The Issue Whether or not Petitioner's application for registration as an associated person of Brauer & Associates, Inc., and as an investment adviser of G.G. Brauer & Associates, Inc. should be approved.
Findings Of Fact Respondent, Department of Banking and Finance, is the state agency charged with the administration and enforcement of Chapter 517, Florida Statutes, The Florida Securities and Investor Protection Act and the administrative rules promulgated thereunder. On or about October 30, 1990, Petitioner submitted a Form U-4, Uniform Application for Securities Industry Registration or Transfer, seeking transfer as an associated person of Brauer & Associates, Inc., and as an investment adviser of G.G. Brauer, Inc. On or about January 25, 1991, Respondent denied Petitioner's application for registration based upon its determination that Petitioner had filed a form U-4, which contained material misstatements and had demonstrated prima facie evidence of unworthiness by engaging in prohibited business practices. Petitioner was previously registered as an associated person with the St. Petersburg, Florida branch office of Smith Barney from March 1987 until July 25, 1990, when he was permitted to resign from the firm for ordering securities from the "over the counter" desk without prior client orders. Petitioner was also registered with the NASD and is charged with knowledge of their Rules of Fair Practice. On or about May 9 1990, Ronald Padgett filed a written complaint with Respondent alleging that Petitioner was engaging in unauthorized trading in his account and that the account was trading on margin without a signed margin agreement. Mr. Padgett also alleged that the signed margin agreement on file with Smith Barney was a forgery. After receiving Mr. Padgett's complaint, Respondent commenced its investigation in Petitioner's activities and requested that Smith Barney provide it with information regarding Padgett's complaint. Respondent also requested and was provided with copies of all other customer complaints that had been filed against Petitioner with Smith Barney. Smith Barney provided Respondent with copies of customer complaints that had been filed against Petitioner by Dorothy Juranko, Wayne Schmidt, Mark Madison, Michael Russo, Gloria Fallon, Patricia Schoenberg and William & Verna Bankhead. All of these individuals were investor clients of Petitioner. Prior to his employment with Smith Barney, Petitioner had not been the subject of a customer complaint or industry disciplinary proceeding or licensure revocation, suspension, or denial. Wayne Schmidt Sr. the owner of Suncoast Chrysler-Plymouth (Suncoast) opened his account at Smith Barney in 1985. Initially, the account executive assigned to Schmidt's account at Smith Barney was Steve Ellis. Schmidt maintained two accounts with Smith Barney and Steve Ellis, namely, a profit- sharing account for Suncoast Chrysler-Plymouth and a joint account with his wife. Schmidt exercised no control of the Suncoast account, but rather allowed his associate, Gloria Fallon to initially monitor the transactions in that account. Afterwards, Schmidt started overseeing the trading activities in the Suncoast account. Schmidt had no knowledge of any unauthorized transactions in the Suncoast account after he began monitoring it. Gloria Fallon did not testify at the proceeding. In connection with the maintenance of his joint account at Smith Barney, Schmidt executed a "Securities Account Agreement." During the time Schmidt maintained his account at Smith Barney, the Securities Account Agreement was utilized by Smith Barney as a margin contract. The Securities Account Agreement qualifies as a margin account agreement/margin contract as to form, and is consistent with industry standards, custom and usage. Although Florida Statutes proscribes certain procedures relative to margin agreements, neither the Florida Securities Act nor the rules promulgated thereunder require a broker/dealer to characterize a margin contract as a "margin agreement." The gravamen of Schmidt's complaint against Petitioner was that certain shares of stock were not liquidated from the joint account maintained by him in contravention of his directions to Petitioner. There was no proof submitted to support any conclusion that Petitioner failed to place an order for the liquidation of such securities for Schmidt's account. Likewise, there was no evidence of any unauthorized trading in the Schmidt's joint account. While Petitioner was assigned as account executive to the Schmidts joint account, a profit of approximately $10,000.00 was generated for that account in 1988 and in 1989, a net gain of approximately $15,000.00 was generated. Schmidt conceded at hearing that Petitioner probably did a better job handling his account than his prior broker, Steve Ellis. During the year 1988, Smith Barney generated and sent to Schmidt, monthly statements and confirmation statements regarding every transaction in his joint account. The monthly statements sent to Schmidt for the joint account contained entries regarding margin interest being charged to the account. For the year 1989, Smith Barney also generated and sent to Schmidt, monthly statements and confirms regarding every transaction in his joint account. The 1989 monthly statements sent to Schmidt also showed margin interest. For the years 1988 and 1989, Schmidt deducted from his individual tax returns, the margin interest charged to his account. Also, during 1988 and 1989, Schmidt did not complain to Petitioner or Smith Barney that the use of margin account was unauthorized. During his tenure at Smith Barney, Petitioner was the account executive assigned to the account of Michael Russo (Russo). Petitioner was assigned to the Russo account in approximately May of 1990, an account which was formerly serviced by an account executive whose last name is Dudenhaver. Michael Russo matriculated at City College of New York where he received a Bachelor of Business Administration degree and was a certified public accountant for approximately 30 years. Russo has been in the accounting business for approximately 40 years and during this time period, he operated his own accounting practice. Russo maintained three (3) accounts at Smith Barney which included an account with his wife, an individual account and an IRA account. Russo opened his first brokerage account in the early 1980s with Merrill Lynch, Pierce, Fenner & Smith. Russo has a history is investing in real estate and by mid 1990, he had accumulated a net worth of approximately $750,000.00. On or about July 13, 1990, Russo presented Petitioner a check in the amount of $26,000.00 which was to be deposited into Russo's accounts. The $26,000.00 check was deposited by Petitioner into Russo's accounts but were returned for non-sufficient funds (NSF). Russo then replaced the NSF check with a $22,000.00 check. The funds derived from the $26,000.00 of Russo originated from an interest-bearing money market account from the Fidelity- Spartan Mutual Funds Family. During the period July 13-20, 1990, Russo was on vacation and was away from his home visiting relatives in the Melbourne, Florida area. During that week, Russo spoke by telephone with Petitioner regarding his account on more than one occasion. Russo specifically recalls speaking with Petitioner on July 15, 1990, regarding his account. During that week, Russo spoke with Respondent about selling certain shares of stock in his account and his specific recall is that one of those conversations occurred on July 15, 1990. The shares were to be sold "at market." Russo again spoke with Petitioner on July 21, 1990, regarding transactions in his account. On July 24, 1990, Russo told Larry Youhn, the branch manager at Smith Barney, that he was very happy with Petitioner as his broker. The July 1990 month-end statement for the Russo account indicate that funds were deposited into the Russo accounts in an amount sufficient to satisfy security purchases made in his account during July 1990. Although these transactions appear at month-end in a type-2 margin account, a review of such statements indicate that the transactions initially occurred in a cash account and were mistakenly journaled to the margin account by Smith Barney as a result of an NSF check presented by Russo as payment for the purchase transactions. The individual account of Russo reflects the purchase of 500 shares of Wiley Laboratories on July 16, 1990, for $7,702.00. On that same day, $10,500.00 from the $26,000.00 NSF check was received into the account. The July 1990 monthly statement for Russo's individual account reflected that there would have been a $2,800.00 net credit in the account if Russo had not presented the NSF check. During his tenure at Smith Barney, Petitioner also served as the registered representative for an account maintained by Nicholas and Dorothy Juranko (Juranko). The Jurankos have a substantial history of business experience, having currently owned a service station in the Ohio area and Mrs. Juranko currently owns her own drapery shop and manages eight (8) apartment/rental units that they jointly own. The Jurankos opened their first securities brokerage account in approximately 1962. They have held accounts at several brokerage firms including Merrill Lynch, Blinder-Robinson and First Jersey Securities prior to opening their account at Smith Barney. At Blinder-Robinson, the Jurankos engaged in the purchase of several "Penny" stocks and fully realized that they were speculating. The Blinder- Robinson account was opened by the Jurankos so that Mr. Juranko would "have something to do." The Jurankos maintained a securities brokerage account at First Jersey Securities prior to Petitioner's employment with First Jersey. Petitioner was assigned as account executive for the Juranko account at First Jersey in approximately 1985. When the Jurankos opened their account at Smith Barney, their net worth was approximately $220,250.00. Although Mrs. Juranko maintains that unauthorized trades occurred in her account during the month of December 1987, when asked to identify which trade which unauthorized, she could not do so. This was so, despite an effort to refresh her recollection by presenting her the December 1987 monthly account statement which depicted all securities holdings and transactions generated in their account. Mrs. Juranko also alleged that she was losing money and did not want to deposit any additional funds into her account. However, Mrs. Juranko wanted to have profits generated from the funds that were then existing into her account as of year-end December, 1987. Respecting the December 1987 trades, the Jurankos received confirms for every transaction that occurred during the month. Through December 1987, while Petitioner was assigned to manage the Juranko account, the account generated a net profit. Also, continuing through January 1988, Petitioner had effected trades which produced a net profit for the Juranko account. As testified by Mrs. Juranko, "All I could see...greed, all I could see was $14,200.00 some dollars and $9,900.00 some dollars, and I thought, wow... I thought "wow", he's making me money." Although Mrs. Juranko complained that she was losing money, an analysis of the account revealed that during the two years that Petitioner was assigned her account, it made a net profit. Notwithstanding the documentary evidence to the contrary, Mrs. Juranko admitted that she was upset and complained to Smith Barney's compliance officer, a Mr. Singer, because of her unfounded belief that she had lost money. Mrs. Juranko identified anger as the basis for her inability to understand a letter which was sent by Larry Youhn, Smith Barney's branch manager, which show the activity that had been generated into her account. Notwithstanding the clear language of that letter, Mrs. Juranko maintained that she did not understand it. This is so, despite the fact that Mrs. Juranko did not telephone Smith Barney to complain because she "didn't want to get [Petitioner] in trouble." 1/ The use of margin in the Jurankos account was discussed because Mrs. Juranko believed the account was losing money; she wanted to do whatever was necessary over a period of time to make up for the losses and she refused to deposit additional funds into the account to generate profits in trading the account. In connection with the maintenance of the Juranko account at Smith Barney, Petitioner instructed his sales assistant to send a margin agreement to Mr. and Mrs. Juranko for execution. The use of margin was discussed with the Jurankos in approximately November 1987. Petitioner relied upon the Smith Barney infrastructure to maintain the necessary paperwork for margin accounts, including the Jurankos. This is a customary practice in the securities industry and is utilized by most large brokerage houses. Juranko first complained to Petitioner about the use of margin in January 1988, when she received her monthly account statement which contained an entry for margin interest. Mrs. Juranko explained that she thought the margin charges were too much and that she wanted to reduce the margin charges by liquidating securities from the account. Mrs. Juranko thereafter became uncooperative and it became difficult for Petitioner to transact business in the account consistent with Mrs. Juranko's desired objectives. As a result, in March 1988, Petitioner determined that the only thing he could do for the account was to liquidate positions at or near break-even points. Thereafter, Petitioner never made any other purchase recommendations to the Jurankos. Petitioner also serviced the account of Mark D. Madison while employed at Smith Barney. Madison is a marketing, advertising and management consultant who owns his own business. Madison maintained two (2) accounts at Smith Barney's St. Petersburg branch office, including an individual account and an account in the name of his mother, Mary Jean Madison. Mark Madison was a fiduciary for and conducted all transactions in his mother's account. Prior to Petitioner's assignment as broker to Madison's fiduciary account, it was assigned to broker Steve Ellis. The fiduciary account was maintained as a margin account since its opening in 1984. Commencing on February 13, 1986, broker Ellis and Madison executed several margin transactions in the fiduciary account. Through the period ending October 31, 1987, roughly 95% of the transactions in the fiduciary account were executed on margin. As of year-end 1987, the Madison fiduciary account and Mark Madison's personal account historically traded over-the-counter securities. During this period while Ellis was the broker, margin transactions were executed in both Madison accounts. During this period, broker Ellis actively traded both accounts and generated both profits and losses in the accounts. Mark Madison was familiar with the active trading in both accounts as well as the profit/loss picture. Madison estimated losses in the fiduciary account to be over $20,000.00 while the account was handled by Ellis. These losses all occurred while he was the fiduciary on the account and was in charge of approving trading in the account. When the fiduciary account was transferred from Ellis to Petitioner, Madison expressed his concern about the losses that his mother's fiduciary account had sustained as well as his responsibility for such losses. During his initial conversations with Petitioner, Madison explained his mother's displeasure at the approximately $30,000.00 in losses that had been generated while Ellis was assigned as broker. Madison also explained to Petitioner that his brother had made references to conversations with his mother about suing him as the fiduciary because of the losses generated. During the time that the fiduciary account was handled by Ellis, there were differences in the execution prices of transactions in the same securities which occurred in both the fiduciary account and his (Mark Madison's) personal account. When Petitioner was assigned the account, it became apparent to him that Madison consistently obtained higher prices on liquidating transactions than his mother was obtaining in the fiduciary account for the same securities. Petitioner was concerned with the type of trading in which Madison wanted to engage in for the fiduciary account and brought this trading strategy to the attention of branch manager, Youhn, who explained to Petitioner that it was the fiduciary who had ultimate responsibility for trading the account. In addition to discussing the trading strategy with Youhn, a review of the account history was conducted by Petitioner. Petitioner's review revealed that the account had lost approximately 40% in equity during the time it was handled by account executive Ellis and Mark Madison as fiduciary. As a result of the losses generated, Madison expressed his desire to Petitioner to recoup losses in the account by taking advantage of 2-3 point swings in certain over-the-counter securities. During the months of January through March 1988, Madison, despite his allegations to the contrary, authorized the purchase of a specified number of shares of certain securities and later maintained that certain additional shares of those securities were purchased without his authorization. Throughout this period, Madison maintained continuous telephone conversations with Petitioner regarding such securities. Throughout the period, Madison did not instruct Petitioner to cancel the trades, but rather instructed him that he wanted out of those positions as near as possible to "break even." The Department conducted an investigation of the allegations made by Petitioner's former clients in connection with the denial of his registrations as an associated person an investment advisor. In connection with the investigation, the Department, through its investigative employee, Carol Irizarry (Irizarry), spoke with individuals who had submitted written complaints against Petitioner. In furtherance of her investigation, Irizarry visited the office of William Lyman, Esquire, who represented several of the former customer/complainants, and reviewed the information that Lyman had relative to such complaints. Ms. Irizarry did not testify during the formal hearing herein. Dennis Farrar (Farrar), area financial manager, Division of Securities, Department of Banking and Finance, supervised the writing of the report completed by Irizarry. Farrar's first direct contact with the investors/complainants in this case occurred approximately one (1) week prior to the commencement of the hearing herein. Following Ellis' separation from employment with Smith Barney, several Smith Barney brokers and clients of Petitioner advised him that broker Ellis was out to get him and urged them to file complaints against Petitioner. Specifically, Petitioner received a telephone call from Gloria Fallon, an associate of Wayne Schmidt, who warned Petitioner that Ellis was "trying to stir up trouble for him." In connection with the initial customer complaint received by the Department, a request for information responsive to the complaint was sent to Smith Barney. Among the documents received by the Department was a securities account agreement which contained language normally contained in a margin contract. The securities account agreement is the document utilized by Smith Barney as its margin contract at all time material hereto. A Form U-4, Uniform Application for Securities Industry Registration for Transfer, is a document generated by the National Association of Securities Dealers (NASD) and the North American Securities Administrators Association (NASAA). The Form U-5, Uniform Termination Notice, also is generated by the above entities. The disclosure section of a Form U-4 requires an applicant to respond to the best of his ability. An intentional falsification of information on a Form U-4 will give rise to a violation of Section 517.161, Florida Statutes. It is customary in the securities industry for a registered representative to rely upon his current broker/dealer employer to determine which complaints, if any, are disclosable on the Form U-4. It is customary in the industry for a representative to rely on the Form U-5, termination notice for completion of his U-4 and usually the information on both forms track each other. Also, the prospective applicant filling out his U-4 usually consults with the firm that he separated from to ensure that both Forms U-4 and U-5 are consistent. Petitioner's completion of the Form U-4 on August 30, 1990 in connection with his employment at Brauer & Associates contained a disclosure of customer complaints consistent with the disclosures made by Smith Barney on its amended Form U-5 Termination Notice dated August 17, 1990. Petitioner's reliance on the information contained in his files and that provided by his employers was reasonable and there was no evidence that Petitioner intentionally falsified his Form U-4 application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order granting Petitioner's application for registrations as an associated person or broker/dealer of Brauer & Associates, Inc. and investment adviser to G.G. Brauer, Inc. RECOMMENDED this 13TH day of August, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 13th day of August, 1991.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty to prosecute violations of the statutes and rules regulating the practice of real estate in the State of Florida. Respondent, Benjamin C. Rolfe, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0318091 in accordance with Chapter 475, Florida Statutes. The last license issued to Mr. Rolfe was as a broker with Squires Realty of the Palm Beaches, Inc., 721 U.S. 1, #217, North Palm Beach, Florida. Respondent, Duane C. Heiser, is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0038233 in accordance with Chapter 475, Florida Statutes. The last license issued to Mr. Heiser was as a broker effective February 8, 1991, at Duane C. Heiser Realty Co., 1312 Commerce Lane A1, Jupiter, Florida. On or about December 12, 1998, a Final Order was issued by the Florida Real Estate Commission and received by Mr. Heiser whereby his real estate broker's license was suspended for two (2) years from January 12, 1989, through January 10, 1991. During the month of October 1989, Mr. Heiser violated the lawful suspension order of the Commission by personally delivering rental checks to and ordering the disbursement of escrow funds from the Property Management-Operating Account, which is an escrow account, of Squire's Realty Company of the Palm Beaches, Inc. Between March 22 and March 26, 1990, the escrow account records of Mr. Rolfe, who was the qualifying broker for Squire's Realty of the Palm Beaches, Inc., were audited by Petitioner's authorized representatives. The Escrow/Trust Account Audit revealed that Respondent Rolfe failed to properly document and reconcile the Property Management-Operating Account, which is an escrow account. Mr. Rolfe was responsible for this account. Mr. Rolfe was negligent regarding the management of this escrow account by allowing a suspended licensee, Mr. Heiser, access to this account. Mr. Rolfe and Petitioner stipulated that the appropriate penalty for Mr. Rolfe's violation of Section 475.25(1)(b), Florida Statutes, would be the imposition of an administrative fine in the amount of $300.00 and the placement of his licensure on probation for a period of one year. They further stipulated that the administrative fine was to be paid within thirty days of the filing of the final order. They also stipulated that during his term of probation Mr. Rolfe would be required to complete sixty hours of continuing education with thirty of those sixty hours being the thirty hour management course for brokers. They further stipulated that Mr. Rolfe would be required to provide to Petitioner satisfactory evidence of his completion of those sixty hours of continuing education and that those sixty hours of continuing education are to be in addition to any other continuing education required of Mr. Rolfe to remain active and current as a real estate broker in the State of Florida. Mr. Heiser and Petitioner stipulated that the appropriate penalty for Mr. Heiser's violation of Section 475.25(1)(b), Florida Statutes, would be the imposition of an administrative fine in the amount of $300.00 and the placement of his licensure on probation for a period of one year. They further stipulated that the administrative fine was to be paid within thirty days of the filing of the final order. They also stipulated that during his term of probation, Mr. Heiser would be required to complete sixty hours of continuing education with thirty of those sixty hours being the thirty hour management course for brokers. They further stipulated that Mr. Heiser would be required to provide to Petitioner satisfactory evidence of his completion of those sixty hours of continuing education and that those sixty hours of continuing education are to be in addition to any other continuing education required of Mr. Heiser to remain active and current as a real estate broker in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: Dismisses Counts I, III, and V of the Administrative Complaint; Finds Mr. Heiser guilty of having violated a lawful order of the Florida Real Estate Commission in violation of Section 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint. It is further recommended that the Final Order impose an administrative fine in the amount of $300.00 upon Mr. Heiser and place his licensure on probation for a period of one year. It is also recommended that the conditions of probation require that Respondent Heiser pay the said administrative fine within thirty days of the filing of the final order and that he be required to complete sixty hours of continuing education during his term of probation. It is further recommended that as part of the sixty hours of continuing education, Mr. Heiser be required to successfully complete the thirty hour management course for brokers, that he be required to provide satisfactory evidence of completion of such continuing education to Petitioner, and that these sixty hours of continuing education be in addition to any other continuing education required of Respondent Heiser to remain active and current as a real estate broker in the State of Florida. Finds Mr. Rolfe guilty of culpable negligience in a business transaction in violation of Section 475.25(1)(b), Florida Statutes, as alleged in Count IV of the Administrative Complaint. It is further recommended that the Final Order impose an administrative fine in the amount of $300.00 upon Mr. Rolfe and place his licensure on probation for a period of one year. It is also recommended that the conditions of probation require that Respondent Rolfe pay the said administrative fine within thirty days of the filing of the final order and that he be required to complete sixty hours of continuing education during his term of probation. It is further recommended that as part of the sixty hours of continuing education, Mr. Rolfe be required to successfully complete the thirty hour management course for brokers, that he be required to provide satisfactory evidence of completion of such continuing education to Petitioner, and that these sixty hours of continuing education be in addition to any other continuing education required of Respondent Rolfe to remain active and current as a real estate broker in the State of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of December, 1991. 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 30th day of December, 1991. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Neil F. Garfield, Esquire Garfied & Associates, P.A. World Executive Building Suite 333 3500 North State Road 7 Fort Lauderdale, Florida 33319 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, including the admissions made by Respondent in the Joint Response to Pre-Hearing Order, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed real estate salesperson. Since June of 2002, Respondent has been a Florida- licensed real estate broker. Respondent is a convicted felon as a result of a single felony conviction. 3/ In 2000, Respondent was involved in a real estate transaction in which he was the buyer. The property that was the subject of the transaction was located at 119 Hammocks Drive in West Palm Beach, Florida. The transaction was closed through a title company, Cypress Title Company (Cypress). The closing took place on May 15, 2000. Cypress was represented at the May 15, 2000, closing by Susan Anderson, a marketing representative with Cypress who conducted closings (approximately five or six a month) as part of her job responsibilities. Ms. Anderson had two years experience conducting closings at the time of the May 15, 2000, closing. At each closing at which she represented Cypress, Ms. Anderson was responsible for, among other things, collecting the funds necessary to effectuate the closing and making the appropriate disbursements. It was Ms. Anderson's routine practice, before turning a closing file over to Cypress' "post closer" following a closing, to "make sure [that] everything [that needed to be in the file was] there." Prior to the May 15, 2000, closing, Respondent was contacted by "someone from Cypress" and instructed to bring to the closing a cashier's check in the amount of $3,684.64 made payable to himself. Respondent was advised that the $3,684.64 represented an "estimate" of the amount he needed to pay from his own funds to close the transaction. On May 15, 2000, prior to the time of the closing, Respondent went to Bank United, where he had an account, and purchased a cashier's check in the amount of $3,684.64 made payable to himself, as he had been instructed to do. Respondent brought the cashier's check to the closing. At the closing, Respondent endorsed the check with his signature, underneath which he wrote, in accordance with his routine practice when endorsing checks, the number of his account at Bank United. He then handed the cashier's check to Ms. Anderson. The actual amount due from Respondent was $3,670.04, $14.64 less than the amount of the cashier's check. Accordingly, Ms. Anderson gave Respondent a check for $14.64. Following the closing, Ms. Anderson examined the closing file (in accordance with her routine practice). In doing so, it did not "come to [her] attention that the [cashier's] check [that Respondent had brought to the closing] was not there." After conducting such an examination, she gave the closing file to the "post-closer." The cashier's check that Respondent had given to Ms. Anderson at the May 15, 2000, closing was cashed at Bank United on May 17, 2000, by someone other than Respondent or Ms. Anderson. Pursuant to Bank United policy, "[o]nly the payee can cash [a cashier's] check." Bank United tellers are supposed to ask for a "picture ID" when a cashier's check is presented for cashing. There have been tellers at the bank, however, who have not followed this policy and, as a result, have been counseled or disciplined. 4/ Approximately, two months after the May 15, 2000, closing, Cypress' owner approached Ms. Anderson and told her that there was no proceeds check from Respondent in the closing file. Ms. Anderson was asked to contact Respondent to inquire about the matter, which she did. Respondent was initially "very cooperative." He gave Ms. Anderson his "account number [at Bank United] and [the name of a person] to call at the bank." Using the information Respondent had provided, Ms. Anderson was able to obtain a copy of the cashier's check that Respondent had given to Ms. Anderson at the closing and that subsequently had been cashed at Bank United. Kevin Wilkinson, an attorney acting on behalf of Cypress, also contacted Respondent. Mr. Wilkinson's tone, in Respondent's view, was accusatory and threatening. Respondent's response to Mr. Wilkinson's "aggressive[ness]" was to stop cooperating with Cypress.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 28th day of January, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent was at all times material to this proceeding a licensed real estate broker in the state of Florida having been issued license number 0035275. The last license issued was as a broker, d/b/a Silver Springs Real Estate, Corp., 4121 East Silver Springs Boulevard, Ocala, Florida 32671. On or about August 3, 1984, the Respondent obtained Teri L. Lochman (Lochman) as a tenant of certain residential property belonging to Gail and Valerie Cox (Cox) that was involved in a sale to A. Pillot. In connection with this sale, a lease had been prepared between A. Pillot as Lessor and A. Alongi as Lessee. Lochman signed this lease as Lessee, and in connection with this lease, paid Respondent $1,600.00 representing $700.00 for the first month's rent, $700.00 for the last month's rent and $200.00 security deposit. These funds were paid by Lochman to Respondent in two separate checks in the amount of $500.00 and $1,100.00 dated August 5, 1984 and August 13, 1984, respectively. The Pillot/Cox escrow account, which had previously been established in Respondent's escrow ledger, was credited with these funds and the funds deposited in Respondent's real estate brokerage trust bank account, No. 805 0006583, in the Sun Bank of Ocala (Trust Account), on August 9, 1984 and August 17, 1984, respectively. Upon attempting to move into the home she had rented, Lochman discovered that Cox was still in possession because the sale had not gone through. At this point, August 17, 1984, Lochman and Cox signed an agreement which would allow Lochman to reside in the home rent free for two weeks while Cox was out of town in return for acting as a security guard. Sometime after the August 17, 1987 agreement was executed by Lochman and Cox, Lochman and Cox signed a handwritten month to month lease of the premises requiring Lochman to pay Cox $700.00 for the first month's rent, $700.00 for the last month's rent and a $200.00 damage deposit. This payment was conditioned upon Lochman receiving her refund from the Respondent. There was no credible evidence that Respondent agreed to release Cox from any previous agreement with Respondent wherein Respondent acted as agent for Cox in obtaining Lochman as a tenant or the handling of Cox's property, i.e. mowing grass or preparing house for rent. Additionally, there was no credible evidence that Respondent agreed to Lochman dealing directly with Cox. Respondent was at all times relevant to this proceeding acting as agent for Cox, and therefore, demanded from Cox her commission for obtaining Lochman as a tenant and reimbursement for other services rendered before returning Lochman's rental deposit. There is no credible evidence that the Respondent agreed to return Lochman's rental deposit without first obtaining her commission or reimbursement for other services rendered from Cox. There is no credible evidence to show that Cox paid Respondent her commission or reimbursed Respondent for other services rendered or that Cox made a demand on Respondent to pay the Lochman rental deposit to Lochman. There is credible evidence that Lochman made a demand on Respondent for the return of her rental deposit and that Respondent refused to return Lochman's rental deposit because there was a dispute between Respondent and Cox concerning Respondent's commission and reimbursement for other services rendered. Lochman did not pay Cox the rent for the month of September, 1984, therefore, she contends that Respondent only owes her $900.00 of the rental deposit. Upon Respondent's refusal to pay her the balance of the rental deposit, Lochman obtained a default judgment for $900.00 in civil court, however, and although the record is not clear, the default judgment may have been set aside. (See transcript, page 15, lines 9-13). The evidence is clear that check no. 257 drawn on the Trust Account in the amount of $1,465.00, paid on April 18, 1985, included $1,278.00 from the Pillot/Cox escrow account and depleted the funds in the Pillot/Cox escrow account. However, there was no evidence presented to show that the Lochman rental deposit was paid to Respondent. Likewise, there was no evidence presented to show that Cox did not receive the Lochman rental deposit. There was no evidence presented to show the payee on Check No. 257, or any other check, drawn on the Trust Account. There was no evidence presented to show that Respondent commingled trust funds and personal funds in the Trust Account in regard to deposits and withdrawals. There was insufficient credible evidence to show that Lochman was entitled to delivery of $900.00 or any funds from the Trust Account. There was no evidence that Respondent notified the Real Estate Commission (Commission) of the conflicting demands on the Lochman rental deposit or followed any of the procedures set forth in the statutes to resolve such a conflict.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a Final Order finding the Respondent guilty of failing to notify the Commission of the conflicting demands on the trust funds and failing to follow the procedures set forth for resolving such conflict in violation of Section 475.25(1)(d), Florida Statutes and that Respondent's real estate broker's license be suspended for a period of six (6) months, stay the suspension, place the Respondent on probation for a period of six (6) months under the condition that the issue of conflicting demands on the trust funds be resolved within sixty (60) days and under any other conditions the Commission feels appropriate, and assess an administrative fine of $300.00 to be paid within sixty (60) days of the date of the Final Order. It is further RECOMMENDED that the Final Order DISMISS Counts I, III, IV and V of the Administrative Complaint filed herein. Respectfully submitted and entered this 1st day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2387 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Finding of Fact 1. 3. Adopted in Findings of Fact 8 and 9. 4.5 Rejected as not supported by substantial competent evidence in the record. Additionally, Petitioner has treated certain facts in this case as background in unnumbered paragraphs which I have numbered 6-10. Adopted in Finding of Fact 2 as clarified. Adopted in Finding of Fact 4 except for the phrase that Respondent agreed to the return of the rental deposit which is rejected as not being supported by substantial competent evidence in the record. I did not find Lochman's testimony credible in this regard. Adopted in Findings of Fact 8 and 9 as clarified. Adopted in Finding of Fact 10 as clarified. This paragraph is a statement of Lochman's testimony and not presented as a fact, therefore, is rejected. Rulings on Proposed Findings of Fact Submitted by the Respondent For the reasons set forth in the Background portions of this Recommended Order, there has been no rulings of Respondent's Proposed Findings of Fact. COPIES FURNISHED: Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jeffrey J. Fitos, Esquire Valley Forge Military Academy Wayne, Pennsylvania 19087
Findings Of Fact Introduction At all times relevant hereto, Fidelity Standard Mortgage Company (Fidelity Standard) and First Fidelity Financial Services, Inc. (First Fidelity) were mortgage brokers licensed by respondent, Department of Banking and Finance, Division of Finance (Division). In or around early 1983, Fidelity Standard and First Fidelity filed for bankruptcy under Chapter 11, Title 11, United States Code. By virtue of this action, numerous investors lost substantial amounts of money invested with the two brokers. In 1977 the legislature established in chapter 494 a mortgage brokerage guaranty fund from which payment is made to persons "adjudged by a court of competent jurisdiction to have suffered monetary damage as a result of any (unlawful) acts by a mortgage broker... who was licensed under, this chapter at the time the act was committed." Certain conditions must be met in order to establish eligibility for payment from the fund, and payments for claims are limited in the aggregate to $50,000 per mortgage broker, regardless of the number of claimants. 1/ Among other things, section 494.043 requires that a claimant must have (a) received a final judgment in a court of competent jurisdiction against the broker, (b) caused to be issued a writ of execution upon the judgment and the return indicates insufficient assets to satisfy the judgment, (c) made a reasonable search to discover assets of the broker, and has found none, (d) applied any amounts recovered from broker to the damages awarded by the court, and (e) given notice to the Division by certified mail at the time the action was instituted. Where as here, the broker has filed for bankruptcy, steps (b) and (c) need not be taken by the claimant, except to file a claim in the bankruptcy proceeding. There is also a two year period in which investors may perfect their claims. These persons receive first priority to payment from the fund. In the case of both Fidelity Standard and First Fidelity, this period expired on June 18, 1986. Thus, in order to share in the first distribution of moneys from the fund, a claimant had to satisfy the above criteria by that date. In addition to these criteria, a claimant must assign to the Division any interest in the judgment received once all criteria in section 494.043 have been met. The statute imposing this requirement (s. 494.044) provides that this must be done after the claimant has received payment from the fund. In its proposed final order concerning Fidelity Standard entered on August 7, 1986, the Division concluded that the following claimants should receive payment from the fund in the amounts specified below: Claimant Claim Allowed David Swid $ 2,321.00 William & Olivia Petruzel 2,321.00 Vera G. Marino 2,321.00 Benjamin Rosenberg 2,321.00 Lee Rosenberg 2,321.00 Shasha Enterprises 2,321.00 Eli Krause 1,995.00 Eugene Brooks, M.D., P.C. 2,321.00 Eugene Brooks 2,321.00 Steven Jankovich 2,100.50 Stacy Sher 2,100.50 Frederick Low 2,321.00 Patricia Worthley 2,321,00 Alfred Vanderlaan 2,321.00 Ben Sakow 2,048.00 Thomas Shisler 1,229.00 David Irving 2,321.00 Betty Burwell 1,662.00 Alisa Kreimer 2,321.00 Samuel Rudnick 2,321.00 Bonnie & Howard Lenkowitz 1,204.00 Larry & Sally Lenkowitz 525.00 Stuart & Barbara Schrager 2,321.00 Helen & Eugene Loos 2,321.00 Total Payments $50,000.00 In a second order entered the same day involving First Fidelity, the Division proposed that the following claimants receive payment from the fund as indicated below: Claimant Fund Award Swid $ 2,620.00 Morton 2,620.00 Ghane 2,620.00 Petruzel 2,620.00 Marino 2,620.00 B. Rosenberg 2,620.00 L. Rosenberg 2,620.00 Shasha Enterprises 2,620.00 Krause 2,254.00 Brooks, M.D., P.C. 2,620.00 Brooks 2,620.00 Jankovich 2,372.00 Sher 2,372.00 Low 2,620.00 Worthley 2,620.00 Vanderlaan 2,620.00 Sakow 2,313.00 Shisler 1,389.00 Irving 2,620.00 Loos 2,620.00 Total Payments $50,000.00 After the entry of the proposed final order in Case No. 86-3575, petitioners, David Swid, Vera G. Marino et al., Samuel Rudnick et al., and William and Olivia Petruzel, who are named as recipients from the fund, requested a hearing to either contest or support the proposed payout from the fund. In addition, petitioners, Merele Dunne, Ida Orlick and Ilene Kirshner, whose claims were denied, challenged the proposed action. In Case No. 86-3576 involving First Fidelity, petitioners, William and Olivia Petruzel, David Swid, Esmail Ghane and Vera G. Marino et al., who are named as recipients of the fund, have requested a formal hearing to either challenge or support the agency action. Petitioners, Harry and Yetta Neiderman, Harold E. and Eva L. Roys and Harold S. Johnson, whose claims to participate in the initial distribution of the fund were denied, also requested a hearing to contest the action. The Claimants David Swid -- Swid satisfied all statutory criteria in section 494.043 for perfecting his claim against both Fidelity Standard and First Fidelity by June 18, 1986. His partial assignment to the Division of the judgment against the brokers was also filed on June 18, 1986, but was not furnished to the Division until July 9, 1986. Even so, Swid has satisfied all criteria, and is eligible to participate in the initial payout from the fund. Marino et al. -- This group of claimants includes fifteen investors. 2/ Marino et al. received two identical judgments against First Fidelity and Fidelity Standard and otherwise satisfied all statutory criteria by June 18, 1986. Because the group is not entitled to a double recovery, the amount awarded by the court has been divided in half. An assignment of the judgments was filed with the Division on June 12, 1986, but did not reflect the page and book number where the judgments were recorded. However, the judgments were filed with the United States Bankruptcy Court for the Southern District of Florida, and records of that court are not kept by book and page number. Therefore, the assignment was in proper form, and all statutory criteria have been met. William and Olivia Petruzel -- The Petruzels obtained final judgments against First Fidelity and Fidelity Standard on April 11, 1985, in the United States Bankruptcy Court. Partial assignments of the judgments dated April 4, 1986, in favor of the Division were filed with the Division in April 1986. Therefore, all pertinent criteria have been met, and the Petruzels are eligible to share in the initial payout from the fund. Harold E. and Eva L. Roys and Harold S. Johnson -- These parties are claimants against First Fidelity. There is no evidence that they perfected their claims prior to June 18, 1986. Therefore, their claim to participate in the first distribution of moneys from the fund should be denied. Rudnick et al. -- This group of claimants includes six investors in Fidelity Standard. 3/ They obtained a final judgment against Fidelity Standard on June 10, 1986, in Broward County circuit court. Assignments of this judgment to the Division were executed in August 1986, and later filed with the Division. Therefore, Rudnick et al. have qualified for participation. Ida Orlick and Merele Dunne -- These two claimants were investors in Fidelity Standard and First Fidelity. They did not obtain a final judgment against those brokers until June 25, 1986, or after the two-year period to perfect claims had expired. Therefore, they are not entitled to participate in the first distribution of moneys from the fund. 4/ Harry and Yetta Neiderman -- These claimants were investors in First Fidelity. They obtained a final judgment in bankruptcy court against the broker prior to June 18, 1986. The Division proposed to deny the claim on the ground no documentation was submitted to prove that a claim had been filed with the bankruptcy court. At final hearing, the Neidermans submitted a proof of claim which reflected such a claim was previously filed with the court on July 15, 1982. Therefore, all statutory criteria have been met. Irene Morton -- Morton was an investor in First Fidelity who, like the others, lost her investment by virtue of illegal acts of that broker. She has perfected her claim in a timely manner and is entitled to participate in the first distribution of moneys from the fund. Esmail Ghane -- This investor lost approximately $30,000 due to the illicit acts of First Fidelity. He has subsequently obtained a judgment against the broker and has satisfied in a timely manner all other statutory criteria. Therefore, he has perfected his claim and is eligible for payment from the fund. At the same time, it is noted that Ghane's cause of action against the broker arose prior to October 1, 1985, and that he must share in the lower aggregate award ($50,000) that applies to claims arising before that date. Computation of Payments In addition to obtaining judgments for their lost principal, virtually all of the claimants were awarded either prejudgment or post-judgment interest, or both, by the courts adjudicating their claims. Further, some of the claimants have previously received payments from the fund for illegal acts occurring on the part of Franklin Capital Corporation, an affiliated corporation of First Fidelity and Fidelity Standard. By stipulation of counsel, the following amounts are the correct amounts due the claimants for losses arising from illicit acts by Fidelity Standard and First Fidelity assuming their claims are both timely and valid. The amounts are computed after deducting prior payments and by using only the principal amount awarded by the courts, and by including principal and pre- judgment interest. Fidelity Standard (without interest) Fund Claimant Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with prejudgment interest) Claimant Fund Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.50 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $ 50,000.00 Fidelity (without Standard interest) Claimant Fund Award Swid $ 3,021.00 Petruzel 3,021.00 Marino 3,021.00 B. Rosenberg 3,021.00 L. Rosenberg 3,021.00 Shasha Enterprises 3,021.00 Krause 1,435.00 Brooks, M.D., P.C. 2,870.00 Brooks 1,888.00 Jankovich 1,511.00 Sher 1,511.00 Low 1,813.00 Worthley 1,813.00 Vanderlaan 2,417.00 Sakow 1,511.00 Shisler 906.00 Irving 2,553.00 Burwell 477.00 Kreimer 1,081.00 Rudnick 2,290.00 B & H Lenkowitz 1,686.00 L & S Lenkowitz 70.00 Schrager 3,021.00 Loos 3,021.00 $50,000.00 Fidelity Standard (with pre-judgement interest) Fund Claimant Award Swid $ 2,279.50 Petruzel 2,279.50 Marino 2,279.50 B. Rosenberg 2,279.50 L. Rosenberg 2,279.50 Shasha Enterprises 2,279.50 Krause 1,959.50 Brooks, M.D., P.C. 2,279.50 Brooks, 2,279.50 Jankovich 2,062.50 Sher 2,062.50 Low 2,279.50 Worthley 2,279.50 Vanderlaan 2,279.50 Sakow 2,011.50 Shisler 1,206.50 Irving 2,279.00 Burwell 1,531.50 Kreimer 2,219.50 Rudnick 2,279.50 B & H Lenkowitz 2,279.50 L & S Lenkowitz 474.50 Schrager 2,279.50 Loos 2,279.50 $50,000.00 First Fidelity (without interest) Claimant Fund Award Neiderman $ 2,995.00 Swid 2,995.00 Morton 2,995.00 Ghane 2,995.00 Petruzel 2,995.00 Marino 2,995.00 B. Rosenberg 2,995.00 L. Rosenberg 2,995.00 Shasha Enterprises 2,995.00 Krause 1,422.50 Brooks, M.D., P.C. 2,845.00 Brooks 1,872.00 Jankovich 1,497.25 Sher 1,497.25 Low 1,797.00 Worthley 1,797.00 Vanderlaan 2,396.00 Sakow 1,497.25 Shisler 898.25 Irving 2,530.50 Loos 2,995.00 $50,000.00 First Fidelity (with prejudgment interest) Fund Claimant Award Neiderman $ 2,489.80 Swid 2,489.80 Morton 2,489.80 Ghane 2,489.80 Petruzel 2,489.80 Marino 2,489.80 B. Rosenberg 2,489.80 L. Rosenberg 2,489.80 Shasha Enterprises 2,489.80 Krause 2,140.44 Brooks, M.D., P.C. 2,489.80 Brooks 2,489.80 Jankovich 2,253.44 Sher 2,253.44 Low 2,489.80 Worthley 2,489.80 Vanderlaan 2,489.80 Sakow 2,197.44 Shisler 1,318.44 Irving 2,489.80 Loos 2,489.80 $50,000.00 The inclusion of post-judgment interest in the calculation of the awards has an inconsequential effect on the amounts to be paid and accordingly has been disregarded.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the initial payment from the mortgage brokerage guaranty fund for damages arising from illicit acts by Fidelity Standard and First Fidelity be made in accordance with the schedules set forth in finding of fact 16, said amounts to include prejudgment interest. All other claims for relief should be DENIED. DONE AND ENTERED this 6th day of January, 1987, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1987.
The Issue Whether the petitioner should revoke respondent's self-insurance privilege for failure to comply with Rule 38F-5.10(2)(a), Florida Administrative Code.
Findings Of Fact On February 12, 1980, the Department of Labor and Employment Security, through its Bureau of Self-Insurance, notified the Deauville Hotel (respondent) of its intention to revoke respondent's workers' compensation self-insurance privilege for failure to comply with the requirements of Rule 38F-5.10(2)(a), Florida Administrative Code. This Rule requires each se1f-insurer to have on file with the Department a "financial statement of a current date showing a net worth of not less than $250,000 and a current ratio of more than 1 to 1, and a working capital of an amount establishing financial strength and liquidity of the business to pay normal compensation claims promptly". Specifically, petitioner contends the respondent filed financial statements for calendar year 1978 that were not certified by an outside independent accounting firm, and that such statements reflected an unsatisfactory current ratio and net worth in contravention of the Rule. Respondent is a large luxury hotel located in Miami Beach, Florida, and employs more than 400 persons. It is a division of Deauville Operating Corporation. Respondent is now and has been for a number of years a self- insurer under Section 440.38(1)(b), Florida Statutes. The privilege to self- insure is granted by the Department when an employer demonstrates the financial ability to promptly discharge all amounts required to be paid under the provisions of the Workers' Compensation Law as contained in Chapter 440, Florida Statutes. Having once established the requisite financial integrity, an employer must file within six months following the close of each succeeding fiscal year financial statements demonstrating the continued ability to discharge all obligations under the Law. The Department is reposed with the responsibility of reviewing the financial statements to insure compliance with the applicable rules governing self-insurers. When the administrative complaint was issued, respondent had on file financial statements consisting of a balance sheet, statement of income, home office equity, and changes in financial position (Exhibit No. 1). All statements were prepared using the year ending December 31, 1978. Three financial measurements are used by the Department to evaluate the financial integrity of an employer. These are current ratio, net worth and working capital. However, the Department has chosen to rely only upon the first two measurements as a basis for revoking the self-insurance privilege of respondent. The current ratio of a business entity is determined by comparing the ratio of current assets to current liabilities as shown in the most recent financial statement (Rule 38F-5.01 (10), Florida Administrative Code). The owner's equity or net worth is computed by subtracting total liabilities from total assets. Working capital is derived by taking the excess of current assets over current liabilities. (Rule 38F-5.01(16), Florida Administrative Code);. The application of these measurements to the 1978 financial statements of respondent reveals a current ratio of .82 to 1 based upon current assets and liabilities of $667,542 and $816,542, respectively, a negative net worth of $543,112, and a working capital in a negative position. Efforts by petitioner in late 1979 and early 1980 to obtain more current financial statements of respondent were not successful. However, in April and July, 1980, respondent filed certain financial data for calendar year 1979 and the year ending March 31, 1980 (Exhibit Nos. 2, 3, 6 and 7). Exhibit Nos. 2 and 3 pertain to the financial position of the Deauville Operating Corporation at December 31, 1979, and incorporate therein the operating results of the Deauville Hotel. Exhibit No. 2 failed to segregate the Corporation's current assets and liabilities from total assets and liabilities. Therefore, no determination of current ratio or working capital can be made. The Exhibit does show the Corporation had a net worth of $2,643,487. Exhibit No. 3 revised the data shown in Exhibit No. 2 and provided a division of assets and liabilities from which a measurement of current ratio and working capital can be calculated. However, the Corporation improperly classified as a current asset a long-term receivable in the amount of $2 million. Had this asset been properly classified, current liabilities would have exceeded current assets and produced a negative working capital and current ratio of less than 1 to 1. Exhibit Nos. 6 and 7 are financial statements of the Deauville Hotel for calendar year 1979 and the year ending March 31, 1980, respectively. Exhibit No. 6 shows total current assets and liabilities of $495,449 and $1,072,540, respectively, as of December 31, 1979. The resulting current ratio is .46 to 1 while the working capital is in a negative position. Net worth is a negative $394,639. As of March 31, 1980, current assets had increased to $832,763 while current liabilities had slightly decreased to $1,017,636. The current ratio is accordingly less than 1 to 1. At the same time, net worth had increased to a positive amount of $137,901 while working capital remained in a negative position by virtue of current liabilities exceeding current assets (Exhibit No. 7). None of the financial statements are certified by outside independent accounting firms. The audit reports for the set of statements contained in Exhibit Nos. 1, 2, 6 and 7 specifically contain a disclaimer by the accountants that they have "not audited or reviewed the accompanying financial statements, and accordingly, do not express an opinion or any other form of assurance on them". By the same token, the statements encompassed in Exhibit No. 3 include the conspicuous disclaimer by the accountant that such statements are "unaudited".
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that petitioner Department revoke the privilege of respondent to be a self-insurer under Section 440.38(1)(b), Florida Statutes. DONE AND ENTERED this 15th day of August, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of August, 1980. COPIES FURNISHED: Douglas P. Chanco, Esquire Suite 131, Montgomery Building 2652 Executive Center Circle East Tallahassee, Florida 32301 William Wade Hampton, Esquire Post Office Box 355 Gainesville, Florida 32602
The Issue The issue is whether Respondents failed to file four quarterly and one annual financial statements and failed to maintain minimum amounts of net worth and working capital. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent Susan Jan Haggerty (Haggerty) was the controlling person of Respondent Suncoast Resource Management, Inc. (Suncoast). The Board of Employee Leasing Companies (Board) licensed Suncoast as an employee leasing company, holding license number EL 0000055, and Haggerty as the company’s controlling person, holding license number CO 0000125. Haggerty is also the licensed controlling person for Suncoast Management Group, Inc., an employee leasing company licensed since January 1994. Respondents applied for their licenses in July 1992. Suncoast was first licensed on March 22, 1994, and Haggerty was first licensed on January 13, 1994. Haggerty’s license remains currently in effect. However, following its surrender, as described below, Suncoast’s license became null and void on September 12, 1995. During 1994--its first year of licensed operation-- Suncoast encountered financial problems. At some point prior to December 31, 1994, a workers’ compensation carrier won a judgment of about $200,000 against Suncoast for unpaid workers’ compensation premiums. During 1994, Haggerty decided to close Suncoast. She instructed the company’s independent accountant to contact Board staff and find out how to close down the company, from a regulatory standpoint. An unidentified male staffperson employed by the Board informed the accountant by telephone that all the Respondents had to do was to write the Board a letter informing it of what was happening and to submit the quarterly compiled financial statement. The accountant conveyed these instructions to Haggerty in October or November 1994. Suncoast ceased doing business effective December 31, 1994. During this month, Suncoast terminated its last employee. During 1994, Suncoast had a gross Florida payroll of less than $2.5 million. During 1995, an investigator for Petitioner contacted Haggerty and discussed some of the unfiled financial statements that are the subject of these cases. In an effort to resolve this matter, Suncoast formally surrendered its license on August 2, 1995. The Administrative Complaints allege that Respondents failed to file five financial statements with the Board. These are four quarterly financial statements due for the quarters ending December 31, 1994, and following, and the 1994 annual financial statement. There are also allegations of failure to maintain minimum requirements of net worth and working capital. It appears that Suncoast did not file any quarterly financial statements prior to the one due for December 1994. However, Petitioner did not elect to allege violations of the law for these failures to file. For the relevant period, Suncoast only filed two statements with the Board of Employee Leasing Companies. The first statement was a quarterly financial statement for the last quarter of 1994, which was filed in March 1996--well after the ordinary deadline for such quarterly statements. The second statement was an annual financial statement for 1994. The accountant prepared this statement, dated June 4, 1995, and Haggerty filed it with the Board of Employee Leasing Companies on July 10, 1996--also well after the ordinary deadline for such annual statements. The 1994 financial statement is compiled, not audited or reviewed. The 1994 financial statement reveals that Suncoast had a tangible accounting net worth deficiency of about $180,000 and a positive working capital of $28,737, which reflects current assets and current liabilities and treats the $200,000 judgment as a long-term liability. Suncoast never obtain Board-approved security to offset the $180,000 deficiency in its net worth.
Recommendation It is RECOMMENDED that the Board of Employee Leasing Companies enter a final order dismissing the administrative complaint against Suncoast Resource Management, Inc. and suspending Susan Jan Haggerty’s license for a period equal to the earlier of five years or until she proves to the reasonable satisfaction of the Board that the $200,000 judgment in favor of the workers’ compensation carrier has been satisfied or vacated with all judicial review concluded; but in no event shall the term of the suspension be less than one year. ENTERED in Tallahassee, Florida, on June 5, 1997. COPIES FURNISHED: Mary Ellen Clark Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 5, 1997. Tallahassee, Florida 32399-0792 Attorney Frank M. Gafford Post Office Box 1789 Lake City, Florida 32506-1789 Isla Jones Executive Director Board of Employee Leasing Companies 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, Respondent, Ralph A. Call, held real estate broker's license number 0012490 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. Respondent was active broker for a real estate firm located at 1648 Periwinkle Way, Sanibel Island, Florida. At an undisclosed time Respondent purchased Apartment 503, Sandlefoot Condominiums, located on Sanibel Island and later sold it to Eric and Enid Winson. As part of the purchase price, Call agreed to take back two unsecured notes totaling $43,211.73. In February, 1979, the Winsons listed the condominium through Respondent's office. It was agreed that Respondent would obtain all or partial satisfaction of the notes from the proceeds of the sale. On or about March 9, 1979, the Winsons entered into a contract to sell Wolf and Marie Fudikar the condominium for a price of $107,000. Under the terms of the contract, the buyers gave Respondent a $10,690 cash deposit to be held in escrow pending the completion of the sale. The contract also required the sellers to deliver a marketable title to the property. A closing date was set for on or before June 21, 1979. The buyers were represented by Henry Norton, an attorney in Miami, Florida, who was given power of attorney since the Fudikars resided in West Germany. By mutual agreement of the parties, they verbally agreed to change the closing date to Friday, July 20, 1979. It was understood that the buyers would wire the money from Switzerland to Norton in Miami, who would then wire the money to a representative of Gulf Abstract Company in Fort Myers, in whose offices the closing was to be held. When no money was received, a representative of Gulf Abstract telephoned Norton that afternoon end was advised that Norton had not received the money from his clients and could not close. Respondent construed the failure of the buyers to close on that date as a possible breach of the contract. A written standard title insurance binder was issued by Gulf Abstract for the July 20 closing. Although this commitment did not insure marketability, a representative of the firm could not recall any material exclusions or exceptions set out in the policy. The following Monday or Tuesday after the scheduled July 20 closing, a local lending institution filed a lis pendens on the property and instituted a suit against the sellers for defaulting on another debt. Because of this cloud on the title, and other problems which arose, the buyers then reneged on their agreement since no marketable title could be furnished by the sellers. After the sale fell through, both the buyers and sellers made claims for the deposit, each alleging that the other had breached the contract. Upon the advice of counsel, Respondent refused to return the deposit to the buyers since he could also be held liable to the sellers. Respondent finally contacted the Board's District Office in Fort Myers at a later undisclosed time seeking advice on what to do. He was told to call Tallahassee to get an opinion. He then made several telephone calls and wrote letters to various Department representatives or attorneys on December 4, 1980, January 17, 1981, February 19, 1981 and February 28, 1981 requesting that a disbursement order be issued. On March 17, 1981, the Board of Real Estate issued an escrow disbursement order and held, inter alia, that under the terms of the contract closing was to occur no later than June 21, 1979, that no written modification of the terms regarding closing was made, that the sellers were unable to deliver clear title by June 21, and that because of this no contract for sale existed between the parties, and the buyers were not obligated to perform it accordingly ordered Call to disburse the deposit to the buyers. The order also noted that the Order ". . .(did) not provide (Call) with any immunity to any civil liability." On March 31, 1981, Call wrote the Board the following letter: Please be advised that I wish to appeal your decision because it was not based upon actual facts. Please forward to me any form you may have available for this purpose. I am willing and prepared to appear in person for cross examination if necessary, to get the true facts before your board. Please advise. Yours very truly, /s/ Ralph A. Call Counsel for the Board responded by letter on April 17, 1981, stating that "since the contract for sale was between the Fudickars (sic) and the Winsons, (Call was) not entitled to appeal the Escrow Disbursement Order. . ." and further that the "true facts" had already been presented. Upon the advice of his attorney, Call did not comply with the order for fear of liability to the sellers if the deposit was given to the buyers. On March 16, 1982, one day prior to the final hearing, Call obtained a cashier's check in the amount of $10,690 made payable to Norton who represented the buyers. During the entire controversy the deposit remained in Call's escrow account. There is no allegation that Call misused the funds or otherwise improperly dealt with the money while the dispute ensued.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ralph A. Call, be found guilty as charged in Count II of the Administrative Complaint and be given a public reprimand. DONE and ENTERED this 16th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1982.
The Issue The issue for disposition in this proceeding is whether the Department of Corrections acted fraudulently, arbitrarily, illegally, or dishonestly when it rejected all bids in lease no. 700:0820.
Findings Of Fact On or about May 9, 1999, the Department of Corrections (DOC or agency) issued a request for proposals (RFP) for the agency's Probation and Parole Office in Fort Myers, Florida (lease no. 700:0820). The RFP sought approximately 5225 square feet of space, plus or minus 3 percent. The RFP required that bidders indicate in their proposals whether the space being offered was within one quarter mile of the following: a school for children in grade 12 or lower, a licensed day care facility, a park or playground, a nursing home, a convalescent center, a hospital, an association for disabled population, a mental health center, a youth center, or a group home for disabled population. Two proposals were submitted: one from Capital Properties Group, Inc. (Capital), and one from Offilock, Inc. (Offilock), the entity currently providing office space for the Probation and Parole Office. Both bids were found to be responsive and were evaluated on or about July 7, 1999. According to the RFP criteria the evaluation team considered the following: fiscal costs (base and options period rental rate), moving costs, location (including proxmity to the Justice Center, public transportation, and clients, as well as security issues), and the facility (layout and future expansion). Offilock's bid included lease rates higher than the rates set for the geographical region by the Department of Management Services (DMS). Capital's bid provided lease rates at the highest end of DMS' rates. While DOC is required to consider DMS' rates, it is not bound by those rates and higher rates would not automatically disqualify a bidder. Still, DOC was concerned with reducing its office lease costs either by reducing the rental rates or by reducing the space requirements. The agency had hoped to obtain a lease rate at the low-to-mid range of DMS' rates. The evaluation committee rated Capital higher than Offilock in the fiscal category but substantially lower than Offilock in the remaining categories. The final scores for the two bidders were Capital: 242; Offilock: 328. In its response to the question described in paragraph 2, above, regarding location, Capital indicated that its space is within one quarter mile of a school for children in grade 12 or lower. It responded "no," as to the other facilities. Offilock's space is not within one quarter mile of any of the facilities. During site visits DOC staff noted that Capital's building abutts a school for children in grades pre-kindergarten through eight, with a playground approximately 30 feet from the proposed office. Across the street from the building is another school for elementary through high-school children. Also across the street is a church with a children's outdoor play area. The office which is the subject of lease no. 700:0820 serves approximately 1100 felony probationers, including sexual offenders, drug offenders, and other felons. Most are required to report to the office at least once a month. Nothing in the RFP for lease no. 700:820 specifies that a property will be disqualified because of proximity to a school or other facility listed in paragraph 2 above. Instead, Section 945.28, Florida Statutes, requires that the DOC provide newspaper notice and written notice to the county or city manager whenever the agency intends to lease or purchase probation and parole office space. DOC complied with this requirement. Before any complaints were received, on July 13, 1999, DOC General Services Manager Malcolm Wilson sent a letter to both Capital and Offilock stating that the agency was rejecting all bids for this project as not being in the best interests of the State of Florida. The letter thanked the bidders and stated they would be given an opportunity to bid on a new package. Although there was some concern initially that Capital's property might not be zoned for a probation and parole office, that concern was eliminated with a letter from the Lee County Department of Community Development. In their testimony at hearing and in their pre- rejection internal memoranda, DOC staff explained that the bases for rejecting all bids were lease costs and the immediate proximity of Capital's offered property to schools and playgrounds. The staff responsible for the decision in lease no. 700:0820 were concerned about public safety and negative responses by the community. In other similar cases in the past the agency has experienced objections by the community. Since July 1999, DOC has included in other probation and parole office RFPs the provision that such offices may not be located within one quarter mile of the facilities listed in Section 945.28, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the protest of Capital Properties Group, Inc., be dismissed. DONE AND ENTERED this 19th day of May, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of May, 2000. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432-3911 Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Michael W. Moore, Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue Should Petitioner's application for registration as an associated person be approved?
Findings Of Fact From April, 1985 to August 1986, Petitioner was employed as a registered associated person of Dean Witter Reynolds in Tallahassee, Florida. The Reebok Trade On March 11, 1986, Petitioner was instructed by one of his customers to sell 200 shares of stock in Reebok International, Ltd. (Reebok). By mistake, Petitioner executed an order to sell 500 shares of Reebok on behalf of the client. On March 17, 1986, the client came to Petitioner's office and while reviewing the client's account, Petitioner discovered the error he had made on March 11, 1986. Petitioner told his supervisor, Mr. Brock, of the mistake. The supervisor told Petitioner that he should "bust" the trade. This meant reversing the transaction and purchasing 300 shares of Reebok. It is Dean Witter's policy that whenever an error is discovered, it should be covered immediately. Petitioner, however, did not cover the error. From March 11, 1986 to March 17, 1986, the price of Reebok stock had increased. Petitioner decided to wait and see if the price would come down. Sometime after March 17, 1986, Mr. Brock left the firm and a new supervisor, Mr. Cavelle, took his place. On April 30, 1986, Mr. Cavelle noticed the Reebok error in the error account and executed an order to cover the error by purchasing 300 shares of Reebok stock. From March 11, 1986 to April 30, 1986, the price of Reebok stock increased substantially, and the error in the Reebok trade resulted in a loss of $9,225.00 to Petitioner's client. The client was reimbursed by Dean Witter. Petitioner received a written reprimand from Dean Witter and agreed to pay Dean Witter the amount of the loss. While Petitioner remained employed with Dean Witter, $400.00 were deducted from his monthly pay check to pay off the loss. After Petitioner was fired from Dean Witter in early August, 1986, he has only been able to make sporadic payments, totalling approximately $600.00 to $700.00. The Corpen One Transactions Sometime in May, 1986, while Petitioner was still employed at Dean Witter, Petitioner and John Collins formed Corpen One, Inc. (Corpen). The corporation was formed to run a hot dog vending cart operation in Tallahassee, Florida. John Collins was named president and Petitioner was the secretary and treasurer responsible for handling the corporation's finances. In order to raise capital for the corporation, Petitioner found three other persons willing to invest in the corporation. Curtis Davis, J.B. Durham and Jeff Burkett each invested approximately $4,000.00, in return for part ownership of the corporation. With the unused cash which the corporation had, Petitioner opened a bank account with Barnett Bank. From May 15, 1986, to July 17, 1986, Petitioner, without the knowledge of other stockholders, wrote checks to himself from the corporate bank account totalling $3,500.00. The dates and amounts of each check were: May 15, $800; May 19, $1,200; May 27, $800; June 26, $100; July 17, $600. These amounts were used by Petitioner for personal expenses. He treated them as loans from the corporation. Eventually, he repaid the loans with interest equal to what would have been earned had the money been invested in a Dean Witter money market account. Sometime in early July, 1986, Petitioner determined that it would be a good idea to open up a Dean Witter money market account for the funds which the corporation had in the bank account. On July 9, 1986, Petitioner, in his capacity as a Dean Witter employee, assigned a Dean Witter new account number, number 531015757, to the corporation. He did this by personally writing the name Corpen One, Inc. in the Dean Witter "New Account Number Assignment" log. This procedure was contrary to Dean Witter's policy which required that the new accounts clerk assign the new account number. In the clerk's absence, a person other than a broker or salesperson should assign the number. When Petitioner returned to his desk to complete the paperwork necessary to open a new account, he discovered that he needed to have a Federal Tax Identification Number for Corpen in order to open the account. Since Corpen did not yet have such a number, Petitioner never opened the account. During the period of time he borrowed money from the corporation, Petitioner filled out Dean Witter receipts which showed Dean Witter as having received $3,300 from Corpen to be invested in a money market account. The dates and amounts of the receipts were: May 15, $800; May 19, $1,200; May 27, $800; July 17, $500. The receipts were filled out completely and included the account number which Petitioner had assigned to Corpen One for the account which was never opened. Sometime in July or early August, 1986, Mr. Durham and other shareholders of Corpen became concerned with the operation of the corporation. Sales were not as high as expected and the corporation was not doing well. Also, Petitioner wanted to be relieved of his duties, because the time needed to run Corpen was interfering with his duties at Dean Witter. The more Mr. Durham checked into the operation of the corporation, he became convinced that improprieties were taking place. After several meetings took place, Petitioner handed over to Mr. Durham the corporate records in his position. These records included the cancelled checks Petitioner had written to himself and the Dean Witter receipts. When Mr. Durham saw the Dean Witter receipts, he asked Petitioner about them. When he did not receive a satisfactory answer, he took the receipts to Dean Witter and met with Mr. Cavelle, the branch manager. Mr. Cavelle tried to look the account up on his computer and discovered there was no account. He then checked the new account log book and discovered that Petitioner had personally assigned the account number. When Mr. Cavelle asked Petitioner to explain what had happened, he received what he considered a "hazy" explanation, and fired Mr. Hicks. Mr. Cavelle's main concern was that the receipts made Dean Witter potentially liable for the amounts shown in each receipt. After being fired, Petitioner was unemployed for four to five months. From February, 1987 to May 1988, Petitioner worked for Corporate Risk Management, a company managing self-insurance funds for employees. Petitioner is now the manager of the Melting Pot restaurant in Panama City Beach, Florida. For 1987, Petitioner earned approximately $13,000. His current salary is $1,200 per month.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order denying Petitioner's application for registration as an associated person. DONE and ORDERED this 19th day of January, 1989, in Tallahasee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. APPENDIX The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding Ruling and RO Paragraph of Fact Number Second sentence accepted. Rest of paragraph is rejected as irrelevant or argument. Rejected as irrelevant. First three sentences rejected as argument. Fourth and fifth sentences accepted. Supported by the evidence but unnecessary to the decision reached. The implication in the first sentence that the delay was someone else's fault or that the stock market is to blame is rejected. Petitioner has only himself to blame for the delay. Third sentence is rejected as argument. Fourth sentence accepted. Last three unnumbered paragraphs are argument Respondent's Proposed Findings of Fact Proposed Finding Ruling and RO Paragraph of Fact Number Not a finding of fact. Accepted. See Background section of RO. 3.-4. Not a finding of fact. See Background section of this RO. Accepted. See Background. Not a finding of fact. See Background. Accepted RO1. Accepted RO12. Rejected as recitation of testimony. Also, as to the first sentence, Mr. Durham's testimony on direct was weakened by the cross- examination where his memory of events was tested. As to the second, third and fourth sentences, Mr. Hicks executed the receipts, and borrowed money from Corpen One. However, the evidence fails to establish that Mr. Hicks "converted" to his own use money which was to be invested in the money market account. Rejected as recitation of testimony. But see RO18. Accepted. RO20, 21. Rejected as not supported by the evidence. Rejected as recitation of testimony. Rejected as recitation of testimony except fourth and ninth sentences. ,16.,17. Rejected as not a finding of fact. Rejected as irrelevant. Accepted. RO2.-4. Rejected as recitation of testimony. But see RO6. ,22. Rejected as recitation of testimony. But see RO5.-10. 23. Rejected not as a finding of fact. 24.-28. Rejected as recitation of testimony. COPIES FURNISHED: John D. Hicks 3918-A Raven Street Panama City, Florida 32312 Reginald R. Garcia, Esquire Assistant General Counsel Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-1302 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts General Counsel Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 =================================================================
