The Issue The issues in this matter are whether the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) proved that Derek Welling (Respondent) is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes; and whether Petitioner proved that Respondent is guilty of failing to account and deliver funds in violation of Subsection 475.25(1)(d)1, Florida Statutes; and if so, what is the appropriate discipline?
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent is a licensed realtor and has been at all times material hereto, having been issued license number 0582890 under Chapter 475, Florida Statutes. In 1989, Respondent founded UK Realty, a real estate brokerage firm, with his son-in-law, Russell Christner. From 1989 thru the summer of 1996, Respondent primarily served as UK Realty's international sales representative while Mr. Christner served as its qualified broker. Respondent traveled to various trade shows primarily in Europe and encouraged customers to purchase rental properties in the central Florida area. In 1991, Respondent and Mr. Christner formed a short- term rental property management company known as Connoisseur Homes, Inc. (Connoisseur) to manage the rental properties of UK Realty's domestic and international clients. In 1993, Respondent and Christner sold a one-third interest in Connoisseur to Mr. Graham Greene, who immediately became president of Connoisseur and served as its day-to-day operations manager. Although Respondent maintained a one-third ownership in Connoisseur, he remained the company's international sales associate. Respondent was generally not involved in the day-to-day management and operations of Connoisseur and had little personal knowledge of the factual circumstances surrounding the client complaints that form the basis of Petitioner's allegations. Each of the allegations levied against Respondent in Petitioner's Amended Administrative Complaint involves complaints filed by property owners relating to contract services with Connoisseur. There is no evidence in the record that any of the property owners was dissatisfied with the services of Respondent or Connoisseur prior to the summer/fall of 1996. Hart Property In 1994, Michael Hart, a resident of England, engaged the services of UK Realty and purchased a rental home property in Davenport, Florida. Mr. Hart was referred to Mr. Richard Wilkes, a representative of Connoisseur, to manage his property. On May 17, 1995, Mr. Hart contracted with Connoisseur to provide rental management services. Mr. Hart placed an initial deposit with Connoisseur to purchase various items and maintained a $1000 balance in an escrow account to pay the annual taxes and monthly expenses associated with the management of the property. Pursuant to his contract with Connoisseur, Mr. Hart received periodic statements from Connoisseur detailing all moneys collected from tenants, escrow balances, and any other activity in his account. According to the statements Mr. Hart received, Connoisseur booked nine persons to stay in his property between October of 1996 and January of 1997. While Connoisseur received approximately $9,844.60 for these rentals, Mr. Hart received none of the rental proceeds. On or about January 3, 1997, Mr. Hart received notice from the Polk County tax collector indicating that the "tourist development tax" associated with his property was delinquent for the months of September, October, and November of 1996. In addition, the letter indicated that Connoisseur made a payment to Polk County for September 1996 that was returned for insufficient funds. Shortly thereafter, Mr. Hart was advised that the cable and electricity to the property had been disconnected for non-payment. Glass Property In May 1993, Mr. Colin Glass purchased a rental home in Davenport, Florida, and contracted with Connoisseur to manage the property. Pursuant to the contract, Connoisseur agreed to advertise and list the property, manage the reservations and timely pay the rental property's expenses. Mr. Glass agreed to receive $500.00 for each week that the property was rented minus a cleaning fee. Pursuant to the contract, Mr. Glass placed a $1000 deposit with Connoisseur to pay the initial maintenance costs associated with the property. Thereafter, Mr. Glass received periodic statements from Connoisseur detailing the funds received, occupancy, and expenses paid to manage his property. The statement for the month ending November 30, 1996, indicates that Connoisseur collected $5,290.00 in rental proceeds from tenants who rented the property between August of 1996 and January of 1997 and paid $110 for cleaning services on November 8 and 21, 1996. In November, 1996, Mr. Glass requested a detailed accounting from Connoisseur regarding his property. On December 6, 1996, Mr. Glass received a written letter on Connoisseur stationary, signed by Kelleen Newman, a Connoisseur employee responsible for preparing accounting statements during the relevant period. The letter advised Mr. Glass that Connoisseur owed Mr. Glass approximately $1,750.00 for payments received pursuant to bookings under the names Beaumont and Tullet. To date, Mr. Glass has not received the rental proceeds. In addition, Connoisseur failed to pay the property tax bill associated with the Glass property as required by the management contract, and it became delinquent. Hamlyn Property On September 22, 1993, John Hamlyn purchased a home in Davenport, Florida. Five months later, on February 22, 1994, Mr. Hamlyn hired Connoisseur to manage his rental property. Pursuant to the contract, Connoisseur agreed to advertise and rent the property, manage the collections, and pay the operational expenses. Mr. Hamlyn placed a $500.00 deposit with Connoisseur to perform the contract and was required to maintain that balance in the account. In November of 1995, Respondent and Connoisseur increased the required escrow balance to $1000.00. In January of 1997, immediately following the demise of Connoisseur, Mr. Hamlyn maintained an escrow account with Connoisseur. Mr. Hamlyn did not receive an accounting of the escrowed funds or a refund of the balance. The evidence is undisputed that Mr. Hart, Mr. Glass, and Mr. Hamlyn each delivered funds in trust to Connoisseur which were not accounted for or returned. The evidence is undisputed that Connoisseur, in 1996, received rental proceeds as agents on behalf of Mr. Hart and Mr. Glass, which were not remitted to the owners. The evidence is undisputed that Connoisseur, in 1996, failed to pay certain utility bills and tax bills as required in its contracts with Mr. Hart and Mr. Glass. Connoisseur's Collapse Connoisseur's operational and financial failure surfaced on September 13, 1996, when Mr. Green, the company's co-owner and day-to-day operations manager, without notice, resigned as President of Connoisseur and formed a competing property management company. To make matters worse, within days, Mr. Green hired key staff away from Connoisseur including Richard Stanton, Connoisseur's office manager, accountant and licensed real estate broker, as well as Dyer Scott, the company's book-keeper. Shortly thereafter, Mr. Green's new company was operational and selectively securing new management agreements with Connoisseur's client list. In response, Respondent immediately evaluated Connoisseur's financial and operational status and attempted to manage its problems. Respondent advised all of Connoisseur's homeowners of the company's status, including the departure of the key operational owner and employees, but tried to assure them that the company was headed in the right direction. In fact, in a news update dated October 15, 1996, Respondent advised all of the clients, including Mr. Hart, Mr. Glass, and Mr. Hamlyn of the following: Upon investigation we were appalled to find that most of our homeowners are waiting on payments and upon further investigation we found that in many cases payment had never been collected from the tour operator. This situation is being corrected immediately and manual invoices are being prepared for collection . . . I'm happy to say that approximately $200,000 in back bookings will be properly allocated to our homeowners this month. Connoisseur did not recover. Within two months, 150 of Connoisseur's 270 homeowners cancelled their management contract with Connoisseur and on January 1, 1997, Respondent sold his interest in Connoisseur to Richard Wilkes and received a total of $15,000.00. Respondent experienced complete financial loss as a result of the demise of Connoisseur. His home was foreclosed and his vehicle was repossessed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent in this matter be dismissed. DONE AND ORDERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 3rd day of July, 2003. COPIES FURNISHED: Victor L. Chapman, Esquire Barrett, Chapman & Ruta, P.A. 18 Wall Street Post Office Box 3826 Orlando, Florida 32802-3826 Christopher J. DeCosta, Esquire Department of Business and Professional Regulation Hurston Building, North Tower 400 West Robinson Street, Suite N809 Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801
The Issue Whether the real estate license of respondent should be revoked or suspended for operating as a broker while registered with the petitioner as a salesman, in violation of subsections 475.01(3) - 475.25(1)(d), 475.42(1)(b), and 475.42(1)(e), Florida Statutes. Neither respondent nor any representative in her behalf appeared at the hearing. Notice of the hearing was provided the respondent by the petitioner through U.S. registered mail on April 12, 1977. Respondent acknowledged receipt of the notice on April 18, 1977. (Petitioner's Exhibit 1) By correspondence to petitioner, dated April 23, 1977, which was received on April 27, 1977, respondent requested a postponement until two of her former employers were subpoenaed for the hearing. She also mentioned in her letter that she had been unable to locate the address of a third former employer. In fact, two of the individuals had already been subpoenaed by petitioner to testify at the hearing, and on May 2, 1977, petitioner's investigator attempted to deliver a subpoena for the third person to the respondent at her home after calls to her listed telephone number had not been answered. Further attempts to locate the respondent on that day were without avail. (Petitioner's Exhibit 2, Testimony of Greene) The request for continuance was not brought to the hearing officer's attention by either party until May 2, 1977, at which time petitioner's counsel advised him of the request and that respondent could not be located on that date. At the commencement of the hearing, after being advised in the premises, the hearing officer determined that respondent had received adequate notice of the hearing and that, not having been informed that her request for a postponement had been granted, it was incumbent upon her to be present at the hearing either to pursue her request or defend her interests, if she so desired. There being no apparent justifiable cause for her absence, the matter was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), F.A.C.
Findings Of Fact Respondent is now and was at all times alleged in the administrative complaint a registered real estate salesman employed by Happy Home Hunters, Inc., a broker corporation. (Petitioner's Exhibit 4) In the spring of 1974, Doris Espinosa a registered real estate broker, was working with respondent at a firm named Home Locators, in Miami, Florida. Respondent requested that Espinosa join her in a new firm that was to be financed by one Chester Kaye. A corporation, Happy Home Hunters, Inc., was thereafter formed with Espinosa as president and active firm member. George Girard was an officer of the corporation, also. Espinosa was with the firm only approximately fifteen days. Neither Kaye nor respondent was an officer of the corporation. The firm engaged in the listing and rental of apartments as its primary business at 6730 Biscayne Boulevard, Miami, Florida. Both Espinosa and respondent endeavored to secure listings of rental apartments and then locate tenants from whom a fee was obtained. Both could countersign checks of the firm and together they handled the financial matters. Kaye was seldom present at the office. (Testimony of Espinosa) On April 24, 1974, the firm applied for registration with petitioner, and listed David G. Weiner as president and active firm member, and George Girard as secretary-treasurer. Girard is respondent's husband. Weiner was paid a fee of $100.00 per month to serve as broker for the firm. He served in this capacity for several months and visited the office three or four times for two or three hours each time to "make sure everything was run according to the rules and regulations " of petitioner. However, he did not sign checks, hire or fire sales personnel, handle any of the financial matters, place advertisements or receive any accounting as to the operations of the business. All such matters were handled either by respondent or Kaye. However, Kaye was seldom in the office. Respondent served as sales or office manager, and, in fact, supervised the business operations, although the final decisions were made by Kaye. (Testimony of Weiner, Petitioner's Exhibit 3) On April 25, 1974, respondent submitted a Business Information Form for membership in the Better Business Bureau of South Florida. On the form, she listed herself as treasurer of the corporation, and in the accompanying letter requesting a representative of the bureau to visit the offices, she stated "I try very hard to run a good business." On July 1 and July 8, 1974, in responding to complaints filed against the firm with the bureau, respondent listed her title as "Owner." (Testimony of Smathers, Petitioner's exhibits 5, 6)
Recommendation It is recommended that petitioner issue a written reprimand to respondent Mollie Lee Warrington for violation of subsection 475.42(b), Florida Statutes, as authorized by subsection 475.25(1)(d), Florida Statutes. DONE and ENTERED this 31st day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mollie Lee Warrington 990 Northeast 189th Terrace Miami, Florida 33138 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, Petitioner, vs. PROGRESS DOCKET NO. 3141 DADE COUNTY MOLLIE LEE WARRINGTON, DOAH CASE NO. 77-275 Respondent. / At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on July 20, 1977, Present: Maggie S. Lassetter, Vice-Chairman Levie D. Smith, Jr., Member Appearances: Richard J. R. Parkinson, Attorney for Plaintiff No Appearance for Defendant. This matter came on for Final Order upon the Plaintiff's Administrative Complaint, the Hearing Officer's Recommended Order and the Plaintiff `s Exceptions thereto, together with the record and oral argument of counsel for the Plaintiff, and the Commission having fully reviewed the entire record, the Findings of Fact and the Conclusions of Law in the Recommended Order, and the Commission being fully advised in the premises, finds: 1. That according to the records of the Commission, Defendant Mollie Lee Warrington is registered with the Commission as a non-active real estate salesman, 990 Northeast 89th Terrace, Miami, Florida 33138. 2. That the Findings of Fact as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Findings of Fact of the Commission. 3. That the Plaintiff's Exceptions to Paragraph 6 of the Conclusions of Law as set forth in the Recommended Order of the Hearing Officer are well taken and should be sustained. 4. That the Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Officer are supported by competent, substantial evidence in the record and should be adopted as the Conclusions of Law by the Commission. 5. That the Plaintiff's Exceptions to the Recommendation of the Hearing Officer are well taken and should be sustained. IT IS THEREUPON ORDERED that the Findings of Fact and Conclusions of Law, with the exception of Paragraph 6, as set forth in the Recommended Order of the Hearing Off icer be, and they are hereby, adopted as the Findings of Fact and Conclusions of Law of the Commission. IT IS FURTHER ORDERED that Defendant Mollie Lee Warrington be, and she is hereby, adjudged guilty of violating Subsection 475.42(1)(b) and Subsection 475.25(1)(d), Florida Statutes, as charged in the Administrative Complaint. IT IS FURTHER ORDERED that for such violations, the registration of Defendant Mollie Lee Warrington be, and the same is hereby, suspended for a period of one (1) year, said suspension to become effective upon the effective date of this Order as provided by law. DONE and ORDERED at Winter Park, Florida, this 25th day of July, 1977. Maggie S. Lassetter Vice-Chairman Levie D. Smith, Jr. Member I HEREBY CERTIFY that I mailed a copy of the foregoing Final Order to Mollie Lee Warrington, Defendant, 990 Northeast 89th Terrace, Miami, Florida 33138, by United States registered mail this 25th day of July, 1977. C. B. Stafford Executive Director NOTICE TO DEFENDANT: This Order shall become effective on the 24th day of August 1977. However, you have a right of review by an Appellate Court, if you desire. Please comply with this Order. We are including an envelope for your convenience in surrendering your registration certificate. RJRP/sl
The Issue The issue in this case is whether the Florida Real Estate Commission should take action against the Respondent, Harry Paul, for allegedly acting as a real estate broker without the license required by Florida law.
Findings Of Fact The Respondent, Harry Paul, is not, and never has been, licensed in the State of Florida as a real estate broker or salesman. The Respondent is the vice president in charge of sales for Artistic Homes Enterprises, Inc. (Artistic Homes). Artistic Homes is in the residential construction business in Hernando County, Florida. It sells homes to be constructed primarily either on lots it owns or on lots owned by the customer. Less frequently, it contracts to build homes on lots to be purchased by the customer from third parties. The Respondent is strictly an employee of the company; he has no ownership interest. He manages the Artistic Homes sales staff, which consists exclusively of licensed real estate salespersons or broker-salespersons. Generally, the sales staff sells the construction and, when applicable, the lot involved in transactions with the customer. The Respondent is available to answer questions the sales staff has, especially concerning requested modifications to the Artistic Homes models. The sales staff is paid weekly strictly on a straight 2% commission on construction and Artistic Homes lot sales "funded" during the week. Artistic Homes considers "funding" to take place either when a closing takes place or when at least 20% of the contract price is paid in the form of an earnest money deposit. Artistic Homes pays the Respondent a weekly salary, plus a monthly bonus. The Respondent's bonus is 2 basis points, or 0.2%, on construction and, up to a maximum of $50, on Artistic Homes lot sales funded during the month. Income and social security taxes are deducted from the salary portion of the Respondent's compensation, but not from the bonus override portion. In addition to the Respondent's more usual function in the company, as described in Finding 3, above, the Respondent also occasionally deals with customers, either directly or through the sales staff, on the sale of lots, both owned by Artistic Homes and owned by third parties. On occasion, the Respondent shows customers lots, both owned by Artistic Homes and owned by third parties, prepares the contracts for execution by the parties, and accepts earnest money deposits. Specifically in the case of customer Delores Mann, the customer came in to look at the Artistic Home models. She was helped by one of the licensed salespersons on the Artistic Homes sales staff. When the salesperson learned that Mann did not own a lot, she began to make suggestions and show the customer lots she might want to purchase. As usual, the Respondent tried to be helpful by answering questions on request and giving suggestions. When the customer came in on or about August 8, 1990, to purchase one of the Artistic Homes lots, the salesperson with whom she had been working was not there. In the salesperson's absence, the Respondent drew up the contract for the sale and accepted the customer's check for the purchase price--$20,900. Shortly thereafter, the customer returned stating that she had changed her mind. The Respondent dealt with her, trying to save the sale, and tried to convince her that she had made a wise purchase. At the same time, he agreed to show her more lots and to exchange the one she had bought if she found another one she liked better. After the Respondent showed her many other possibilities, Mann decided to keep the lot she had. For the next several weeks, both the Respondent and the licensed salesperson met with Mann repeatedly to discuss the residence she would build on the lot. After viewing the models, they discussed more than one in detail, making modifications at the customer's request, and discussing the cost of the different models, with the various modifications. This was an unusually long process, as Mann kept changing her mind. Finally, on or about Friday, August 20, 1990, Mann made her decision, signed a contract prepared by the licensed salesperson, and gave the licensed salesperson a 20% deposit on the purchase price. By Monday, August 23, 1990, Mann was back again, having changed her mind again over the weekend. The licensed salesperson was not there, and the customer went to see the Respondent. She asked him how much it would cost her to back out of the deal. The Respondent answered that she "owed about $7,000." Mann expressed surprise, as construction had not begun. (In fact, only about $3,630 in commissions had been earned on the two sales; the evidence did not reveal what else the customer might have owed at that point.) The Respondent again tried to save the sale. He tried to persuade Mann that she had made a good decision and that she would be happy once the process was over, and she moved into her "dream home." The customer reluctantly agreed to go forward, but later wrote a letter to the owner of Artistic Homes seeking to get out of the deal. In 1984, the Respondent received notice that the Florida Real Estate Commission had found probable cause to believe that the Respondent was acting as a real estate broker in Florida with a required license. Some time later, the Respondent received notice that the case was being dismissed. It was not explained to the Respondent why the case was dismissed, but the Respondent assumed that what he was doing at the time was not illegal. The only significant changes in the manner in which the Respondent operates as sales manager for Artistic Homes are that, now, the entire sales staff is licensed, and the Respondent is designated, internally at least, as a corporate officer of Artistic Homes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) finding the Respondent, Harry Paul, guilty of acting as a real estate broker without the license required by Florida law; (2) ordering him to cease and desist; and (3) imposing a $1,000 administrative penalty. RECOMMENDED this 23rd day of November, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2861 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-2. Accepted and incorporated to the extent not subordinate or unnecessary. 3.-6. Accepted but subordinate and unnecessary. 7. Accepted and incorporated to the extent necessary. 8.-10. Accepted but subordinate and unnecessary. 11. Rejected as not proven. 12.-25. Accepted and incorporated to the extent not unnecessary or subordinate. Rejected in that he said $7,000, not "$7,000 to $8,000." Otherwise, accepted and incorporated to the extent not unnecessary or subordinate. Rejected in that he said commissions had been earned and were owed, not that they already had been paid to the salesperson. 28.-33. Accepted but subordinate and unnecessary. Accepted, but subordinate and unnecessary. (The witness did not know whether they they were discussing just construction, just lots, or both.) Rejected as not proven. (He was answering questions, not "discussing sales techniques.) 36.-50. Accepted but largely subordinate to facts found, and unnecessary. Incorporated to the extent not unnecessary or subordinate. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5. Accepted but subordinate and unnecessary. 6.-9. Accepted and incorporated. 10. Rejected in that the bonus percentage on the sale of lots has a $50 cap. Otherwise, accepted and incorporated. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Professional Regulation, Division of Real Estate Hurston North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Ray Shaw, Esquire 4090 Commercial Way, Suite 5 Spring Hill, Florida 34606 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue posed for decision herein is whether or not the action of the Commission in rejecting the Respondent-Applicant's real estate application should be sustained. Based on my observations of the witnesses and their demeanor while testifying, including the entire record compiled herein, I make the following:
Findings Of Fact On July 25, 1977, the Applicant filed with the Comission his application for registration as a real estate salesman. Question no. 9 of the said application inquired of the Respondent, (a) a list of the businesses or occupations in which you were engaged and the names and addresses of all persons or firms by whom you were employed, during the last five years before filing this application. Your employment information must be up to the present date, noting any periods of unemployment. In response thereto, the Applicant replied "none". Mrs. Patsy Owens Tronzo appeared and testified that she was the owner of Gallery Apartments until approximately January, 1977. She testified that she employed Respondent-Applicant, Munn, as manager of Gallery Apartments for approximately one year. According to the terms of the employment agreement which she entered with Munn, she provided him a free apartment for approximately two months. Thereafter he obtained approximately ten percent of the gross rentals from the apartments which amounted to gross earnings of approximately four hundred dollars per month. During this latter period when Munn received a salary of ten percent of gross rentals, he was not living in an apartment provided by Mrs. Tronzo. By letter dated March 23, 1978, Messr. Munn with permission of counsel for the Commission and the undersigned, submitted a written accounting of his reasons for not disclosing his employment relationship with Mrs. Tronzo. Essentially, his reason is that he was personally involved with Mrs. Tronzo for approximately two years during which period he offered her advice and assistance in her business activities. According to Munn, he provided numerous services for Mrs. Tronzo "as a gesture of friendship, without compensation which he did not feel that being her house guest should be considered compensation under the circumstances. Finally, he denied receiving a salary from her. 2/ Based on the totality of the evidence compiled herein, including the corroborative testimony of witnesses George Montgomery and Edward M. Kelly, real estate broker and broker salesmen in the area, I conclude that the weight of the evidence establishes that Mrs. Tronzo employed Respondent-Applicant Munn as manager of the Gallery Apartments on Peruvian Avenue in Palm Beach, Florida. For his services, he received compensation as testified to by Mrs. Tronzo.
Recommendation Based on the foregoing findings of fact and conclusions of law, I recommend that the Commission's order denying Respondent's application for registration as a real estate salesman be sustained. Additionally, and in view of the facts adduced herein, I further recommend that the Commission reconsider the Respondent's application when and if an updated application is submitted by Respondent-Applicant Munn disclosing the nature of his employment relationship with Mrs. Patsy Owens Tronzo. RECOMMENDED this 13th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact As of June 4, 1984, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided on the property. Some of those ten or more residents were Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, and Helen Sutton. As of May 25, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On May 25, 1986, Johnny Owens owned the mobile home in which he resided on leased Lot 10. As of October 28, 1986, ten or more spaces in Southwinds Mobile Home Park were being leased by individuals who owned the mobile homes in which they resided. On that date, Charles and Pauline Murphy owned the mobile home in which they resided on leased Lot 26. Upon paying the annual fee for southwinds Mobile Home Park, pursuant to Section 723.007 F.S., for the period of October 2, 1987 through October 1, 1988, Respondent Hugh D. Rowles, the park owner, advised Petitioner agency that he had dropped below ten lots available for rent. Respondent had reached this stage by simply not leasing out lots to new tenants as lots were voluntarily vacated by old tenants, and a natural attrition had occurred. The Petitioner's Fees Section accepted Respondent's word on the matter without further investigation, and Petitioner sent Respondent no more statements for the payment of the annual fee. In its business and public records, Petitioner listed Respondent and his park as not under jurisdiction of Chapter 723 F.S. On December 27, 1988, Respondent Rowles still owned Southwinds Mobile Home Park. As of that date, Beverly Leight, William Daniel, Frank Addison, Keith Hellstrom, Faye Koch, Helen Sutton, Johnny Owens, and the Murphys (8 tenants) were still residing in their respective mobile homes on the lots they were leasing from Respondent in Southwinds Mobile Home Park, as described supra. On that date, Leight, who had sold the park to Respondent in 1980, and Daniel, Addison, Hellstrom, Koch, and Sutton had been residents of Southwinds Mobile Home Park for at least three and a half years each; Owens had been a resident approximately two and a half years, and the Murphys had been residents approximately two years. In the park there were also some mobile homes owned' by Respondent which were rented as units--lot and mobile home together. To those individuals who owned their mobile homes and were leasing lots in Southwinds Mobile Home Park, Respondent sent a letter dated December 27, 1988, which provided in pertinent part: To those of you who own your own homes, I want to give you as much advance notice as possible. Sometime within the next few weeks, you will begin seeing land surveyors, soil testing people and others in the park. There is a VERY STRONG possibility that the property will be sold in JUNE of 1989. If and when the property is sold, there will NO LONGER be a trailer park here. It is STRONGLY SUGGESTED that you start making plans NOW for the removal of your trailer. If there is any way that I can assist you in relocating, I will be glad to help you. Until further notice, everything remains as usua1. After serving the letter f December 27, 1988, Respondent served the mobile home owners in Sothwinds Mobile Home Park with no other notice prior to June 1989. Faye Koch interpreted the letter of December 27, 1988 as requiring her to leave southwinds Mobile Home Park. Beverly Leight, on the other hand, understood it to mean that the park might be sold, but not that it definitely would be sold. In January 1989, Mr. Rowles offered Mrs. Koch $1,000 to leave the park by February 1, 1989. She moved out to a larger, better mobile home, after paying Respondent her overdue rent. Respondent rented the mobile home purchased from Mrs. Koch and the lot it was on, as a unit, to another person foil a short while. Rowles also purchased the mobile home of Keith Hellstrom for $1,000, which he likewise rented to someone else as a unit with his lot for a short time, He purchased Johnny Owens' mobile home for $1,000. Thereafter, Rowles sold each of these mobile homes at a loss. The Koch, Hellstrom, and Owens mobile homes were sold by Rowles for $100, $500, and $100, respectively. In March 1989, Respondent Rowles was contacted by a representative of Petitioner, apparently from the Enforcement Section, who had been contacted by Mrs. Leiht, and who advised Rowles of Petitioner agency's position that the tenancies of the remaining mobile home owners in Southwinds Mobile Home Park were subject to the protections of Chapter 723 F.S. Respondent advised Petitioner's representative that he did not regard his park as covered by Chapter 723 F.S. Respondent also requested Petitioner's representative to show Respond.ent that Chapter 723 FS was applicable to him and his park and advised the agency representative that, if he was subject to the agency's jurisdiction, he would comply. Respondent received no written response from the agency until the Notice to Show Cause was filed on July 18, 1989. On April 6, 1989, Respondent and his wife entered into a contract for the sale of the property comprising Southwinds Mobile Home Park to a third party. An addendum to the contract required Respondent to remove or pay for the removal of all personal property (that is, the mobile homes) located on the parcel upon being given thirty days notice from the third party buyer. The contract c6ntemplated that the property would continue to operate as rental property until the new owners elected to close it down or change its function. The closing on this contract for sale still had not occurred as of the date of formal hearing. The purchasers of the property comprising Southwinds Mobile Home Park have never given Respondent notice to remove any personal property from the park, nor has permitting of the property occurred such as would entitle the buyers to demand removal of such personal property. At the time Respondent entered into the April 6, 1989 contract for sale of Southwinds Mobile Home Park, only four mobile home owners were still leasing lots in the park. It may be inferred from the testimony as a whole that these were month to month tenancies. Respondent attempted to negotiate purchase of those four mobile homes. He did not suggest to any residents that they had any other options besides moving their mobile homes out of his park or selling them to him. Mrs. Leight held out for $2,500 and refused to move. She was joined in her refusal by Mr. Daniel, Ms. Sutton, and a Miss Warnock, all of whom were residing in their own mobile homes on Respondent's lots. On June 1, 1989, Respondent notified the fourmobile home owners remaining in Southwinds Mobile Home Park toremove their mobile homes no later than June 30, 1989. Thisnotification is in accord with the standards of Section 83.03(3)F.S. for month-to-month tenancies. At that point, Leight, Daniel, and Sutton were four-year residents There is noinformation as to Warnock's term of residency at southwindsMobile Home Park. On August 4, 1989, Respondent shut off waterservice to the mobile home owners remaining in southwinds MobileHome Park. As a result of Respondent's action, Beverly Leightwas compelled to move out of her mobile home in order to complywith health department requirements. In so doing, she incurredcosts of 4,486, for which she has not been reimbursed; however,she is one of the four remaining mobile homed owners (Leight,Daniel, Sutton, and Warnock) who left the subject property on orbefore October 30, 1989, pursuant to a stipulation with the Respondent whereby the Respondent deposited $10,000 with their attorney pending a judicial determination as to whether themobile home lot tenancies were governed by Chapter 723 or by Chapter 83, Parts II F.S. The Circuit Court action wherein the stipulation was filed had not yet resulted in such adetermination as of the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes enter a final order dismissing the Notice to Show Cause. DONE and ENTERED this 6th day of March, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4572 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-17, 19. Rejected as mere characterization of testimony and argument of counsel: 18 (with footnote) Respondent' s PFOF: Accepted: 1-3, 5-10, 12 Except for irrelevant, immaterial, subordinate or unnecessary material, the following PFOF are accepted: 4 Rejected as containing a conclusion of law: 11 COPIES FURNISHED: Eric H. Miller Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 F.A. Ford, Jr., Esquire Post Office Box-48 DeLand, Florida 32721-0048 E. James Kearney, Director Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 =================================================================
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
Findings Of Fact Petitioner is a real estate broker. After 18 years in the business in Michigan, Petitioner moved to Florida in August, 1988. After about one and one- half years working in residential real estate, Petitioner devoted his efforts exclusively to the sale of mobile homes. He soon began to specialize in the resale of mobile homes. In June 1990, Petitioner became self-employed and registered, or was required to register, as a dealer. He engaged in two types of mobile home sales: mobile homes with land and mobile homes without land. This case involves solely the sale of mobile homes without land. From June 20, 1990, through April 26, 1991, Petitioner was involved in the sale of 11 mobile homes without land, and these sales are the subject of the present case. In each transaction, Petitioner never took title or possession of the mobile homes; they remained on a rented lot in a mobile home park. In each transaction, Petitioner stated, on a notarized bill of sale, the sales price of the mobile home and the sales price of associated tangible personal property, such as sheds, carports, and furniture. The associated tangible personal property is typically referred to as "appurtenances." In most transactions, Petitioner listed the mobile home and found the buyer. At these closings, he collected a $2000 commission. In one transaction, which closed March 18, 1991, Petitioner did not secure the buyer, nor did he have the listing. The buyer and seller approached Petitioner and asked him to prepare the closing papers. In this case, Petitioner charged only $250. The sales price of this transaction was $18,900 with $7560 allocated to the appurtenances. The resulting additional tax liability was $453.60. In another transaction, Petitioner did not secure the buyer so he charged a reduced commission. In a third transaction, which closed April 5, 1991, Petitioner was not the listing agent, but agreed to prepare the closing documents because the listing broker was under sales tax audit and evidently did not wish to increase his potential liability. Only one more transaction followed the April 5 closing. The total sales price allocated to appurtenances in the 11 transactions is $145,280. The sales tax arising from these 11 transactions is $8716.80. On January 15, 1992, Respondent mailed to Petitioner a Notice of Intent to Make Sales and Use Tax Audit Changes. The notice sought to impose additional sales taxes of $8716.80, penalties of $2179.20, interest through said date of $1034.94, and per diem interest thereafter of $2.87. Respondent maintained this position through subsequent informal conferences. Petitioner acted in the capacity of a dealer in all transactions except the one on March 18, 1991, when he closed the transaction as an accommodation and charged a nominal fee. After deducting the sales tax on the appurtenances from the March 18 transaction, the remaining sales tax liability is $8263.20. There is no doubt that at all material times the Lee County Tax Collector's Office misinformed Petitioner and other dealers that they were not required to collect the sales tax on the casual sale of appurtenances in connection with the casual sale of a mobile home on a rented lot. However, there is no evidence that the Lee County Tax Collector's Office is an agent of Respondent. Petitioner failed to prove that Respondent misinformed him as to his liability as a dealer to collect the tax on the sale of the mobile home and appurtenances.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Revenue enter a final order assessing Respondent for $8263.20 in sales tax, plus interest, but waiving all penalties. ENTERED on October 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 18, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as subordinate. 4: adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence. 6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 8: adopted or adopted in substance. 9: rejected as subordinate. 10: rejected as subordinate and recitation of evidence. 11-13: rejected as subordinate and irrelevant. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as subordinate and recitation of evidence. 5: adopted or adopted in substance. 6-16: rejected as subordinate. 17: rejected as unsupported by the appropriate weight of the evidence. 18: rejected as subordinate. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 James G. Decker Decker and Smith, P.A. P.O. Box 9208 Ft. Myers, FL 33902-9208 Lealand L. McCharen Assistant Attorney General Department of Legal Affairs The Capitol--Tax Section Tallahassee, FL 32399-1050
The Issue Whether the Petitioner is entitled to an "in lieu" payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4622) as implemented by I. M. 80-1-71 and amended by P. M. 81-1.2.
Findings Of Fact Respondent, Florida department of Transportation, because of the proposed widening of State Road 61, Thomasville Road in Tallahassee, Florida, notified Petitioner in the spring of 1974 that the property on which the business was located was to be taken by the Respondent for road purposes. Petitioner was offered, but did not accept, relocation assistance to move his business to another location or to reimburse him in the amount that a never would charge. Other relocation assistance by the Respondent to find sites which would be appropriate for Petitioner's business was offered and four such sites were presented to Petitioner. Petitioner found the sites undesirable and has located a site at which he intends to move his business. Petitioner contends that the location on Thomasville Road is a good location; that he acquires "walk-in" business from time to time; that the sign on the building is of a type consistent with the limited type of advertising available to members of his profession and is beneficial to him; that the building he rents on Thomasville Road has additional space in which he at one time did rent to other interests, but which rental possibilities were foreclosed upon the general public knowledge that the Respondent would widen Thomasville Road and in the process remove the rental building. Petitioner operates his business from the location and shows that the operation of his consultant service is his sole business. The Petitioner filed for in lieu payments after refusing to accept relocation assistance for the moving of his business Petitioner contends: that nothing in the Act states or implies that a displaced person is required to accept relocation assistance if it is economically unsound; that the Respondent failed to sustain the burden of proof that Petitioner is not entitled to "in lieu" payment under the Act. Respondent contends: that the Petitioner failed to show he is entitled to "in lieu" payments under the Act; that the losses such as production costs, rental income, and advertising possibilities are not within the contemplation of the Act.
Findings Of Fact Respondents in this case are two corporations, Share-A-Homes of America, Inc., and Share-A-Concept, Inc., and an individual, James W. Gillies. Both corporate Respondents are nonprofit corporations which have now been merged under the name Share-A-Concept, Inc. Share-A-Concept, Inc., and its predecessor, Share-A-Homes of America, Inc., own or lease parcels of real estate in Orange County, Florida. These parcels of real estate consist of lots and homes built thereon. These homes are subsequently subleased by Respondent corporation (now Share-A-Concept) to the various Share-A-Homes associates for a rental equal to the rental or mortgage payment paid by SAC plus a surcharge of 1.5 percent This surcharge is accumulated and used for start-up expenses for other Share-A-Home facilities and to meet the deficits occurring from time to time in existing Share-A-Homes associations. The various Share-A-Homes associations are made up of the elderly residents of each home who live together in a home-like atmosphere and whose needs are provided for by a house manager who does the housekeeping, laundry, grocery shopping and cooking. Larger families may have additional staff, such as a maintenance man or a gardener. Each resident of a Share-A-Home pays a sum each month into a communal bank account which is opened in the name of that particular Share-A-Homes association. The amount paid each month is set initially by the general manager, Respondent Gillies. Changes are made from time to time as necessary, pursuant to a house meeting called by either Mr. Gillies or home residents at which a proposed increase or decrease is announced, discussed and voted on by the residents. Each separate residence's bank account is maintained by Respondent Gillies in his administrative office located in the Share-A-Home family residence located at 701 Driver Street in Winter Park, Florida. Respondent Gillies is neither an officer nor director of Share-A- Concept or its predecessor corporation, Share-A-Homes. He is currently serving as executive director for Share-A-Concept without pay. Among his duties are the setting up of various "homes" by locating a site, arranging for its rehabilitation and then serving as coordinator with various churches and civic leaders in order to attract residents into the facility. Respondent Gillies is paid to function as the general manager of all Share-A-Concept family homes by the individual homes. As such, he oversees the overall structure of the home, provides proper management training for the people who work there, oversees the financial management of all of the homes, signs checks for all of the homes, interviews prospective employees for all of the homes, insures the employees are properly trained and has discharge authority over these employees. He can be discharged to the residents of any given home. Assisting him in his duties are Ruth Michelman and Rosalee Garnsy. Ms. Michelman is a self-employed administrative contract worker for all seven Share- A-Home families. As such, she pays the bills out of the bank accounts of each family on which she is authorized to write checks (she maintains custody of all checkbooks), as are Mr. Gillies and Ms. Garnsy. The checks Ms. Michelman periodically receives from each family organization in payment for her services contain no deductions for withholding or Social Security. Respondent Gillies has the decision-making authority as to what salary each employee of the individual homes is paid, but does not, he says, supervise them. By the same token, he does not do the hands-on training, merely advising as to policy and concept. He contends the on-site managers at the various individual homes do the training and, he contends, he is not responsible for the day-to-day operation of the homes. It appears, however, that Respondent Gillies, Ms. Michelman and Ms. Garnsy in fact manage and run all the various homes operated under the Share-A-Home concept in Orange County. For example, if there is a major repair necessary, the various homes do not themselves arrange for the repair, but instead report the deficiency to Mr. Gillies or the "office," which in turn arranges for repair either by an independent repairman or through Mr. Earl Jackson, the husband of the house manager at the Driver Street facility who was himself employed by Mr. Gillies as the maintenance man and chauffeur for that "home." In fact, he has often been directed by Respondent Gillies to make repairs at other homes even though his paycheck is drawn on the account of the Driver Street Home. There are seven individual "homes" in the Orange County area. They are located as: 703 Greens Avenue, Winter Park-- 6 residents; 701 Driver Street, Winter Park-- 18 residents; 620 Driver Street, Winter Park-- 7 residents; 3201 Minnesota Avenue, Winter Park-- 11 residents; 5329 Egleston Avenue, Orlando-- 8 residents; 5300 Satel Drive, Orlando-- 10 residents; and 438 Plant Street, Orlando-- 18 residents. Residents enter the home when either the resident or his or her family member makes contact with either the office operated by Respondent Gillies or one of the homes' director. If there is an opening in one of the homes, it is looked at by the prospective resident and his or her family and, if satisfactory, the new resident moves in. Fees are ostensibly determined by a meeting of the family, and Respondent Gillies states he does not assist in the setting of fees. However, the testimony of residents indicate that though they think they have an active role in managing the individual homes and setting of fees, their participation generally takes the form of approving a "suggestion" made by Mr. Gillies or some other "independent contractor." When the fees set by this process are paid, the payments are made either to the home manager or to the general office of the Respondent Gillies where a deposit is made to the individual home account. In either case, however, the checkbook for that home is maintained by Respondent Gillies; and he, Ms. Michelman and Ms. Garnsy are the only individuals who can write checks on the account. When a resident enters one of the homes, there is no contract entered into between that resident and either the "family" which he or she will join or with Share-A-Concept, Inc. By the same token, there are no written agreements between the "families" and either Share-A-Homes formerly or Share-A-Concept now. There are, however, Articles of Association which govern each individual family. These Articles are basically identical for each home and were originally drawn up approximately 12 years ago by the first family organized under this concept. Once the prospective resident enters the home, he or she has 30 days within which to make up his or her mind as to whether or not he or she wants to remain. Mr. Gillies indicates that if a resident, having once joined the association, fails to make a payment assessed by the "family" when due, Share-A- Concept, Inc., would not take action. The initial or individual family would do so. That responsibility has been delegated to Respondent Gillies, who, as the general manager, is the one who is to file the eviction notice. There is no set fee for the residents of each home to pay. The actual amount paid depends upon income of the resident and other factors. Rent alone generally runs from $75 to $80 a month for each resident. For this, the resident gets food, laundry, transportation and a bed in what in most cases are double rooms in the home. Each resident must be ambulatory and able to take care of himself or herself. If the individual becomes incapacitated, he or she must leave, as no medical services are provided. In that regard, however, medicine prescribed by the individual resident's physician are made available to the patient by the staff members, who maintain control and custody of the medicines and who put them out for the patient to take himself or herself as required. Further, some house managers, though they are told not to administer medications, will assist individual residents in administering periodic injections of such things as insulin, etc. Notwithstanding the representation of Respondent Gillies that the individual staff members at the residences may be hired and fired by the residents at that particular home, and while one resident testified that she felt she had at least some say-so in the management of the home to the extent at least of being able to give approval to proposals offered by Mr. Gillies and or his staff, other testimony by former employees of the various homes tends to indicate somewhat to the contrary. For example, both Karen Tuttle and James Bonanno were hired by Mr. Gillies, transferred by Mr. Gillies and ultimately discharged by Mr. Gillies, Ms. Tuttle stated she was discharged because Mr. Gillies felt the work was too hard and the drive too far for a pregnant woman (Ms. Tuttle was pregnant at the time). When she went back to visit the families afterward, they told her that they had been told she had quit, which in fact was not the case. Mr. Bonanno, who worked at two of the residences in question, and as supervisor of ten residences for a period of time, was hired by Mr. Gillies in that capacity. His duties included visiting all houses to see if all was well. He did some of the consolidated meat buying (the individual home managers purchased the majority of the groceries with checks drawn on that home's account by someone at Mr. Gillies' office); and if there was a problem in any of the homes, he would let Mr. Gillies know. During the time he was with this organization, he did not recall any family ever having a meeting (there is evidence that family meetings were held); and when he was ultimately discharged, that actions was taken not by any of the families, but by Mr. Gillies, who stated that the homes could not afford him any more. On balance, then, it becomes clear that while Share-A-Homes of America, Inc., and Share-A-Concept, Inc., appear to have no participation in the provision of services or the operation of the homes in question, Respondent Gillies in fact does. It is obvious from the above that Mr. Gillies and the two other individuals who work with him in the office, while employed under what appears to be an independent contractor relationship, are in fact the management team, headed by Respondent Gillies, for all the "homes" in this area which bear the title "Share-A-Home".
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That Respondent James W. Gillies be reprimanded; that he pay a fine of $50 for each home managed by him, to be suspended upon proof of licensure of the homes; and that, as general manager for all Share-A-Concept homes in Orange County, Mr. Gillies undergo licensure action for each of the facilities currently operated under his supervision. 83-336, 83-2313 RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983. COPIES FURNISHED: Douglas E. Whitney, Esq. Gerry L. Clark, Esq. Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Leslie King O'Neal, Esq. Post Office Drawer 1991 Orlando, Florida 32802 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Angela Tarina Lee was residing at 3182 15th Avenue South on July 7, 1977. Lee leased this single family residence. Subsequently Lee ceased residing at 3182 15th Avenue South and began to reside at 622 13th Avenue South. Lee had the utilities discontinued at 3182 15th Avenue South and paid for the utilities at 622 13th Avenue South. According to Lee's testimony, Lee spent the nights at 622 13th Avenue South but returned during the day to 3182 15th Avenue South where her clothes and belongings were. At approximately this time, Lee ceased paying her rent on 3182 15th Avenue South, and Lee stated that her clothes and other belongings were stolen from that location. Initial negotiations with the landlord began in November, 1977. Shortly after initial negotiations began, the right of way agent attempted to contact Lee at 3182 15th Avenue South. The right of way agent attempted to conduct an inventory and was unable to contact Lee at that address and did not find evidence of any of her belongings at that location. After receiving written notice several days after the initial negotiations with the landlord began, Lee contacted the Department of Transportation and inquired about her rights Thereafter, she paid her back rent through December, 1977.
Recommendation Based upon the foregoing findings of fact and conclusions of law the Hearing Officer would recommend that the Department of Transportation deny the appeal of Angela Tarina Lee from the Department's decision to deny her relocation benefits. DONE AND ORDERED this 29th day of June, 1978, in Tallahassee, Florida. Hearings STEPHEN F. DEAN Hearing Officer Division of Administrative 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marc A. Tenny, Esquire 8855 Ninth Street, North St. Petersburg, Florida John Rimes, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida
