The Issue Whether or not the Respondent, Evers & Associates, Inc. and Dovard J. Evers, its President, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in the administrative complaint, Exhibit "A," in violation of Sec. 494.08(4), F.S., and thereby subjected the Respondent to a possible suspension under the terms of 494.05(1)(g), F.S.
Findings Of Fact Evers & Associates, Inc. through the parson of Dovard J. Evers, its President, was a licensed mortgage broker in the State of Florida, during the time period contemplated by the administrative complaint. Subsequent to the time of receiving the mortgage brokers-license, Dovard J. Evers, on behalf of Evers & Associates, Inc., entered into an agreement with several other parties to sell notes secured by mortgages on real estate. One of the agreements was with David Edstrom, of a corporation known as S.E.T., Inc., Mr. Edstrom being the President of said corporation, and the location of that corporation being in Fort Lauderdale, Florida. A similar agreement was held with one Gary George of the Mortgage Consultants, Inc., Ocala, Florida. The agreement with Gary George involved a sale of mortgages for the benefit of the mortgagor, Washington Development Corporation. The third such agreement was with Phil Swan of Southeast Florida Corporation. The written conditions of the S.E.T., Inc. arrangement with Mr. Evers can be found in Respondent's Exhibits No. 2 through No. 5. Essentially, the arrangement was to have Mr. Evers, through Evers & Associates, act as a salesman for the benefit of S.E.T., Gary George and Phil Swan. Their agreement envisioned that Mr. Evers would be afforded a percentage discount varying from 14 percent to 16 percent of the amount of a mortgage loan which was a note secured by real estate. In actual , the contact was made between S.E.T., Gary George and Phil Swam Mr. Evers for purposes of placing notes that were for sale. The apparatus worked by having Mr. Evers contact mortgagees/investors who made a check payable to Evers & Associates for the full amount of the mortgage loan, whose price had been quoted by the intermediary; S.E.T., Gary George and Phil Swan. This amount was held in escrow until such time as the note and mortgage which secured the note could be drawn. The executed note and mortgage went directly to the third party mortgagee/investor without ever having the name of Mr. Evers or Evers & Associates, Inc., affixed to such documents. After this note and mortgage had been executed in behalf of the third party investor, Mr. Evers deducted a fee in favor of Evers & Associates, Inc., according to the percentage agreement with S.E.T., Gary George and Phil Swan and sent the balance of the money to S.E.T., Inc.; Washington Development Corporation through the person of Gary George and to Phil Swan of the Southeast Florida Corporation. The arrangement with Washington Development Corporation changed at a later date because Gary George was no longer involved and payments subsequent to his involvement were sent directly to Washington Development Corporation. The facts show that in the transactions found in Petitioner's Exhibit "A," the complaint, charges were made in behalf of Evers & Associates in the person of Mr. Evers which exceed the statutory allowance for fees and commissions in the amount stated in the column entitled overcharges. These overcharges are according to the percentage agreement between Mr. Evers and S.E.I., Inc., Gary George, and Phil Swan, minus adjustments made in behalf of the third party investor/mortgagee, as indicated in the testimony. This finding of facts, excludes the mortgage by M. Berkell which was stipulated between the parties as not being a matter for further consideration in the hearing. There was no evidence offered of the charge, if any, between S.E.T., Inc., Gary George, and Phil Swan in their dealings with their developer/mortgagors. At present the Respondent, Evers & Associates, Inc., and Dovard J. Evers, its President, have failed to renew the license in the current license period and, as of the moment of the hearing, have expressed no further interest in such renewal.
Recommendation It is recommended that the license of Evers & Associates, Inc., by Dovard J Evers, its President, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of June, 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 Office of the Comptroller The Capitol Tallahassee, Florida 32304 Earl M. Barker, Esquire 218 East Forsythp Street Jacksonville, Florida 32202
The Issue Whether Respondents discriminated against Petitioner on the basis of sex when Respondents denied Petitioner's application to rent an apartment.
Findings Of Fact Mizner Park, located in Boca Raton, Florida, is a mixed use complex, consisting of apartments, retail stores, and offices. The apartment complex is owned and managed by Crocker Downtown Development Associates. Ms. Terrill Jaroszewicz (Jaroszewicz) is the property manager for Mizner Park. Ms. Mary Sims, who reports to Jaroszewicz, is in charge of the residential apartments in the complex. At the time in question, Ms. Jan Pratt (Pratt) was a leasing consultant for the apartments. Pratt's duties included taking applications from prospective tenants, processing the applications, and gathering the necessary information needed to make a decision on whether to approve the application. When Pratt had completed processing the application, she would take the application package to Sims, who would review the package and make a decision on whether to approve the application. Respondents, collectively referred to as Mizner, required that prospective tenants fill out an application form, agree to have a credit check performed, provide sufficient information to verify their current income, agree to a check of the tenants' residency history for the past two years, pay a $50, nonrefundable fee for processing the credit check, and provide a security deposit. Mizner wanted to rent its apartments to tenants who had a good credit history, had a monthly annual income of at least three times the amount of the lease amount, and had a good history as a tenant. On June 15, 1994, Petitioner, Sanford J. Gubernik (Gubernik), who is a male, met with Pratt and filled out an application to lease an apartment at Mizner Park. Gubernik had omitted his social security number when he completed the application. Pratt advised him that it would be necessary to have his social security number in order to do the credit check. Gubernik was reluctant to give Pratt his social security number and to have a credit check done. He gave Pratt a check for $50 for the credit check and a check for $885 as a security deposit. Gubernik is an independent contractor who works for a number of sunglass and eyewear companies. His annual income varies each year. When he filled out the application, Pratt asked Gubernik to provide her copies of his income tax returns for the last two years so that she could verify his income for the last two years. Pratt had a credit check run on Gubernik. Mizner's computers were down on the day that the credit check was performed so the company performing the credit check mailed her a copy of the credit report rather than having her receive the report via the computer, which was the normal method that Pratt received credit reports on prospective tenants. Gubernik had two federal income tax liens, which showed up on his credit report. One lien was dated October, 1993 in the amount of $10,058, and the other lien was dated February, 1991 for $36,829. Pratt advised Sims of the tax liens. Sims told Pratt that she should contact Gubernik and advise him that his credit was a problem. She further advised Pratt that if the credit report was correct and that Gubernik had not satisfied the liens or was not in good standing with the Internal Revenue Service that his application would be denied. Gubernik had traveled to New Orleans to visit clients. While there he received a message on his cellular telephone that Pratt needed to talk to him. He called Pratt and she advised him that there was a problem with his credit report and he should call the credit reporting company and get a copy of the report. Gubernik advised Pratt that the problem was two tax liens. Pratt advised him that they would hold the apartment but that he needed to come in and get the issue of the tax liens resolved by showing that he was trying to pay off the liens. When Gubernik returned from New Orleans he took copies of his income tax returns to Pratt. She advised him that she needed verification that he was making payments on the liens. Gubernik became very irate and told Pratt that he had never had a problem because of the tax liens and that he had no intention of paying them. Pratt advised Gubernik that his application was denied because of the tax liens. Still upset, Gubernik requested to see the manager. Sims was not in the office on that day so Pratt took the application file to Jaroszewicz and told her that a gentleman wanted to talk to her about the denial of his lease application. Jaroszewicz reviewed the application and immediately saw that the problem was the tax liens that appeared on the credit report. Pratt showed Gubernik to Jaroszewicz' office. Gubernik was visibly upset. Jaroszewicz told him that there was a problem with his credit report and that Mizner could not approve his lease application. Gubernik offered to pay his rent in advance. However, prepayment of rent was against Mizner's policy because of accounting reasons and the possibility of poor payment in the future when the prepayment amount was depleted. Gubernik offered to have his rent deducted from his monthly checks that he received from a sunglass company. Mizner's policy was not to have the rent deducted from the tenant's paycheck because the employee could change employers. Gubernik became more and more upset as the conversation with Jaroszewicz continued. Finally Jaroszewicz told Gubernik that there was no need to discuss the matter any further and showed him to the door. The apartment which Gubernik tried to rent was leased to a male in August, 1994. On June 2, 1994, a female applied to Mizner to rent an apartment. A credit check was done and revealed that the prospective tenant had two tax liens totalling approximately $36,000. The female's application was denied by Mizner because of the tax liens. In 1994, Mizner's first time rentals were divided about equally between single males, single females, and families. Gubernik claims that his application was denied not because he had tax liens but because he was a man. Mizner contends that the only reason that Gubernik's application was denied was because he had two tax liens for over $40,000 which represented meant to Mizner that Gubernik had a bad credit history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Crocker Downtown Development Associates, Terrill Jaroszewicz, and Mizner Associates, Ltd. did not commit a discriminatory housing practice against Sanford J. Gubernik and denying his petition for relief. DONE AND ENTERED this 21st day of January, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 1997. COPIES FURNISHED: Sanford J. Gubernik 212 Northwest 4th Avenue Boca Raton, Florida 33432 Patrick M. Muldowney, Esquire Shutts & Bowen 20 North Orange Avenue Orlando, Florida 32801 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact John F. Cole, David J. Hayes and Andre LeClerc conveyed certain real estate situated in Broward County ("the property") to respondent by quitclaim deed dated December 16, 1976, and recorded on December 29, 1976. This instrument reflects payment of a documentary stamp tax in the amount of thirty cents ($0.30) as well as a documentary surtax. On September 30, 1971, Thomas N. Sprague and Peggy A. Sprague had mortgaged the property to Merle Ford to secure repayment of the principal sum of twenty-three thousand five hundred dollars ($23,500.00). On October 1, 1971, the Spragues mortgaged the property to Atlantic Federal Savings and Loan Association of Fort Lauderdale to secure repayment of the principal sum of one hundred three thousand dollars ($103,000.00) On November 21, 1973, John A. Kasbar, as trustee, mortgaged the property to the Spragues to secure repayment of the principal sum of twenty- three thousand one hundred dollars ($23,100.00) On June 5, 1969, Esther E. Adams conveyed the property by warranty deed to Andre LeClerc, as trustee. The warranty deed reflected payment of a documentary stamp tax in the amount of five hundred forty-three dollars ($543.00). The property which was the subject of these transactions is evidently worth a substantial sum of money, but the evidence fails to establish the value of the interest quitclaimed on December 16, 1976, and does not establish what consideration for the quitclaim deed was given, if any was given.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the notice of proposed assessment be withdrawn. DONE and ENTERED this 13th day of December, 1977, in Tallahassee, Florida. COPIES FURNISHED: Mr. Edwin J. Stacker, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Mr. Ronald Payne, Esquire 621 South Federal Highway Fort Lauderdale, Florida
Findings Of Fact On May 8, 1986, Petitioner filed with the Department of Revenue, as agent for the Comptroller, an application for documentary stamp tax refund in the amount of $16,125.00. Subsequently, the Department of Revenue recommended that the application be denied and on November 24, 1986, the Comptroller issued an Order denying the application. Thereafter Petitioner duly requested an Administrative Hearing pursuant to the provisions of Chapter 120, Florida Statutes, and such hearing was duly conducted by William J. Kendrick, Hearing Officer for the Division of Administrative Hearings, on April 13, 1987, in Tallahassee, Florida. On June 10, 1987, Hearing Officer Kendrick issued his Recommended Order in which he separately stated Findings of Fact and Conclusions of Law and recommended that the application be approved. Copies of that Recommended Order have been furnished to all parties. Petitioner has filed no exceptions to the Recommended Order as of the date hereof, however, the Assistant Attorney General, representing the Comptroller in this matter, has filed exceptions to paragraph 5 of the hearing officer's Conclusions of Law which reads as follows. The tax imposed by Section 201.08, Florida Statutes, is levied on a written obligation to pay money, not on a security interest. Under the provisions of Section 201.09(2), a security interest (mortgage) is not subject to taxation if the written obliga- tion to pay money (promissory note) is exempt from the tax. Therefore, whether the transac- tion is exempt is dependent upon whether there was any material change in the promissory note and the renewal note, and not whether there as any material change in the mortgage. Since, in the instant case, there was no material change between the original promissory note and the renewal note, it follows that the subject transaction is exempt from the tax levied by Section 201.08, Florida Statutes. The Findings of Fact as determined by the Hearing Officer were by stipulated agreement of the parties filed with the hearing officer on June 8, 1987. Those findings are adopted as the Findings of Fact for this Order and were as follows: On February 2, 1981, a Mortgage and Security Agreement was signed by the proper corporate officers of SNW Corp. ("SNW"), PNW Corp ("PNW"), and KNW Corp. ("KNW"), all Florida Corporations securing a Note in the amount of $22,000,000.00 upon which documen- tary and intangible taxes were paid. On October 1, 1983, an Amendment to the Mortgage was signed by the appropriate corporate officers of SNW, PNW AND KNW. No documentary stamps were affixed to this document. On March 13, 1986, a Second Amend- ment to Mortgage and Security Agreement (the "Second Amendment") was signed by the appro- priate corporate officers of SNW, PNW, KNW, and Kenneth Wolofsky, Individually and as Trustee. The Second Amendment refers to the Mortgage and was intended to "secure that certain Renewal Note" from SNW, PNW AND KNW in the amount of $10,000,000.00. The Renewal Note was executed by Kenneth Wolofsky solely in his corporate capacity on behalf of KNW not individually or as trustee. Petitioner, Chicago Title Company, was acting in its capacity as agent for the borrowers and was responsible for having the Second Amendment to Mortgage and Security Agreement dated March 13, 1986, recorded. Documentary stamps were paid under protest upon recordation of the Second Amend- ment in the amount of $16,125.00. Petitioner filed an Application for Refund from the State of Florida for the documentary stamps paid on the Second Amend- ment which was denied by the Comptroller of the State of Florida. Thereafter, the Peti- tioner sought an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's request for refund in the sum of $16,125.00 be GRANTED. DONE AND ORDERED this 10th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1987. APPENDIX Petitioner's proposed findings of fact 1-6 are addressed in paragraphs 1-6, respectively. Respondent's proposed findings of fact 1-6 are addressed in paragraphs 1-6, respectively. COPIES FURNISHED: Warren R. Tranzenfeld, Esquire Kirkpatrick & Lockhart 1428 Brickell Avenue Forth Floor Miami, Florida 33131 Alan Burns, Esquire Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 =================================================================
The Issue Whether Respondent has violated provisions of the Florida Statutes or the Florida Administrative Code which relate to his licensure as a limited surety agent (a bail bondsman) as charged in the Administrative Complaint, and, if so, what is the appropriate discipline? PRELIIMINARY STATEMENT On August 28, 1996, the Division of Administrative Hearings received a letter from the Department of Insurance signed by Dick Kessler, Esquire, of the Department’s Division of Legal Services. The letter was in regard to “CARL ALBERT THOMPSON, Case No. 14413-95-A.” In addition to requesting assignment of a Hearing Officer (Administrative Law Judge) to conduct a proceeding pursuant to Section 120.57(1), Florida Statutes, the letter referred to an enclosed Administrative Complaint and a request for formal hearing. The Administrative Complaint alleged that Respondent, Bondsman Carl Albert Thompson, had committed numerous violations of the Florida Insurance Code and the Florida Administrative Code related to his licensure as a limited surety agent or bail bondsman in two counts. The first count alleged generally that he wrote bail bonds in the case of Jose Zamora in the amount of $10,000 and, notwithstanding that all obligations of the bond had been released, refused to refund the bond less the premium claimed. The second count alleged that Thompson failed to have on file with the Department of Insurance an accurate business address. Also attached to the letter of August 21, 1996, were both an answer to the Administrative Complaint submitted by Respondent’s attorney, Ms. Germann, in which he denied pertinent parts of the complaint, and an Election of Rights Form in which he disputed factual allegations in the complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case proceeded to hearing on December 16, 1996, in Arcadia, Florida. The Respondent was not present. Through Ms. Germann, he filed a motion to bifurcate the hearing to allow the Department’s case-in-chief to proceed as scheduled while allowing him to appear at a later date, since he alleged he was unable to attend due to a last-minute illness. The motion was granted on the condition that Respondent would provide physician documentation of the illness. Such documentation was never filed with the Division of Administrative Hearings. Following the granting of the motion, Petitioner proceeded with its case, offering into evidence 13 exhibits all of which were admitted. Petitioner also presented nine witnesses, including six members of the Villafuerte family: Hilario Villafuerte, Consuela Ylda Villafuerte, Martin Villafuerte, Jose Isidro Zamora, Ylda Patricia Villafuerte, and Juana Ramirez. The second phase of the proceeding was scheduled for February 19, 1997. It was canceled because of an accident which befell Ms. Germann. Pursuant to agreement of the parties, the hearing was rescheduled for April 18, 1997. Three days prior to commencement of the re-scheduled second phase of the proceeding, Mr. Migneault served a notice of appearance. He also filed a motion for continuance on the basis of inadequate time for him to prepare and conflicts with scheduled criminal jury trials. The motion was denied, not because it did not on its face allege good cause for a continuance, but because good cause was not shown in light of all the circumstances of the case: Mr. Thompson’s failure to appear at the originally noticed hearing, Mr. Thompson’s failure to provide physician documentation of his December 1996 illness, the seriousness of the case, the lengthy delay which had already ensued and the Department’s objection to further delay. At the April 18 hearing, Mr. Migneault did not appear. Ms. Germann, however, was present in order to petition for withdrawal as counsel for Respondent. Prior to presenting her withdrawal, Ms. Germann on Mr. Migneault’s behalf, announced that Respondent was in jail in Charlotte County and, on that basis, moved ore tenus for a continuance. Ms. Germann was permitted to withdraw. In response, the Department presented testimony of its law enforcement investigator, Antonio Davis, who reported that he had been informed by Charlotte County law enforcement personnel that Respondent, indeed, was in jail. Investigator Davis further reported, however, that he had been informed by the same personnel that Respondent turned himself into Charlotte County authorities under an outstanding warrant for his arrest issued months earlier and that he had done so at 9:30 that morning, one- half hour prior to noticed commencement of the hearing. The ore tenus motion for continuance was denied. Because Respondent was not present and was represented solely by Mr. Migneault, who also was not present, no defense was presented in a case continued twice and delayed for over four months for the very purpose of allowing presentation of Respondent’s case. The hearing was concluded and the record closed without any evidence from Respondent in defense of very serious charges against him.
Findings Of Fact The Parties Carl Albert Thompson, at all times relevant to these proceedings, has been licensed by the Department of Insurance as a limited surety agent, known colloquially as a bail bondsman. His agent number, according to records of the department, is 265683823. Records with the Department show this address of the agency for whom he wrote bonds: Sechrest Bail Bonds Inc 128 Herald Ct Punta Gorda FL Petitioner’s Ex. No. 1. The Department of Insurance is the agency for the State of Florida responsible for licensing limited surety agents and, upon sufficient grounds, disciplining them for violation of the Florida Insurance Code or Florida Administrative Code relating to the licensing and conduct of licensed bail bondsmen. The Arrest of Jose Zamora Jose Zamora is the nephew of Consuelo Villafuerte; he is the son of one of her sisters. In February of 1995, Jose lived with his aunt and her husband, Hilario Villafuerte in the area of Arcadia, Florida, where Mr. Villafuerte works as the leader of a crew of orange pickers. The Villafuertes have a close, extended family which includes their son Martin. Like his father, Martin is the leader of a crew of orange pickers. Martin Villafuerte attended schools in the Arcadia area. He speaks English fluently. Hilario and Consuela Villafuerte came to the United States from Mexico as adults. They speak English, but not as well as their son. Both were more comfortable at final hearing testifying in Spanish with the assistance of an interpreter than in English which Mr. Villafuerte termed “broken.” Shortly before February 13, 1995, Jose Zamora, was arrested for driving while intoxicated. Bail was set at $10,000. It was not the first time Mr. Zamora had been arrested. “[Y]ears back . . . [he] had had a similar case . . . .” (Tr. 73.) In this first case of Jose’s, however, bail was half as much: $5,000. The Villafuerte family had dealt with Jose’s bail in this first case through Hilario Villafuerte. Mr. Villafuerte deposited the $5,000 in cash at the sheriff’s office at the jail. The experience was a successful one succinctly described by Hilario Villafuerte at final hearing: “When [Jose’s] court was over I went with my nephew and they gave me the $5,000 without missing five cents.” (Tr.73.) The first of the Villafuertes to learn of Jose’s second arrest, the February 1995 arrest, was Martin. About to leave for church, he received a phone call from a friend that his cousin had been in an accident. He went to the scene immediately. After Jose was taken to jail, Martin inquired about his release and learned that bail was set at $10,000. It was important to Martin that Jose be bailed out. Not only was he a member of the family, but Jose was also a member of Martin’s orange picking crew, for which Martin shoulders a heavy responsibility. In the several years that he has led the crew, the only day of work Martin has ever missed was the first day of hearing in this case so that he could testify. Martin had to work the weekend of Jose's February 1995 arrest. He asked his father to go to the jail to deliver the bail money. First, though, Martin had to raise the ten thousand dollars, not a simple matter. The Villafuerte Family Pitches In Jose Zamora had been giving his aunt some of the money he earned at work for her to save for him. In February of 1995, it amounted to $1,200, not nearly enough to meet the amount of his bail. Martin canvassed family members. Martin and his wife, Ylda, had $4,000 in the bank, while Martin’s sister, Juana Ramirez, was able to contribute the remainder needed: $4,800. The family was able to amass the $10,000 needed to make bail for Jose. The money was withdrawn from bank accounts in, or converted into, $100 denominations. On February 13, 1995, Hilario and Consuela Villafuerte with the $10,000 in cash, all in $100 bills nestled safely inside Consuela Villafuerte’s purse, set out for the county jail. Mix-up at the Jail In the interim between Jose Zamora’s first case and the February 1995 case, the jail had been remodeled. When they arrived at the sheriff’s office in the jail, Hilario Villafuerte noticed the result of the remodeling; the physical arrangement was different from when he had been there before. There was no interpreter at the jail through whom Mr. Villafuerte could explain the purpose of his visit in Spanish. Instead, Mr. Villafuerte told the receptionist at the front desk in English as best he could, why he had come to the jail. The receptionist asked whether he had the $10,000 in cash. When Mr. Villafuerte responded in the affirmative, the receptionist did not seem to know what to do. She asked Mr. Villafuerte the same question three or four times. Each time he responded in the affirmative. She called over a uniformed member of the sheriff’s department. Mr. Villafuerte could not hear what he said but he observed him shake his head “no.” The receptionist then told Mr. Villafuerte to take the money to any of three places across the street. An Unlucky Choice The three places to which Mr. Villafuerte was directed were bail bond establishments, one of them Fowler Bail Bonds where Mr. Thompson was employed. Mr. Villafuerte thought, however, because the sheriff’s office had been renovated that he was being directed to a new branch office of the sheriff’s department where bail money could be received. Mr. and Mrs. Villafuerte crossed the street and knocked on the door of Fowler Bail Bonds. Carl Albert Thompson answered. Mr. Villafuerte told him, “that they had sent me from the Sheriff’s Department to give him that money for the bond for Jose Isidro Zamora.” (Tr. 69.) Mr. Thomspon indicated he would accept the ten thousand dollars. The only legitimate purpose for taking more than a 10% premium, in this case one thousand dollars, was as additional collateral. Mrs. Villafuerte removed the money from her purse and gave it to her husband. In the presence of Mrs. Villafuerte, Mr. Villafuerte counted out the $10,000 for Thompson to see in thousand dollar piles: ten piles of ten $100 bills. Thompson wrote the Villafuertes a receipt for $10,000, the amount they entrusted to his care. The receipt was not pre-numbered. It did not indicate on its face the purpose for which the money was received, the number of the Power of Attorney form attached to the bond, or the penal sum of the bond. Posting of the Bonds On the same day as the Villafuerte’s visit to Mr. Thompson’s office, February 13, 1995, two General Surety Appearance Bonds, each in the sum of $5,000, for a total of $10,000, were filed with the Clerk of Courts for DeSoto County for two charges in the case of State of Florida vs. Jose Zamora: “DUI w/ personal injury,” and “DUI w/ property damage.” Petitioner’s Composite Ex. No. 7. The premium for each of the two bonds was $500 for a total of $1,000. The bonds are signed by both Jose Zamora and, for Accredited Surety & Casualty Company, Inc., as surety, by Carl Thompson, “attorney-in-fact.” Id. The Remaining Nine Thousand Dollars The additional $9,000 the Villafuerte’s gave to Mr. Thompson was not deposited or paid to a surety company; nor did Thompson place the money with the DeSoto County sheriff’s department for the bail of Jose Zamora. On February 14, 1997, there was deposited in an account at the First State Bank of Arcadia, named the “Carl Thompson DBA/Fowler Bail Bonds Escrow Account,” (Petitioner’s Exhibit No. 11), $9,000, all in one-hundred dollar bills, bills that had composed nine of the ten stacks counted out to Carl Albert Thompson by Hilario Villafuerte the day before. Obligations of the Bond Fulfilled In the interim between the posting of the bond and the deposit of the $9,000 in Mr. Thompson’s escrow account, Jose Zamora was released from jail. The case then reached disposition; the obligations of the bond were fulfilled. Attempts to Retrieve the Money After finalization of Jose Zamora’s case, he and Hilario and Martin Villafuerte went together to Mr. Thompson’s office two or three times. Thompson was not there. Martin persisted. Eventually he contacted Mr. Thompson. Thompson told him that it would take two months for paperwork to be completed before the money could be returned. His suspicion not aroused, Martin told Thompson that he would be checking with him from time to time during the two-month period. True to his word, Martin continued to visit Mr. Thompson’s office. In the two months following his initial contact with Thompson after disposition of Jose Zamora’s case, he went by the office approximately 15 times. Whenever he saw Mr. Thompson, Martin was given slightly different details as to why the money was not yet available. Finally, because the family needed the money, Martin visited the courthouse and made an inquiry. He was told that everything was cleared and that he was entitled to receive any cash bond money owed by Mr. Thompson for the Zamora case. More visits and conversations ensued with Mr. Thompson until the Villafuerte family realized that it was not likely that Thompson would return the ten thousand dollars or any part of it. (Thompson had told the Villafuertes that they were entitled to only an amount slightly less than $9,000 because 10% of the money was the premium for the two bonds posted and because there was a slight charge for paperwork.) The Villafuertes hired an attorney in an attempt to regain their ten thousand dollars. On November 17, 1995, the attorney wrote a letter to the Department of Insurance to inquire as to steps that might be taken toward filing a complaint or pursuing the return of the money entrusted to Mr. Thompson. The letter led to investigation and the administrative complaint in this case. The Administrative Complaint The Administrative Complaint is in two counts. Because of his misappropriation of the Villafuerte's money, refusal to refund it, and issuance of an improper receipt, the first count charges Thompson with having violated or being accountable under the following provisions of law: Sections 648.295(1) and (3), 648.33, 648.36, 648.442(1), (4) and (8), 648.45(2), (2)(d), (2)(e), (2)(f), (2)(g), (2)(h), (2)(j), and (2)(l), 648.45(3), (3)(b) and (3)(d), Florida Statutes; and, Rules 4-221.105, 221.115 and 120, Florida Administrative Code. The second count charges Thompson with violating Section 648.421, Florida Statutes, and Rule 4-221.060, Florida Administrative Code for failure to notify in writing the Department of a change in name, address or telephone number of the agency or firm for which he writes bonds. Change of Agency The name and address of the agency for which Mr. Thompson’s was writing bonds listed in Department records at the times material to this case were not correct. Thompson left the Sechrest office in Sarasota to work for Fowler Bail Bonds as a subagent in its Arcadia office where he met the Villafuertes. When he did so, he did not notify the Department of Insurance of the change of name, business address and telephone address of the agency for which he was then writing bonds, Fowler Bail Bonds. Thompson no longer works for Fowler. He left in November of 1995 for another company after Fowler put pressure on him because of poor performance generally.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Insurance revoke the “limited surety agent” license of Carl Albert Thompson. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Florida. DAVID M. MALONEY 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 13th day of June 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance The Capitol, LL-26 Tallahassee, Florida 32399-0300 Dickson E. Kessler, Esquire Division of Legal Services Department of Insurance 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 David J. Migneault, Esquire 201 West Marion Avenue, Suite 205 Punta Gorda, Florida 33950
Findings Of Fact This case involves the consideration of the Respondent's attempt to assess documentary stamp tax, penalty and interest on the document which the Petitioner recorded; said document being entitled Mortgage Consolidation, Modification and Extension Agreement. This document is recorded in Book 6855 and page 73, Broward County, Florida, Official Records. The date of recordation was December 30, 1976. By joint stipulation, a copy of the document in question has been admitted as joint Exhibit No. 1 by the parties. The Notice of Proposed Assessment setting forth the amount claimed is found as an attachment to the petition. The date of the assessment is May 18, 1977. The only change in the claim by the Respondent, is the concession by the Respondent that the 100 percent penalty no longer applies and that a 25 percent penalty is now in effect. This change may be found in the letter of the Respondent's attorney dated December 12, 1977, which is admitted and made a part of the record herein and attached hereto. As demonstrated, there is no factual dispute between the parties on the issue of what document or item is being claimed as taxable. The dispute arises over the question of taxability. The respondent claims that the document is taxable under the authority of Section 201.08, F.S. and Rule 12A-4.53, F.A.C. The latter provision is an adaptation of the authority set forth in State, Department of Revenue v. McCoy Motel, Inc., 304 So.2d 440, (1 DCA, Fla 1974). The Respondent's assertion of taxability under the theory in McCoy supra is correct. The correctness of the Respondent's interpretation may be understood by contrasting the facts in the McCoy case with those in the case of sub judice. In the McCoy case, McCoy Motel, Inc., in a promissory note which is referred to as the "first note," promised to pay the sum of $1,850,000 to Keyes-Penn Mortgage Company together with interest. McCoy then paid documentary stamp tax on the full amount of the note. Keyes-Penn Mortgage Company subsequently assigned an undivided 67.57 percent interest in that note to the Monumental Life Insurance company and made a further assignment of 32.43 percent of the interest to the Volunteer State Life Insurance Company. On a later date, McCoy gave a note, referred to as the "second note," to Alison Mortgage Investment Trust in which it promised to pay $3,500,000 together with interest. Alison in return agreed to pay Monumental Life Insurance company, as payee of the "first note," payments on the "first note" when they became due. This agreement to pay Monumental Life Insurance Company was premised upon the expectation that McCoy not be in default under the terms of the first or second note, or the corresponding mortgages which were in support of those notes. In this situation, the first and second notes were secured by mortgages on the same property. The mortgage note between McCoy and Alison Mortgage Investment Trust was what is commonly known as a "wraparound" mortgage. That is to say, the "second note" represented the total indebtedness of the "first note" and an additional sum. McCoy paid documentary stamp tax on $1,650,000 of the second note which represented the total sum of the loan less the amount that had been loaned on the "first note." The State of Florida disagreed with this approach and contended that the full amount of the "second note" should be subject to documentary stamp taxes. The Trial Court rejected the State's position and held that the amount of $1,850,000 was part of a contractual agreement between McCoy and Alison Mortgage Investment Trust in which certain monies were to be paid through Alison to the holder of the first mortgage and that McCoy was not under obligation to pay money within the meaning of Chapter 2011, F.S., and not subject to tax for the amount of the "first note." The Appellate Court rejected this contention and concluded that the full amount of $3,500,000 plus interest was a loan made to McCoy Motel, Inc., with the understanding that McCoy was obligated to pay back that amount to Alison Mortgage Investment Trust. Therefore, an excise tax was due on the full amount. This conclusion by the Appellate Court was reached on the basis of an examination of the terms and conditions of the second note which set forth the amount of payment, the amount of interest, and the steps to be taken in the event of default on the payments by McCoy. The Appellate Court held that this obligation to pay the $3,500,000 plus interest was not an executory, contingent or conditional agreement between the parties. Further, the Court held that the documentary stamp tax would be due regardless of whether a part or all of the obligation of a renewal note was subjected to the conditions of Chapter 201., F.S., under an original note. The exception to that ruling, the Court stated, would be if it was a renewal within the meaning of Section 201.09, F.S., which would exempt it from taxation. The McCoy "second note" was not found to be one of the exempt categories. It was not found to be exempt because it was felt that it was not a reiteration of the original note, but was an enlargement of the original contract and obligation, thereby precluding any exemption. The underlying theory of the Court in its holding in McCoy, supra, is grounded on the Court's opinion that the liability to pay documentary stamp tax and the amount of the tax to be paid shall be determined by the form and face of the instrument and not by proof of extrinsic facts. In the present case, Lake Taft Village, Inc. was obligated to pay two first mortgages on separate parcels of land. The initial first mortgage holder was Southport American National Bank, to whom Lake Taft Village, Inc. owed $150,000 under the terms of the note and mortgage. The second parcel was mortgaged to a group known as "Curcie Brothers." This group was owed $450,000 under the terms and conditions of the note and mortgage. Lake Taft Village, Inc. decided to sell the property covered by the two first mortgages. The purchaser of that property was the Petitioner, The Lakes of Pembroke Pines, Inc. At the closing, The Lakes of Pembroke Pines, Inc. paid $970,000 by making a $60,000 down payment and assuming the two mortgages in the amount of $150,000 and $450,000. In addition, Lake Taft Village, Inc. took back a second mortgage for $310,000 from The Lakes of Pembroke Pines, Inc. This second mortgage was a purchase money mortgage and was subordinate on the entire property, encumbered by the two first mortgages. However, before this second mortgage was recorded, the seller and Petitioner entered into an agreement whose terms and conditions are found in the Joint Exhibit No. 1, which is the subject of the dispute. As stated before, this document is entitled Mortgage Consolidation, Modification and Extension Agreement. The document is in fact a "wraparound" mortgage. The reason that it is considered to be a "wraparound" mortgage may be found in the examination of the document itself. The document consolidates the preexisting first mortgages, in which Southport American National Bank and "Curcie Brothers" are the mortgagees, with the second mortgage held by Lake Taft Village, Inc. Moreover, it establishes an interest rate for the payment from the Petitioner to Lake Taft Village, Inc., in addition to the schedule of payments of interest and principle. It also establishes the method by which parcels of property which are encumbered by one of the two first mortgages may be released by the holder of the "wraparound" mortgage. The holder of that mortgage initially was Lake Taft Village, Inc. This provision pertains to the amount of the $150,000 mortgage held by Southport American National Bank. The terms of the document call for the Lake Taft Village, Inc. to pay the first mortgage holder "Curcie Brothers" in lieu of payments by the Petitioner who has assumed that mortgage. Other terms of the document pertain to prepayment of the first mortgages by Lake Taft Village, Inc.; matters to be considered in the event of defaults on the terms of the "wraparound" and numerous other clauses agreed to by the parties in the mortgage consolidation. One further significant item within the document, pertains to the satisfaction agreement between the Petitioner and Lake Taft Village, Inc., in which Lake Taft Village, Inc. is allowed to pay off the first mortgages and be entitled to the assignment of those first mortgages instead of a satisfaction. The terms in the the document clearly indicate that Lake Taft Village, Inc. and the Petitioner are agreeing to modify the conditions under which the Petitioner assumed the two first mortgages at the closing with Lake Taft Village, Inc. It also indicates that there is a consolidation of the responsibilities which the Petitioner has under the assumption of two first mortgages, into an integrated arrangement to pay those mortgages and the amount of $310,000 which constitutes the amount of money owed under the second mortgage held by Lake Taft Village, Inc. The terms of the "wraparound" mortgage being separate and apart from the terms of the assumption of the two first mortgages, and the conditions set forth in the second mortgage to Lake Taft Village, Inc.; it is the Petitioner's responsibility to pay documentary stamp tax on these written obligations, in accordance with Section 201.08, F.S. The exception being if the "wraparound" mortgage constitutes a renewal of the existing promissory note within the meaning of Section 201.09, F.S. It does not constitute a renewal for the existing promissory note, because it is an enlargement of the terms and conditions of the assumption of first mortgages and notes, by changing their terms and consolidating them with the second mortgage held by Lake Taft Village, Inc. Therefore, a comparison of the McCoy "wraparound" mortgage and that of the Petitioner shows them to be sufficiently similar in nature to make the authority set forth in McCoy, supra, applicable. Under that statement of authority, the authority of Section 201.08, F.S. and Rule 12A-4.53, F.A.C., the Petitioner owes documentary stamp tax, penalty and interest. The amount of documentary stamp tax is $1,365. The penalty is 25 percent of that amount, in keeping with the concession set forth in the December 12, 1977, letter of the Respondent's attorney and the interpretation of the undersigned, which is to the effect that a 25 percent penalty shall be imposed for all proposed assessments not final on July 1, 1977. This is in keeping with the provisions of Section 201.17, F.S., as amended by Chapter 77-281, Laws of Florida. This penalty is subject to further reduction if a compromise is entered into between the parties. Interest should be charged at 1 percent per month from the beginning date, in keeping with terms and conditions of Section 201.17, F.S.
Recommendation It is recommended that the proposed assessment of May 18, 1977, be upheld, in that the documentary stamp tax in the amount of $1,365 be upheld and that a penalty in the amount of 25 percent or such lesser amount as compromised by the parties be assessed together with interest. Done and Entered this 6th day of January, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Norman N. Zipkin, Esquire 225 Northeast 35th Street Miami, Florida 33137 Cecil L. Davis, Jr., Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty, Esquire Department of Revenue Room 194, Carlton Building Tallahassee, Florida 32304
