The Issue Whether the Respondent, a registered general contractor, violated Section 489.129(1)(e), Florida Statutes, (1979), by aiding and abetting an unlicensed person to evade the provisions of Part II, Chapter 468, Florida Statutes. Whether the Respondent violated Section 489.129(1)(f), Florida Statutes (1979), by knowingly combining or conspiring with an unlicensed person by allowing his license to be used by an unlicensed person. Whether Respondent violated Section 489.129(1)(g), Florida Statutes (1979), by acting in the capacity of a contractor under a name other than that listed on his license. Whether Respondent violated Section 489.129(1)(d) Florida Statutes (1979), by failing to properly qualify his company pursuant to Section 489.119(2) and (3), Florida Statutes (1979).
Findings Of Fact Respondent holds currently active registered general contractor's license No. RG0005734 in the name of "Clarence O. Nielsen." On June 9, 1978, Respondent entered into a written Joint Venture Agreement with Walter J. Howard with respect to a dwelling on property owned by Mr. Howard in Volusia County, Florida. This agreement provided as follows: For proposed construction on a lot owned by Mr. Walter Howard at 200 Howard Ave. N.S.B. This construction to be undertaken as a joint venture between Walter Howard and C. O. Nielsen. Division of any profits from this venture to be shared as follows; [sic] A ten percent profit on total sale to Mr. Howard based on total cost of lot and loan costs and all material and labor (including Mr. Howard's salary). Should any profit remain from sale of property it shall be divided equally between Mr. Howard and Mr. Nielsen. On June 28, 1978, Walter Howard signed and filed with the Clerk of the Circuit Court of Volusia County, Florida, a Notice of Commencement indicating construction of improvements which were the subject of the aforementioned Joint Venture Agreement. On July 10, 1978, Volusia County Building Permit No. 16379B was issued to Respondent, and listed "Nielsen Construction Company" as the contractor on the project to be constructed on Mr. Howard's property as aforesaid. As previously mentioned, Respondent is licensed only in the name of "Clarence O. Nielsen." Respondent admitted, however, that he had registered the name "Nielsen Construction Company" as a fictitious name in compliance with Section 865.09(2)(b) Florida Statutes, although no evidence of such compliance was furnished to Petitioner. It is uncontradicted in the record of this proceeding that Respondent was on the job site which is the subject matter of this proceeding from two to three times a week during the course of construction. Respondent supervised work while it was in progress, and called for periodic inspections to be made by the Volusia County Department of Building. Respondent was in fact observed to be on the job site by officials of the Volusia County Department of Building on at least two of the several occasions when they made periodic inspections. These inspections were made by officials of the Volusia County Department of Building on July 11, 1978; July 20, 1978; July 25, 1978; August 3, 1978; October 9, 1978; and December 29, 1978. Although Mr. Howard was frequently on the job site; signed the Notice of Commencement; obtained financing from First Federal Savings and Loan Association in New Smyrna Beach, Florida; made draw requests to that financial institution; and submitted an affidavit on December 29, 1978, indicating that all outstanding liens concerning the project had been satisfied, there is absolutely no direct, credible evidence of record in this proceeding to contradict Respondent's assertion that he took an active part as a contractor in the construction of the improvements on the property. Sometime in either October or November of 1978 Mr. Howard was contacted by the eventual purchaser of the home. Negotiations between Mr. Howard and the purchaser culminated in a down payment being made on the home in early December of 1978. The purchaser moved into the home on December 19, 1978, and later experienced problems with the construction of the house. The purchaser lodged complaints concerning the construction of the house with the Volusia County Department of Building, which apparently ultimately led to these charges being filed against Respondent.
The Issue The issues in this matter are those raised through a notice to show cause/administrative complaint brought by the Petitioner against the Respondent alleging various violations of Chapter 498, Florida Statutes. In particular, Respondent is alleged to be a subdivider who has offered or disposed of an interest in subdivided lands or been a participant in that arrangement as described in Section 498.023(1), Florida Statutes, without registering to do so or being exempt from the requirement of registration. Further, Respondent is said to have made false and misleading statements to purchasers concerning the conduct of the sale of subdivided land as described in Section 498.051(1)(b), Florida Statutes. In addition, the Respondent is accused of offering or distributing or participation in that offering or distribution of the subdivided land without providing a public offering statement to the purchasers of the land prior to the disposition as spoken to in Section 498.023(2), Florida Statutes. Respondent does not take issue with the latter allegation, assuming the need to register to sell subdivided land or the unavailability of an exemption from the terms of Chapter 498, Florida Statutes.
Findings Of Fact Through a pre-hearing stipulation, the parties have agreed to certain evidential facts. Those facts and the matters set forth in the transcript of the proceedings, to include the testimony and tangible evidence, form the basis for fact finding in this recommended order. On June 20, 1963, D. D. Jeffords acquired 430 acres of property in Putnam County, Florida, near the town of Interlachen. This acreage is contiguous. Subsequent to the purchase, he began to develop the property as a subdivider and named the subdivision Ocklawaha Hills. Notwithstanding the fact that the property known as Ocklawaha Hills was being subdivided into fifty or more lots, parcels or interests, D. D. Jeffords did not register this. subdivision known as Ocklawaha Hills with the Petitioner, nor seek exemption from the requirement to register. D. D. Jeffords had as his ultimate goal the sale or disposition of the lots, parcels or interests in Ocklawaha Hills which were being subdivided. Although the Ocklawaha Hills land was surveyed into lots and units, the plats that involved this surveying were not recorded. After purchase and before 1970, D. D. Jeffords had commenced the sale of the lots in Ocklawaha Hills through offices in Interlachen and Palatka. On April 4, 1970, D. D. Jeffords married Christell Jeffords, the Respondent in this cause. Mrs. Jeffords, who is now known as Christell B. Sheffield, did not have any active participation in the sale of lots within Ocklawaha Hills in the early part of her marriage to D. D. Jeffords. Her participation in these matters pertained to the need to sign as the wife of D. Jeffords in the event of conveyance of the lots to purchasers. In 1974 D. D. Jeffords suffered a stroke which incapacitated him and he was never fully recovered from that point until his death. For this reason his wife, Christell Jeffords, began to take a more active role in the real estate business of her husband and involvement with the sale of property at Ocklawaha Hills. This included examination and signing of sales documents and making managerial decisions. To further this pursuit, D. D. Jeffords signed a power of attorney authorizing the Respondent to conduct his business, to include the disposition of the property known as Ocklawaha Hills. The power of attorney dates from August 12, 1974. On May 25, 1977, D. D. Jeffords conveyed his remaining interest in Ocklawaha Hills to himself and to his wife. Christell, as husband and wife. In May 1978, Petitioner undertook an investigation of the activities of the Jeffords related to the sale of property in Ocklawaha Hills. This was an effort to determine if jurisdiction existed to require the registration or the request for exemption of the activities of the Jeffords related to the disposition of the Ocklawaha Hills property. To further this investigation the Jeffords submitted answers to a questionnaire, a copy of that questionnaire being found as Petitioner's Exhibit 4 admitted into evidence. In the course of giving those answers, it was identified that Ocklawaha Hills was constituted of 430 acres and that 143 parcels or lots had been offered for sale with 111 lots having been sold as of May 12, 1978. At that time it was stated that the balance of the property had not been developed. This answer to the questionnaire described the fact that the sales were being made through the provision of warranty deeds on cash sales and through the use of agreements for deeds in the sales in which the purchaser had to make further payments before being provided a warranty deed. Petitioner's Exhibit 4 also identifies the fact that the sizes of the 143 lots that were subdivided at that point were in the range of three- quarters of an acre to ten acres. On October 24, 1978, the Jeffords applied to the Petitioner to have the sales or disposition of the property in Ocklawaha Hills exempt from the requirement to register as subdividers. In the course of this request for exemption, an exemption statement was prepared, a copy of which may be found as Petitioner's Exhibit 2 admitted into evidence. Although this references the total number of lots within the subdivision as being 123, in view of the statement in the questionnaire discussed in paragraph 10 and the depiction of the various lots in that questionnaire document, the number of lots in the subdivision that were developed at the point of the request for exemption is found to be 143 lots or parcels. The exemption statement shows that 114 lots had been sold or were under contract at that time. Further, it establishes that some additional eighty-seven acres of land were available for future expansion in Ocklawaha Hills. At the time that the exemption statement was made, five units were involved in the subdivision, with an additional three units contemplated as being available to be subdivided. No order of exemption from the requirements of registration has ever been given to the Jeffords or any other person who holds an interest in Ocklawaha Hills. The outcome of the investigation of the activities of the Jeffords at Ocklawaha Hills led to the signing of an agreement, what is now known as a consent order, between the Jeffords and the Petitioner. A copy of that agreement is found as Petitioner's Exhibit 5 admitted into evidence. The date of the agreement is March 6, 1979. By its terms the Jeffords agreed to maintain the roads in the Ocklawaha Hills subdivision and to deposit money into an escrow account equal to the cost of one year's maintenance expense for the roads in the subdivision. This agreement allowed the sale of only those lots which had been developed and unsold in inventory at Ocklawaha Hills subdivision. Those lots were specifically identified as Lots 505, 506, 514A, 515, 519, 520A, 521, 521A, 534, and 526A. As to those lots, and the past activities involving the subdivision, the Petitioner indicated it would take no legal action against the Jeffords for the sale of those lots. The specifically identified lots are found within Unit 5 of the Ocklawaha Hills subdivision. The Jeffords were not to sell any further lots without registering with the Petitioner or obtaining an exemption under the terms of Chapter 478, Florida Statutes, which was the precursor to the, present Chapter 498, Florida Statutes. This agreement by its terms would not allow for the sale of lots or parcels within. Units 6, 7, and 8 of Ocklawaha Hills. In effect, the agreement which forgave any violation or failure to comply with the registration provision of Chapter 478, Florida Statutes, did not preclude the prosecution of any violation related to the future sale or disposition of property in Units 6, 7, and 8. D. D. Jeffords died on December 18, 1979. Upon his death the Respondent became the owner of all parcels within Ocklawaha Hills that had not been conveyed prior to her husband's death. Respondent remarried on November 7, 1981, and became Mrs. Sheffield. In accordance with the stipulation of facts by the parties, the following is a depiction of some of the lots in which the Respondent participated in the offer and disposition of or individually offered and disposed within Ocklawaha Hills subdivision. In the instances of agreement for deed, not all of those were Purchaser recorded. Lot No. Recorded Instrument Date Recorded OR Book & Page Unit 1 Caines 3 20 Warranty Deed Article of 4/8/83 12/12/77 432-982 354-615 Wilkinson Agreement Warranty 4/3/80 388-967 c) Juliette 32 Deed Article of 10/74 313-1631 Bostick Agreement Warranty 9/81 405-1552 d) Marvin 34 Deed Warranty 7/2/80 391-1780 McClanahan Deed Jerry James Unit 2 a) David Bishop 57 Article of Agreement 12/27/77 354-1832 b) Kenneth 58 Warranty Deed Article of 11/8/79 4/5/78 382-1596 358-1489 Shrader Agreement Warranty 9/14/81 409-1841 c) David 60 Deed Article of 7/11/78 362-1677 Bishop Agreement 1/10/80 385-586 d) Richard 61 Warranty Deed Warranty 6/6/85 4/12/05 468-372 465-1089 Barber Deed Unit 3 a) Jarge 303 Article of 11/6/80 396-1516 Travassas b) Earl 317 Agreement Warranty Deed Warranty 8/85 12/81 471-1400 413-177 Mace c) Lewis 320 Deed Article of 3/75 317-1649 Lower Agreement Warranty 4/82 418-49 Deed Unit 4 a) Victor 439 Warranty 5/14/79 375-883 Platt b) Noal D. Part of Deed Article of 4/84 448-1400 Bishop 440 Part of Agreement Article of 9/84 455-61 440 Agreement Lewis 442 442 Article of Agreement Warranty 3/21/84 4/2/85 447-1130 465-134 McLain Deed Shelby Jack Unit 5 a) W.D. Cook 503A Article of Agreement. 6/15/78 361-1715 b) c) Robert LeGrand Wayne 505 506 Warranty Deed Article of 2/80 4/82 387-4 417-197 d) Jones Willis 514 Agreement Warranty 7/26/77 348-1103 e) Casperson Amos 517 Deed Article of 12/77 355-169 Dalley Agreement Warranty 4/81 404-206 f) Charles 518 Deed Warranty 3/12/79 372-121 g) Cochran Charles 518A Deed Warranty 3/12/79 372-1211 h) Cochran Michael 519A Deed Article of 10/20/80 396-171 Harrison and Sandra Agreement Warranty 7/20/83 436-1792 i) Harrison Lawrence 520A Deed Article of 9/79 380-190 j) Warren Thomas 521 Agreement Warranty 3/79 372-112 Henderson Thomas 521A Deed Warranty 3/79 372-1-126 Henderson Deed k) 1) James Simpson James 522 523 Warranty Deed Warranty 9/12/77 9/12/77 350-987 350-987 m) Simpson James 524 Deed Warranty 9/12/77 350-987 n) Simpson Ralph 525 Deed Warranty 9/30/77 351-566 o) Fricks Ralph 526A Deed Warranty 9/30/77 351-566 p) Fricks Edwin 527 Deed Article of 4/77 345-6 Harris 528 Agreement(3) q) Ikoko 529 531 Warranty Deed(3) Warranty 7/85 9/29/77 470-686 351-454 r) Allan William 519 Deed Article of 1/84 444-1147 Bellamy Agreement s) James Hardie 533 Article of Agreement 5/75 320-823 Warranty 6/85 468-908 Deed Unit 6 a) Robert Rash 2 Article of Agreement 4/17/84 448-1432 b) c) Robert Rash Howard Part of Article of 3 Agreement Part of Article of 4/17/84 9/29/83 448-1434 440-434 Eastlack 3 Agreement Eastlack 4 5 Article of Agreement Warranty 4/5/84 11/15/82 448-575 426-1071 Decker f) Ritter 6 Deed Warranty 8/8/80 393-657 Decker g) Ritter 7 Deed Warranty 11/15/82 428-1071 Decker h) Edward 8 Deed Warranty 8/10/81 408-1385 Powell i) George 10 Deed Article of 7/31/81 408-625 Dixon Agreement Warranty 6/12/85 468-905 j) Pablo 22 Deed Article of 7/25/83 437-260 Marrero k) Wanda 23 Agreement Warranty 1/18/84 461-1106 Cook 1) David 34 Deed Article of 11/5/80 396-1413 Wilson m) Marsha and 35A Agreement Article of 7/8/81 407-643 Preston Coltrane n) Marsha and 35B Agreement Article of 7/8/81 407-64 Preston Coltrane o) Wallace 36 Agreement Article of 12/29/80 398-1693 O'Brien p) Donald 39 Agreement Article of 2/22/84 446-841 Blount Agreement Howard Ritter q) Elizabeth 9,11-13 Warranty 8/31/84 455-140 Pickering 15-21 Deed 24-33 35-C 37,38 40,41 514A 9/5/85 455-415 Unit 7 Part of 526, parcel B and parcel A, section 27: parcel A, section 28. a) Geroge D. 1-8 Warranty 5/21/81 405-145 Dean Deed Unit 8 a) George D. 1-16 Warranty 5/21/81 405-145 Dean Deed In some of the instances reported above, the Respondent had conveyed title because of a previous agreement for deed executed by her husband before May 25, 1977, the first date of their joint ownership. Beyond that date Respondent was necessarily involved in the sales due to her joint tenancy in the property. The title to property which was sold pursuant to an agreement for deed or article of agreement would only be conveyed upon the payment of the full purchase price. In the event that that price was not fully paid, the Respondent retained title to the property. Following the death of D. D. Jeffords, Respondent on her own accord developed Unit 6 of Ocklawaha Hills. This occurred on or about July 17, 1980, and involved 43 lots which the Respondent subdivided within Unit 6. It can be seen in the discussion above that the Respondent was directly involved in the sale of all of those lots within Unit 6. At present the Respondent does not own any of the lots within Unit 6 or other units within Ocklawaha Hills. Unit 6 is immediately contiguous to Units 3, 4, 6 and 8 of the overall contiguous Units 1-8 within Ocklawaha Hills. Before his death, D. D. Jeffords had conveyed two and a half acres within Ocklawaha Hills to his stepson, George Daryl Dean, the natural son of the Respondent. This occurred in 1975. Other property was eventually conveyed to Dean, namely Units 7 and 8. This conveyance was made by the Respondent through the Petitioner following her husband's death. As stated before, that date of conveyance was May 21, 1981, through a warranty deed. No purchase price was paid by the son to the Respondent. Although the Respondent took back a mortgage in the amount of $43,208.91, the appraised value of the property being conveyed, this mortgage was not as a security for any money loaned from the Respondent to her son. This rather unusual arrangement was an effort to prohibit the natural father of the son from inheriting the property in Units 7 and 8. Dean quitclaimed his interest to the Respondent in 1982 in an effort to gain a loan from a lending institution. The arrangement was never consummated and the Respondent reconveyed the property to her son on February 25, 1984, via a quitclaim deed. Prior to Units 7 and 8 being conveyed from Respondent to her son, a survey was done and a plat made of Units 7 and 8 in which the lot lines were established. In this situation the son indicated to the surveyor who was at the property that he wanted to establish similar sized lots to those other units within Ocklawaha Hills. Dean asked his mother if she thought this was an acceptable technique, and she indicated that she believed that it was. The payment for the surveying related to the plats for Units 7 and 8 was made by the Respondent and reimbursed by her son. Although the son now offers lots within Units 7 and 8 of Ocklawaha Hills for sale, none of those lots have been sold. Unit 7 contains eight lots and Unit 8 contains sixteen lots. In paying for the surveying for Units 7 and 8 at a time when she owned the property and in conveying the property to her son, Respondent participated in the offer or disposition of property within Units 7 and 8 and has acted in furtherance of the efforts of her son to offer that property to third parties. Respondent in her testimony tried to establish that the Petitioner in the person of one of its employees who was a bureau chief within the Land Sales Division in 1978, namely Kenneth L. McDowell, had told her that it was acceptable to develop Unit 6 into any number of parcels less than fifty. In view of these representations, according to the Respondent, the development of Unit 6 into 43 lots was exempt from the requirement of Chapter 498, Florida Statutes, or its precursor, Chapter 478, Florida Statutes. Considering the remarks of McDowell in the course of the final hearing, together with the other facts of this case, the claim of any statement on the part of McDowell or other officials within the petitioning agency which allowed the Respondent to develop any number of lots less than fifty in Unit 6 of Ockalawaha Hills after the development of Units 1-5 is rejected and Respondent's belief in the entitlement to develop less than fifty additional lots without obtaining registration or obtaining a statutory exemption is rejected. This finding is made because any initial development of less than fifty lots is outside the jurisdiction to require registration. On the other hand, the development of additional lots beyond the initial 143 lots first developed and activities outside the scope of the settlement agreement of March 1979, be it one in number or 43 in number or fifty in number, is a continuation of a subdivider's offer and disposition and subjects the Respondent to the requirements for registration or makes it incumbent upon the Respondent to obtain an exemption from registration. To date, neither the Respondent nor anyone else associated with Ocklawaha Hills has registered any of the Units or been granted an exemption. Testimony was given by persons who purchased lots within Ocklawaha Hills from the Respondent, on the subject of road conditions within the subdivision. Sandra Harrison, who made a purchase of property in Ocklawaha Hills in 1980, indicated that in the course of a telephone conversation between Harrison's husband and the Respondent, Mr. Harrison inguired about the circumstances of the roads in the subdivision, wherein, Respondent indicated that the roads were to be county roads. This statement about the roads was an inducement to the Harrisons to purchase property in Ocklawaha Hills. No indication was given to the Harrisons by the Respondent as to the date the county could take over the roads. The county has yet to assume responsibility for road maintenance in the subdivision. After the Harrisons moved onto the property in Ocklawaha Hills, Respondent indicated that she was responsible for maintenance of the roads. Thomas Gordon Henderson purchased property from the Respondent in Ocklawaha Hills in 1979. He inquired about the status of the roads at that time and was told by the Respondent that the roads would be brought up to county standards and maintained by the county beyond that time. The fact of not having roads developed to county standards and maintained by the county would not dissuade Henderson from purchasing the property. Robert W. LeGrand bought property from the Respondent in Ocklawaha Hills in 1980. He inquired of the Respondent before purchasing the property on the subject of the roads and was told that some person named Buckles took care of those roads. Respondent told him that the roads would be graded the following week and that the county was supposed to take them over and keep them from that point forward. LeGrand would have purchased the property regardless of whether the county maintained the roads or not. Marsha Coltrane and her husband purchased property in Ocklawaha Hills from the Respondent in 1981. When the purchase was made, Respondent told the Coltranes that the roads, were going to be widened to a two-car width and that ditches were going to be provided for drainage and that the roads were going to be maintained by the county. Mrs. Coltrane indicates that she doesn't think that she would have purchased the property if she had not been told by the Respondent that the roads would be maintained by the county. Although the Articles of Agreement between the Coltranes and the Respondent which forms the basis of the purchase of the property in Ocklawaha Hills referenced a grant of easement found in Official Record Book 393, page 16, the- terms of this easement were not discussed when the property was bought. The mere mention of this easement did not alert the Coltranes to the fact that the Respondent intended to forgo responsibility to maintain the roads in Ocklawaha Hills. The easement was not attached to the Articles of Agreement as stated in the agreement. Had the Coltranes been aware of the terms of the grant of easement dating from August 1, 1980, a date approximately eleven months before the Coltranes' purchase, they would have seen that there was a disclaimer as to road maintenance on the part of the Respondent. Mrs. Coltrane subsequently learned of the existence of the disclaimer after purchasing the property. Ritter Decker purchased property in Ocklawaha Hills from Respondent in 1980 but has no recollection of any representations about road maintenance. An overall plat of every unit within Ocklawaha. Hills was prepared in 1982 at the behest of the Respondent. Respondent did not provide a public offering statement to any of the purchasers when offering or disposing of her interests in the Ocklawaha property.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That a final order be entered which imposes a civil penalty in the amount of 55,000.00 for the violation established through Count (1) and $5,000.00 for the violation established through Count (2). No recommendation is made as to the disposition of the violation under Count (3) in that the terms of Section 498.051, Florida Statutes, do not lend themselves to addressing the particular facts of this case. DONE AND ORDERED this 27th day of January, 1986, at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. COPIES FURNISHED: Thornton Williams, Esquire Department of Business Regulation 725 South Bronough Street. Tallahassee, Florida 32301 Timothy Keyser, Esquire P. O. Box 92 Interlachen, Florida 32048 James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX The proposed findings of fact of the parties have been substantially adopted, with the following exceptions: At paragraph 16 of the proposed facts of the Petitioner reference to 123 lots is rejected in view of contrary findings of fact in the recommended order. Paragraph 25 of the Petitioner's proposed findings of fact is rejected as being irrelevant. The first sentence of paragraph 4 to the Respondent's proposed findings of fact is rejected as not being necessary to case resolution, as are the latter two sentences of paragraph 5. Sentence 2 to paragraph 7 of the Respondent's proposed findings of fact is rejected as being contrary to the facts found in the recommended order. The balance of the paragraph beyond that sentence is rejected as being unnecessary to the case resolution. Sentence 2 to paragraph 8 of the proposed findings of fact of the Respondent is rejected as not being necessary to the case resolution, as is the last sentence of that paragraph. The third sentence in the proposed facts found at paragraph 9 of the Respondent is rejected as being contrary to the facts in the recommended order. The final sentence within paragraph 9 of the proposed facts of the Respondent is rejected as unnecessary to case resolution. Sentence 3 at paragraph 11 within proposed findings of fact by the Respondent is rejected as being contrary to facts found in the recommended order. The balance of the sentences found in proposed paragraph 11 are rejected as being unnecessary, other than the idea of constructive notice of the grant of easement which is rejected as being contrary to facts found. The last sentence of paragraph 12 of the proposed findings of facts by the Respondent is rejected as not being necessary for case resolution. Sentence 3 of paragraph 13 of the Respondent's proposed findings of fact up to the word "but" is rejected as not being necessary. The balance of that sentence is rejected as being contrary to facts found in the recommended order as is the last sentence within paragraph 13. Sentence 1 to paragraph 14 of the proposed findings of fact of the Respondent is rejected to the extent that it says that the Coltranes formented [Sic] an investigation. The balance of the paragraph is rejected as not being necessary, with the exception of the idea expressed that an overall plat of the eight units within Ocklawaha Hills was prepared in December, 1982. ================================================================ AGENCY FINAL ORDER ================================================================ STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES 725 SOUTH BRONOUGH STREET - JOHNS BUILDING TALLAHASSEE, FLORIDA 32301-192 DEPARTMENT OF BUSINESS REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Petitioner, CASE NO. 85-0659 DOCKET NO. 85017RSD CHRISTELL B. SHEEFIELD d/b/a OCKLAWAHA HILLS, Respondent. /
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Agency for Persons with Disabilities (“APD”) should approve the application for licensure sought for the group home facility Catalina Group Home, owned and operated by Caring Angels, Inc. (“Caring Angels”).
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Respondent is an applicant for licensure of a group home facility. Caring Angels’ corporate officer, Ravi Kumar, submitted the completed application to APD on or about February 9, 2018. At all times material, Ravi Kumar was the sole corporate officer of Florida corporations Sweet Home Manor, Inc., and Comfort Manor, Inc. On or about September 7, 2005, the Agency for Health Care Administration (“AHCA”) took agency action against the license of Sweet Home Manor, Inc. On December 23, 2005, AHCA entered a final order that required Sweet Home Manor, Inc., to pay a $500 fine and a $209 survey fee. On or about April 1, 2007, AHCA filed a three-count administrative complaint that sought to discipline the license held by Comfort Manor, Inc. The parties resolved this case via settlement agreement, signed by Ravi Kumar, wherein Comfort Manor, Inc., agreed to pay costs and a $500 fine. As part of that agreement, Comfort Manor, Inc., admitted to the allegations contained in the administrative complaint. A Final Order that adopted the settlement agreement was entered on September 7, 2007. Between June 7, 2017, and June 9, 2017, Mr. Kumar’s facility, Comfort Manor Assisted Living Facility, Inc., was investigated by the Department of Children and Families (“DCF”). The complaint that initiated the investigation alleged that the conditions of Mr. Kumar’s facility were hazardous, in part, due to slippery floors. It was alleged that the slippery floors had caused one resident, R.B., to fall and consequently require hospitalization. The floors were so slippery that, upon entry into the facility, the DCF investigator, Mr. Pearson, immediately slipped and almost fell. After completing a thorough investigation of the facility, Mr. Pearson closed his investigation with verified findings of abuse, neglect, or exploitation against Ravi Kumar. APD’s application for licensure contains a section titled “Affidavit.” Question one of the affidavit states, “Have you . . . been the party responsible for a licensed facility receiving an administrative fine?” Mr. Kumar answered “no.” Mr. Kumar’s answer was false and not accurate. Question two of the affidavit states, “Have you . . . ever been identified as responsible for . . . the abuse, neglect, or exploitation of a vulnerable adult?” Mr. Kumar answered “no.” Mr. Kumar’s answer was false and not accurate. Mr. Kumar testified that the answers were simply “mistakes.” Mr. Kumar compared his mistake to mistakes made by APD’s counsel, who used the wrong date in a discovery request made to Caring Angels, and other persons, including Mr. Pearson, who made a typographical error or two in the spelling of a subject’s name in his investigative report. However, these other noted “mistakes” were not made under oath, as was the signed and notarized affidavit by Mr. Kumar as part of his licensure application. Additionally, Mr. Kumar has known about his alleged mistake, since he received the APD’s March 29, 2018, denial letter. There is nothing in the record to demonstrate that Mr. Kumar made any attempt to fix the alleged error prior to the hearing. With respect to the DCF investigation, Mr. Kumar stated that he was not aware of the verified findings. Mr. Kumar also stated that the cleaning of the facility floor did not cause his resident to fall, but rather the resident’s infirmity and brain damage actually caused the fall. To his credit, however, Mr. Kumar at least knew that he was being investigated by DCF. Investigator Pearson spoke to Mr. Kumar on the telephone. At the time of the investigation, Mr. Kumar, refusing to come to the facility, simply told Mr. Pearson that there was nothing wrong with the floor. Additionally, while Mr. Pearson’s investigation was precipitated by the fall of a resident, his personal observation of (and loss of balance on) the slippery floor confirmed for him the verified finding of a dangerous condition leading to the resident’s fall. Mr. Kumar misrepresented material facts when responding to questions one and two in the affidavit section of his application for licensure. Based upon the fall of a resident that led to a verified finding of abuse or neglect by DCF, Mr. Kumar was responsible for the abuse, neglect, or exploitation of a vulnerable adult.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Caring Angels, Inc.’s, application for licensure. DONE AND ENTERED this 17th day of July, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 17th day of July, 2018. COPIES FURNISHED: Ravi Kumar Caring Angels, Inc. 5685-91st Avenue North Pinellas Park, Florida 33782 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities Suite 380 4030 Esplanade Way Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities Suite 335E 4030 Esplanade Way Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following facts were found: At all times material to these proceedings, Respondent was licensed by the State of Florida as a real estate salesman having been issued license No. 0325539. On September 24, 1984, at Respondent's request, Petitioner placed Respondent's license in an inactive status and on the day of the hearing Respondent's license was still in an inactive status. During the latter part of June or July, 1983, Respondent and his wife Merie Klink talked to George Anna Davis (Davis) in regard to renting or selling her home. Legally described as: Lot 15, Block G, Geneva Heights, as per Plat Book 2, Page 122 of the Public Records of Sarasota County, Florida. The mailing address of the Davis' property is 1804 Edmondson Road, Nokomis, Florida 33555. As a result of this conversation, Davis decided to sell rather than to rent her home and entered into a multiple listing with Venice Area Multiple Listing Service, Inc., with Respondent's broker, Ronald W. Morrison of Century 21 First Realty of Venice, Inc., as the listing Realtor, which was accepted on August 8, 1983. On October 11, 1983, Jan Leather and Janet Adams submitted an offer on the property to Davis which she refused. Davis then made a counter-offer which was refused by Jan Leather and Janet Adams. At the time of the hearing, Davis did not recollect the offer or counter-offer being made. During the term of the listing Respondent mowed the grass, made minor repairs, and generally kept the Davis property clean without any compensation from Davis. On November 2, 1983, Respondent received an offer on the Davis property from Andrew G. Szilay and Lillian Green Szilay (Szilay). The Szilay offer provided for a total purchase price of $23,000, payable $3,000 in cash and $20,000 by note secured by a purchase money mortgage based on 30 year amortization with interest at the rate of 11 percent per annum to balloon in 3 years. There was no provision for the assumption of the John Falls mortgage in the sum of $3,500 by the Szilays and the Szilays assumed that this mortgage would be paid off by Davis at closing and that they would get a clear title. The Szilay offer was communicated to Davis by Respondent on November 2, 1983 and Davis informed Respondent that she needed to talk to her son before making a decision. Respondent called Davis again on November 3, 1983 but she had not made a decision and asked that Respondent call her back on Sunday morning, November 6, 1983 and that she would have made a decision on the offer by that time. During this conversation, Respondent reminded Davis that she had to accept the Szilay offer by noon, November 7, 1983 or it would be withdrawn. On November 4, 1983, Respondent received an offer on the Davis property from Walter E. Armstrong and Lula Mae Armstrong (Armstrong). The Armstrong offer provided for a $22,500 purchase price, payable $5,000 cash, assumption of the John Falls' mortgage in the sum of $3,500 by Armstrong and a $14,000 note secured by a purchase money mortgage to Davis with interest at the rate of 10 percent per annum to balloon in 5 years. Respondent attempted to contact Davis on November 4, and 5, 1983, but was unable to contact Davis until Sunday, November 6, 1983, and at that time informed Davis of the Armstrong offer. The record is clear that Respondent received and informed Davis of the Szilay offer before receiving the Armstrong offer. During the telephone conversation on Sunday, November 6, 1983, Respondent informed Davis of the Armstrong offer and asked Davis to write down the details of both offers so that Respondent could discuss the advantages and disadvantages of each offer with Davis. After some discussion Davis could not make up her mind and asked Respondent to call her back later. Upon calling Davis back later that Sunday, November 6, 1983, Davis advised the Respondent that she preferred the Szilay offer because of the 11 percent interest and the three year balloon feature, as opposed to the 10 percent interest and five year balloon feature of the Armstrong offer. Respondent instructed Davis to send a telegram accepting the Szilay offer. On that same day, Respondent advised Louise Levering the real estate salesperson who was handling the Armstrong offer, that Davis preferred the Szilay offer and why Davis preferred it and that Davis was going to accept the Szilay offer. Later that same day, Armstrong made a counter-offer increasing the interest rate to 11 percent and with the note to balloon at 3 years. The Armstrong counter-offer was communicated by Leverling to Respondent who in turn communicated the Armstrong counter-offer to Davis on the same day (November 6, 1983) which was later confirmed in writing. Again, the Respondent asked Davis to write down the details of each offer and counter-offer and Respondent explained the comparative features of them to Davis. One of the things pointed out to Davis, by Respondent, was that the Szilay offer would require Davis to satisfy the John Falls' mortgage in the sum of $3,500, producing no cash to Davis at the closing, while the Armstrong offer would give her substantial cash at closings which she wanted. At this point, since no telegram had been sent, Davis decided to accept the Armstrong offer instead of the Szilay offer and advised Respondent that she would send a telegram to that effect on Monday, November 7, 1983. On Monday, November 7, 1983, a telephone call to the Century 21 office confirmed that a telegram had been received from Davis accepting the Szilay offer. The telegram was later reduced to writing. Respondent then called Davis to see if there was a mistake and Davis advised Respondent that she had gotten confused. Again Respondent explained both offers to Davis and she agreed that the Armstrong offer would be better for her. On November 8, 1983, Respondent received a telegram from Davis accepting the Armstrong offer. The Armstrong contract was mailed to Davis for signature on November 9, 1983. Norwood Gay the Attorney closing the transaction, corresponded with Davis on November 18, 1983, and in accordance with that correspondence, Davis executed a closing statement, a warranty deed, and an owner's affidavit and forwarded the documents to Norwood Gay for the closing. The transaction closed in a routine manner with exception that an inspection of the improvements on the property revealed visible evidence of wood destroying organism known as dry-rot in various locations around the house. The Respondent notified Davis of this prior to closing, and Davis authorized a repair escrow of $500. The closing took place on December 5, 1983 and Norwood Gay forwarded to Davis the net check less escrow and the other closing documents. Norwood Gay later sent Davis the net of the repair escrow, which she accepted. While Davis in a letter to Petitioner implies that respondent dropped the price of the home by $1,500 and sold it to a close friend, the Armstrongs, the testimony of both the Respondent and his wife and the Armstrongs that they had not known each other before this transaction and had only met the morning of the hearing, went unrebutted. Also, the evidence shows that there was only $500 difference in the purchase price of the two offers. While Davis had previously listed her house with another agency to be sold "as is", the record is clear that this matter was discussed with Davis by the Respondent and that Davis understood that the property would be listed as needing "tender loving care" (TLC). The Respondent received $441.15 as a listing commission on the Armstrong sale. Had the Szilay offer been closed rather than the Armstrong offer, the Respondent would have received approximately $377.00 as a listing commission. The record is clear that Respondent discussed the advantages and disadvantage of both the Szilay and Armstrong offers prior to Davis making a final decision to accept the Armstrong offer. There was no credible evidence that Davis was pressured by the Respondent to accept the Armstrong offer or that the Respondent informed Davis that the Szilays: (a) were unreliable; (b) not financially able to handle the payments, or (c) that they had withdrawn their offer.
Recommendation Based upon the findings of fact and conclusions of laws recited herein, it is RECOMMENDED that the Commission enter a final order finding the Respondent not guilty of the violations as charged in Count I and Count II of the Administrative Complaint and that Count I and Count II of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 12th day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1985. COPIES FURNISHED: Arthur Shell, Esquire 400 West Robinson Street Orlando, Florida 32802 William R. Hereford, Esquire 1233 South Tamiami Trail Sarasota, Florida 33579 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found; At all times material to this proceeding, Respondent, M. Emaline Jones was a licensed real estate salesman in the State of Florida, license number, 0045290, and an associate with Crown Real Estate, Inc., (Crown) now known as Daniel Crapps Agency, Inc. (Crapps). On January 20, 1987, John W. Hearne and his wife, Wilhemina Hearne (Hearne) went to the office of First Florida Realty and Auction (First), and met with Jackie Taylor and Jack Endfinger. On that same day, Endfinger showed Hearne the property owned by Sandra Sherman that was listed in the Multiple Listing Service (MLS) with Crapps as the listing agency. On January 21, 1987, a contract for the purchase of the Sherman property at a purchase price of $52,900.00 was executed by Hearne with an addendum requiring owner financing attached. Endfinger, as agent for Hearne with authority to deliver the contract, delivered the contract with the addendum attached to Respondent at Crapps around 4:00 p.m. On January 21, 1987, another contract for the purchase of the Sherman property at a purchase price of $45,000.00 was executed by Al and Shirley Williams and submitted to the Respondent by another associate of Crapps. On January 21, 1987, Respondent reviewed both con- tracts with Katrina Blalock, Office Manager for Crapps. Both contracts along with an expense settlement statement for each contract were presented to, and reviewed with, Sherman by both Blalock and Respondent on January 21, 1987. Both contracts were rejected by Sherman. The Williams contract was rejected mainly due to price. The Hearne contract was rejected due to price and the requirement of owner financing. Sherman authorized Respondent to make a counteroffer with a pur- chase price of $55,000.00 to Williams only. Respondent had no authority from Sherman to make, or accept, a counteroffer to, or from, Hearne. Because of her and her late husband's relationship with Williams, Sherman wanted Williams to have the property if they could come to terms. Upon being advised by Respondent of Sherman's rejection of the Hearne contract, Endfinger contacted Hearne and a counteroffer with a purchase price of $55,000.00 and third (3rd) party financing was executed by Hearne. There is insufficient evidence to establish whether Endfinger verbally advised Respondent of this contract or its terms prior to Sherman entering into a contract for sale with Williams. The contract was never physically delivered to Respondent or anyone else at Crapps at anytime. Either on January 21 or January 22, 1987, Williams, after reviewing Sherman's counteroffer of $55,000.00, made an offer of $52,000.00 which was accepted by Sherman. A contract with the new terms was executed on January 23, 1987, but Williams was unable to fulfill the contract and Hearne eventually purchased the Sherman property for $52,500.00. Subsequent to Sherman and Williams reaching an agree- ment on the property, Endfinger called Respondent, and upon being told of the agreement, told Respondent that Hearne would have given $55,000.00, but did not elaborate on the terms of the second contract executed by Hearne.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Commission enter a Final Order DISMISSING the Administrative Complaint filed herein. Respectfully submitted and entered this 13th day of January, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3993 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner failed to timely submit any posthearing Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent's Proposed Findings of Fact were set out in eight (8) unnumbered paragraphs which for purposes of this Appendix I have numbered 1 through 8. Adopted in Findings of Fact 2 and 3 but clarified. Adopted in Findings of Fact 4, 5 and 6 but clarified. Adopted in Finding of Fact 7. The first sentence of paragraph 4 is rejected as not being material or relevant. The balance of paragraph 4 is adopted in Finding of Fact 8. The last sentence of paragraph 5 is rejected as not being material or relevant. The balance of paragraph 5 is adopted in Findings of Fact 7 and 9. Adopted in Findings of Fact 8 and 10 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 9. COPIES FURNISHED: Darlene F. Keller, Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 Arthur R. Shell, Jr., Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801 William J. Haley, Esquire Post Office Box 1029 Lake City, Florida 32056-1029
The Issue Pursuant to the order of the First District Court of Appeal dated October 18, 2005, the issue before the Division of Administrative Hearings is a determination of the amount of attorneys' fees and costs to be awarded for the administrative proceeding in Department of Health v. Anthony Glenn Rogers, M.D., DOAH Case No. 02-0080PL, and for the appellate proceeding styled Anthony Glenn Rogers, M.D. v. Department of Health, Case No. 1D04-1153 (Fla. 1st DCA Oct. 18, 2005).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine, and the Board of Medicine ("Board") within the Department is the entity responsible for entering final orders imposing disciplinary action for violations of the laws regulating the practice of medicine. See §§ 455.225 and 458.331(2), Fla. Stat. On January 4, 2002, the Department of Health filed an Administrative Complaint charging Dr. Rogers with violations of Section 458.331(1)(m), (q), and (t), Florida Statutes (1998).3 The matter was referred to the Division of Administrative Hearings, which assigned the matter DOAH Case No. 02-0080PL. The case was heard on May 7, 2002, by Administrative Law Judge Michael J. Parrish. Judge Parrish entered his Recommended Order on February 21, 2003, in which he found that the Department had failed to prove violations of Section 458.331(1)(q) and (t), Florida Statutes (1998), and recommended dismissal of those charges. Judge Parrish found that the Department had proven a violation of Section 458.331(1)(m), Florida Statutes (1998), failing to keep medical records as required by rule, and he recommended that Dr. Rogers be required to pay a $1,000.00 administrative fine and attend a Florida Medical Association record-keeping course as the penalty for the violation. The Board entered its Final Order on February 17, 2004, in which it adopted its own findings of fact and conclusions of law; found Dr. Rogers guilty of all three charges in the Administrative Complaint; and imposed a penalty on Dr. Rogers consisting of a $10,000 administrative fine, completing of a drug course sponsored by the University of South Florida, completion of a Florida Medical Association record-keeping course, and two years' probation, during which he was not permitted to practice medicine unless his practice was monitored quarterly by a physician approved by the Board. Dr. Rogers appealed the Board's Final Order to the First District Court of Appeal, challenging the Board's determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998). Dr. Rogers filed a motion for attorneys' fees and costs based on Section 120.595(5), Florida Statutes. In addition, Dr. Rogers filed a Motion for Stay of Final Order, which the Board opposed. The district court denied the motion for stay in an order entered April 2, 2004, and Dr. Rogers proceeded to comply with the terms of the two-year probationary period imposed by the Board, as well as fulfilling the other requirements set forth in the Board's Final Order of February 17, 2004. In an opinion issued on October 18, 2005, the First District Court of Appeal reversed the Board's Final Order with respect to its determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998), and remanded the matter to the Board for entry of a Final Order consistent with its opinion. The district court held in its opinion that the Board had erroneously re-weighed the evidence and had rejected findings of fact in the administrative law judge's Recommended Order that were supported by competent substantial evidence. The district court also entered on October 18, 2005, the order granting Dr. Rogers's motion for attorneys' fees and costs that is the subject of this proceeding. The district court's mandate issued on February 23, 2006, and, on April 21, 2006, the Board entered a Final Order on Remand adopting the findings of fact and conclusions of law in Judge Parrish's Recommended Order, finding that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), and imposing a $1,000.00 administrative fine on Dr. Rogers and requiring him to attend a medical record-keeping course. Based on the Amended Affidavit of C. William Berger filed August 24, 2006, the total number of hours Mr. Berger spent in representing Dr. Rogers in the administrative proceeding in DOAH Case No. 02-0080PL is 79.75, a total that the Department does not challenge. Mr. Berger's billing rate was $300.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid to Mr. Berger for his representation of Dr. Rogers through the administrative proceedings before the Division of Administrative Hearings was, therefore, $23,925.00. Dr. Rogers was ultimately found to have violated one count of the three-count Administrative Complaint filed against him by the Department, the count in which the Department alleged that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), by failing to keep adequate medical records related to the patient that was the subject of the charges against him. Mr. Berger did not record in his billing statements the amount of time he spent researching this charge, preparing for hearing on this charge, or addressing this charge in the Proposed Recommended Order he filed in 02-0080PL. It is reasonable that Mr. Berger spent 10 percent of the hours included in his billing statements preparing Dr. Rogers's defense to the charge that he failed to keep adequate medical records.4 Accordingly, Mr. Berger's attorney's fees will be reduced by 10 percent, or by $2,392.50, for a total of $21,532.50. In reaching the percentage by which Mr. Berger's fees should be reduced, consideration has been given to the amount of the fees in relationship to the failure to prevail on the medical-records violation, to the seriousness of the alleged violations on which Dr. Rogers prevailed before both the administrative law judge and on appeal,5 and the penalty ranges that the Board could impose for the violations with which Dr. Rogers was charged.6 Based on the Supplemental Affidavit of Lisa Shearer Nelson Regarding Attorneys' Fees and Costs filed September 5, 2006, Ms. Nelson claimed that she spent a total of 187.1 hours "from the issuance of the final order of the Board of Medicine through the appeal and remand and initial preparation of the petition for attorney's fees and costs." Ms. Nelson's billing statements reflect that she represented Dr. Rogers during the appellate proceedings before the First District Court of Appeal in Case No. 1D04-1153 and before the Board on remand from the district court. Ms. Nelson's billing rate was $250.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for her representation was, therefore, $46,775.00. A review of the billing statements attached to Ms. Nelson's supplemental affidavit reveals that the final billing statement, dated June 9, 2006, was for "preparation of petition for fees and costs; preparation of affidavit re same." Dr. Rogers was billed for 1.9 hours in this billing statement, for a total of $475.00. Because the work done by Ms. Nelson reflected in this billing statement did not involve the appellate proceeding arising out of the Board's Final Order of February 17, 2004, the hours claimed by Ms. Nelson are reduced by 1.9 hours, for a total of 185.2 hours. Accordingly, Ms. Nelson's attorney's fees for her representation of Dr. Rogers on appeal total $46,300.00. The total costs identified in Mr. Berger's Amended Affidavit and in the billing statements attached to the Amended Affidavit is $4,462.55. This amount is reduced by $1,000.00 attributable to a retainer paid to a Dr. Spanos, who was initially retained as an expert witness but who ultimately did not testify on Dr. Rogers's behalf. The total allowable costs for the administrative proceeding, therefore, are $3,462.55. The total costs identified by Ms. Nelson in her Supplemental Affidavit and in the billing statements attached to the Supplemental Affidavit is $1,005.01. The total costs for both the administrative and the appellate proceedings are, therefore, $4,467.56. Dr. Rogers submitted an affidavit in which he claimed that he expended total costs of $154,807.23 in fulfilling the terms of the penalty assessed against him in the Board's Final Order of February 17, 2004, which was reversed by the district court.
Conclusions For Petitioner: C. William Berger, Esquire One Boca Place, Suite 337W 2255 Glades Road Boca Raton, Florida 33486 For Respondent: John E. Terrel, Esquire Michael D. Milnes, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
