The Issue In both of these two consolidated cases the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in two Administrative Complaints. In Case No. 96-1492 the Respondent is charged with four counts of violations of several paragraphs of Section 489.129(1), Florida Statutes. In Case No. 96-1493 the Respondent is charged with three counts of such violations.
Findings Of Fact Background findings At all times material to the allegations in the Administrative Complaints in these consolidated cases, the Respondent held a certified building contractor’s license issued by the Florida Construction Industry Licensing Board. His license number is CB-CO31896. At all times material to the allegations in the Administrative Complaints in these consolidated cases, the Respondent was aware that he was responsible for the acts of any business entity for which he became the qualifying agent. Since being licensed as a certified building contractor, the Respondent has been the qualifying agent for at least four corporations. He was the qualifying agent for Chrisdon Development Corporation from April 30, 1985, until some time in April of 1989. He was again the qualifying agent for Chrisdon Development Corporation from May 16, 1989, until June 30, 1992. The Respondent was the qualifying agent for Chrisdon Housing Corporation from April 25, 1989, until September 21, 1992. The Respondent was the qualifying agent for Chrisdon Custom Homes Corporation from July 1, 1989, until June 30, 1992. Since November 4, 1992, the Respondent has been the qualifying agent for MKS Construction, Inc. The Respondent did not have an ownership interest in any of the Chrisdon corporations for which he was the qualifying agent. The Respondent does have an ownership interest in MKS Construction, Inc. At all times material to the allegations in the Administrative Complaints in these consolidated cases, the three Chrisdon corporations for which the Respondent was the qualifying agent were all owned by Mr. Donald McKnought. Mr. Donald McKnought was also the owner of Breckenridge Estates Corporation and several other corporations.2 Mr. Donald McKnought was also the Respondent's father-in-law. The Respondent first went to work with the Chrisdon corporations in 1984 as a construction superintendent. Approximately a year later, the Respondent became a qualifying agent for one of the Chrisdon corporations, Chrisdon Development Corporation. At that time there was apparently at least one other qualifying agent for the Chrisdon family of corporations.3 When the Respondent first started working with the Chrisdon corporations in 1984, it appeared to be a very successful business enterprise. The Chrisdon corporations had a good reputation, appeared to have good relationships with lending institutions, and were doing a very large volume of business. The financial operations of the Chrisdon corporations were in the hands of experienced businessmen and certified accountants and the corporations appeared to be financially sound and well- managed. During the period from 1984 until mid-1989, the Respondent was not involved in the financial affairs of the Chrisdon companies and did not have any appreciable amount of information about those financial affairs. In April of 1989 a Mr. James Morgan was fired from his position as president of one or more of the Chrisdon corporations. Mr. Morgan was fired because he had done several things contrary to the best interests of the Chrisdon corporations. Among other things, the actions of Mr. Morgan had a serious negative impact on the cash flow of the Chrisdon corporations. Shortly after Mr. Morgan was fired, the Respondent was appointed to the position of vice president of some or all of the Chrisdon corporations. At about the same time, the Respondent became the sole qualifying agent for three of the Chrisdon corporations; Chrisdon Development Corporation, Chrisdon Housing Corporation, and Chrisdon Custom Homes Corporation. When the Respondent became the sole qualifying agent for three of the Chrisdon corporations, he did not make any inquiry into the financial circumstances of any of the Chrisdon corporations. He simply continued to assume that all was well in that regard. In the Respondent's own words: Essentially, on reflection, I had stepped into qualifying Chrisdon in 1989 not knowing what the financial situation of the company was despite the fact that everything looked incredibly rosy. Chrisdon was building a tremendous amount of houses. It had a lot of employees, etcetera, etcetera, etcetera. On reflection later, about a year later, essentially a lot of problems surfaced that I then could see had been there for many years. During the next year, until about the middle of 1990, the Respondent continued to have little or no involvement in the financial affairs of the Chrisdon corporations and had minimal information about the status of those affairs. He assumed those matters were being handled adequately by the businessmen and accountants assigned to handle the financial affairs of the Chrisdon corporations. By the middle of 1990, the cash flow problems of the Chrisdon corporations had reached crisis proportions. In July of 1990 the officers of the Chrisdon corporations held a meeting with the subcontractors. At that meeting the Chrisdon financial problems were candidly discussed and efforts were made to try to avoid or minimize any financial loss to any of the subcontractors, while at the same time attempting to maintain the Chrisdon corporations as viable businesses. Late in 1990 and early in 1991, as the financial prospects of the Chrisdon corporations continued to worsen, the Respondent and other officers of the Chrisdon corporations made numerous efforts to avoid or minimize financial loss to the customers whose houses were not yet finished. In a number of cases, the Chrisdon corporations were able to arrange for other builders to finish the houses at little or no additional cost to the customers. In some cases the Chrisdon corporations were able to take other actions to fulfill their obligations to customers. And in some cases the Chrisdon corporations were unsuccessful in their efforts to fulfill their obligations to their customers. The Chrisdon corporations ceased doing business in March or April of 1991. As part of his personal efforts to fulfill obligations to Chrisdon customers, the Respondent contributed $88,000.00 of his own money towards the satisfaction of Chrisdon corporate obligations. The Respondent also worked for three or four months without salary trying to resolve problems for Chrisdon customers as the business activities of the Chrisdon corporations were coming to a close. Findings regarding the Lattanzio transaction Mr. and Mrs. Lattanzio entered into a contract for the purchase of a lot and a house to be built in Breckenridge Estates. The evidence in this case does not reveal the name of the corporation with which Mr. and Mrs. Lattanzio entered into the contract. The house they contracted for was built by Chrisdon Housing Corporation.4 The Respondent pulled the permit for the house that was built for Mr. and Mrs. Lattanzio. The Respondent oversaw the construction of that house. Mr. and Mrs. Lattanzio paid for the construction of their house with their own cash. They paid over $100,000.00 for the construction of the house.5 Eventually, the house that was built for Mr. and Mrs. Lattanzio was finished and a certificate of occupancy was obtained. Mr. and Mrs. Lattanzio never closed on the purchase of the house. This was due at least in part to the fact that numerous liens were filed against the house. The Chrisdon corporations disputed the validity of many of the liens. In an effort to bring about a closing, the Chrisdon corporations arranged to have some of the liens removed and arranged certain other financial inducements for Mr. and Mrs. Lattanzio. Mr. and Mrs. Lattanzio were apparently not satisfied with these arrangements and declined to close. Findings regarding the Nicotra/Greco transaction On or about July 18, 1990, Chrisdon Housing Corporation contracted with Ms. Nicotra and Ms. Greco for the sale and purchase of Lot 6, Block 1, Winston Park, in Fort Lauderdale, Florida. The contract also included the construction of a single-family home on the lot for a total contract price of $135,055.00. On or about July 10, 1990, Ms. Nicotra paid a $5,000.00 deposit to Chrisdon Housing Corporation. On or about August 2, 1990, Ms. Nicotra paid an additional $9,000.00 deposit to Chrisdon Housing Corporation.6 Construction on the Nicotra/Greco house was commenced, but it was never finished before the Chrisdon corporations ceased business operations in March or April of 1991. The Respondent and other representatives of the Chrisdon corporations made efforts to obtain another house to take the place of the one they never finished building for Ms. Nicotra and Ms. Greco. Those efforts were unsuccessful. Ms. Nicotra never received a refund of any of her deposit money and never received anything else of value from any of the Chrisdon corporations. Findings regarding the Morales transaction On or about November 17, 1989, Mr. and Mrs. Morales signed a contract for the sale and purchase of Lot 21, Block 18, in Breckenridge Estates subdivision, in Coconut Creek, Florida. The contract also included the construction of a single-family home on the lot for a total contract price of $178,813.00. It was understood by Mr. Morales that one of the Chrisdon corporate entities would build the house he was purchasing. At that time the only Chrisdon entity building houses in Breckenridge Estates subdivision was Chrisdon Housing Corporation. It is not exactly clear which corporate entity entered into a contract with Mr. and Mrs. Morales. The basic contract form signed by Mr. and Mrs. Morales identifies the seller as Breckenridge Estates Corporation. Attached to the basic contract form are six addenda, some of which identify the seller as Breckenridge Estates Corporation, some of which identify the seller as Chrisdon Housing Corporation, and some of which contain ambiguous references to Breckenridge Estates Corporation, Chrisdon Housing Corporation, and another corporate entity named Breckenridge Estates Development Corporation. Some of the advertising material given to Mr. and Mrs. Morales bears the name of Breckenridge Estates, but also includes laudatory statements about the quality of Chrisdon homes and Chrisdon communities. When Mr. Morales inquired about the relationship between Breckenridge Estates Corporation and Chrisdon, the sales agent told him that the former was a subsidiary of Chrisdon. On or about November 17, 1989, Mr. and Mrs. Morales paid a $5,000.00 deposit. On or about April 2, 1990, Mr. and Mrs. Morales paid an additional $12,881.00 deposit. The sales agent instructed Mr. Morales to make both checks payable to "Chrisdon," and he did so. Construction on the Morales house was commenced, but it was never finished before the Chrisdon corporations ceased business operations in March or April of 1991. Mr. and Mrs. Morales never received a refund of any of their deposit money and never received anything else of value from any of the Chrisdon corporations.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in these consolidated cases to the following effect: Dismissing the charges alleged in Counts I and II of the Administrative Complaint in Case No. 96-1492. Dismissing the charges alleged in Count III of the Administrative Complaint in case No. 96-1493. Finding the Respondent guilty of the violations charged in Counts III and IV of the Administrative Complaint in Case No. 96-1492. Finding the Respondent guilty of the violations charged in Counts I and II of the Administrative Complaint in Case No. 96-1493. Imposing penalties consisting of the following: (a) a requirement that the Respondent pay a total of $4,000.00 in administrative fines (one $1,000.00 administrative fine for each of the four violations); (b) a requirement that the Respondent pay reimbursement to Ms. Nicotra in the amount of $14,000.00; (c) a requirement that the Respondent pay reimbursement to Mr. and Mrs. Morales in the amount of $17,881.00, and (d) a requirement that the Respondent pay the costs associated with the investigation and prosecution of these cases. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27 day of June, 1997.
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s (FHFC) determinations regarding the applications responding to Request for Applications 2019-116 SAIL Financing of Affordable Multifamily Housing Development to Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits (the RFA), were clearly erroneous, contrary to competition, arbitrary, or capricious; and whether the award to Respondent Christian Manor Restoration, LLC (Christian Manor), is contrary to governing statutes, rules, or the solicitation specifications of the RFA.
Findings Of Fact Petitioner Parkwood is an applicant responding to the RFA. The Parkwood application, assigned number 2020-422BS, was deemed eligible but was not selected for funding under the terms of the RFA. Respondent Christian Manor is an applicant responding to the RFA. The Christian Manor application, assigned number 2020-405BS, was deemed eligible and was selected for funding under the terms of the RFA. FHFC is a public corporation created pursuant to section 420.504, Florida Statutes. The purpose of FHFC is to promote public welfare by administering the governmental function of financing affordable housing in Florida. FHFC is tasked with allocating a portion of the certain Disaster Recovery funding allocated by the U.S. Department of Housing and Urban Development pursuant to the State of Florida Action Plan for Disaster Recovery. Waterview was an applicant responding to the RFA. The Waterview application, assigned number 2020-424BSN, was deemed eligible but was not selected for funding under the terms of the RFA. FHFC is authorized to allocate housing credits and other funding by means of requests for proposals or other competitive solicitation. See § 420.507(48), Fla. Stat.; Fla. Admin. Code Ch. 67-60 (governing the competitive solicitation process). FHFC allocates its competitive funding pursuant to the bid protest provisions of section 120.57(3). Funding is made available through a competitive application process commenced by the issuance of a Request for Applications (RA). An RA is equivalent to a “request for proposal” as indicated in Florida Administrative Code Rule 67-60.009(4). The RFA was issued on November 6, 2019. It was modified several times, and the final RFA was issued on December 20, 2019. The application deadline was December 30, 2019. Sixty-five applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to FHFC’s Board of Directors (the Board). The Review Committee found 57 applications eligible, seven applications ineligible, and one application withdrew from the selection process. Through the ranking and selection process outlined in the RFA, 13 applications were preliminarily recommended for funding, including Christian Manor. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 6, 2020, the Board met and considered the recommendations of the Review Committee for the RFA. At 9:35 a.m. that same day, all RFA applicants received notice that the Board determined whether applications were eligible or ineligible for funding consideration and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Such notice was provided by the posting of two spreadsheets on the FHFC website, www.floridahousing.org: (1) listing the Board-approved scoring results for the RFA, and (2) identifying the applications which FHFC proposed to fund. There is no dispute that Petitioner and Christian Manor received this notice. In the March 6, 2020, posting, FHFC announced its intention to award funding to 13 applications including Christian Manor. No challenges were made to the terms of the RFA. RANKING AND SELECTION PROCESS Through the RFA, FHFC seeks to award an estimated total of $71,360,000 in SAIL Financing, as well as tax-exempt bonds, to assist in financing the development of affordable rental housing for tenants who are either low-income or extremely low-income. The available SAIL financing was to be divided so that a certain amount was targeted both geographically, between Large, Medium, and Small Counties, and demographically, between applicants proposing housing for families and those proposing housing for the elderly. Applicants who are awarded tax-exempt bond financing are also entitled to an award of non-competitive federal low-income housing tax credits. FHFC made approximately $5,611,650 in National Housing Trust Fund (NHTF) funding available to applicants committing to build either new construction or rehabilitation of family or elderly housing for “Persons with Special Needs.” Applications in this RFA are scored in two categories for a possible total of ten points. Five points each can be awarded for Submission of Pre- Approved Principal Disclosure Form and Local Government Contributions. Because so many applicants achieve a perfect score of ten, the RFA establishes a series of tiebreakers referred to as a “sorting order,” designed to rank order applications for funding selection. The RFA set the following sorting order, after listing applications from highest score to lowest score: By eligibility for Proximity Funding Preference; then By eligibility for the Per Unit Construction Funding Preference; then By Leveraging Level number 1 through 5; then By eligibility for the Florida Job Creation Preference; then By randomly assigned lottery number. The RFA also established a series of funding goals. Those goals were: One New Construction Application in a Large County serving Elderly residents. Three New Construction Applications in a Large County serving Family residents, with a preference that at least two of such Applications being from “Self-Sourced” Applicants. One New Construction Application in a Medium County serving Elderly residents. Two New Construction Applications in a Medium County, with a preference that at least one such Application being from a self-sourced Applicant. The RFA designated each county in Florida as either Large, Medium, or Small. The RFA also allowed an applicant to designate itself as “Self- Sourced,” which requires applicants proposing new construction family projects to provide a portion of their development funding themselves, in an amount of at least half of its SAIL Request Amount (or $1 million, whichever is greater). The RFA provided that eligible applicants be assigned a Leveraging Level 1 through 5, with 1 being the best score, based on the total Corporation SAIL Funding amount relative to all other eligible applicants’ total Corporation SAIL Funding amount. The Leveraging Level is a comparative tool to rank applicants based on how much SAIL funding each applicant has requested per affordable housing unit (Set-Aside Unit) it proposes to construct. Calculation of the Leveraging Level includes adjusting the total amount of SAIL funds requested by an applicant based on a variety of factors, including development type, development location, construction method to be employed, and whether a Public Housing Authority is part of the applicant, then dividing that adjusted amount by the applicant’s proposed number of Set-Aside Units. For example, the SAIL Request per Set-Aside Unit is reduced by ten percent for applicants proposing a Mid-Rise Four-Story building, while applicants proposing Garden Apartments or Townhouses do not receive this adjustment, and applicants proposing Five-Story or Six-story Mid-Rises or High-Rises get a greater reduction. Applicants whose adjusted SAIL Request per Set-Aside Unit is among the lowest ten percent of all calculated SAIL Request amounts per Set-Aside Unit in this RFA are assigned Leveraging Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the highest 30 percent are Leveraging Level 5. The RFA employed a “funding test,” requiring that the full amount of an applicant’s SAIL request be available for award when that applicant is under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group (Large, Medium, or Small), and the demographic category (elderly or family) for an applicant to be selected. Within the county size group, the RFA contains a pour-over provision for any unallocated Small County funding to be divided between the Medium and Large County funding availability; and any unallocated Medium County funding would be made available to Large County applicants. Further, in order to promote geographic distribution of funding awards, the RFA included a County Award Tally mechanism. If an applicant was selected in a particular county, a second applicant would not generally be selected from that same county if there was any eligible applicant available (even with a lower total application score) from any other county, from which an applicant had not already been selected for funding. The RFA set forth a very specific funding selection order, taking into consideration two specific counties (Miami-Dade and Broward), county size groups, development category (new construction or rehabilitation), demographic group (elderly or family), and self-sourced status. CHRISTIAN MANOR’S APPLICATION One of the criteria in the RFA for scoring and ranking applications involves proximity to certain services. The RFA provides in relevant part: e. Proximity The Application may earn proximity points based on the distance between the Development Location Point [(DLP)] and the Bus or Rail Transit Service (if Private Transportation is not selected at question 5.e.(2)(a) of Exhibit A) and the Community Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied towards the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference, as outlined in the chart below. Requirements and Funding Preference Qualifications All Large County Applications must achieve a minimum number of Transit Service Points and achieve a minimum number of total proximity points to be eligible for funding ... All Applications that achieve a higher number of total proximity points may also qualify for the Proximity Funding Preference as outlined below. Community Services (Maximum 4 Points for each service, up to 3 services) Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score. The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. Location of coordinates for Community Services Coordinates must represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located. * * * Eligible Community Services Grocery Store - This service is defined in Exhibit B and may be selected by all Applicants. Public School - This service is defined in Exhibit B and may be selected only if the Applicant selected the Family Demographic Commitment. Medical Facility - This service is defined in Exhibit B and may be selected by all Applicants. Pharmacy - This service is defined in Exhibit B and may be selected by all Applicants. Scoring Proximity to Services (Transit and Community) (b) Bus and Rail Transit Services and Community Services Applicants that wish to receive proximity points for Transit Services other than Private Transportation or points for any community service must provide latitude and longitude coordinates for that service, stated in decimal degrees, rounded to at least the sixth decimal place, and the distance between the [DLP] and the coordinates for the service. The distances between the DLP and the latitude and longitude coordinates for each service will be the basis for awarding proximity points. Failure to provide the distance for any service will result in zero points for that service. The Transit and Community Service Scoring Charts reflecting the methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis added). Applicants from a Large County, including Palm Beach County (where Christian Manor is located), must receive at least 10.5 Proximity Points (including at least 2.0 Transit Service points) to be eligible for consideration for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference. In its Application, Christian Manor selected three public bus stops for its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The validity of Christian Manor’s claimed Transit Services is not disputed. For its Community Services, Christian Manor identified the following services: Grocery Store - Aldi Food Market, 2481 Okeechobee Blvd., West Palm Beach, Florida 33409, at a distance of 0.73 miles Medical Facility - MD Now Urgent Care, 2007 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, at a distance of 0.82 miles Pharmacy - Target (CVS Pharmacy), 1760 Palm Beach Lakes Blvd., West Palm Beach, Florida 33401, at a distance of 0.70 miles. The Aldi Food Market meets the definition of a Grocery Store in the RFA. The MD Now Urgent Care meets the definition of a Medical Facility in the RFA. Christian Manor identified each service by latitude and longitude coordinates and by distance. These coordinates, however, did not accurately reflect the doorway threshold of either the Aldi Food Market or the MD Now Urgent Care Center. The latitude and longitude coordinates provided for the Grocery Store were erroneous. The listed coordinates identify a point over 0.9 miles away from the doorway threshold of the Aldi Food Market. The latitude and longitude coordinates provided for the Medical Facility identify a point over 0.8 miles away from the doorway threshold of the MD Now Urgent Care Center. The actual distance between the Aldi Food Market and the DLP is .73 miles. The actual distance between the street address of the MD Now Urgent Care Center and the DLP is .82 miles. Based on these identified services, Christian Manor was awarded 3 points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed. Parkwood argues that Christian Manor should be awarded no proximity points for its identified Grocery Store or Medical Facility. Parkwood does not argue that the Aldi Food Market is not a Grocery Store as defined by the RFA, nor does it argue that the MD Now Urgent Care is not a Medical Facility as defined by the RFA. Parkwood does not question the identified addresses for the Community Services or contest that the distances between the identified Aldi Food Market and the MD Now Urgent Care and the DLP are .73 miles and .82 miles respectively. Rather, Parkwood’s argument is narrowly focused on the fact the erroneous longitude and latitude coordinates for the grocery and medical services are not at the doorway threshold. Parkwood would have FHFC ignore the actual addresses and distances because of the error in coordinates. Respondents argue the mistake in coordinates was a minor irregularity. The RFA specifically gives FHFC the right to waive minor irregularities. Rule 67-60.008 provides the criteria that FHFC is to consider when evaluating whether an error should be waived as a minor irregularity. Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Ms. Button testified that an evaluating FHFC Review Committee member does not use the latitude or longitude coordinates to confirm the accuracy of the distances provided. Rather, the inclusion of the requirement for such coordinates dates back to when measurements were done by surveyors, who would certify the distances on a special form. FHFC no longer requires the surveyor certification form. FHFC now requires an applicant to self-designate the community services and proximity requirements. FHFC considers the actual distances as the most relevant factors when evaluating points awarded for proximity from the DLP to a selected Community Service. Ms. Button also testified that listing the incorrect latitude and longitude coordinates could, in this particular case, be waived as a minor irregularity. She explained that because the proximity points are based on the distance between the DLP and the identified services, and because the distances claimed in Christian Manor’s application were correct, the proximity points awarded were also correct. Ms. Button opined that Christian Manor did not garner a competitive advantage from the coordinate errors in the application. The coordinates did not create any uncertainty in the application as to what Community Services were identified or how far they were from the DLP. Petitioner pointed to no evidence of any such advantage. Ms. Button also testified that the error in coordinates did not result in any harm to the public or to FHFC. Again, Petitioner provided no evidence of such harm. Rather, Petitioner relies on a different application in a different RA, where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coordinates for one of its listed Community Services. That applicant, however, never challenged FHFC’s finding, and therefore never presented evidence or argument contesting this finding of ineligibility. It is unclear whether the applicant in the other case was found ineligible for other reasons as well, where that applicant was ranked, and whether there were other circumstances that would have affected the scoring and ranking in that particular RA. Ms. Button testified that if the error in coordinates had been challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived as a minor irregularity. There is no dispute that the Christian Manor application contained a similar error, and that if Christian Manor had not been able to demonstrate that the claimed distances to the grocery store and medical facility were accurate, that error would have resulted in the application being found ineligible. But there is insufficient evidence to determine whether Petitioner is comparing “apples to apples” when relying on this other situation. Any reference to this other applicant in the other RA is unreliable and unconvincing. Regardless, in this case, the undersigned examined the circumstances of Christian Manor’s application and finds based on the preponderance of the evidence (made up of the stipulated facts and Ms. Button’s unrefuted testimony) any inaccuracies in the longitude and latitude coordinates provided by Christian Manor constitute a minor irregularity that may be waived by FHFC. Based on the facts established, the award to Christian Manor is reasonable and neither erroneous, arbitrary, nor capricious. WATERVIEW’S APPLICATION One of the requirements of the RFA is that applicants demonstrate certain Ability to Proceed elements. One of those elements is as follows: Appropriate Zoning. Demonstrate that as of the Application Deadline the entire proposed Development site is appropriately zoned and consistent with local land use regulations regarding density and intended use or that the proposed Development site is legally non-conforming by providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form: The Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08-18) [(Zoning Form)]. As part of its application, Waterview submitted a Zoning Form executed by Elisabeth Dang, a City Public Official. The Zoning Form states, among other requirements: The undersigned service provider confirms that, as of the date that this form was signed, the above referenced Development’s proposed number of units, density, and intended use are consistent with current land use regulations and zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no hearings or approvals required to obtain the appropriate zoning classification. Assuming compliance with the applicable land use regulations, there are no known conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site. Once it receives the Zoning Form, FHFC does not require that an applicant demonstrate in its application that it will be capable of constructing the proposed development, nor does FHFC attempt to independently verify that an applicant will be capable of constructing the proposed development during the application process. FHFC does not require an applicant to submit engineering drawings or final site plans during the application process, nor does the RFA contain any restrictions or requirements concerning the height of any proposed buildings. All of the details and verifications concerning the actual construction of the proposed project are evaluated during the credit underwriting process. Based partially on its identification of Development Type in its application to FHFC as “Mid-rise 4 stories,” Waterview’s adjusted SAIL request per affordable unit resulted in it being assigned Leveraging Level 4. If it had instead identified a Development Type of “Garden Apartments,” it would have received Leveraging Level 5. Petitioner argues that Waterview will be unable to construct the four- story mid-rise building identified in its application while also meeting a 40- foot height limitation in the local zoning code. As explained above, for the same reasons the undersigned sustained the objections to Petitioner’s exhibits relating to zoning issues and feasibility of constructing the proposed development, the undersigned finds at this stage (eligibility, scoring, and ranking), FHFC was not required to independently verify that the proposed development would comply with all building and zoning regulations.4 The evidence established that Waterview submitted the required Zoning Form executed by a person with authority from the City to execute such a form. There was no evidence presented that Waterview’s Zoning Form was improperly completed, or that it was obtained through fraud or illegality. Moreover, there was no convincing evidence that the Zoning Form was improperly completed. FHFC did not make an independent determination as to whether a proposed project would comply with all local zoning requirements, but instead relied on the representation of the local official who executed the Zoning Form. Petitioner also argues Waterview should be deemed ineligible because it presented different information to the City than it presented to FHFC in its application. Specifically, Petitioner challenges use of the term “garden apartment” by Waterview in materials it submitted to the City, but not submitted to FHFC; and the impact of Waterview’s proposed development on wetlands. The undersigned rejects these arguments for multiple reasons. 4 Had Waterview been awarded funds, but its proposed development could not be built due to zoning restrictions, that would be addressed during the credit underwriting process. First, Petitioner alleges that the presentation of additional information to the City somehow conflicts with the Applicant Certification and Acknowledgement Form that applicants are required to sign which provides in relevant part: “In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application.” Ms. Button, however, testified that providing more information to the local government than is presented to FHFC would not in itself conflict with this statement in this form. Second, Mr. Savino’s deposition testimony established he had a number of communications with the City regarding the proposed project and submitted numerous documents for the City to review. Mr. Savino testified he used the term “garden apartments” when discussing the project with the City to refer to apartment complexes, not to the FHFC definition of “garden apartments” as being three stories or less. There is no evidence rebutting Mr. Savino’s version of events, nor is there any indication what the City understood the term to mean. Third, Petitioner argues that Waterview’s proposed project might have impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impacting wetlands. Waterview also included among the documents submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands. Regardless, even if it had been shown that the Waterview project would impact wetlands, this would only impact its ability to receive NHTF funds; it would not have any impact on whether FHFC deems an applicant eligible for funding under this RFA. Ms. Button testified that each applicant is required to check a box on the application indicating whether it is seeking this special funding, but none are required to take it. This special funding is not considered by FHFC when evaluating an applicant’s funding sources during the application review process, and FHFC does not even evaluate an applicant’s eligibility for the NHTF during the scoring process. Even if Petitioner could prove Waterview would not be able to qualify for the special funding, there would be no impact on the scoring of its application. Ultimately, Petitioner presented no evidence that the City had somehow been misled into signing the Zoning Form required by the RFA, or that it had not understood that the proposed project involved a four-story building. The fact that the Ms. Dang did sign the Zoning Form indicates that she believed the City had all the information it needed to do so. Based on the preponderance of the evidence, Waterview’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Waterview Preserve, LLC, and Christian Manor Restoration, LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor Restoration, LLC; and (3) dismissing the formal written protest of BDG Parkwood Lofts, LP. DONE AND ENTERED this 19th day of June, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 19th day of June, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
Findings Of Fact SFWMD is a "state agency" as defined by Chapter 120, Florida Statutes. SFWMD initiated the underlying proceeding when the administrative complaint, which names Mr. Cadenhead and the Construction Co. as two of the Respondents, was filed September 15, 1989. The name "Cadenhead & Sons Construction" is a fictitious name used by The Cadenhead Sisters Construction, Inc., a Florida corporation. Originally, the land clearing and site development work at Bonita Farms was conducted by Cadenhead & Sons Construction Co., Inc., a Florida corporation formed in 1976 and dissolved in 1983. The Mr. Cadenhead named in these proceedings was the son in the business who worked with his father. When the elder Mr. Cadenhead died, his corporate shares were devised to his three daughters and to his son, in equal shares. Mr. Cadenhead, the son, sold his shares in the corporation to his sisters and entered into the water and sewer pipeline business under the name "Collier Services Corporation." A successor corporation to Cadenhead & Sons Construction Co., Inc. was formed by the sisters in 1983. This corporation was named the Cadenhead Sisters Construction, Inc. (Cadenhead Sisters). Cadenhead Sisters continued to clear land and engage in site development at Bonita Farms under the fictitious name "Cadenhead & Sons Construction." Although the owners of the property were aware of the successor corporate entity, SFWMD was never apprised of the corporate change and the subsequent use of a fictitious name similar to the name of the original corporation at the site. The fictitious name was not properly registered pursuant to Section 865.09, Florida Statutes, so SFWMD had no independent means by which it could discover that the land clearing company charged in the enforcement proceeding should be Cadenhead Sisters, as opposed to Cadenhead & Sons Construction. SFWMD was never aggrieved by Cadenhead Sisters' failure to comply with the Fictitious Name Statute because the successor corporation responded to the administrative complaint and defended its actions in the enforcement proceeding to the extent necessary without any attempt to impair the validity of its contract with the owners or to negate its responsibilities at Bonita Farms. Ultimately, the Construction Co. was dismissed from the action based upon SFWMD's failure to show its culpability. At the time the enforcement action was commenced, Cadenhead Sisters had less than 25 full-time employees and a net worth of less than two million dollars. Mr. Cadenhead had returned to work for the corporation as a salaried employee, who was authorized to act upon the company's behalf on all matters involving Bonita Farms that did not conflict with his agency for the property owners at the site. Prior to the evidentiary hearing in this Petition for Attorney's Fees and Costs, Cadenhead Sisters complied with the Fictitious Name Statute and was therefore able to proceed with its petition before the Division of Administrative Hearings. In addition to being a salaried employee of Cadenhead Sisters, Mr. Cadenhead is an agent for the property owners at Bonita Farms. As part of his duties, he was required to act as the owners' agent with the Army Corps of Engineers, SFWMD, and the Department of Environmental Regulation on all permitting matters and to generally coordinate regulated construction activities as a project manager. Mr. Cadenhead personally received money for this work from the owners in his capacity as an independent, self-employed contractor. He has been engaged in this separate work for the owners since 1981, and has often signed documents as the agent of the owners. Mr. Cadenhead's professional practice as a contractor is domiciled in this state and his offices are in the state at the same address as Cadenhead Sisters. At the time the action was initiated by SFWMD, Mr. Cadenhead had no other employees in the practice, and his net worth was less than two million dollars. A Final Order dismissing the underlying complaint was entered in favor of Mr. Cadenhead and the Construction Co. on January 17, 1991. The time for seeking judicial review of that order has expired, and the order has become final agency action as a matter of law. Before the underlying enforcement action was filed, SFWMD staff and Mr. Cadenhead had been interacting with each other for over nine years on matters involved with the Bonita Farms project. Due to ongoing changes in agency policies, personnel and project needs, the rights and responsibilities of the parties based upon permits and other agreements were in need of review. All the reliable evidence presented shows the parties agreed to resolve all questions involving rights and responsibilities through a settlement purposely reached without benefit of legal counsel and through the permit modification process. All matters set forth in the enforcement action were part of this agreement. Mr. Cadenhead and the Construction Co. were not required to defend on any alleged subsequent violations at the hearing because they were without notice that violations occurred after the agreement. This issue was ruled upon at hearing and was reiterated in the Recommended Order adopted by SFWMD. The filing of the enforcement proceeding was unreasonable governmental action because it ignored the settlement initiated and agreed upon by SFWMD. The underlying enforcement proceeding was not substantially justified. Special circumstances do not exist which would make the award of attorney's fees and cost unjust.
The Issue Did Respondent Williams fail to make an accounting for and payment to Petitioner for the proceeds of agricultural products purchased by Ray Gene Williams d/b/a Williams Produce Company?
Findings Of Fact Petitioner Six L's grows watermelons in Collier County, Florida. It is therefore a producer of agricultural products in the State of Florida. Respondent Ray Gene Williams d/b/a Williams Produce Company is a dealer in agricultural products who engages in business in Florida. Respondent Hartford Accident and Indemnity Company is the surety for a bond posted by Respondent Williams to insure compliance with Section 604.20, Florida Statutes (1979). On May 26, 1980, Six L's sold 46,700 pounds of field run, crimson sweet, watermelons to Respondent Williams at a price of 5 1/2 cents per pound for a total cost of $2,568.50. The sale was negotiated between Mr. Charles Weisinger, a salesman for Six L's, and Mr. Larry DiMaria. Mr. DiMaria at that time was a purchasing agent for Respondent Williams. They agreed that the sale would be F.O.B. at Immokalee, Florida. On May 26, 1980 a truck under contract to Respondent Williams was loaded with 46,700 pounds of crimson sweet field run watermelons from the farm of Petitioner Six L's. The weight was verified by the Immokalee State Farmer's Market at 6:59 p.m., May 26, 1980. At that time Mr. DiMaria inspected the watermelons and accepted them on behalf of Respondent Williams. On the following day, May 27, 1980, Mr. DiMaria made payment for the watermelons by issuing check #465 drawn on the account of Williams Farms in the amount of $2,568.50, payable to Six L's Packing Company. Before Six L's could collect on the check, payment was stopped by Respondent Williams, and no payment for the watermelons has since been made by either Respondent. The final hearing in this case was initially noticed for December 4, 1980. At the request of Respondent Williams and with the agreement of Six L's it was continued to a later date. The final hearing was rescheduled for May 11, 1981 in Fort Myers, Florida at 10:00 a.m. At that time neither Respondent made an appearance. In order to give them time to appear the hearing was recessed until 10:30 a.m. At that time it resumed and was concluded at 11:30 a.m. with still no appearance by either Respondent. To the knowledge of the undersigned no attempt was made by the Respondents to request a continuance or otherwise explain their failure to appear.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a final order finding Ray Gene Williams d/b/a Williams Produce Company indebted to Six L's Packing Company, Inc. in the amount of $2,568.50. DONE and RECOMMENDED this 12th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981.
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985) At all times pertinent to this proceeding, Respondent Pent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), issued license no. 3531 by the Department, and bonded by Respondent Transamerica Insurance Company (Transamerica) in the sum of $4,750.00 - Bond No. 51825769. At all times pertinent to this proceeding, Respondent Transamerica was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1985). On June 12, 1985 Respondent sold and delivered to Respondent Pent but invoiced through J & W Nursery- fifty (50) Texas sage plants at $2.00 per plant, twenty five (25) Pittosporum plants $4.75 per plant and four (4) red maple trees at $15.00 per plant for a total amount of $278.75 which Respondent Pent has refused to pay. At all times pertinent to these proceedings, J. & W. Nursery was owned by Respondent Pent, d/b/a Pent Landscaping Company. Respondent Pent has not denied receiving the nursery stock nor did she complain about their quality or condition upon delivery.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pent be ordered to pay to the Petitioner the sum of $278.75. It is further RECOMMENDED that if Respondent Pent fails to timely pay the Petitioner as ordered, then Respondent Transamerica be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985). Respectfully submitted and entered this 23rd day of May, 1986, 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 23rd day of May, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mr. Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Transamerica Insurance Company 1150 S. Olive Street Los Angeles, CA 90015 Mrs. Dean Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 William D. Reese Greenbriar Nurseries, Inc. 2025 N.E. 70th Street Ocala Florida 32670
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.
