banks using the word "American" in their names also use either a first-word adjective and/or a geographic designation to distinguish one from the other. According to those surveys, both the banks and the savings and loam associations in Broward County with "American" in their titles use these two methods of distinguishing themselves. Both methods of distinction would be utilized by the requested one change in this cause. Other than uncorroborated hearsay evidence, American Bank introduced four items of correspondence which David L. Cory personally obtained from mail erroneously received by American Bank on one Saturday. All of the items of correspondence originated from persons outside of Broward County, with two of them originating from outside of the State of Florida. None of the items was addressed to the American Bank of Hollywood; however, three of the four items specifically carried American Bank's mailing address. The 1980 Hollywood (Broward County, Florida) telephone directory contains a listing for a First American Bank of Broward County, a bank formerly known as Executive Bank of Fort Lauderdale and now known as Great American Bank of Broward County. 10 . In March, 1979 the American Bank of Hollywood reserved with the Secretary of State's office the corporate name of American Bank of Broward. Other than reserving the name, American Bank has taken no steps toward using that name. The Department takes no position on the requested name change herein and recommends neither approval nor disapproval.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That a final order be entered approving the request of First Bank of Hollywood Beach to change its name to First American Bank of Broward County. RECOMMENDED this 13th day of May, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 13th day of May, 1981. COPIES FURNISHED: Leonard L. Levenstein, Esquire 1500 South Dixie Highway Coral Gables, Florida 33146 Walter W. Wood, Esquire Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32301 Robert B. Butler, Esquire Ellis, Spencer, Butler & Kisslan 1909 Tyler Street Post Office Box 6 Hollywood, Florida 33022 The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Office of the Comptroller, Department of Banking and Finance, Division of Securities and Investor Protection (Department), is an agency of the State of Florida charged with the responsibility to administer and to enforce the provisions of Chapter 517, Florida Statutes (1987), and administrative rules promulgated thereunder, related to regulating the practice of securities dealers, "associated persons" and investment advisors. It regulates sales and other transactions in securities and investments, as those items are defined in that chapter. The Respondent, David John Kury, has been registered with the Department since 1967 as an associated person under Chapter 517, Florida Statutes. Pursuant to that registration, he is authorized to engage in the offer and sale of securities to clients. Since 1967 he has also been registered with the National Association of Securities Dealers (NASD). Since July 21, 1987, Respondent Kury has been registered with the Department as an associated person of American Capital Equities, Inc. (American), and he has also been registered as an associated person with the following broker/dealers: Associated Planner Securities Corporation (Associated); Prudential Bache Securities, Inc.; and E. F. Hutton. These registrations cover the period of time from April 1978 through May 1987. During all times Respondent Kury has been registered with the Department as an associated person of American, he has been simultaneously registered with the NASD as a "principal" of American. American is a corporation incorporated under the laws of the State of Missouri, which has been lawfully registered with the Department as a broker/dealer since approximately August 1984. American operates a branch office at 116 West Government Street, Pensacola, Florida. This office has been lawfully registered with the Department and in continuous operation since approximately August 21, 1987. Respondent Kury has been the branch manager of the office during all the period of time it has been registered with the Department. Kury has been registered with the Department as a principal of the Kury Investment Advisory Corporation (KIAC), pursuant to Chapter 517, Florida Statutes, since approximately March 2, 1988. That corporation is incorporated under the laws of the State of Florida and has been registered itself with the Department as an investment advisor, pursuant to Chapter 517, since approximately March 2, 1988. The Respondent corporation maintains its principal place of business also at 116 West Government Street, Pensacola, Florida, at which address Respondent Kury maintains the branch office of American. Respondent Kury is and has been at all pertinent times the sole owner, officer, director and chief operating officer of the Respondent corporation. Since March 2, 1988, Respondent David Kury has been registered as an investment advisor himself, with KIAC. He is also registered in approximately 15 other states as an associated person, thereby being authorized to offer and sell securities in those states as well. Kury Financial Planning Group, Inc. (Group) is a corporation organized under the laws of the State of Florida on or about October 23, 1985. It maintains its principal place of business at the above-referenced address as well. Respondent David Kury is the registered agent, sole officer and director of Group. Since approximately 1976, Kury has engaged continuously in the business of financial planning for individuals in the Pensacola area. Pursuant to this business, he has recommended various financial products, including securities and insurance products for individuals' personal portfolios. He has also rendered advice to clients concerning matters that are not involved with securities or insurance, although the bulk of his financial planning advice and experience relates to these two areas. During the twenty or more years he has been licensed as an associated person only one minor complaint has been lodged against Kury by a client. He has never been the subject of a complaint or an investigation by the Securities Exchange Commission, the NASD, the State of Florida or any other state securities regulatory agency. Neither has he been the subject of a complaint or investigation by the Florida Department of Insurance. He is a member of the Institute of Certified Financial Planners, a member of the International Association for Financial Planning and is in the Registry of Financial Planning Practitioners, a very select group comprised of only a very small percentage of the total number of certified financial planners in the United States. The Respondent, Mr. Kury, has been highly successful as an associated person dealing in securities and as a financial planner. In 1983, while employed with E. F. Hutton as a salesperson, selling securities and investments, the Respondent earned commissions in excess of $500,000 for that year and was one of the largest producers for E. F. Hutton in the entire nation for that year. He received commendations directly from the Chairman of the Board of E. F. Hutton and other senior management for his sales efforts and his integrity. His personal share of the commissions earned that year amounted to $330,000. It is obvious that the Respondent has substantial earning power due to his knowledge, experience and other capabilities in the field of securities and investment sales and advice and the field of financial planning. The Department, commencing on or about May 20, 1988, conducted an investigation and examination of the affairs of Kury Investment Advisory Corporation and the branch office of American, of which Respondent David Kury was branch manager, located at 116 West Government Street, Pensacola, Florida. It was thus determined (and established by clear and convincing evidence in this proceeding) that David Kury, as well as Kury Financial Planning Group, Inc. ("Group") sold or offered for sale both personal notes of David Kury, as well as corporate promissory notes of the Group, since approximately 1975. At the present time, there are approximately 50 persons holding 83 notes in amounts ranging from $5,000 to $200,000. These notes have maturities ranging from three months to four years, with investment return rates ranging from 9 percent to 13 percent. Some of the note-holders were told by Respondent Kury that certificates of deposit, by comparison, were then available to the note-holders or investors at rates ranging from two to three percent less than the rates offered by Kury and Group for the subject personal and/or corporate promissory notes. The total principal amount outstanding, represented by the corporate and personal promissory notes at issue, is approximately $2.4 million. The total principal and accrued interest as of June 15, 1988 is approximately $2.8 million. The total principal amount with accrued interest at the maturity of the notes in question would amount to approximately $3.1 million. The 50 note- holders are clients of the Respondent's. The notes were offered to them in the context of being investment alternatives to certificates of deposit and other "passive" investments, with the primary inducement being higher rates of return on the notes. Respondent David Kury and/or the Corporation failed to maintain and preserve an adequate record of purchases and sales of equity securities by maintaining a "purchase and sales blotter," as well as a "securities received and delivered blotter" and failed to maintain a current "trial balance." These items were not maintained in the ordinary course of business by Respondent David Kury and the Corporation. (See Section 517.121, Florida Statutes, and Rule 3E- 600.014, Florida Administrative Code). During approximately the last 13 years, Respondent David Kury has utilized the proceeds of the personal and corporate notes to pay business expenses for himself and the corporations he controls, as well as certain personal expenses, including the financing of his home (at a cost of approximately $1,000,000). The Respondents have sold or offered for sale the notes, both personal and corporate, without having them registered with the Department, which is required if they are deemed securities. The Respondents did not provide the purchasers of these notes a prospectus for purposes of Section 517.07, Florida Statutes. Group has engaged in the offer and sale of these notes to the note- holders or investors without being registered with the Department to engage in such activities, as required by law, if it be deemed that these notes indeed are securities. Respondent David Kury, in his individual capacity, and on behalf of Group, has engaged in the offer or sale of the notes without being registered with the Department to engage in such activities, either in his individual capacity or on behalf of Group, if the notes are deemed securities. Kury and the Corporation engaged in the business of "investment advisor" prior to lawful registration of that corporation with the Department to engage in such activity. Kury and the Corporation have rendered investment advice since at least September 18, 1987, notwithstanding the fact that the Corporation did not obtain lawful registration with the Department to engage in such activities until March 2, 1988. David Kury was the branch office manager for the registered branch office of American. He failed to establish, maintain and preserve certain books and records required by Florida law for registered branch offices of brokerage firms. In particular, he failed to establish and maintain the purchase and sales blotter reflecting all equity securities sold by American through Kury's branch office. Additionally, as branch office manager for a registered branch office of American, he failed to maintain and preserve a "securities received and delivered blotter." The Corporation, and Kury acting on its behalf, has failed to maintain a current trial balance indicating proof of current money balances in the corporate accounts. Respondent Kury, in his individual capacity and on behalf of Group, sold securities and/or investments (the notes) without making disclosures as to certain material facts, which disclosures were necessary in order for the purchasers or investors not to be misled. Statements were made in conjunction with the sales to the investors under circumstances, such that the omitted material facts, which were not disclosed, were necessary in order to prevent these investors or purchasers from being misled. See Section 517.081, Florida Statutes. Specifically, Kury and Group omitted to inform the investors of the following material facts: Information about the risks to the purchasers of the notes, including his and the Group's ability or inability to repay the notes generally and provision for repayment in the event of Kury's death. Information as to the use to be made of the proceeds of the notes, which in fact were used to finance business operating losses, business operating expenses and to repay personal debts of Kury, and to assist in the financing of personal living expenses of Respondent Kury. (d) Information concerning approximately $4,000,000 in liabilities and outstanding indebtedness of Respondent Kury individually and/or the Corporation and/or the Group. The $2.3 million negative net worth of Kury and/or the Corporation and/or the Group. The fact that Kury's previous employment with E. F. Hutton and Company had been terminated in 1984, partially because of his borrowing money from investors, in violation of Hutton's internal policies and NASD rules. In fact, Respondent Kury had borrowed an aggregate sum of approximately $327,172 from approximately 17 different clients by the time of his termination by Hutton. The fact that Kury's previous employment with Associated Planners Securities Corporation had been terminated in 1987 due to his borrowing money from investors in violation of that company's internal policies and NASD rules. The fact that Kury's personal and group life insurance policies were inadequate to pay the total indebtedness represented by the subject notes, in the event of Kury's death. The fact that Kury's representations concerning his abilities to borrow from banks and other financial institutions were predicated in part on inaccurate financial statements which under- estimated liabilities and overstated net worth without including on those statements the aggregate indebtedness represented by the outstanding personal and corporate notes. The fact that he had submitted an inaccurate financial statement to the Florida Comptroller's Office in connection with the charter application of American Bank and Trust Company during the Summer and Fall of 1985 in the process of becoming an organizer and founding director of that bank. The fact that he was using the money generated from the sale of the promissory notes, at least in part, to repay principal and interest payments due on other, earlier promissory notes. The fact that Kury failed to relate to the note-holders and investors how the promised rate of interest on the notes was reasonably related, if at all, to the risk associated with the investment involved and how it might be related to any other factor commonly known to influence interest rates. Witnesses Catone, Engelman and Boyd, testifying as Respondent's witnesses, in part established that the appropriate disclosures referenced above were not made. Additionally, Kury's explanation for submitting the false financial statements to lending institutions and to the Comptroller was to the effect that he did not wish to violate the confidentiality of the note sales transactions with the note-holders or investors. This rationale is illogical and self-serving, however, and is not accepted. Disclosing accurate financial information, required by law, to banks would have only required, at most, that Kury list the aggregate indebtedness he owed, the type of indebtedness owed, as well as information concerning principal balances, interest rates and repayment terms. Such information required on these financial statements would not have involved divulging the note-holders names or any confidential information pertaining to the note-holders, including the amounts of their individual notes. Law Professor Stuart Cohn was accepted as an expert in state and federal securities laws and corporate finance. It has thus been established that Kury and the Group sold approximately $2.4 million worth of personal and corporate promissory notes which are established to be securities and investments, as discussed infra., to at least 50 investors. This constituted, in effect, the borrowing of money from clients or customers, which is a prohibited business practice for a registered "associated person," investment advisor and financial planner. See Rule 3E-600.013(2)(a), Florida Administrative Code, and Article III, Section 2, NASD Rules of Fair Practice. Kury also effected securities transactions with customers which were not recorded on the regular books and records at American Capital Equities, for whom he was functioning and registered as an "associated person." In particular, he engaged in, sales and offers to sell securities in his capacity as an associated person of American, the Corporation and the Group and failed to record those transactions on the books of American. This is a prohibited business practice. See Rule 3E-600.13(2)(c), Florida Administrative Code. He engaged in private securities transactions without notifying his principal, American. See also Article III, Section 40, NASD Rules of Fair Practice. The Respondents' activities, largely ongoing at the time of the investigation, posed an immediate, serious threat to investors or potential investors because the Respondent's activities constituted, at least in part, the operation of a "pyramid" or "ponzi" scheme. This occurs when funds from new investors, in this case the more recent purchasers of the notes, are used to satisfy interest and principal obligations coming due to earlier investors or note purchasers. Therefore, as time progresses, and more of such notes or securities are sold, then more and more investors will be subject to losing their investments and suffer financial hardship. This occurred in the instant situation through the practice engaged in by the Respondent of "note rollovers" or renewals when due without paying principal and interest owed, or all of it, as well as by making new note sales and using the proceeds, or some of them, to pay earlier investors in spite of the above-described adverse consequences. The threat to the public welfare, as described above, is also represented by the fact that Kury and the Group have undergone an obligation to the note purchasers in excess of $2.8 million as of June 15, 1988, with ultimate liability on the notes of more than $3.1 million, at the respective maturity dates, in the aggregate. The $2.4 million to $3.1 million liability to these investors vastly exceeds the assets available to the Respondents to satisfy the note obligations. Kury admitted that the Respondents are insolvent and currently unable to meet the total financial obligations represented by the notes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Department of Banking and Finance finding the, Respondents guilty as charged, and in the above particulars, and that the registrations of the Respondents as associated person and investment advisors be revoked, provided however, that such revocation should be suspended and held in abeyance contingent on the Respondent David John Kury, under the close supervision and direction of the Department, embarking upon a plan whereby, by continued practice under his registrations, he will repay the principal and interest due all the investors involved in this proceeding within a time certain, as directed by the Department. That plan should include creation of an escrow or trust account, managed by an independent escrow agent, such as a bank, into which, pursuant to an approved plan and schedule, a substantial portion of revenues earned by Kury in the practice as an associated person, investment advisor and any other registration pursuant to the regulation of the Department, shall be deposited for the use and benefit of the subject investors. This arrangement should continue until the investors have been fully repaid principal and interest due them. Should the Respondents, David John Kury and Kury Investment Advisory Corporation, refuse to accept such an arrangement or violate its terms and conditions, their registrations should be immediately revoked. DONE and ENTERED this 9th day of January, 1989, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3419 Petitioner's Proposed Findings of Fact: 1-3. Accepted. 4. Rejected as not constituting a Finding of Fact. 5-19. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and to some extent not supported by the evidence of record. Accepted. Accepted in part but subordinate to the Hearing Officer's Findings of Fact on this subject matter. 23-26. Accepted. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9-14. Constitute statements of issues presented and recitation of evidence presented and are not Proposed Findings of Fact. COPIES FURNISHED: Reginald R. Garcia, Esquire Charles E. Scarlett, Esquire Office of Comptroller The Capitol Tallahassee, Florida 32399-0350 Philip J. Snyderburn, Esquire SNYDERBURN, RISHOI & SWANN Suite 240 280 West Canton Avenue Winter Park, Florida 32789 Donald A. Rett, Esquire MANG, RETT & COLLETTE, P.A. Post Office Box 11127 Tallahassee, Florida, 32302-3127 Honorable Gerald Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0350 =================================================================
