The Issue The issue in this case is whether Respondent, Hawaiian Inn Beach Resort, COA (the “Resort”), discriminated against Petitioner, Hanan Aysheh, on the basis of her national origin and/or handicap, in contravention of the Florida Fair Housing Act.
Findings Of Fact Hanan Aysheh (also known as Nikki) is a woman of Palestinian descent who is a United States citizen, having been born in California. She also claims a disability, post- traumatic stress disorder (PTSD), but did not provide any documentary proof for that assertion at final hearing. The Commission’s Determination of No Cause report includes reference to a medical document submitted to the Commission by Ms. Aysheh, but neither the medical document nor any other supporting evidence was introduced at final hearing. Based upon the ultimate finding herein, Ms. Aysheh will be presumed to have a disability for purposes of this Recommended Order. No persuasive evidence was presented that the Resort had any knowledge of Ms. Aysheh’s alleged PTSD. The Resort is a Florida condominium owners’ association that operates and maintains the common areas of the property known as the Hawaiian Inn. The Hawaiian Inn is located at 2301 South Atlantic Avenue, Daytona Beach, Florida. It consists of a five-story building containing 208 condominium units of different sizes, a large swimming pool and deck, and a parking lot. The units are privately owned by individuals rather than by the Resort. An overseer, John Witherow, loosely manages the property and maintains communications with a hired company which provides safety and security around the premises. The Resort provides a rental office on the ground floor where some 80 of the privately owned units are rented out to interested individuals on a short-term basis, much like a hotel. The other units are leased out by their owners directly to third-party lessees; the Resort does not get involved in the lease arrangements. Unit 323 at the Resort is owned by the Owners, who reside in Jensen Beach, Florida. Unit 323 is a small, efficiency apartment-style residence. Mrs. Caroline Dunn is employed as a housekeeper by several people who own units at the Hawaiian Inn, including the Owners. She will sometimes agree to act as an informal agent for the owners of units who want to lease them to third parties. She is not a licensed real estate agent and does not receive remuneration for her “agent” services. Mrs. Dunn and her husband are paid $50 each time they clean one of the units, but receive no other compensation related to the units. In August 2015, Ms. Aysheh approached Mrs. Dunn about the possibility of leasing a unit at the Resort. Mrs. Dunn checked with the Owners, who said they would rent Unit 323 for $1000 a month, with a term of August 15 through November 15 (or, possibly, December 15), 2015. No security deposit or other security was requested by the Owners. Ms. Aysheh, who had just lost her previous living arrangements, was excited to find the unit and was ready to move in immediately. Neither party prepared or offered a written contract or lease to express the agreed terms for rental of the unit. Ms. Aysheh testified that after negotiating this arrangement with Mrs. Dunn, Mrs. Dunn inquired about Ms. Aysheh’s nationality. (Ms. Aysheh has dark hair, olive skin, and Middle Eastern features.) When she replied that she was Middle Eastern, Mrs. Dunn allegedly responded, “Well, you’re not going to start blowing shit up are you?” Ms. Aysheh said she was so shocked by the comment that she did not immediately respond, but then just said, “No.” Mrs. Dunn laughed and left, presumably with an agreed oral rental agreement in place. About 20 minutes later, Ms. Aysheh says that Mrs. Dunn sent her a text message saying that the Owners now wanted $2000 per month for the unit and required a $500 deposit before she could move in. Mrs. Dunn denies ever saying such a thing and the evidence does not support the accusation; after all, Ms. Aysheh moved into the apartment as planned, with a rental amount of $1000 per month. Mrs. Dunn and/or the Owners allowed Ms. Aysheh to move in on the thirteenth of August rather than the fifteenth, the first two days free of charge. When Ms. Aysheh came to move in on the thirteenth, she told Mrs. Dunn she only had $500 and so she could pay for only half of the month. Mrs. Dunn contacted the Owners to report this fact. There is some, but not sufficient, evidence that the Owners at that point said the lease price would be raised to $2000 per month. Even if so, Ms. Aysheh was ultimately allowed to move in and pay $500 for the remainder of August, with $1000 due on September 1 for the next month’s rent. Ms. Aysheh moved into the unit under those conditions. When she moved in, Ms. Aysheh was given one or two “long term” parking permits, issued to persons who rented units at the Hawaiian Inn from private owners. Mrs. Dunn remembered Ms. Aysheh asking for several more parking permits, but no competent evidence was presented to prove how many permits Ms. Aysheh was given (and it is totally irrelevant to the issues herein anyway). As the rent for September was coming due, Mrs. Dunn contacted Ms. Aysheh via text on August 28, 2015, to remind her. Mrs. Dunn suggested Ms. Aysheh make the rent payment on August 31, 2015, but Ms. Aysheh replied that she would be out of town that day. Mrs. Dunn said that it would be okay to deliver payment on September 1, but Ms. Aysheh remembered telling Mrs. Dunn that September 1, 2015, was a holiday (although the Labor Day holiday in 2015 was actually celebrated on September 7, the first Monday of the month that year). Ultimately, Mrs. Dunn’s husband, Mr. Dunn, told Ms. Aysheh he would come by the unit to pick up the check on the fourth, a Thursday. Mr. Dunn also agreed to bring a receipt of some kind to acknowledge the payment. Ms. Aysheh maintains that the rent check was always due on the fourth anyway because her Social Security disability check arrived in her checking account on the third day of each month. She remembered clearing that date (the fourth) with Mrs. Dunn and/or the Owners during the initial conversation regarding the unit. Mrs. Dunn does not remember that being discussed; the Owners did not testify at final hearing. Prior to September 4, 2015, Mr. Dunn advised the Owners that a plumber was coming to do work on the unit. Because the plumbing work was a cost to the Owners, they instructed Mr. Dunn to use the proceeds from Ms. Aysheh’s payment to cover the plumbing cost. Mr. Dunn told the Owners that Ms. Aysheh was planning to make her payment on September fourth, so the money might not be available when the plumber arrived. The Owners told Mr. Dunn that Ms. Aysheh needed to pay her rent immediately so the money would be available to pay the plumber. On September 3, Mr. Dunn contacted Ms. Aysheh to tell her she must pay her rent immediately after all. Ms. Aysheh said Mr. Dunn refused her offer of payment that same day at 6:30 p.m. Mr. Dunn said that Ms. Aysheh told him at that time that she had put the rent money into an escrow account. But inasmuch as Ms. Aysheh said that her money was not deposited into her account until midnight on the third day of each month, it is unlikely she was able to offer payment to Mr. Dunn or that she placed the money in an escrow account on that day. In fact, Ms. Aysheh’s own exhibit shows that $1000 was placed in a Wells Fargo Bank account on September 4, 2015. The assertion by Ms. Aysheh concerning escrow of the rent payment led Mr. Dunn to believe she was trying to avoid paying the rent. When Mr. Dunn advised the Owners of this fact, they directed him to tell Ms. Aysheh to vacate the premises immediately. So Mr. Dunn planned to show up on September 4, 2015, as planned, but for the purpose of telling Ms. Aysheh to leave the unit rather than to pick up her rent check. Mr. Dunn asked Ms. Sheriffe, a contracted on-site security guard, to accompany him to the unit and “observe” while he talked to Ms. Aysheh. Ms. Sheriffe did not know what Mr. Dunn was going to tell Ms. Aysheh, only that he wanted a witness to the conversation because Ms. Aysheh was a single woman and he did not want anything misconstrued. Ms. Sheriffe went with Mr. Dunn but did not get involved in the discussion; she simply heard Mr. Dunn tell Ms. Aysheh she had to move out of the unit. Ms. Aysheh did not object nor did she ask to pay the rent at that time so that she could stay in the unit. She did not mention the escrowed funds at that time. Ms. Aysheh did ask if she could have until 3:00, about four hours, to remove her belongings and Mr. Dunn agreed. Ms. Aysheh then began moving her property out of the unit. Ms. Sheriffe went about her duties, but came back later to see that Ms. Aysheh was indeed moving out of the unit. The process took almost the entire four hours. Later, Ms. Sheriffe spoke with the building manager, Mr. Witherow, about what had happened at Unit 323. She had no previous discussions with Mr. Witherow about the situation. Ms. Aysheh vacated Unit 323 and had no further direct contact with the Owners, the Resort, or the Dunns. There was no competent evidence presented that the Resort was in any fashion aware of the arrangement between Ms. Aysheh and the Owners nor that the Resort was involved in the process at all. The only contact by Ms. Aysheh with the Resort was a short telephone conversation with Mr. Witherow after she had been told to vacate the unit. Mr. Witherow told Ms. Aysheh there was nothing the Resort could do; the dispute was between her and the Owners. Upon hearing that, Ms. Aysheh became upset and terminated the phone call. Ms. Aysheh’s exhibits must be addressed: Exhibit 1 purports to be screen shots of alleged texts between Ms. Aysheh and Caroline and/or Richard Dunn. The alleged dates and times of the texts are handwritten on the copied screen shots, but there is no persuasive evidence that the dates and times are correct. The individual texts are disjointed and there is no way to verify whether they were modified or are complete. Nor do the texts support either party’s position in this matter in any substantive way. Exhibit 2, the banking account summary, shows only that Ms. Aysheh put $1000 into a Wells Fargo Bank checking account on September 4, 2015, and removed the funds on September 9, 2015. While that fact may somewhat support Ms. Aysheh’s contention that she put her rent payment into escrow, it does not explain why that money was not offered to pay rent on September 4 as she had agreed to do. The exhibit does not indicate the time of day the money was deposited. Exhibit 3 is a hearsay document, i.e., the Commission’s No Cause Determination, which supports the Resort’s position more than it supports Ms. Aysheh. The short-term lease between Ms. Aysheh and the Owners was an oral agreement. The Resort was not a party to the agreement and had no prior knowledge of its terms and conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hanan Aysheh in its entirety. DONE AND ENTERED this 22nd day of December, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Hanan Aysheh Unit 1411 2800 North Atlantic Avenue Daytona Beach, Florida 32118 D. Michael Clower, Esquire Suite 204 224 South Beach Street Daytona Beach, Florida 32114 (eServed) David B. Russell, Esquire Law Offices of Pappas, Russell and Rawnsley 213 Silver Beach Boulevard Daytona Beach, Florida 32118 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue On February 28, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued a Notice To Show Cause to Robert O'Brien (O'Brien) alleging that O'Brien violated Section 326.006(2)(e)7, Florida Statutes. Specifically, O'Brien was charged with allowing an unlicensed person to attempt to sell a 52' Hatteras known as "Watermellon" on behalf of O'Brien Yacht Sales. The issue is whether this violation occurred and, if so, what penalty is appropriate. On May 15, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued an Amended Notice To Show Cause to David Sandmann (Sandmann) alleging that Sandmann violated Section 326.004(1), Florida Statutes. Specifically, Sandmann was charged with offering or negotiating to sell a 52' Hatteras, known as "Watermellon". The issue is whether this violation occurred and, if so, what penalty is appropriate. RULINGS ON PETITIONER'S EXCEPTIONS TO ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT Petitioner filed an exception to the Administrative Law Judge's Finding of Fact number 15. Section 120.57(1)(j), Florida Statutes, states that: The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence. A thorough review of the record has been made. The Division adopts and incorporates by reference the first sentence of the Administrative Law Judge's Finding of Fact number 15. Petitioner's exceptions to the remainder of Finding of Fact number 15 are accepted because the remainder of the Administrative Law Judge's Finding of Fact number 15 is not supported by competent substantial evidence. The second sentence, "The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat." is rejected because, the Petitioner presented testimony which proved that Sandmann: offered "to help" the Division investigators when they approached the boat. (T. 20, 38-39). gave the Division investigators a business card with his name and O'Brien Yacht Sales, Inc. written on it. (T. 19, 38-19, 52)( P's Exh. 2) gave the Division investigators a spec sheet containing information about the boat. (T. 21, 32, 39, 52). (P's Exh. 3). told the Division investigators that the price of the boat was negotiable. (T 22, 29-30, 39-40, 52). told the Division investigators that the commission would be paid by the seller. (T 21, 22, 29-30, 32, 34, 40, 43) had a copy of a blank sales contract faxed to him (from O'Brien Yacht Sales, Inc.) at the boat show. (T. 22- 23, 41, 52) Also at Recommended Order, page 5, paragraphs 9, 10, 11 and 12. Additionally, there was no competent substantial evidence to support the Hearing Officer's Finding of Fact that Respondent Sandmann was not offering or negotiating to sell the boat, because these actions were uncontroverted. Respondent Sandmann never denied that he was offering or negotiating to sell the boat. Furthermore, the sentence in question is not a Finding of Fact, but rather a Conclusion of Law. The Administrative Law Judge's characterization of this as a Finding of Fact, does not make it so. In Hernicz v. State Dept. of Professional Reg., 390 So.2d 194 (Fla. 1st DCA 1980), facts were undisputed that a nurse practitioner had done certain acts, and when the Board concluded that the actions were a violation of the statute, the court held that that amounted to a Conclusion of Law and not a Finding of Fact. The "facts" were the individual actions that were taken by the Respondent, whether these acts violated the statute was a Conclusion of Law. As stated above, the acts, themselves, in this case were neither denied nor disputed. The second sentence in Finding of Fact number 15 is stricken in its entirety. The third sentence in Finding of Fact number 15 states that "[I]t is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts". The "expectation of receiving compensation" was the argument relied on by the Respondents at hearing as their defense to participating in the boat show. Because "compensation" is an integral part of Chapter 326, Florida Statutes, its interpretation should be left to the expertise of the agency. It is a well settled principle that the interpretation of a statute by the agency responsible for its enforcement is entitled to great weight, and will not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); Shell Harbor Grou, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). The Division believes that "compensation" can be other than a monetary commission, as claimed by Respondents. "Compensation" can be "perks" such as transportation or use of a house or yacht, or something intangible, such as friendship and affection. The existence of a quid pro quo is what is looked for. Furthermore, from a thorough reading of the record, it was proven by substantial competent evidence that a commission was anticipated being paid, because Petitioner's investigators were told that "the commission would be paid by the seller". (T 21, 22, 29-30, 32, 34, 40, 43). Possibly, no monetary commission was paid to Sandmann, because the yacht did not sell. Regardless, the Division finds that the friendship between Mr. Mellon and Sandmann was adequate compensation under Chapter 326, Florida Statutes. The third sentence of Finding of Fact number 15 is stricken in its entirety. The fourth sentence, "Respondent Sandmann was at the Boat Show and on the `Watermellon' solely as a friend of Mr. Mellon, the owner", is also rejected. The Division does not dispute the long standing friendship of Respondent Sandmann and Mr. Mellon, however being someone's "friend", does not exempt them from Chapter 326, Florida Statutes. There was uncontroverted testimony that Respondent Sandmann was offering or negotiating to sell the boat. That is all that is necessary for him to be within the jurisdiction of the Division, and require him to have a license. Although his friendship could be his motivation or compensation for being on the yacht, his actions, while there, show that he was offering or negotiating to sell the "Watermellon". The fourth sentence of Finding of Fact Number 15 is stricken in its entirety. RULINGS ON PETITIONER'S EXCEPTION TO ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS OF LAW Petitioner filed an Exception to Conclusion of Law number 23 contained in the Recommended Order. This conclusion stated that the Petitioner had failed to meet its burden as to Sandmann because it failed to establish that he was attempting to sell the yacht, and, if the case against Sandmann failed, then the case against O'Brien failed. The Division rejects this Conclusion of Law because it believes that Petitioner proved by substantial competent evidence that Sandmann was offering or negotiating to sell the "Watermellon", and that friendship is adequate compensation.
Findings Of Fact Petitioner is the agency of the State of Florida that administers and enforces the Florida Yacht and Ship Brokers' Act, Chapter 326, Florida Statutes. At all times pertinent to this proceeding, Respondent O'Brien has been licensed as a Yacht and Ship Broker pursuant to the provisions of Chapter 326, Florida Statutes. Respondent O'Brien owns and operates O'Brien Yacht Sales. Respondent O'Brien resides in and has his principal place of business in Palm Beach County, Florida. Mr. Sandmann is a resident of Essex, Connecticut. He has never been licensed as a yacht salesman or as a yacht broker. Mr. Sandmann makes his livelihood as the owner of a dog collar manufacturing business. Henry Mellon, the boat's owner, held a salesman's license issued by Petitioner that expired in August 1994. At the times pertinent to this proceeding, Mr. Mellon was not licensed by the Petitioner. Respondent Sandmann, Respondent O'Brien, and Mr. Mellon have been close friends for many years. Mr. Mellon formerly worked for O'Brien Yacht Sales. Mr. Mellon and Respondent Sandmann are old friends from college. The Fort Lauderdale International Boat Show permitted only new yachts or brokered yachts. Individuals were not supposed to sell boats in this show. Respondent O'Brien was aware of this restriction. In October 1995, Respondent O'Brien had the boat "Watermellon" displayed and listed for sale at the 36th Annual Fort Lauderdale International Boat Show. The asking price for the sale of the Watermellon was $425,000. Mr. Mellon is neither an officer or a director of O'Brien Yacht Sales. Mr. Mellon signed a form styled "Application and Contract for Exhibit Space" so that the Watermellon could be exhibited at the boat show and on this application represented that he was a vice president of O'Brien Yacht Sales. Neither Respondent O'Brien or his company paid to put the Watermellon in the Boat Show and neither expected to receive any commission from the sale of the Watermellon. Respondent O'Brien was acting out of friendship with Mr. Mellon. 1/ On October 27, 1995, Peter Butler and Robert Badger, in their official capacities as employees of the Petitioner, attended the Boat Show and went to the Watermellon. They observed a sign on the back of the boat that advised that the boat was being offered by O'Brien Yacht Sales and gave its telephone number. Mr. Butler and Mr. Badger approached the boat and asked a person, later identified as Respondent Sandmann, whether Respondent O'Brien was aboard. Respondent Sandmann told Mr. Butler and Mr. Badger that Respondent O'Brien was not aboard, asked if he could help them, and gave them a business card with his name and the name of O'Brien Yacht Sales on it. No licensed salesman was on board at this time, but Mr. Mellon, the owner of the boat, was aboard. 2/ Respondent Sandmann gave Mr. Butler and Mr. Badger a copy of a printed sheet containing basic information about the Watermellon. This sheet, referred to as a spec sheet, contained errors that Respondent Sandmann verbally corrected when he gave them the sheet. In response to questions, Respondent Sandmann told Mr. Butler and Mr. Badger that the price of the boat was negotiable and that the commission would be paid by the seller. Mr. Butler and Mr. Badger asked Respondent Sandmann if they could see a copy of the contract that a buyer would need to sign if he purchased the boat. In response, Respondent Sandmann contacted the O'Brien Yacht Sales office and had someone fax to him a copy of the contract used by O'Brien. Respondent Sandmann then gave the form contract to Mr. Butler and Mr. Badger. The business card given by Respondent Sandmann to Mr. Butler and Mr. Badger was printed in 1994 when Respondent Sandmann, who is fluent in French, Spanish, and Italian, accompanied Mr. Mellon to a boat show in Europe. Mr. Butler and Mr. Badger did not inquire as to the amount of the commission that would have been paid by the seller of the Watermellon because Petitioner does not regulate commissions. None of Respondent Sandmann's acts, when considered individually, required a license from the Petitioner. 3/ The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat. It is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts. Respondent Sandmann was at the Boat Show and on the Watermellon solely as a friend of Mr. Mellon, the owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order as to these consolidated cases that dismisses the charges filed against these respondents. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 27th day of August, 1996.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of the Florida Condominium Act (Chapter 718, Florida Statutes) and, if so, whether a cease and desist order and/or civil fine should be imposed. Petitioner contends that the allegations of the Notice to Show Cause have been established and that a cease and desist order and civil fine are appropriate. The Respondent contends that to the extent any violations of the Act have been established, they are only of a technical sort, and do not justify the imposition of any sanction.
Findings Of Fact Nautico Bay Club, Inc., is the developer of the Nautico Bay Condominium, located at 6937 Bay Drive, Miami Beach, Florida. At all times material to this proceeding, Samuel Weintraub was the president of Nautico Bay Club, Inc., and was primarily responsible for conducting its day-to-day business activities. The Nautico Bay Club Condominium includes 48 residential units. The first units were sold on December 1, 1980. The final closing on the 48 units occurred on December 31, 1980. The Respondent failed to call an annual meeting of the unit owners at Nautico Bay Condominium during 1981. The Respondent was having some difficulty communicating with some of the unit owners because they lived outside of the country. Nonetheless, the Respondent did not give written notice to unit owners of an annual meeting during 1981, did not post notice of an annual meeting during 1981 on the condominium property, did not send a notice of an annual meeting during 1981 by mail to each unit owner, and did not retain a post office certificate of mailing as proof of mailing of notice to unit owners. No annual meeting of unit owners was conducted during 1981. As the developer who maintained control over condominium activities during 1981, the Respondent was obliged to call and conduct an annual meeting of unit owners. The Respondent retained a private public accounting firm to prepare a financial statement for the Nautico Bay Club Condominium for the year ending December 31, 1981. The statement was completed on February 10, 1982. The Respondent remained in charge of the administration of the condominium association at that time. The Respondent made no effort to provide copies of the financial statement by mail or personal delivery to each unit owner. While some unit owners may have obtained copies of the financial statement within 60 days of December 31, 1981, most did not. At least one unit owner did not receive a copy of the financial statement until sometime in November, 1982. On or about September 17, 1982, the Respondent turned over operation of the condominium association to the Nautico Bay Club Condominium Association. The Respondent's president, Mr. Weintraub, offered to have the financial records reviewed by the independent certified public accounting firm that he had utilized in the past. The unit owners protested and asked instead that he pay to have the documents reviewed by a firm of their choosing. The Respondent did not have the financial records and statements reviewed by an independent accounting firm. He offered to have them reviewed by the firm he had utilized in the past, but the unit owners declined that offer. In the prospectus that the Respondent offered to potential unit purchasers, an estimated monthly operating budget and an estimated annual operating budget for the condominium, and an estimated monthly operating budget and an estimated annual operating budget per unit were set out. No other proposed budget was issued for 1981, nor does it appear that one was required, since the first persons who purchased units did not do so until December, 1980. No proposed annual budget of common expenses was prepared for the 1982 calendar year. Instead, the Respondent merely utilized the estimated budgets that had been set out in the prospectus. These were never, however, presented as a proposed annual budget for 1982. The Respondent did not provide as a part of its budgets for 1981 or 1982 for reserve accounts for capital expenditures and deferred maintenance. Accounts were not established to reserve funds for roof replacement, building painting, pavement resurfacing, and the like. The estimated replacement costs of such items were not a part of any budget prepared by Respondent. The funds were neither established nor funded by the Respondent. Mr. Weintraub testified that the reason the accounts were not established is that he had difficulty collecting assessments from unit owners. It does not appear, however, that the Respondent made any effort to collect assessments from unit owners, nor that the accounts were established with such funds as could have been collected.
Findings Of Fact Respondent Hortensia H. Smith is a licensed real estate broker having been issued license number 82346. By written agreement dated December 10, 1975, Respondent was employed by Brickell Bay Club, Inc., a condominium developer, as part of its sales staff on weekends only to sell new condominium apartment units. In March of 1976, a new agreement between Respondent and Brickell Bay Club, Inc., was entered into whereby Respondent was given the right not only to sell new condominium units but also to resell and to rent other units in the complex. Respondent then began working full-time in the Brickell Bay Club sales office. Brickell Bay Club, Inc., allocated three percent of the sales price of the new condominiums to be distributed in the following manner: one-third to Respondent, one-third to the developer as rental for the space occupied by Respondent on the premises (this money to be placed in escrow), and one-third to be distributed one-half to the sales staff and the other one-half to be placed into an escrow account to be divided between Respondent and Brickell Bay Club, Inc. Respondent prepared all records regarding sales and rentals effectuated through the sales office, established the "escrow account" called for by the March, 1976 agreement, and met with the president of Brickell Bay Club, Inc., approximately once a month to go over a monthly schedule prepared by her reflecting commissions earned by and expenses incurred by the sales office. At no time did Respondent provide the records upon which her general heading schedules were prepared, and at no time did Respondent present itemization of the general headings carried on her schedule, such as the line item called expenses. Periodically, Brickell Bay Club would pay to Respondent commissions earned. The April, 1978, Brickell Bay Club, Inc., had sold all of its intended units in the Brickell Bay Club condominium. Having fulfilled its business purpose, Brickell Bay Club, Inc., sold its assets to J. M. F. Corporation and ceased doing business. As J. M. F. Corporation had determined to sell certain hotel room suites and commercial spaces not intended to be sold by Brickell Bay Club, Inc., J. M. F. Corporation assumed the agreement with Respondent concerning the payment of rent and the distribution of the escrowed money during the time that the additional sales would be made. At the beginning of September, 1979, J. M. F. Corporation requested Respondent to vacate the office space she had been occupying, since there was no longer any need for a sales office. J. M. F. Corporation also made demand on Respondent to turn over to J. M. F. the accrued rental payments due J. M. F. of approximately $51,000. This amount was claimed since it was the amount shown to be due on the schedule prepared by Respondent at that time. Respondent refused to vacate the premises and refused to turn over to J. M. F. Corporation the monies being held in escrow by her for J. M. F. Corporation. On September 14, 1979, the attorney for J. M. F. Corporation sent Respondent a demand letter. Respondent refused to vacate the premises and refused to turn over to J. M. F. Corporation the escrowed monies. J. M. F. Corporation filed a civil action seeking eviction of Respondent from premises owned by it and seeking payment by Respondent of the escrowed $51,000. As a result of the discovery proceedings engaged in by J. M. F. Corporation and Respondent in that civil action, it became clear that Respondent owed substantially more than the $51,000 initially claimed. During the trial of that action, the case was settled, and Respondent paid to J. M. F. Corporation the sum of $97,909. The $97,909 paid by Respondent to J. M. F. Corporation represented accrued rents and the developer's share of commission, both of which sums under the terms of the March, 1976 agreement were to have been held in escrow from time of receipt until disbursement. The discovery engaged in in the civil litigation between Respondent and J. M. F. Corporation also revealed that Respondent had no escrow account. She had one bank account related to her activities at Brickell Bay Club, which was used as a general operating account. Respondent never rendered to either Brickell Bay Club, Inc., or J. M. F. Corporation an accounting as to their monies which she was holding in escrow. Respondent has admitted that she refused to vacate the premises at Brickell Bay Club when demand was made on her to do so. Respondent has admitted that she owed $51,000 to J. M. F. Corporation at the time that demand was made on her to turn over those escrowed monies. Respondent has admitted that she never rendered to anyone an accounting of the monies in her alleged "escrow account." Respondent admits that she operated an unregistered branch office at the Brickell Bay Club, 2333 Brickell Avenue, Miami, Florida, from March, 1976 to December 2, 1977. Respondent admits that she prepared and submitted a 1099 form to the Internal Revenue Service for the year 1978, which indicated that Respondent had paid to J. M. F. Corporation the sum of $72,741 when no such money was every paid to J. M. F. Corporation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of the allegations in the Administrative Complaint and permanently revoking her license as a real estate broker under the laws of the State of Florida. DONE and RECOMMENDED this 13th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 46 SW 36th Court Miami, Florida 33135 Manuel E. Oliver, Esquire 29 East Sixth Street Hialeah, Florida 33010 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980). Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income. Evidence of this practice dates back to June 8, 1978. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows: April 4, 1979 Ms. Pat Bourguin Post, Buckley, Schub and Jernigan, Inc. 7500 Northwest 52nd Street Miami, Florida 33166 Dear Ms. Bourguin: Martin Margulies A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities. Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office. Sincerely, Daniel S. Meisen Administrator Operations Section Bureau of State Lands DSM/11m cc: DER West Palm Beach Health Department The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's: March 24, 1980 David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Re: Grove Isle Marina Dear David: Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources. It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14, F.A.C. and Chapter 253.03, F.S. (1979). This position is based on the proposition that riparian rights attached to a single condominium unit purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease. Sincerely, Henry Dean Assistant Department Attorney Division of State Lands HD/le Enclosures cc: Elton J. Gissendanner Richard P. Ludington On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that: Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . . Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815. DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.
