The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 550.105(6), Florida Statutes and Rule 61D-1.006(3)(a)2, Florida Administrative Code, by having unpaid financial obligations that directly relate to racing being conducted at a pari-mutual facility within this state.
Findings Of Fact At all times material to this case, David Monaci, an individual, held three pari-mutuel wagering occupational licenses, to-wit: Thoroughbred Trainer, DPMW license number 1079030-3050; Authorized Agent, DPMW license number 1079030- 1047; and an Unrestricted "U1" Professional license, DPMW license number 1079030-1081. David Monaci has some form of interest in, or relationship with, a corporation that is named either David Monaci Stable Inc., or D. Monaci Stable, Inc. The nature and extent of David Monaci's interest in, or relationship with, that corporation is not revealed by the evidence in this case. 3/ At some time during 1993, David Monaci, acting on behalf of the corporation named David Monaci Stable, Inc., or D. Monaci Stable, Inc., entered into an agreement with the Country Western Store in Davie, Florida, pursuant to which the Country Western Store would supply food and other necessities for the race horses being handled by David Monaci at the Gulfstream Park horse race track. The food and other necessities supplied by the Country Western Store were invoiced to "David Monaci Stable, Inc.", at an address in New Jersey. After the invoices went unpaid for a number of months, the Country Western Store quit providing anything for the race horses being handled by David Monaci. Shortly thereafter, the Country Western Store filed a lawsuit in Circuit Court in Broward County, Florida, against David Monaci Stable, Inc., seeking to recover the amount owed for the food and necessities it had furnished for race horses handled by David Monaci. On September 8, 1994, a Final Judgement was entered in favor of the Country Western Store and against David Monaci Stable, Inc. The Final Judgement provides, in pertinent part: 2. Plaintiff does have and recover from the Defendant, DAVID MONACI STABLE ,INC., the sum of $20,013.46 for damages, $224.76 for costs, $605.00 for attorneys fees, and $915.19 for interest, for all of which let execution issue. As of the date of the formal hearing in this case, nothing has been paid towards the satisfaction of the Final Judgement described immediately above. The Country Western Store did not sue David Monaci individually. The Country Western Store does not have a Final Judgement against David Monaci individually. The extent, if any, to which David Monaci in his individual capacity may or may not be responsible for the debts of David Monaci Stable, Inc., is not revealed by the evidence in this case.
Recommendation On the basis of all of the foregoing, it is Recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint on the grounds that the evidence is insufficient to prove that the license holder, David Monaci, is responsible for any of the debts or obligations. DONE AND ENTERED this 14th day of August, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 14th day of August, 1996.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Snyder Computer Systems, Inc. d/b/a Wildfire Motors and Family Power Sports, LLC to sell motorcycles manufactured by Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) at 7200 Ridge Road, #108, Port Richey (Pasco County), Florida 34668. DONE AND ORDERED this Yy J of August, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisio: Motor Vehicles this day of August, 2009. les y Nalini Vinayak, Dealer Eicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy’ of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Bill Shuert AC Pro-Tect, LLC 12228 US Highway 19 Hudson, Florida 34667-2001 Louis Mazzarese Family Power Sports, LLC 7012 Pin Cherry Lane Port Richey, Florida 34668 Dan Vogel ; Snyder Computer Systems, Inc., d/b/a Wildfire Motors 11 Technology Way Steubenville, Ohio 43952 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 William F, Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Jul 21 2009 15:04 Family Power Sports LLC. 7/21/08 7200 Ridge Rd. #108 - Port Richey, Fl. 34668 727-597-8553 . Case# 09-2326 To whom it may concern: Family power sports does not want to carry Huawain product line in our dealership and wish to cancel the hearing scheduled for 4, g dy) aie
Findings Of Fact After the Department of Transportation (DOT) proposed to reject its bid on State Project, Job No. 97860- 3319 as unresponsive, for failure to meet a women's business enterprise (WBE) goal, and failure to document good faith efforts to reach the goal, Capeletti initiated substantial interest proceedings, Capeletti Brothers, Inc. and State Paving Corporation vs. Department of Transportation and John Mahoney Construction Company, Inc., No. 85-3003, contending that it had made good faith efforts to meet the goal and that it had adequately documented the efforts; that the second low bidder had not met the goals; that DOT treated the goals as quotas; and that the DOT committees who evaluated the bids met in violation of the Sunshine Law. At the hearing in the present case, the parties stipulated that Capeletti's "bid was rejected because of noncompliance with Rule 14-78.03 as it relates to women's business enterprises and for noncompliance with the bid specifications which incorporated those provisions. The rule provisions under challenge read, in pertinent part: 14-78.03 General Responsibilities. In furtherance of the purpose of this rule chapter, the Department shall establish overall DBE and WBE goals for its entire DBE one WBE program. In setting the overall goals the Department shall consider the following factors: the number and types of contracts to be awarded by the Department; the number, capacity, and capabilities of certified DBEs and VBEs likely to be available to compete for contracts let by the Department; and the past experience of the Department in meeting its goals and the results and reasons therefore. To implement its DBE and WBE goal program the Department may: . . . (b) establish contract goals on each contract with subcontracting opportunities for certified DBEs and WBEs The Department shall establish separate contract goals for firms owned and controlled by socially and economically disadvantaged individuals and for firms owned and controlled by women. In setting contract goals, the Department shall consider the following factors: the type of work required by the contract to be let; the subcontracting opportunities in the contract to be let; the estimated total dollar amount of the contract to be let; and the number, capacity and capabilities of certified DBEs and WBEs. For contracts with an estimated total dollar amount of $1,000,000 or less, the contract goals shall not exceed 50 percent of the identified potential for DBE and WBE participation. For contracts with an estimated total dollar amount of $1,000,000, the contract goals shall not exceed 75 percent of the identified potential for DBE and WBE participation. For all contracts for which DBE and WBE contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. DOT proposes to deem Capeletti's bid nonresponsive forits conceded failure to meet a WBE goal and for the alleged failure to document good faith efforts to meet the goal. Citation Deleted In the course of the adoption of amended Rule 14- 78.03, Florida Administrative Code, Bjarne B. Andersen, Jr., an attorney on the staff of the Joint Administrative Procedures Committee, wrote Ms. Margaret-Ray Kemper, DOT's Deputy General Counsel, on January 22, 1985, with reference to amended Rule 14-78.03, stating: Sections 339.05 and 339.081, F.S., contain no specific rulemaking authority . . . while we do agree that the rule appears in part to implement s.339.05, F.S., as amended by Ch. 84-309, L.O.F.; we do not believe this "assent to Federal aid" is specific rule authority. It is at best implied authority. The day before a DOT employee (who, counsel represented at hearing, is not a lawyer) had written Ms. Elizabeth Cloud, Bureau Chief, Bureau of Administrative Code and Laws, Department of State, as follows: Based upon a telephone conversation with Mr. Bjarne B. Andersen, Jr. of the Legislative Joint Administrative Procedures Committee and further legal review by our office, we request that the . . . "law implemented" be amended to . . . [delete reference to Section 339.05, Florida Statutes (1984 Supp.)] In an internal memorandum dated March 8, 1985, DOT's Deputy General Counsel set out DOT's legal position in these words: Subpart A of 49 CFR, Part 23, defines minority persons . . . The definition of minority does not include women. However, women are encompassed within the definition of minority business enterprise which is defined as a small business concern owned and controlled by one or more minorities or women. 49 CFR, 23.5. 49 CFR, Part 23, Subpart C, sets forth general requirements for all recipients of federal funds. Among those requirements is a policy statement to be included in every financial assistance agreement affirming a commitment to MBE/DBE participation in contracts financed in whole or in part with federal funds. Also required is a MBE/DBE affirmative action program which must be incorporated by reference into financial assistance agreements. The program is made "a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement." 49 CFR, S23.43(b). The goal program is one of the required WBE/DBE program components. 49 CFR, S23.45(g). . . . However, although women are included within the definition of MBEs, 49 CFR, Part 23, Subpart C, requires recipients to establish separate overall and contract goals for firms owned and controlled by minorities and firms owned and controlled by women. 49 CFR, 23.45(g)(4). The memorandum relies exclusively on 49 CFR, Part 23, Subpart C, 23.45(g)(4) as authority for Florida's WBE program, citing no federal or state statutes as authority.
Findings Of Fact John Joseph Christ (Petitioner) on May 22, 1990 filed his application for licensure as a real estate salesman with the Florida Real Estate Commission (FREC). Question #7 of the application states "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner responded affirmatively and included an attachment setting forth information related to five separate offenses, identified as follows: In July or August of 1963, at the age of 17, Petitioner and friends traveled away from home to Pikeville, Kentucky. While in Pikeville, the group discovered a burning debris pile which contained scrap copper wiring. The youths later returned and stole the copper for resale. Petitioner was apprehended and charged with possession of stolen property. He was convicted and paid a fine of $50 plus court costs. In 1967 or 1968, Petitioner was gambling in an apparently unlawful Detroit, Michigan gambling facility. While on the premises, law enforcement officials raided the facility and issued citations to the occupants for loitering in an illegal establishment. Petitioner paid a $62 fine. In 1967 or 1968 at Dearborn, Michigan, Petitioner, attempting to return a defective power tool to the place of purchase, became involved in an altercation with a clerk, knocked over a display counter, and was charged with malicious destruction of property valued under $100. Petitioner was convicted, ordered to pay restitution and court costs, and sentenced to six months probation. The Petitioner also disclosed that he had been arrested while in his car with friends and charged with possession of a firearm, but that the charges were dropped. On April 2, 1985, Petitioner was charged in Naples, Florida, with driving under the influence. He was convicted and fined $450. In addition his license was suspended for nine months and he was required to perform 50 hours of community service. Question 8(a) of the application states "Has any judgement or decree of a court been entered against you in this state or any other state...in which you were charged...with any fraudulent or dishonest dealing?" In response, Petitioner directed attention to another attachment. The attachment discloses that a judgement of $25,000 plus court costs was entered against his former company, the result of civil litigation initiated by the parties to a real estate transaction arranged by Petitioner. The seller, whose property had been previously offered for sale at $42,000, agreed to sell the house to Petitioner on or about November 29, 1980, for $29,500. Petitioner agreed to send a written purchase agreement to the owner for execution. By December 10, 1991, Petitioner had not received the executed purchase agreement and contacted the Owner, who indicated that, rather than handle the transaction by mail, he would travel to Michigan and sign the purchase agreement just prior to the scheduled December 23, 1990 closing. Petitioner immediately thereafter contacted his associates and informed them that the property was available for sale at an asking price of $42,000. On December 11, 1980, an associate of the Petitioner contacted prospective buyers who suggested a willingness to purchase the property for a sales price in the mid-thirties. The associate relayed the offer to his office, and then told the prospective buyers that a $39,000 offer had been previously rejected, and that the Petitioner had since purchased the property. On December 13, 1990, the buyers offered the $42,000 asking price. 1/ The Petitioner accepted the offer. The closing was scheduled for December 23, 1980. At the time the buyers executed their contract to purchase, the Petitioner had no written agreement to purchase the property, and had no other legal interest in the house. Neither the owner nor the buyers were aware of each other. Petitioner did not disclose to the buyers the fact that he had no title to the property. Shortly after the closing the buyers discovered that Petitioner had purchased the property for $29,500 and sold it for $41,000, that Petitioner did not have a legal interest in the property at the time the agreement to purchase had been executed, and felt deceived by the Petitioner's nondisclosure of the situation. The parties filed a civil lawsuit and a complaint with the State of Michigan, Department of Licensing and Regulation, Board of Real Estate Brokers and Salespersons. The Petitioner does not believe the judgement to have resulted from fraudulent or dishonest dealing. The judgement remains unsatisfied. Question 14 of the application states "Have you ever been denied, or is there now pending a proceeding to deny your application for a license, registration, or permit to practice any regulated profession, occupation or vocation, or have you withdrawn an application for such a license, in this or any other state, province, district, territory, possession or nation, because of alleged fraudulent or dishonest dealing or violation of the law?" Question 15(a) of the application states "Has any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" In response Petitioner directed attention to an attachment. The attachment is not included in the certified copy of the Respondent's files, admitted as Respondent's exhibit #1. At hearing, Petitioner identified the matter as that disclosed in response to question 8(a), which resulted in the civil judgement against the Petitioner. As a result of the complaint filed by the parties to the transaction described above, The Michigan Real Estate Commission, on the March 7, 1984, entered a Final Order imposing a fine of $10,000 payable within 30 days, and requiring a $5,000 bond be posted for three years. The Order provided that payment of the fine and posting of the bond would result in Petitioner being placed on probation for three years and that noncompliance would result in suspension of the license. The Petitioner has failed to pay the fine or post the required bond. Although Petitioner claims to have contacted Michigan authorities to determine whether a payment schedule could be arranged, there is no documentary evidence supporting the claim. For the past two years, Petitioner has been employed as a manufactured home salesman with Alligold Corporation/Landmark Estates. Petitioner is responsible for meeting with prospective buyers, determining their needs, selling the manufactured homes, writing contracts, receiving deposits and delivery of said deposits to the company accounting office. Kyle Shinbaum, vice president and general manager of Alligold Corporation testified on behalf of Petitioner. Mr. Shinbaum stated that Petitioner is an excellent salesperson and that he should receive his real estate sales license. Although Mr. Shinbaum was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. Alligold Corporation is undertaking development of a manufactured home park in which lots will be sold. Were Petitioner a licensed real estate salesman, he could sell the lots for Alligold Corporation. David S. Lundgren also testified on behalf of Petitioner. Mr. Lundgren has known Petitioner since late 1865 or early 1986, when Mr. Lundgren, working for a financial services company and prospecting for business, met Petitioner through the manufactured home sales business. Mr. Lundgren is now a mortgage broker and owner of Lundgren & Associates Mortgage Brokers. Mr. Lundgren recommended Petitioner for licensure. Although Mr. Lundgren was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. He stated that he believed Petitioner to have been "acquitted" of the Michigan charges.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a Final Order DENYING Petitioner John Joseph Christ's application for licensure as a real estate salesman. DONE and RECOMMENDED this 16th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1991.
Findings Of Fact Application for registration as dealer was filed by the Financial marketing Group, Inc., in the person of M. L. Popkin, President and Milton A. Fried, Secretary for that corporation, on June 30, 1975. This information is reflected in the Petitioners' Exhibit 1, which was accepted into evidence in the course of the hearing. On that same date, Marvin Leo Popkin filed a request for registration as executive officer for the Financial Marketing Group, Inc., and this information is reflected in Petitioners' Exhibit 1(A), which was received into evidence in the course of the hearing. The matters set forth in Petitioners' Exhibits 1 and 1(A) are on file with the Respondent, Department of Banking and Finance, Division of Securities. The principal contention offered by the Respondent in refusing the application of the Financial Marketing Group, Inc., for registration as a dealer in securities, is due to the answers given by Marvin Leo Popkin in completing the Petitioners' Exhibit 1(A). Specifically the basis for denial would refer to question 12, found in Petitioners' Exhibit 1(A). That question is as follows: "12. List on a separate schedule your employment history, giving positions held, dates employed, dates terminated, and reasons for leaving each position so listed. (All times must be accounted for.) To the question 12, Marvin Leo Popkin attached an addendum to the application for registration as dealer and in that addendum question 12 was answered as follows: "12. 6/1/73 - Present - Realty Marketing Group, Inc. - President - 5040 Lakeview Drive, Miami Beach, Florida 33140 7/1/69-6/1/73 - Florida Development & Sales Corp. - President - 1666 Kennedy Causeway, Miami Beach, Florida 10/1/68 - 7/1/69 - Registered Realty Corp. - Salesman 8403 N.E. Second Avenue, Miami, Florida 1/1/68 - 10/1/68 - Miami Beach Vacations, Inc. - Salesman - 3001 Collins Avenue, Miami Beach, Florida" The Respondent felt that this answer to number 12 was insufficient, because on January 22, 1975, Marvin L. Popkin had filed an application for reregistration as a mortgage broker before the Department of Banking and Finance, Division of Finance, in which Marvin L. Popkin signed as Vice President of Financial Resources Corporation. Apparently, the Respondent felt that this affiliation referred to in the application for reregistration as a mortgage broker, which matters are found in Petitioners' Exhibit 2, admitted into evidence, was tantamount to an employment of Marvin Leo Popkin by the Financial Resources Corporation. Consequently, the failure of Marvin Leo Popkin to list this employment with the Financial Resources Corporation in response to question 12 of the request for registration as executive officer for the Financial Marketing Group, Inc., was felt to be a materially false statement. Marvin Leo Popkin, through his testimony in the hearing, indicated that the affiliation with the Financial Resources Corporation was a prospective one and not one in actuality. The background of the affiliation of Marvin Leo Popkin with Financial Resources Corporation, according to Mr. Popkin, was that he was approached in behalf of one Sidney Gilbert and Ronald Schaffer about becoming mortgage broker for Financial Resources Corporation, should a purchase of that company be consummated by Messrs. Gilbert and Schaffer. In fact the purchase was never completed because of certain problems associated with Financial Resources Corporation and Marvin Leo Popkin never became a mortgage broker for that company. Moreover, according to Mr. Popkin the basis for the application which is referred to in Petitioners' Exhibit 2, was premised upon the purchase being made by Mr. Gilbert and Mr. Schaffer and agreement for remuneration being made between Marvin Leo Popkin, and the others. The witness indicated that the purchase not being made, no salary was ever agreed upon and furthermore, the witness never did any work for Financial Resources Corporation, nor for that matter ever went to the office location of Financial Resources Corporation. The witness, Popkin, also indicated that signing the application as vice president was strictly prospective, in that he was not in fact at any time the vice president of Financial Resources Corporation. He stated that this signature was a matter of the necessity of signing as an officer, so that compliance with the Division of Finance requirements could be achieved. The title, vice president, was selected because Mr. Gilbert and Mr. Schaffer had tentatively agreed to identify themselves as the president and secretary, of Financial Resources Corporation, should the purchase be completed. Mr. Popkin indicated that a mortgage brokers license was issued by the office of the comptroller, without his knowledge. Mr. Popkin stated that he wrote a letter dated February 28, 1975, indicating to the office of the state comptroller that he was no longer affiliated with Financial Resources Corporation and therefore did not desire the issuance of a mortgage brokers license, in which a transfer of his mortgage brokers license had been made from the Florida Mortgage Group, Inc. to the Financial Resources Corporation. A copy of this correspondence is Petitioner's Exhibit 3, which was admitted into evidence. It is noted that the character of the correspondence, which is Petitioner's Exhibit 3, indicates that the witness, Marvin Leo Popkin, was at the time of the correspondence, a principal broker for the Financial Resources Corporation; however, testimony was not offered in the course of the hearing which would tend to refute the explanation of the prospective nature of Mr. Popkin's association with the Financial Resources Corporation. Consequently, the unrefuted testimony of the witness, Marvin Leo Popkin, concerning the prospective nature of the affiliation with Financial Resources Corporation stands established. On February 28, 1975, Marvin Leo Popkin also wrote a letter to Financial Resources Corporation in which he tendered his resignation as a mortgage broker with their corporation. A copy of this correspondence is Petitioner's Exhibit 4, admitted into evidence. Again the nature of the correspondence is such that it would seem that Marvin Leo Popkin was formally associated with Financial Resources Corporation and comments made about Petitioner's Exhibit 3 would seem to have application here. The witness's explanation offered in the course of the hearing stands without rebuttal and is established as a fact. Subsequent to the time of writing the letters of February 28, 1975, the witness, Marvin Leo Popkin, received a mortgage brokers license issued to Marvin L. Popkin as vice president of Financial Resources Corporation, and in response wrote a letter to the comptroller's office dated March 19, 1975, in which he enclosed the license which had been issued to him as vice president of Financial Resources Corporation. A copy of this correspondence together with the face sheet of the license referred to, is Petitioner's Exhibit 5, which was admitted into evidence. The Respondent did not offer any evidence by way of testimony or documents, in opposition to the explanation of the events, which was set forth by the witness Marvin Leo Popkin. Therefore, it is assumed that the reasons set forth for denial of the application of Financial Marketing Group, Inc., as a registered dealer in securities and for the denial of Marvin Leo Popkin as executive director of the Financial Marketing Group, Inc., stand upon the matters set forth in Petitioner's Exhibits 1 and 1A and that no other explanation for denial under F.S., Sections 517.16(1)(h), 517.30(3), 517.301(3), 517.301(4) and Florida Administrative Rule 3B-305 is forth coming. Consequently, the denial of the Financial Marketing Group, Inc., application for license as a registered dealer in the State of Florida and the denial of Marvin Leo Popkin's request to be executive officer of the Financial Marketing Group, Inc. rests upon an examination of the documents referred to in Petitioner's Exhibits 1, 1A, and 2, together with testimony offered in explanation of those documents. An examination of the Petitioner's Exhibits 1, 1A, and 2 in light of the testimony of Marvin Leo Popkin would indicate that the witness did not knowingly and willfully falsify, conceal or cover up by any trick, scheme, or device, a material fact in filling out the request for registration as executive officer for the Financial Marketing Group, Inc. as set forth in Petitioner's Exhibit 1A, all in violation of F.S., Section 517.301(3). Moreover, it does not appear that the Financial Marketing Group, Inc. through its applicant to be executive officer, Marvin Leo Popkin, has demonstrated an unworthiness to transact the business of a dealer in securities in the State of Florida.
Recommendation It is recommended that the application of the Financial Marketing Group, Inc. to become a registered dealer in securities in the State of Florida be granted and that the request for registration filed by Marvin Leo Popkin to act as executive officer of the Financial Marketing Group, Inc., an applicant for license to be a registered dealer in securities, be granted. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred O. Drake, III, Esquire Assistant General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Paul J. Levine, Esquire Noriega and Bartel P.A. 2100 First Federal Building One Southeast Third Avenue Miami, Florida 33131
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Frederick L. Roberts (Respondent) was a licensed Florida mortgage broker, holding license number MB 316324569. In November 1993, a friend of the Respondent, Alan Petzold, introduced Tami Aaronson to him. Ms. Aaronson owned property in Maryland and was interested in securing a mortgage on the Maryland property to provide funding for a Florida home for herself and her son, Jarrett. According to Ms. Aaronson, Mr. Petzold is the father of a minor son, Jarrett Aaronson. The Respondent believed that such was the case at the time he met the family. The Respondent met several times with Ms. Aaronson. The Respondent gave a “Flagship Mortgage Company” business car to Ms. Aaronson. The business card had the Respondent’s name printed on it. The Respondent had been briefly employed by Flagship Mortgage Company, but apparently was not so employed at the time he met Ms. Aaronson. Frederick L. Roberts (Respondent) received check number 0170, dated November 22, 1993, from Tami Aaronson as “Custodian for Jarrett Aaronson” in the amount of three thousand dollars. The notation on the check states that it is for “refinancing.” Ms. Aaronson believed the check was payment for services the Respondent would render in obtaining refinancing of the Maryland property. There was no written agreement between the Respondent and Ms. Aaronson, or between the Respondent and Mr. Petzold. The Respondent completed no written documentation related to the Aaronson transaction. The Respondent did not place the Aaronson deposit into a segregated escrow account. The Respondent did not record the Aaronson deposit into an escrow transaction journal. During the period he held the Aaronson funds, the Respondent worked on unrelated business, and traveled to China for about thirty days. The Respondent performed no work on behalf of Ms. Aaronson, Mr. Petzold, or Jarrett Aaronson. There is no evidence that the Respondent intended to perform any work on behalf of Aaronson/Petzold. The Respondent asserted that he asked for a three thousand dollar “deposit” as a means of discouraging the couple from asking for his assistance. The assertion is not credible. The Respondent asserts that the three thousand dollars he received from Ms. Aaronson was a deposit against travel expenses he would incur during his examination of the property in Maryland. The assertion is not supported by credible evidence. In the spring of 1994, the Respondent received a telephone call from Ms. Aaronson. The Respondent asserts that he believed Ms. Aaronson to have called him from a mental hospital. For whatever reason, at that time he determined that he no longer wanted to be involved in the Aaronson/Petzold situation. Shortly after receiving the Aaronson phone call in spring 1994, the Respondent also received a call from a Department of Banking and Finance investigator, apparently looking into a complaint received from Ms. Aaronson. The Respondent thereafter contacted Mr. Petzold and made arrangements to return the funds to him. According to a notarized statement dated May 9, 1994, the Respondent returned the three thousand dollars to Jarrett R. Aaronson and Alan C. Petzold. The Respondent testified that the money had been returned on May 8, 1994 to Mr. Petzold. The Respondent offered into evidence a document dated May 8, 1994, purporting to be a receipt received from Mr. Petzold for return of the funds. The signature is not notarized. The Respondent did not return the Aaronson deposit to Tami Aaronson. There is no evidence that Ms. Aaronson authorized the return of the three thousand dollars to Mr. Petzold. There is no evidence that Ms. Aaronson authorized the return of funds to Jarrett. Ms. Aaronson has not received any part of the three thousand dollars allegedly refunded. There is no evidence that the funds have been redeposited into the minor child’s custodial account. The Respondent asserts that he was not acting as a mortgage broker and was merely investigating the property to determine whether the Aaronson property could be used as a source of funds for the purchase of Florida property. The Respondent asserts that had a refinancing situation arisen, he would have referred Ms. Aaronson to another licensed person who would assist in the actual refinancing. The assertion is not supported by credible evidence. The Respondent asserts that in the spring of 1994 he had reason to believe that Ms. Aaronson had been hospitalized in a mental facility, and therefore he returned the funds to Mr. Petzold. The rationale for the failure to return the funds to the appropriate party is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order suspending the mortgage broker license held by Frederick L. Roberts until the following conditions are met: Payment to Tami Aaronson of $3,000 plus appropriate interest calculated from November 22, 1993. Payment of an administrative fine in the amount of $5,000. After compliance with the above conditions, the license suspension shall be lifted, and a two-year probationary period shall begin RECOMMENDED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of October, 1997. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Michael W. Carlson, Esquire Carlton Fields Ward Emmanuel Smith & Cutler, P.A. 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by T. Kent Wetherell, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Red Streak Scooters, LLC and Austin Global Enterprises, LLC d/b/a New Scooters 4 Less to sell motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 118 Northwest 14 Avenue, Suite D, Gainesville (Alachua County), Florida 32601. DONE AND ORDERED this Buy of July, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisig otor Vehicles this day of July, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Collin Austin Austin Global Enterprises, LLC 118 Northwest 14" Avenue, Suite D Gainesville, Florida 32601 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Marc J. Kradolfer RPM Motorcycles, Inc. 518 Southeast 2" Street Gainesville, Florida 32601 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 T. Kent Wetherell, IT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 28 JUN 19 A 10 Sp Witte pe STP uly SAT ye TRATIVE ARINGS RED STREAK SCOOTERS, LLC and AUSTIN GLOBAL ENTERPRISES, LLC, d/b/a NEW SCOOTERS 4 LESS ay Petitioner, : Case Number: 09-2851 RPM MOTORCYCLES, INC. Respondent. SSS Lid Y Di: 5 COMES NOW, Petitioner, Austin Global Enterprises, LLC is stating a notice of voluntary dismissal. Since RPM Motorcycles, Inc. already has the ZHEJ line make established on their license, Austin Global Enterprises, LLC d/b/a New Scooters 4 Less no longer wishes to continue with the hearing and pursue establishing the ZHEJ line make at its location. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served by US Mail to T. Kent Wetherell, Il., Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; Marc J. Kradolfer, as agent for Respondent RPM Motorcycles Inc., 518 Southeast 2” Street, Gainesville, Fl 32601 on June 8, 2009. AUSTIN GLOBAL ENTERPRISES, LLC Collin Austin, Managing Member Representative for Petitioner 118 NW 14” Avenue, Suite D Gainesville, FL 32601 Telephone: 352-336-1271
The Issue Is Respondent guilty of operating as a real estate salesperson, without being the holder of a valid and current license as a real estate salesperson, in violation of Section 475.42(1)(a), Florida Statutes, and thereby in violation of Section 475.25(1)(e), Florida Statutes?
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of Florida related to the practice of real estate. Authority for the conduct of Petitioner's duties is found in Section 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and associated rules. At present, Respondent holds a license as a real estate salesperson, license no. SL0631299, issued by Petitioner. From January 3, 1997, until February 13, 1998, Respondent was employed as an active salesperson in association with Marita Ann Dorr, Inc. (the Dorr firm), a broker corporation trading as Home Town Property Management. During that time Marita Dorr served as Respondent's employing broker. The Dorr firm was located at 109 West Lakeview Street, Lady Lake, Florida 32159. Respondent's duties during the time she was affiliated with the Dorr firm was that of an independent contractor real estate salesperson engaged in the sale of real estate at Sandlewood Condominiums, in Wildwood, Florida. In that time period, Respondent was also acting as the manager of Sandlewood Condominiums, which involved bookkeeping, supervision of maintenance, and serving as a receptionist. On February 13, 1998, Ms. Dorr informed Respondent that Respondent was terminated as a real estate salesperson affiliated with the Dorr firm. On that same date Ms. Dorr executed a form 400.5 which reflected the request for change of status in Respondent's license, noting that Respondent was terminated from employment with the Dorr firm. That form was received by Petitioner on February 13, 1998. In addition, Ms. Dorr wrote to Respondent on February 13, 1998, to enclose the executed form 400.5 noting the termination of Respondent's employment of the Dorr firm. On February 17, 1998, Respondent received the letter and a copy of the request for change of status of her license under form 400.5. From February 14, 1998, through March 22, 1998, Respondent did not have a current active license to practice real estate as a salesperson because Respondent was not associated with a real estate broker. Mr. Michael D. Remmel was interested in possibly purchasing a condominium unit at the Sandlewood Condominiums and had a conversation with Respondent concerning the possible purchase. His initial contact with Respondent predated her termination as a real estate salesperson affiliated with the Dorr firm. On February 17, 1998, after being told that she was terminated and receiving the letter from Ms. Dorr with the attached form 400.5, concerning the termination, Respondent again had contact with Mr. Remmel about the possible purchase of a condominium unit. Mr. Remmel initiated that purchase contract. On February 17, 1998, Mr. Remmel made an offer to purchase a unit in the Sandlewood Condominiums by executing a contract for sale and purchase as buyer. Respondent helped complete the contract form in its details by filling out the form, with the exception of Mr. Remmel's signature. The form noted that Home Town Property Management was the cooperating broker. A copy of the contract for sale and purchase is found as Petitioner's Exhibit No. 1. At the time that Respondent assisted Mr. Remmel in preparing the contract for sale and purchase, Respondent acknowledged to Mr. Remmel that she had been terminated as a salesperson and that her salesperson's real estate license was no longer active. Respondent told Mr. Remmel that she would have to call Ms. Dorr and find out if she could make the offer to the listing broker for the unit Mr. Remmel wished to purchase. Before writing the contract, Respondent spoke to Ms. Dorr. In the conversation Ms. Dorr commented on the fact that the form 400.5 had already been submitted to Petitioner and Respondent acknowledged receiving the copy of the form. Ms. Dorr reminded Respondent that Respondent should not be writing or soliciting real estate business. Respondent replied that she understood that but contended that Respondent was not soliciting the business. Respondent referred to the fact that Mr. Remmel was in the office and wanted to make an offer. Respondent asked Ms. Dorr if Ms. Dorr wanted Respondent to write up the contract and put Ms. Dorr's name on the bottom of it. Ms. Dorr responded "yes." Respondent asked what date to place. Ms. Dorr said to put "today's date." Notwithstanding Ms. Dorr's remarks Respondent recognized that she had not been rehired formally by Ms. Dorr and that, in the eyes of Petitioner, Respondent's real estate salesperson license was still inactive based upon the fact that Respondent did not have a named qualifying broker. Respondent acknowledges that she should have known better than to write the contract but that she wrote the contract because Ms. Dorr told her to. The property that Mr. Remmel made an offer on was listed with Myra Paxton, the broker for Paxton Realty. During the course of the transaction that took place between Respondent and Mr. Remmel concerning the property, Respondent called Ms. Paxton on February 17, 1998, and told Ms. Paxton that a copy of the contract was being faxed to Ms. Paxton. Respondent asked Ms. Paxton if Ms. Paxton wanted to write the contract or wanted Respondent to write it. Ms. Paxton reminded Respondent that Ms. Paxton was not Respondent's broker and could not tell Respondent what Respondent should do. Respondent then called Ms. Paxton again and told Ms. Paxton that "Marita," which name is inferred as a reference to Ms. Dorr, had told Respondent to write the contract under Ms. Dorr's authority and to bring it to Ms. Dorr. On February 17, 1998, Respondent faxed Ms. Paxton a copy of the contract for sale and purchase.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes, and issuing a letter of reprimand. DONE AND ENTERED this 10th day of November, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 10th day of November, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N-308 400 West Robinson Street Orlando, Florida 32801 Kevin Palley, Esquire Kevin Palley, P.A. Suite B-2 520 Southeast Fort King Street Ocala, Florida 34471 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801
The Issue Whether Respondent, Gregory John Owen, committed the violations alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner is a state government licensing and regulating agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is, and was at all times material hereto, a licensed Florida real estate sales broker, issued License No. 3018133, in accordance with Chapter 475, Florida Statutes. From September 20, 2005, until January 9, 2007, Respondent was a registered member/manager for FCH Realty, LLC (FCH Realty). On October 13, 2005, Respondent filled out a DBPR RE-2050 Form, Request for Change of Status, which, had it been filed with Petitioner, would have changed Respondent's status to "broker/owner employer" for FCH Realty. Form 2050 was never filed, although Respondent thought it had been. At the request of Geoffrey Sinker, the qualifying broker of FCH Realty, Respondent became a signatory on the FCH Realty escrow account. On May 17, 2006, Respondent deposited $25,000.00 in the FCH Realty escrow account on behalf of Sadiq Ali, as a deposit for real property Ali was purchasing. On May 19, 2006, $25,000.00 was transferred from the FCH Realty escrow account to the FCH Realty operating account. Bank records indicate that the transfer was made by someone who personally presented himself to a cashier at a branch bank. Respondent denies making this transfer. On May 1, 2006, and May 16, 2006, there were online transfers of $29,690.00 and $5,000.00 from the FCH Realty escrow account to the FCH Realty operating account. No evidence was presented regarding who made these online transfers or whether Respondent had online access to the FCH Realty escrow account. There was no evidence presented that Respondent had access to the FCH Realty operating account in May 2005. On May 29, 2006, Respondent deposited a check from Ali in the amount of $67,580.00 into the FCH Realty operating account. Pursuant to the terms of his contract, Ali's deposit was not required to be held in an escrow account. The contract specifically stated, "Purchaser hereby waives its rights to have deposits placed in escrow, and all deposits which are collected from Purchaser be paid directly to Seller without limitations. Seller may withdraw all or a portion of the deposits to be used for construction and development of the Home, for sales and marketing, or for such other purposes as determined at Seller's sole discretion." Respondent had been directed to place Ali's $67,580.00 deposit in the FCH Realty operating account. On July 27, 2006, $32,069.00 was transferred online from the FCH Realty escrow account to the FCH Realty operating account. There were three other online transfers in July from the FCH Realty escrow account to the FCH Realty operating account in the amounts of $34,970.00 on July 14, 2006; $32.069.00 on July 18, 2006; and $800.00 on July 28, 2006. No evidence was presented that Respondent had online access to the FCH Realty escrow account or that Respondent transferred these funds. On July 28, 2006, Respondent did transfer $32,890.00 from the FCH Realty operating account to the FCH Realty construction account. The $32,890.00 was a deposit from a buyer at Millbrook Manor. After transferring the $32,890.00, Respondent had the bank issue a cashier's check to Platinum Properties for $32,890.00 as the buyer's deposit on the Millbrook Manor property. Respondent was not responsible for reconciling the FCH Realty escrow account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding that Respondent, Gregory John Owen, is not guilty of the allegations of impropriety stated in the Amended Administrative Complaint. DONE AND ENTERED this 17th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 November, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Jennifer Leigh Blakeman, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
