The Issue Whether the Petitioner, H.A.P. Partnership, has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. The Petitioner, H.A.P. is a general partnership. The partners of the Petitioner are Billy G. and Jeanette Smith, Earl and Marie Womble, Mr. W. H. Sharp, Larry and Hilda Strom and Charles and Margaret Fulton. The Petitioner's address is 5174 Maddox Road, Tallahassee, Florida. In May, 1985, the Petitioner purchased approximately 3.1 acres of land, Tax Identification No. 21-04-20-409 (hereinafter referred to as "Parcel 1"). Parcel 1 is located at 4015 North Monroe Street, Leon County, Florida. At the time of purchase by the Petitioner, Parcel 1 was zoned R-3, single and two-family residential. Under R-3 zoning, a maximum of 7.2 units per acre of land could be constructed. Parcel 1 was purchased by the Petitioner from Billy Hatcher. In December, 1986, the Petitioner purchased an adjoining parcel of property consisting of approximately 3.5 acres, Tax Identification No. 21-04-20- 408 (hereinafter referred to as "Parcel 2"). Parcel 2 is located at 3969 North Monroe Street, Leon County, Florida. Parcel 2 was zoned R-3 at the time of its purchase by the Petitioner. Parcel 2 was purchased by the Petitioner from Marie Bannerman. Development of the Property; Prior to the Petitioner's Purchase. The previous owner of Parcel 1, Billy Hatcher, had retained Poole Engineering to develop plans for site location on Parcel 1, of multi-family dwellings. A stormwater management permit, number 4241, was issued by Leon County to Mr. Hatcher on June 25, 1984. Mr. Hatcher also obtained a permit from the State of Florida Department of Transportation for a driveway onto Parcel 1 from North Monroe Street. The permit was approved June 12, 1984. No permits were obtained from Leon County or any other entity for Parcel 2 prior to the Petitioner's purchase of Parcel 2. The Petitioner relied upon the zoning on Parcel 1 and 2 and the permits that had been issued with regard to Parcel 1 at the time that the Petitioner purchased Parcel 1 and Parcel 2. Parcel 1 and 2 would not have been purchased otherwise. Development of the Property; Subsequent to the Petitioner's Purchase. In November, 1987, the Petitioner retained PVC Corporation to plan the development of Parcel 1 and Parcel 2 (hereinafter referred to as the "Property"), and to provide project management services for the development of multi-family residences on the Property. Consistent with R-3 zoning, PVC Corporation proposed a development consisting of 42 units on the 6.6 acres of the Property. In the Summer of 1989, the Petitioner sought a change in zoning for the Property. The Petitioner's request to have the Property zoned commercial was denied by Leon County. No permits were obtained from Leon County or any other entity for the Property subsequent to the Petitioner's purchase of the Property. Except for the stormwater management permit, no other permits were obtained from Leon County by the Petitioner and no request for building permits, plots or site plans were submitted to Leon County. Development of the Property was not commenced by the Petitioner. Alleged Change in Position or Obligations and Expenses Incurred. The total purchase price for Parcel 1 was $156,000.00. The total purchase price for Parcel 2 was $110,000.00. The Petitioner paid a total of $106,572.87 in interest on the Property, $15,109.67 in real property taxes and $2,300.00 in engineering fees. Vadden Shadden, M.A.I., appraised the Property on January 18, 1988, prior to the effective date of the 2010 Comprehensive Plan, at a value of $417,500.00. On November 3, 1990, Mr. Shadden appraised to value of the Property to be $41,750.00, taking into account compliance with the 2010 Comprehensive Plan. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as Lake Protection Land Use. Property in the Lake Protection Land Use category may be developed by the construction of one dwelling unit for residential purposes per two acres, plus minor commercial uses (retail but not office uses) of up to 20,000 gross square feet. Site plan approval for all commercial property over five acres is required by the Leon County Subdivision Regulations. Procedure. On or about November 12, 1990, the Petitioner filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated February 26, 1991, from Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, the Petitioner was informed that the staff of the Tallahassee-Leon County Planning Department had recommended that the Application be denied. Mr. Gumula also informed the Petitioner that a hearing before a Staff Committee could be requested. Charles Fulton, general partner of the Petitioner, informed Leon County that the Petitioner waived its right to a hearing before the Staff Committee and requested a formal hearing before a Hearing Officer. By letter dated March 19, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to conduct a formal hearing in this case.
Findings Of Fact The Subject Property. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville, N.A. (hereinafter referred to as "Barnett"). In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property. Development of the Property; Government Action Relied Upon by the Petitioner. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside. Development of the Villages of Fireside subdivision was approved for up to 400 single-family dwelling units within the residential portion, (b) 16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended. The Petitioner's Detrimental Reliance. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.: Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988. Constructed entry features for the project at a cost of approximately $21,465.00. These improvements were made between December of 1988 and June of 1989. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions. Rights That Will Be Destroyed. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road 220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive. Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, Douglas R. Bess, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. From on or about April 1987 until the end of May 1988 Respondent managed the rental property of Donald and Ilene Houseman. This rental property, located in West Palm Beach, Florida, consists of six duplexes containing a total of twelve residential units. Respondent managed, for a fee, the Houseman's property under the fictitious name of Prime Real Estate Management. Prime Real Estate Management is an unincorporated entity which has not been registered with Petitioner and which has no qualifying broker. During the course of his management of the Houseman property, Respondent advertised the units for rent with advertisements containing his telephone number. Respondent dealt with prospective tenants on the telephone and in person. Respondent collected security deposits and monthly rental payments from the tenants. Respondent paid certain expenses, including the Housemans' mortgage payment, from the funds he collected. Upon receiving a security deposit from a new tenant, Respondent would sign receipts for the deposits which stated that Prime Real Estate Management was a "realtor" and that Respondent was acting as a " broker and agent". The security deposits Respondent received from new tenants as well as monthly rental payments were placed by Respondent in his personal bank account and commingled with his personal funds. Between April 1987 and December 1987, Respondent was employed by Prime Real Estate of the Palm Beaches, Inc. as a real estate salesman. Respondent's father was the qualifying broker for this corporation until it went out of business. In December 1987 Respondent placed his license with Worth Properties, Inc. where it remained until his services were terminated in June 1988. During these periods of time Respondent continued to manage the Houseman's property for a fee under the name of Prime Real Estate Property Management. At no time did Respondent place the funds he had received from tenants on behalf of the Housemans in the escrow account of his broker. On June 7, 1988, the Housemans terminated Respondent's services and employed Michael Ford, broker for Bowen Property Management, to manage their properties. After his services were terminated, Respondent was unable to account for the sum of $1,765.00 which he had received as rent or as security deposits. Respondent converted to his own use funds that he had received as deposits from the Housemans' tenants. Respondent misrepresented to the Housemans that he had paid on their behalf garbage collection assessments and ad valorem taxes. Respondent attempted to cover up his misrepresentations by writing checks on a closed bank account and thereafter showing the bad checks to Mrs. Houseman with the further misrepresentation that the expenses would be paid with the checks. The factual allegations of the Administrative Complaint filed by Petitioner to initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds that Respondent violated Section 475.25(1)(d), Florida Statutes, as alleged by Count II of the Administrative Complaint, and which further finds that Respondent violated Section 475.25(1)(e), Florida Statutes by violating Section 475.42(1)(b), Florida Statutes, as alleged by Count III of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, Douglas R. Bess. DONE and ORDERED this 28th day of July, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1989. APPENDIX The proposed findings submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 3. Addressed in paragraph 7. Addressed in paragraphs 6 and 7. Addressed in paragraph 4. Addressed in paragraph 8. Addressed, in part, by paragraphs 7 and 9. Rejected, in part as being unestablished by the evidence or subordinate to the conclusions reached. Addressed in paragraph 10. Addressed in paragraph 9. Rejected as being unnecessary to the result reached. Rejected as being unnecessary to the result reached. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 DOUGLAS R. BESS 4604 WATERVIEW CIRCLE PALM SPRINGS, FLORIDA 33461 KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 1940 NORTH MONROE STREET, SUITE 60 TALLAHASSEE, FLORIDA 32399-0792 DARLENE KELLER, DIVISION DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF REAL ESTATE 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802
The Issue Whether Petitioner, Villas Social Club, Inc. ("Villas"), properly revived its expired restrictive covenants and other governing documents in accordance with sections 720.403-720.407, Florida Statutes (2017).
Findings Of Fact Villas is a homeowners' association established pursuant to restrictive covenants recorded in 1967, 1968, and 1969. Originally created as a retirement community, Villas elected to become a "55 and over" community pursuant to the 1995 federal Housing for Older Persons Act. The community consists of 309 parcels upon which single family homes are located. By operation of the Marketable Record Title Act ("MRTA"), chapter 712, Florida Statutes, the restrictive covenants of Villas expired during the period of 1997 to 1999. However, Villas has continued to operate since then as a functioning "55 and over" homeowners' association without challenge from anyone. Sections 720.403-720.407 provide the mechanism by which a homeowners' association, such as Villas, may revitalize its restrictive covenants because they expired by operation of MRTA. DEO is a state agency statutorily obligated to review and determine whether an association has satisfied the requirements of sections 720.403-720.407 in order to revitalize expired restrictive covenants. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.403- 720.407, Villas submitted a revitalization package to DEO on March 9, 2016. On May 10, 2016, DEO denied the proposed revitalization for the following three reasons. First, Villas failed to timely submit the revitalization package to DEO pursuant to section 720.406(1)—the package was submitted to DEO more than 60 days after the last verified vote approving the revived covenants was signed. Second, Villas failed to provide DEO with the original bylaws pursuant to section 720.406(1)(b), which states that "a verified copy of the previous declaration of covenants and other previous governing documents for the community . . ." must be included in the submission to DEO. Third, the 2002 and 2004 bylaws submitted to DEO were more restrictive on the parcel owners in violation of section 720.405(4)(d). DEO's denial letter provided Villas a clear point of entry to challenge DEO's proposed decision and request a formal administrative hearing by filing a petition with the agency clerk of DEO within 21 days of receipt of the denial letter. However, Villas did not file a petition to challenge the proposed decision and request a hearing. Instead, Villas re-submitted another revitalization package to the parcel owners and DEO in 2017 in an effort to revitalize the expired restrictive covenants. The agency action subject to review in this proceeding is DEO's letter dated September 5, 2017, denying approval of Villas' request for revitalization. The revitalization package sent to the parcel owners in 2017 failed to include the address and telephone number of each member of the revitalization organizing committee. Nyoka Stewart, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 5140 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5410" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. Eslyn Williams, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 4051 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5041" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. The revitalization package sent to the parcel owners in 2017 included the telephone number (954-473-4733) of the management company for Villas, Alliance Property Systems. Alliance Property Systems does not own a parcel in the community, and it is not a member of the organization committee. One of the organizing committee members identified in the package, Renee Dichren, was not an owner at Villas on July 5, 2017, when the revitalization package was submitted to the parcel owners and DEO, because she was deceased. By failing to provide the address and telephone number of each revitalization member, Villas failed to comply with section 720.405(1). The revitalization package sent to DEO in 2017 included the full text of the proposed revived declaration of covenants and articles of incorporation and bylaws of Villas. However, Villas failed to include the original bylaws. The original bylaws of Villas have been lost. The most recent version of Villas' bylaws from 1990 were included in the revitalization package sent to DEO. By failing to include the original bylaws in the revitalization package sent to DEO, Villas failed to comply with section 720.406(1)(b). A majority of the parcel owners did not vote to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. Not all of the 162 votes were to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. In fact, there was only one vote from a parcel owner on the proposed revised governing documents. All of the other votes were dated 2015 and 2016, prior to Villas' submission of its initial revitalization package to DEO in 2016. By failing to obtain a majority vote of the parcel owners to approve the proposed revived declaration and other governing documents submitted in 2017, Villas failed to comply with section 720.405(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order disapproving the revitalization of Villas' expired restrictive covenants and other governing documents. DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 23rd day of March, 2018. COPIES FURNISHED: Stephanie Chatham, Agency Clerk Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Thomas Tighe, Esquire Tucker & Tighe, P.A. 800 East Broward Boulevard, Suite 710 Fort Lauderdale, Florida 33301 (eServed) Jon F. Morris, Esquire Ross Marshman, Esquire Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact At all times material to this case, Respondent Bruce D. Robertson ("Respondent") was a licensed real estate broker, license #0343680, operating as a president and qualifying broker for IDC Properties ("IDC") At all times material to this case, IDC was a corporation registered as a real estate broker, license #0234614, located at 17980 San Carlos Boulevard, Fort Myers Beach, Florida. By agreement dated January 16, 1990, the Respondent agreed to pay to salesperson Randy Thibault a commission of $10,362.50 upon the closing of the sale of property at "Old Pelican Bay, Inc.," to Paula E. Brown, hereinafter referred to as the "Brown transaction". On July 5, 1990, the Brown transaction closed. The Respondent received the commission funds related to the sale of the property. The Respondent subsequently issued a check in the amount of $10,362.50 payable to Mr. Thibault. When Mr. Thibault attempted to negotiate the check, he was informed that the Respondent had issued a stop payment order on the check. Mr. Thibault thereafter filed a civil complaint against the Respondent in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida Case No. 90-5851-CA. The matter was heard in a bench trial. On October 3, 1991, Mr. Thibault obtained a Final Judgement in the amount of $11, 817.42 against IDC for the sum owed plus interest. On October 28, 1991, Mr. Thibault obtained a Final Judgement in the amount of $14,551.31 against IDC for the sum owed plus interest, attorney's fees and costs. On November 4, 1991, the Respondent filed a Notice of Appeal in the matter in the Second District Court of Appeal but subsequently abandoned the appeal. At hearing, the Respondent asserted that Mr. Thibault received his commission share at the closing. The Respondent presented no credible documentary evidence to support the claim. The Respondent also asserted that Mr. Thibault misled the Respondent as to Mr. Thibault's role in the sale of other unrelated property and that the Respondent intends to take legal action against him. The Respondent presented no credible documentary evidence to support the claim. The Respondent admitted that the Final Judgement obtained by Mr. Thibault remains unsatisfied and stated that stated that he will not pay the judgement pending resolution of the unrelated matter alleged above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order determining Bruce D. Robertson and IDC Properties, Inc., guilty of the violations set forth herein and revoking the licenses identified herein. DONE and ENTERED this 19th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6308 The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. The Respondent did not submit a proposed recommended order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Bruce D. Robertson IDC Properties, Inc. 17980 San Carlos Boulevard Fort Myers, Florida 33931
The Issue Whether or not the Respondent, Kenneth Kasha, is now and was at all times alleged, a registered real estate broker, and from January 31, 1974, to January 7, 1975, an active firm member of International Land Services Chartered, Inc., a registered corporate broker, and was acting in that capacity. Whether or not from January 31, 1974, to January 7, 1975, the Respondent, in the capacity of active firm member of International Land Services Chartered, Inc., solicited by telephone and mail, property owners nationwide, on the subject of their real property interest in the State of Florida, to obtain a fee in return for a listing to sell property; by representing and holding out to the property owners that a bona fide effort would be made to sell the property so listed with International Land Services Chartered, Inc. Whether or not the representation holding out that a bona fide effort would be made to sell the property listed with international Land Services Chartered, Inc., was false and was known to be false when made. Whether or not property owners acted in reliance of the comments by Respondent, Kenneth Kasha, and listed their property for sale with International Land Services Chartered, Inc. and paid a listing fee. Whether or not the solicitation of property owners nationwide was wholly a scheme to fraudulently secure money from the public, i.e., the advance listing fees, for reason that no bona fide effort was made to sell the properties so listed with International Land Services Chartered, Inc. Whether or not by reason of the foregoing, the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or devise, or breach of trust in a business transaction in this state; and has violated the duty imposed upon him by law or the terms of a listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design, or scheme in violation of 5475.25(1)(a), F.S. Whether or not for the reason of the foregoing factual allegations set forth above, the Respondent is guilty of a conduct of practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, all in violation of 5475.25(3), F.S.
Findings Of Fact From January 31, 1974, to January 7, 1975, the Respondent, Kenneth Kasha, was an active firm member of International Land Services Chartered, Inc. and was acting in the capacity of registered corporate broker. He was a holder of certificate number 0133731 during that time sequence. That license was held with the Florida Real Estate Commission, the Petitioner. Beginning with January 31, 1974, and continuing to the present, Kenneth Kasha was also the holder of what is now certificate number 0046189, held with the Florida Real Estate Commission by Kenneth Kasha as real estate broker to trade as Florida Landowners Service Bureau. During the tenure of his affiliation with International Land Services Chartered, Inc., from January 31, 1974, to January 7, 1975, Kenneth Kasha was the Secretary of that corporation. (The facts of his Iicensure by the Petitioner and his affiliation with the International Land Services Chartered, Inc., are more completely described in the Petitioner's Exhibits 4 and 10, admitted into evidence.) In the pendancy of his service for the above-mentioned corporation, Kenneth Kasha was involved in the advertising of properties which had been solicited from out-of-state owners who owned land in the State of Florida. His involvement in this advertising is established by the Respondent's Exhibit No. 10 admitted into evidence. Through this exhibit it is demonstrated that the International Land Services Chartered, Inc., was advertising with the National Multiple Listing, Inc. More specifically, the invoices in the exhibit have assigned reference numbers which correspond to the advertising sheet which was placed with the National Multiple Listing, Inc. These sheets would show a number of listings of property which had been solicited from out-of-state owners who had paid a fee for the right to have their properties listed through International Land Services Chartered, Inc., who in turn advertised in National Multiple Listing, Inc. The circulation of those listings may he traced by taking the reference number in the left margin on the individual listing sheet of National Multiple Listing, Inc., found in the Respondent's Exhibit No. 10, and comparing this with the certificates of circulation which are Respondent's Composite Exhibit No. 12, and which have a comparable reference number affixed. By doing this, it can be seen that the circulation of the individual listing sheets by National Multiple Listing, Inc., numbered as many as 2,500 contacts. An examination of the advertising done through National Multiple Listing, Inc., demonstrates that a potential purchaser could not determine the exact location of the land. At best that purchaser could locate the subdivision and development, municipality and/or county and state and the general size of the tracts of land. Some of the property does not have a purchase price. Therefore, the quality of the advertising that was done is somewhat suspect. At the time the International Land Services Chartered, Inc., was billed, it was in the name of Kenneth Kasha, who tendered payment in behalf of International Land Services Chartered, Inc. Moreover, when the International Land Services Chartered, Inc., had signed an agreement with National Multiple Listing, Inc., to have the latter corporation do the advertising for International, it had signed in the person of Kenneth Kasha and took effect on March 1, 1974. The period of the contract was for one year and this is shown by Respondent's Exhibit No. 8 admitted into evidence. A further understanding of Kenneth Kasha's involvement with the listings of out-of-state owners of Florida property through International Land Services Chartered, Inc., may be found in the testimony of Marvin Rothstein. Roths to in worked for the corporation approximately 3 or 4 weeks full time and then part time and in total obtained 10 or 15 listings for the benefit of the corporation. Mr. Rothstein described the technique for listing the out-of-state owners of Florida property with International Land Services Chartered, Inc. (These listings have been referred to as "advance fee" listings, and will be so referenced in the balance of this Recommended Order.) Mr. Rothstein had seen an advertisement in the paper placed by International Land Services Chartered, Inc., advertising for the employment of real estate salesmen. He answered that advertisement and was interviewed by Kenneth Kasha for a job with the subject corporation. Kasha explained to Rothstein that his duties would be to contact people by phone and find out if they would like to have their property listed. There were 4 or 5 other salesmen involved in International Land Services Chartered, Inc's, employ whose function it was to make the contacts and solicit listings. The salesmen worked in the evening hours 3 or 4 hours a night and would call the out-of-state owners and ask if they wanted to list their property with the corporation, International Land Services Chartered, Inc. The corporation had given the salesmen so-called lead cards to contact the people. (The office in which the salesmen were ,working was a very small office with 5 or 6 phones.) Mr. Rothstein described the contact with the out-of-state owners to be one to obtain a listing, in opposition to an effort to try and sell the property of the out-of-state owner. Mr. Kasha was the supervisor of the activities of the salesmen who were working at night. Through the Rothstein testimony, it is established that there was a script which the salesmen were called upon to follow. The salesmen would introduce themselves to the prospective landowner/client and ask if the landowner would be willing to list their property for resale. If the owner was interested, certain materials were mailed to the owner for their perusal, prior to any agreement for resale. The mailouts were made after positive responses that Mr. Rothstein would be given when he made his inquiry about listing the property. Mr. Rothstein is unfamiliar with the materials that were mailed out. He was never responsible for making a second contact with the parties initially solicited. He does know that a fee was charged for listing the property with International Land Services Chartered, Inc., and the purpose of the fee was explained to the parties to be for expenses for listing the property and for whatever other expenses that might be incurred by the corporation. Rothstein is unfamiliar with what the exact expenses would have been for the corporation to fulfill the functions of taking care of listings. To Rothstein's recollection, the amount of fee for listing was $25 or $50, that is the amount he would receive for obtaining a listing agreement with the out-of-state owner. He is not certain what the International Land Services Chartered, Inc., received as their portion of the listing fee. There was no agreement that Rothstein himself would be compensated by commission should the property be sold. Rothstein was also unfamiliar with the method which the corporation used to arrive at an asking price for the listed property. Rothstein was unaware of any appraisals that may have been done by the corporation during the tenure of his employment with the corporation. His knowledge of the advertising method was that there were multiple listings. These multiple listings would equate to the form of listings placed with the National Multiple Listing, Inc. One other matter that was discussed in the initial solicitation, was the fact that the possible purchasers of the land were constituted of foreign as well as domestic buyers. This comment was in connection with the overall statement that the owners were being solicited for a listing to bring about the resale of the property. Rothstein said that he did not know of any sales of the property during the time he worked for International Land Services Chartered, Inc. An examination of the Petitioner's Exhibit No. 6, which is a profit and loss statement for the period in question, indicates that income derived from the International Land Services Chartered, Inc.'s business activities far exceeded advertising and other expenses labeled as selling expenses. That document, Petitioner's Exhibit No. 6, does not indicate whether there was income derived from sources other than the "advance fee" listings. Moreover, there was no testimony given in the course of the hearing which would clearly identify the amount of money that was received from owners who desired the services of the "advance fee" listing. Finally, the Petitioner has failed to demonstrate through competent evidence the true nature of the specific details of the follow-up written information which was submitted to the potential client once that client had been solicited in the initial contact phase. On balance there is insufficient testimony to prove that the solicitation of the property owners was a scheme to fraudulently secure money from the public through "advance fee" listings, or that no bona fide effort was made to sell the properties that were listed with International Land Services Chartered, Inc. Consequently, the Petitioner has failed to show that the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device or breach of trust in a business transaction in this state; or that Kenneth Kasha has violated the duty imposed on him by law or the terms of listing contract in a real estate transaction, or that he has formed an intent, design or scheme to engage in said misconduct or has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(I)(a), P.S. Furthermore, the Petitioner has failed to establish that Kenneth Kasha is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions, and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, in violation of 475.25(3), P.S.
Recommendation It is Recommended that the Administrative Complaint brought against the Respondent, Kenneth Kasha, who is now licensed by the Petitioner, Florida Real Estate Commission, under certificate number 0046189, as a real estate broker, he dismissed and set aside. DONE and ORDERED this 17th day of February, 1973, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Mr. Kenneth Kasha Post Office Box 611238 North Miami, Florida 33161
Findings Of Fact Based upon all of the evidence, including the pleadings and attachments thereto, the following findings of fact are determined: Background This case involves a challenge by petitioner, William Markham, as Broward County Property Appraiser, to the validity of proposed rule 12D-8.0062, Florida Administrative Code. The rule is being proposed for adoption by respondent, Department of Revenue (DOR). That agency has the statutory responsibility of supervising the assessment and valuation of property and approving each assessment roll submitted by the county property appraisers. By law, all property is to be valued as of January 1 for the tax year in question. Unless DOR grants an extension for good cause, the property appraiser is required to complete the assessment roll by the following July 1 and submit it to DOR for approval on or before that date. The DOR executive director then approves or disapproves the rolls, in whole or in part. Roll approval is predicated upon substantial compliance with the requirements of the law relating to the form of the roll and just value, and upon full compliance with any administrative orders issued by DOR. The proposed rule codifies standards and establishes procedures relating to the assessed value of homestead property on the tax roll from year to year. On November 3, 1992, the voters approved an amendment to Article VII, Section 4(c) of the Florida Constitution. The amendment was described as follows in the ballot summary: Homestead Valuation Limitation Providing for limiting increases in homestead property valuations for ad valorem tax purposes to a maximum of 3 percent annually and also providing for reassessment of market values upon changes in ownership. As approved by the electorate, section 4(c) reads as follows: All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1 of the year following the effective date of this amendment. This assessment shall change only as provided herein. Assessments subject to this provision shall be changed annually on January 1st of each year; but those changes in assessments shall not exceed the lower of the following: three percent (3 percent) of the assessment for the prior year. the percent change in the Consumer Price Index for all urban consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. No assessment shall exceed just value. After any change of ownership, as provided by general law, homestead property shall be asses- sed at just value as of January 1 of the following year. Thereafter the homestead shall be assessed as provided herein. New homestead property shall be assessed at just value as of January 1st of the year following the establishment of the homestead. That assessment shall only change as provided herein. Changes, additions, reductions or improve- ments to homestead property shall be assessed as provided for by general law; provided, however, after the adjustment for any change, addition, reduction or improvement, the property shall be assessed as provided herein. In the event of a termination of homestead status, the property shall be assessed as provided by general law. The provisions of this amendment are severable. If any of the provisions of this amendment shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provisions of this amendment. The new amendment generally requires that all homestead property be assessed at just value on January 1 following the effective date of the amendment. Thereafter, the assessed value is to be increased by 3 percent or the change in the Consumer Price Index (CPI) percentage, whichever is lower, not to exceed just value. If there is a change in ownership, however, the amendment requires that the property be assessed at its just value on the following January 1. Subsequently, and until the next change in ownership, the limitation will apply. At the same time, when changes, additions, reductions or improvements to homestead property occur, the value of such changes will be assessed as provided by general law. After this adjustment is made, the assessment on the property as a whole is subject to the annual limitations. In 1994, the legislature implemented the new amendment by enacting Section 193.155, Florida Statutes. The relevant portion of the new statute reads as follows: 193.155 Homestead Assessments. - Homestead property shall be assessed at just value as of January 1, 1994. Property receiving the homestead exemption after January 1, 1994, shall be assessed at just value as of January 1 of the year in which the property receives the exemption. Thereafter, determination of the assessed property is subject to the following provisions: Beginning in 1995, or the year following the year the property receives homestead exemption, whichever is later, the property shall be reassessed annually on January 1. Any change resulting from such reassessment shall not exceed the lower of the following: Three percent of the assessed value of the property for the prior year; or The percentage change in the Consumer Price Index for All Urban Consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. * * * As can be seen, the statute mirrors the constitu- tional amendment. In response to this legislation, on March 3, 1995, DOR published in the Florida Administrative Weekly a notice of its intent to adopt new Rule 12D- 8.0062, Florida Administrative Code. A public hearing on the proposed rule was held on March 31, 1995. Based on oral and written comments received at that hearing, on April 10, 1995, DOR gave notice of its intent to change the rule in certain respects. As modified by these changes, the proposed rule in its entirety reads as follows: 12D-8.0062 Assessments; Homestead; Limitations. This rule shall govern the determination of the assessed value of property subject to the homestead assessment limitation under Article VII, Section 4(c), Florida Constitution and section 193.155, F. S., except as provided in rules 12D-8.0061, 12-8.0063, and 12D-8.0064, relating to changes, additions or improvements, changes of ownership, and corrections. Just value is the standard for assessment of homestead property, subject to the provisions of Article VII, Section 4(c), Florida Constitution. Therefore, the property appraiser is required to determine the just value of each individual home- stead property on January 1 of each year as provided in section 193.011, F. S. Unless subsections (5) and (6) of this rule require a lower assessment, the assessed value shall be equal to the just value as determined under subsection (2) of this rule. The assessed value of each individual home- stead property shall change annually, but shall not exceed just value. Where the current just value of an individual property exceeds the prior year assessed value, the property appraiser is required to increase the prior year's assessed value by the lower of: Three percent; or The percentage change in the Consumer Price Index (CPI) for all urban consumers, U. S. City Average, all items 1967 = 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics. If the percentage change in the Consumer Price Index (CPI) referenced in paragraph (5)(b) is negative, then the assessed value shall be the prior year's assessed value decreased by that percentage. The assessed value of an individual homestead property shall not exceed just value. Sections 195.027(1) and 213.06(1), Florida Statutes, are cited as the specific authority for adopting the new rule. The former statute requires that DOR adopt "such rules and regulations (to ensure) that property will be assessed, taxes will be collected, and the administration will be uniform, just, and otherwise in compliance with the requirements of the general law and the constitution." Sections 193.011, 193.023, 193.155, 196.031 and 213.05, Florida Statutes, are given as the law implemented. It is clear, however, that section 193.155 is the principal law being implemented. As clarified at hearing, petitioner does not challenge subsections (1) through (4) and (7) of the proposed rule. Rather, he alleges that subsection of the rule is arbitrary and capricious and conflicts with the law implemented. He also contends that subsection (6) is vague. Finally, he contends that subsection (5) conflicts with Article VII, Section 4(c) of the Florida Constitution. Statutory Grounds Concerning Subsection (5) To avoid being found arbitrary and capricious, the proposed rule must be supported by facts and logic and adopted with thought and reason. Aside from argument of petitioner's counsel, there is no evidence to support the notion that the rule lacks a factual and logical underpinning or is not rational. Indeed, because subsection (5) of the rule simply tracks the provisions found in the law implemented, that is, Sections 193.155(1)(a) and (b), Florida Statutes, it cannot be arbitrary and capricious. At the same time, by parroting the statutory language, subsection (5) comports with the law implemented. Accordingly, subsection (5) of the rule is deemed to be a valid exercise of delegated legislative authority. Is Subsection (6) of the Rule Vague? Subsection (6) of the rule reads as follows: If the percentage change in the Consumer Price Index (CPI) referenced in paragraph (5)(b) is negative, then the assessed value shall be the prior year's assessed value decreased by that percentage. Through argument of counsel, petitioner contends that the foregoing provision is "badly worded" and that "a reasonable man can(not) read . . . that rule, and know what it means." The language in the rule is plain and unambiguous. It indicates that if the percentage change in the CPI is negative, then the prior year's assessed value would be decreased. Indeed, the clarity of this language becomes even more evident when reading subsections (5) and (6) together. Subsection (5) requires an increase to the prior year's assessed value in a year where the CPI is greater than zero. Conversely, subsection (6) spells out the requirements when the CPI is negative. This is exactly the result required by the statute and Constitution in the event of a negative percentage change in the CPI. Accordingly, the contention that the rule is impermissibly vague is deemed to be without merit. Does Subsection (5) Conflict with the Constitution? Finally, petitioner contends that subsection (5) conflicts with Article VII, Section 4(c) of the Florida Constitution. More specifically, he argues that the rule conflicts with the "intent" of the framers of the ballot initiative, and that a third limitation relating to market value or movement, and not contained in the amendment itself, or even in the ballot summary, should be incorporated into the language of the rule in order to make it compatible with the constitution. He agrees, however, that subsection (5), as now written, does not conflict with the actual language found in the amendment. To be constitutionally infirm in the context of petitioner's challenge, subsection (5) would have to contain provisions which depart from the language in the amendment. Because the subsection essentially tracks the language in Section 193.155, Florida Statutes, which in turn tracks the language of the amendment, it is found that the rule does not conflict with the constitution.
The Issue Whether the Department of Transportation's intended action to reject all quotes and re-advertise Lease No. 550:0318 was illegal, arbitrary, fraudulent, or dishonest.
Findings Of Fact In October of 1999, the Department advertised for office space for use as the Toll Data Center - Audit Section, Office of Toll Operations (Toll Office) located in Broward County. The lease was clearly advertised as a negotiated lease. It was not advertised as a competitive bid lease. Under the negotiated lease process before letting any lease, the Department must submit to the Department of Management Services (DMS) a Request for Space Need (RSN) and Letter of Agency Staffing (LAS). From DMS the Department receives the authority to directly negotiate a lease for space under 5,000 square feet with prospective lessors. 1/ Consistent with procedure, the Department received approval of the RSN on October 18, 1999. Pursuant to statute, DMS has strongly suggested that prior to selection of the apparent successful lessor, the Department should obtain a minimum of three documented quotes for a lease that has not been competitively bid. The Department has consistently followed that suggestion in negotiated leases. Under special circumstances, where it is clear it is improbable that three quotes cannot be obtained, the Department may waive its requirement that three documented quotes be received. However, the agency must certify to DMS that attempts to receive the required number of documented quotes were unsuccessful and/or special circumstances exist to negotiate the lease with less than three quotes. In this case, no special circumstances exist. In an effort to obtain more than the minimum three documented quotes, the Department opted to advertise for lease space on the Internet. The Internet is utilized by the DMS, among other state agencies, to disseminate information provided in the RSN to the private sector. Additionally, the Internet site may also be used by the private sector to provide notice of space they have available for review by the agency seeking space. A total of three submittal packages were distributed for Lease No. 550:0318. Despite the Department's advertisement over the Internet, only two requests for quote submittal packages were received. Of the three quote submittal packages distributed, the Department received only one documented quote in response to the advertisement for the Toll Office. Atlantic Investment submitted a Quote Submittal Form to the Department in late October for office space in North Fort Lauderdale. Atlantic Investment became aware of the Department's advertisement for lease space from Sheldon M. Schermer, employed by Atlantic Investment as its real estate agent. Mr. Schermer learned of the Department's need for lease space from an advertisement placed on the Internet. On November 8, 1999, the Department informed Atlantic Investment via Sheldon M. Schermer, Real Estate Agent for Atlantic Investment, of the Department's intent to reject all quotes and re-advertise for Lease No. 550:0318. This decision was not arbitrary, capricious, fraudulent, or dishonest and well within the Department's discretion and procedures for negotiated leases. The basis for the decision was the Department's modification of the lease specifications pursuant to a recommendation by DMS to modify the lease space terms to hopefully generate more interest and more quotes. In a competitive negotiation, DMS was aware of agencies who modified leases and advertised as many as five times before three documented quotes were received. Moreover, the evidence showed that the Broward County commercial real estate market could easily generate three quotes for the space required by the Toll Office.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing the Petitioner's protest. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of April, 2000.
