The Issue The issues are whether Respondent violated Sections 489.129(1)(i) and 489.129(1)(o), Florida Statutes, and if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a Certified Plumbing Contractor, holding License No. CF C056847. Respondent has maintained an active license since October 19, 1995. At all times material to this proceeding, Respondent conducted his business under the name of Ron Price Plumbing and Tile. On May 18, 2000, Respondent's business was located at 2043 Mike Street, South Daytona, Florida. On May 18, 2000, Respondent gave Edward Carlson a written proposal to perform some repair work in a bathroom at Mr. Carlson's residence, which was located in Daytona Beach, Volusia County, Florida. The letterhead on the written proposal indicates that Respondent's business address was 2043 Mike Street, Daytona Beach, Florida. The written proposal states that for the sum of $1,200, Respondent would perform the following work : (a) remove floor and bottom two rows of tile; (b) install PVC pan and drain; (c) install dura rock to walls; (d) install four-by-four wall tile; (e) install second floor; (f) install two-by-two floor tile; (g) use white grout; and (h) haul away refuse. Mr. Carlson accepted this proposal. Respondent did not pull a permit from the City of Daytona Beach Building Department before commencing the work in Mr. Carlson's bathroom. The City of Daytona Beach, Florida, requires a permit for the type of work performed by Respondent, even though very few plumbers or contractors actually take the time to pull one. Specifically, City of Daytona Beach Ordinance 104.1.4.1 requires a permit for minor repairs exceeding $500. Respondent, subsequently, completed the work in Mr. Carlson's bathroom. Mr. Carlson inspected the work and paid Respondent $1,200 as agreed. There is no credible evidence that Respondent's work was substandard or that he damaged Mr. Carlson's property in any respect. Thereafter, Respondent moved his business to 6089 Airport Road, Port Orange, Volusia County, Florida. As of September 1, 2000, Petitioner's records correctly reflect Respondent's current address of record at the new business location. Petitioner expended $312.48 in total cost, excluding attorney's fees, for investigating, filing, and pursuing the complaint against Respondent through the administrative complaint process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(o), Florida Statutes, imposing an administrative fine in the amount of $500, and assessing investigative costs in the amount of $312.48. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 8th day of November, 2001.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's registration as a real estate broker be suspended for a period of seven (7) days. Respectfully submitted and entered this 3rd day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann III Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Gerard L. Crawford Route L, Box 157 Feeport, Florida 32439 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF OCCUPATIONS DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, PROGRESS DOCKET NO. 2853 WALTON COUNTY vs. DOAH CASE NO. 76-1034 GERARD L. CRAWFORD, Defendant. /
The Issue Whether Petitioner's application for registration as a real estate salesman should be approved. Petitioner appeared at the hearing without legal counsel. He was advised of his rights in an administrative proceeding and indicated that he understood the same and desired to represent himself in this proceeding.
Findings Of Fact On February 9, 1978, Petitioner Robert Marquis Levy of Miami Beach, Florida, filed with the Respondent an application for registration as a real estate salesman. In answer to question 6 on the application form concerning prior arrests or charges, Petitioner attached a list of prior arrests and convictions on criminal charges during the period 1970-1977, together with an accompanying explanation. By Order, dated April 10, 1978, Respondent denied the application based on Petitioner's criminal record. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 1) At the hearing, Respondent presented evidence establishing the following criminal convictions of Petitioner: On September 14, 1971, Petitioner was convicted in the United States District Court for the Eastern District of Pennsylvania, Case No. 71-391, upon his plea of guilty to three counts of the offense of making or causing to be made false, fictitious and fraudulent statements in representations to an agency of the United States of America, in violation of 18 USC, Section 1001. He was sentenced to a suspended prison sentence and placed on probation for a period of five years. However, his probation was revoked in 1974 and he was sentenced to confinement for a period of two years. On December 16, 1974, in the United States District Court for the District of Maryland, Docket No. Y-74-0446, Petitioner, on his plea of guilty, was convicted of the offense of bail jumping in violation of 18 USC, Section 3150, and sentenced to imprisonment for a period of one year. On September 29, 1975, in the United States District Court for the Northern District of Georgia, Case No. CR 75-51A, upon his plea of guilty, Petitioner was convicted of the offense of transporting and causing to be transported in interstate commerce, a falsely made and altered security, in violation of 18 USC, Section 2314. He was sentenced to imprisonment for a period of two years for this offense. On October 5, 1977, in the Circuit Court of Dade County, Florida, based on four 1973 informations on worthless check charges in violation of Section 832.05, Florida Statutes, Petitioner having been placed on probation for such offenses, was ordered to make full restitution in the total amount of $1,206.40 to the Fountainbleau Hotel, Jordan Marsh, Burdines, and Peruvian Import and Sales Corporation. (Bill Andrews) (Respondent's Composite Exhibit No. 2) In addition to the foregoing, Petitioner conceded in his application to a 1970 New Jersey conviction of defrauding innkeeper for which he was fined $25.00, and a 1972 Virginia conviction of grand larceny by embezzlement, for which he was sentenced to three years in 1974. (Respondent's Exhibit No. 1) Petitioner testified at the hearing and submitted numerous documents in support of his testimony concerning good character and reputation in the community. In June 1977, Petitioner was released from federal prison and commenced employment with a Miami Beach television sales and service firm. In July 1978, he became the editor and business manager of the Miami Beach Citizen's News, a monthly news publication. During the period since his release from prison, Petitioner became active in the affairs of the Miami Beach Chamber of Commerce as chairman of various committees and member of the Board of Governors. In this connection, he became involved in a multitude of civic projects, including improved road signs, safe streets program, revitalization of Washington Avenue and Lincoln Road, and other community, civic and charitable activities. (Testimony of Petitioner, Petitioner's Exhibits 1-7) On February 9, 1978, the State Office of Executive Clemency issued Petitioner a Certificate of Restoration of Civil Rights for all felony convictions in the State of Florida and restoration of civil rights in the State of Florida for any and all felony convictions in other state or federal courts. (Petitioner's Exhibit 8)
Recommendation That the application of Petitioner Robert Marquis Levy for registration as a real estate salesman be approved, subject to any further necessary requirements for registration. DONE and ENTERED this 7th day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert Marquis Levy 10350 West Bay Harbor Drive #2T Miami Beach, Florida 33154 Manuel E. Oliver, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes. Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2). An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5). On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).
Recommendation That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years. DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leonard H. Balkan Louis B. Guttmann, III, Esquire 6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida
The Issue Whether the Respondent's real estate license #0067819 should be suspended, or whether he should be otherwise disciplined.
Findings Of Fact The Respondent, Jeffry G. Pearl, is a registered real estate salesman and was so registered at all times pertinent to this hearing. An Administrative Complaint was issued against him on June 27, 1979. An answer was filed on July 30, 1979, together with a Motion to Quash and a request for an administrative hearing. The Petitioner Commission forwarded the request to the Division of Administrative Hearings on August 7, 1979. The Motion to Quash was denied September 13, 1979, after review of the Memorandum of Law submitted. Prior to the beginning of the formal hearing, the Respondent re-argued the Motion to Quash, challenging inter alia the constitutionality of the statute under which the complaint was issued. The Motion was again denied. Count II of the previously filed Administrative Complaint was dropped upon an oral motion to amend by the petitioner Commission. On September 15, 1978, Respondent Pearl was arrested and charged with possession of controlled drugs, driving under the influence, and possession with intent to distribute, contrary to Sections 893.13 and 316.193, Florida Statutes. Respondent pleaded guilty on February 9, 1979, to possession of controlled substances [three (3) counts] and was convicted of the offenses on that date. The imposition of sentence was stayed and withheld, and he was placed on probation and released into the custody of the Department of Offender Rehabilitation for a term of five (5) years. The condition of probation was that he pay a fine of $5,000.00. The Respondent is now and has been on probation since February 9, 1979, and is subject to terms and conditions "to be set forth by further order of the court." Respondent Pearl admitted that on September 15, 1978, he was driving in Miami, Florida, and was arrested while under the influence of drugs. A large amount of cash and drugs was found in his automobile. The Respondent admitted that he had been addicted to drugs of all types, including marijuana and cocaine. After his arrest Respondent was imprisoned, but before his case came to trial he entered a hospital in Miami, Florida, and thereafter went to the Palm Beach Institute, a treatment center aligned with Alcoholics Anonymous and Narcotics Anonymous. He was discharged from the Palm Beach Institute in January of 1979, and has continued treatment on an outpatient basis. The Respondent stated that he has been drug-free since January of 1979, and that he started back to work with Miami Beach Realty on a full-time basis in April of 1979. Respondent Pearl presented as a witness Dr. Jose Almedia, a physician specializing in psychiatry. Dr. Almedia stated that the Respondent had not taken drugs of any kind to his knowledge from October of 1978, to September of 1979. He said that the Respondent is at present mentally clear, pleased with himself and his family, and that he is a completely different person from the time he first saw him in 1978. Dr. Almedia said that he believes the Respondent has turned his life around, and that since he has a job and goals the Respondent now has something for which to look forward. A second witness for Respondent Pearl was Melvin Black, an attorney specializing in criminal law. Mr. Black stated that the Respondent had originally been incarcerated for about a week, and that after he, as Respondent's attorney, had obtained a bond for the Respondent he became concerned not only with the criminal charges against the Respondent but also with his well-being. Black advised the presiding judge that Respondent Pearl was undergoing treatment, that he had voluntarily admitted himself for treatment, and the circuit judge had postponed the proceedings pending the completion of the treatment. Thereafter, about five (5) months later, a plea of guilty to the three (3) counts of possession of drugs was entered. Charges as to driving under the influence and possession with intent to distribute were not pressed. The probationary sentence and fine were the results of Respondent Pearl's conviction on the charges to which he had pleaded guilty. Certified copies of said conviction were entered into evidence. Respondent submitted a memorandum of law on December 7, 1979. The memorandum has been considered in the writing of this order. No memorandum was submitted by the Petitioner Board.
Recommendation Inasmuch as the Respondent, Jeffry G. Pearl, has embarked on a strenuous period of rehabilitation and appears to be successful at this point in time, it is recommended that his license be suspended for a period of sixty (60) days from the date of this order, and that after the expiration of said suspension an investigation be made by the Petitioner Commission to determine whether such suspension should be extended. DONE and ORDERED this 19th day of December, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 19th day of December, 1979. COPIES FURNISHED: Mark A. Grimes, Esquire Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Scott T. Eber, Esquire 151 South East 14th Terrace Miami, Florida 33131
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Based on an Administrative Complaint filed on July 6, 1979, the Florida Construction Industry Licensing Board (herein sometimes referred to as the Petitioner or the Board) seeks to take disciplinary action against Licensee Richard E. Ulbricht, d/b/a Ulbricht Construction, Inc., and to impose an administrative fine or $500.00. Respondent is a registered contractor who holds the following licenses: RG 0011921 - Registered General/Active/Issued RGA 0011921 - Registered General/Active/Issued RG OB 11921 - Registered General/Delinquent RM 0014920 - Registered Mechanical/Active/Issued RM 0017586 - Registered Mechanical/Delinquent RS 0019201 - Registered Sheet Metal/Active/Issued RC 0019264 - Registered Roofing/Active/Issued Respondent was first licensed by the Petitioner during February, 1972. On June 14, 1977, Respondent qualified Ulbricht Construction, Inc., as the business entity through which he would conduct his contracting business. The construction activities involved herein took place in the City of Palm Bay, Florida. Palm Bay has no local licensing board. On June 12, 1978, Respondent entered into a contract with Michael D. and Karen K. McCammack to construct a residence for the sum of $39,900.00. Respondent received the full contracted price and the transaction closed on January 4, 1979. Chelsea Title and Guaranty Company closed the transaction for Respondent and the McCammacks on January 4, 1979. Camille Guilbeau is the manager for the Palm Bay branch of Chelsea Title and Guaranty Company. Ms. Guilbeau is in charge of all closing and as such ensures that all outstanding obligations of record are paid. In keeping with Chelsea's policy of protecting itself in the event of outstanding unrecorded claims of liens, Chelsea has a policy of requiring contractors and builders such as Respondent to declare in an affidavit that there is no outstanding work which has been performed, or labor or materials for which a lien could be filed on property in which Chelsea is closing the mortgage transaction. Respondent executed such an affidavit relative to the McCammacks' property, which Chelsea relied on to close the transaction on January 4, 1979 (Petitioner's Exhibit 4). On January 4, 1979, Chelsea Title and Guaranty Company paid Rinker Materials Corporation of Melbourne, Florida, $1,201.02 based on a claim of liens filed December 15, 1978, for materials consisting of concrete block, steel and miscellaneous items which were used on the McCammack property (Petitioner's Exhibit 6). Subsequent to the date of closing, January 4, 1979, liens amounting to approximately $2,761.62 have been filed against the McCammack property based on Respondent's failure to pay bills for labor and/or materials used in connection with the construction of the McCammacks' residence. These lien claims were filed against the McCammacks' property for a drilled well, installation of a pump and tank by Perry and Leighty, Inc., of Melbourne, Florida; two septic tanks, drains and sand supplied by Pence South Brevard Sewer and Septic Tank of Melbourne, Florida (Petitioner's Exhibits 7, 8 and 9). On December 22, 1978, Respondent entered into a contract with Robert J. Greene to construct a residence for $30,500.00 in Palm Bay, Florida. Respondent filed an affidavit of no liens relative to the Greene property on January 10, 1979. Chelsea Title and Guaranty Company relied on this affidavit to close the Greene property transaction on January 10, 1979 (Petitioner's Exhibit 5). Respondent was paid thee entire contract price. On February 12, 1979, Pence South Brevard Sewer and Septic Tank filed a claim of lien in the amount of $1,015.36 for two septic tanks, drains and sand which had been furnished the Respondent for the property of Robert J. and Alice Greene of Palm Bay, Florida, on December 15, 1978 (Petitioner's Exhibits 10 and 11). Approximately $3,496.40 was retained by Chelsea Title and Guaranty Company to satisfy outstanding recorded obligations on the date the Greene transaction closed (Petitioner's Exhibit 13). On February 21, 1979, Respondent caused to be filed in the United States District Court of the Middle District of Florida, a Voluntary Petition for Bankruptcy for Ulbricht Construction, Inc. (Petitioner's Exhibit 2 Composite).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's contractors licenses set forth hereinabove be REVOKED. RECOMMENDED this 6th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1980.
The Issue Whether Respondents committed the violations alleged in the Notice to Show Cause.
Findings Of Fact Sandy Key Properties, Ltd., is the developer of Sandy Key, a condominium (Sandy Key). Thomas S. O'Rorke and Marion L. Bradford are general partners of Sandy Key Properties, Ltd. Sandy Key was meant to be a 244 condominium project consisting of four buildings with 61 units each. The condominium project was to be built in four phases, with each phase representing one building. Only three phases of the condominium project were built, however, consisting of 183 units. The ninety-second unit was sold on January 19, 1984. Control of the Owners Association Until September 1, 1984, the Respondents elected a majority of the board of directors of the Sandy Key Owners Association (Association). Up until then the board consisted of three directors: Thomas S. O'Rorke, Marion L. Bradford and Richard Douglas, who was a unit owner and Respondent's employee. On September 1, 1984, the Association held its annual meeting. At the meeting, the unit owners decided to increase the membership of the board of directors to five. The three sitting directors were reelected and two unit owners were added to the board. The Respondents did not vote their units at the election. On March 9, 1985, Mr. Douglas was replaced on the board by Bob Jackson. Mr. Douglas no longer worked for Respondents and Mr. Jackson was taking over Mr. Douglas' duties as Respondent's employee. During the time he served on the board, Mr. Douglas followed the orders given by Mr. O'Rorke. At the annual meeting held on September 14, 1985, the board's membership was increased from five to seven. The five sitting directors were reelected and two more unit owners were added. Respondents voted their units. On March 31, 1986, Mr. Jackson resigned from the board and was replaced by Mr. Douglas. At the annual meeting held on September 13, 1986, Mr. Bradford stated "that he and Mr. O'Rorke were not nominated to the board by the nominating committee since they automatically become board, members because they are the developers of Sandy Key." Petitioner's Composite Exhibit 1; Minutes of September 13, 1986 meeting. Five unit owners were also elected to the board. Two of the unit owners, Mr. Lassen and Mr. Putnam were also limited partners of Sandy Key Properties, Ltd., and Mr. Putnam was the developer's CPA. Respondents voted their units at the meeting. At a recall election held on May 2, 1987, Mr. O'Rorke was reelected and six new directors were elected. The six new directors were unrelated to the Respondents. Mr. O'Rorke was President of the Association from March 1983 to September 1985 and from September 1986 to May 1987. For those same periods, Mr. Bradford was Vice-President. From September 1985 to September 1986, Mr. Bradford was President and Mr. O'Rorke was Vice-President. Throughout the period beginning in 1983 and ending on May 2, 1987, Mr. O'Rorke and Mr. Bradford controlled the Association. Even though the majority of unit owners were allowed to elect the board of directors, Mr. O'Rorke asserted on numerous occasions that the developers were still in control of the Association. This assertion was based on Mr. O'Rorke's belief that the applicable law allowed him to retain control of the Association because he planned to build Phase IV of the project consisting of 61 units. The nondeveloper unit owners acquiesced in the assertion of control by Respondents until May 2, 1987. Until then, the unit owners believed that Respondents were in control and everyone acted accordingly. Prior to May 2, 1987, Respondents never relinquished control of the Association and the unit owners never accepted control of the Association. Up to the date of the hearing, Respondents had not delivered to the Association all the items required to be delivered by Section 718.301, Florida Statutes. One of the items Respondents never delivered is the review of the Association's financial records by a Certified Public Accountant required by Section 718.301(4)(c), Florida Statutes, and Rule 7D-23.003, Florida Administrative Code. Guarantee and Assessments At the hearing, the parties stipulated that the initial "guarantee period" ended on June 30, 1983. The "guarantee period" is that period of time, pursuant to Section 718.116(8)(a)2., Florida Statutes, wherein the developer obligates himself to pay any amount of common expenses which exceeds the assessments for common expenses imposed on other unit owners. In return for the guarantee, the developer does not have to pay assessments on the units it owns. On June 30, 1983, the Association reserve accounts were underfunded by $1,564.05. After June 30, 1983, Respondents did not pay assessments on developer- owned units as required of other unit owners. At the hearing, the parties agreed to stipulate to the amount of assessments Respondent should have paid from June 30, 1983, to December 16, 1986, and to file the stipulation after the hearing. The parties, however, were unable to reach agreement and a stipulation was not filed. The disagreement between the parties is over whether the assessment liability is $91,141.48, as asserted by Respondents, or $93,231.86, as asserted by Petitioner. From the evidence presented at the hearing, the assessments that should have been paid by Respondents from June 30, 1983, to December 16, 1986 total $91,141.48. For assessments paid more than ten days late, interest in the amount of 12 percent per annum from the date the assessment was due should also have been paid. Also, assessments not paid within ten days of the date due are subject to a $10 late fee. Petitioner's Exhibit 2, at p.10. Even though the Respondents did not make assessment payments to the Association in a formal and timely manner, Respondents continued to pay for Association expenses on a sporadic and as needed basis. From the evidence presented, however, one cannot determine the amount of these payments nor how to properly offset them against the assessments that Respondents failed to timely pay and against the interest and late fees that accrue to each unpaid assessment. As of December 16, 1986, the Association's reserve accounts were underfunded by $26,271.61. Financial Reports, Annual Meetings The Association did not mail or deliver to all unit owners a financial report for the year 1985 within 60 days following the end of the year. The Association did not call or hold an annual meeting of unit owners for the year 1983. The Association did not mail copies of proposed budgets and budget meeting notices, and did not hold budget meetings for the years 1984 and 1985. The Association failed to maintain its records according to good accounting practices prior to August 1986. During 1986, the Association imposed and collected a $50 per unit special assessment for shrubbery replacement. This assessment was first approved by the unit owners. Each unit owner's share of the common elements is 0.52 percent for a two-bedroom unit and 0.6208 1/3 percent for a three-bedroom unit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondents be fined $100 for violating Section 718.115(2), Florida Statutes; Respondents be fined $2,500 for violating Section 718.116, Florida Statutes; Respondents be fined $1,000 for violating Section 718.112(2)(f) , Florida Statutes; Respondents be fined $1,000 for violating Section 718.111(13) , Florida Statutes; Respondents be fined $500 for violating Section 718.112(2)(d) , Florida Statutes; Respondents be fined $1,000 for the violations of Section 718.112(2)(e) Florida Statutes; Respondents be fined $500 for violating Section 718.111(12)(,a)11., Florida Statutes; Respondents be fined $2,500 for violating Section 718.301, Florida Statutes; and Respondents be ordered to have prepared the review of financial records required by Section 718.301(4)(c), Florida Statutes. DONE and ENTERED this 15th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 15th day of March 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1-4. Accepted. 5-6. Rejected as recitation of testimony. Not a finding of fact. Accepted. 9-11. Not a finding of fact. Accepted. Accepted, except portions that are argument. Also, some of these proposed facts are subordinate to facts found. Accepted generally. Not a finding of fact. 16-19. Accepted generally. Not a finding of fact. Accepted generally. Accepted. 23-32. Accepted generally; subordinate to facts found. Rulings on Respondents Proposed Findings of Fact Rejected as not supported by the weight of the evidence. First sentence accepted. Second and third sentences rejected. While the evidence establishes that Respondents paid some amounts, it cannot be determined what amounts were paid for association expenses. First sentence accepted, except as to phrase that unit owners had control. Second sentence rejected. Rejected. Accepted. First sentence accepted. Second sentence rejected. Accepted. Rejected. First sentence accepted. Second sentence rejected; the turnover review would help Respondents establish any offsets they may be entitled to. Accepted. Rulings on Intervenor's Proposed Findings of Fact 1-2. Accepted. 3. Not a finding of fact. 4-5. Accepted generally. 6-7. Rejected as argument. 8. Accepted. 9-11. Not a finding of fact. 12-13. Accepted. 14. Argument. 15-16. Accepted generally. 17-19. Not a finding of fact. 20. Accepted. 21-23. Not a finding of fact. 24 Accepted. Accepted but subordinate to facts found. First sentence is not a finding of fact. Second sentence accepted. 27-34. Not findings of fact. 35-37. Accepted but subordinate to facts found. COPIES FURNISHED: Karl M. Scheuerman, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thurston A. Shell, Esquire Post Office Box 1831 Pensacola, Florida 3259 Steven E. Quinnell, Esquire and Gregory D. Smith, Esquire Post Office Drawer 1832 Pensacola, Florida 32598 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent, John E. Mitchell (Mitchell), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0184919. Mitchell was the owner and qualifying broker for Respondent, Florida East Coast Management, Inc. (Florida East Coast), which was at all times material hereto a licensed real estate broker in the State of Florida under license number 0211550. Respondents are, inter alia, engaged in the business of managing rental apartments for landlords. On April 17, 1985, Mr. and Mrs. Joseph Chestnut executed an application to rent an apartment through Florida East Coast, and delivered to Florida East Coast a deposit of $460.00. Pertinent to this case, the agreement provided: Applicant has deposited the sum of $460.00 in partial payment of the first month's rent with the understanding that this application is subject to approval and acceptance by the Landlord. Upon approval and acceptance, the applicant agrees to execute the Landlord's standard agreement before possession of residence is given and to pay any balance due on the first month's rent and security deposit within five (5) days after the approval of application or the deposit will be forfeited to the Landlord. If this application is not approved, or if applicant cancels within five (5) days, the deposit will be refunded, the applicant hereby waiving any claim for damages by reason of non- acceptance. This application is for information only and does not obligate Landlord to execute a lease or deliver possession of the proposed residence. (Emphasis added) Within five days of the date of application, Mr. Chestnut spoke telephonically with Ms. Debra M. Best, the rental agent for Florida East Coast with whom he had dealt, and advised her that his anticipated job transfer to the area had not materialized and requested a refund of his deposit. 1/ Ms. Best promised to return his deposit. On April 29 or May 1, 1985, Mr. Chestnut telephoned Ms. Best to inquire of his deposit. At that time, Ms. Best advised Mr. Chestnut that it was company policy not to refund deposits. By letter of May 13, 1985, Florida East Coast responded to Mr. Chestnut's written inquiry of Hay 1, 1985, by stating: "... it is our policy NOT TO RETURN ANY DEPOSIT FOR ANY REASON WHATSOEVER." Following receipt of Florida East Coast's letter of May 13, 1985, Mr. Chestnut filed a complaint with the Department of Professional Regulation, Division of Real Estate (Department). Approximately seven months later, December 10, 1985, Florida East Coast refunded Mr. Chestnut's deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine be imposed against Respondents, John E. Mitchell and Florida East Coast Management, Inc., jointly and severally, in the sun of one thousand dollars ($1,000.00). DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1987.
The Issue Whether Petitioner is qualified for licensure as a real estate salesman.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: That Petitioner's application be granted based on his having satisfied all statutory criteria for licensure. DONE and ORDERED this 3rd day of December, 1985, in Tallahassee Florida. R. L. CALEEN 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 3rd day of December, 1985.
The Issue The issue for determination at the final hearing was whether the Petitioner's application for registration as a service warranty association sales representative should have been granted.
Findings Of Fact The Petitioner, William E. Andrews, currently resides in Largo, Florida with his wife and one child. He is employed as an Assistant Manager at T.V. Stereo Town, Inc. located in Largo, Florida. On April 22, 1985, the Petitioner filed with the Department of Insurance an application for qualification and registration as a Service Warranty Association Sales Representative. The application specified that the Petitioner would represent T.V. Stereo Town, Inc. On April 9, 1983, the Petitioner entered a plea of guilty in the Circuit Court of Pinellas County to the offense of Grand Theft. The Court withheld adjudication of guilt and placed the Petitioner on probation for a period of three (3) years. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The Petitioner was represented by counsel. On June 9, 1982, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Battery. The Petitioner was adjudicated guilty and was sentenced to a 10 day suspended jail term and supervised probation for a period of six months. The Petitioner was not represented by counsel. On May 13, 1983, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Obtaining Property in Return for a Worthless Check. The Court withheld adjudication and placed the Petitioner on unsupervised probation for a period of 60 days. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The amount of the check was thirty-five dollars. The Petitioner was not represented by counsel. The grand theft charge involved theft of money and/or inventory from a business which the Petitioner and his ex-wife, Virginia Martin were involved with. The business consisted of a free standing display, or kiosk, which was set up in the middle of the Sunshine Mall in Pinellas County. The parent company was D & P Creations and the business involved gift shop merchandise. The Petitioner and Ms. Martin had an arrangement with D & P Creations wherein they would receive 20% of gross sales generated by the display. The business was opened on November 17, 1983 and closed on December 26, 1983. The loss in inventory and/or money to the parent company amounted to approximately $3,000. Throughout the operation of the business, the Petitioner worked as a desk clerk at the Gulf Sands Beach Resort Hotel. The Petitioner's ex-wife, Virginia Martin, worked as a bus driver for the Pinellas County School System. The Petitioner's wife actually ran the business, but Petitioner looked in on it from time to time. The Petitioner, upon considering advice of legal counsel, pled guilty to the offense of Grand Theft from D & P Creations. Virginia Martin, the Petitioner's ex-wife, was the victim of the battery charge to which Petitioner pled guilty. The battery occurred while the Petitioner and Ms. Martin were dating and before they were married. Petitioner and his ex-wife, Virginia Martin, maintained a joint account during the period when Petitioner pled guilty to obtaining property in return for a worthless check. The amount of the check was $35.00. The Petitioner and Virginia Martin were married in July of 1983; they were divorced in December of 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED THAT the Department of Insurance issue a final order denying William E. Andrew's application for registration as a service warranty association sales representative. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1985. APPENDIX Respondent's Proposed Findings of Fact: Finding Ruling Accepted, see R.O. paragraph 3. Partially accepted; see R.O. paragraph 3. Matters not contained therein are rejected as conclusions of law. Partially accepted; see R.O. paragraphs 6, 7 and 8. Matters not included therein are rejected as argument and conclusions of law. Accepted; see R.O. paragraph 4. Accepted; see R.O. paragraph 5. Rejected as argument and conclusions of law. COPIES FURNISHED: Richard D. Tritschler, Esq. Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 David L. Levy, Esq. P. O. Box 5167 Largo, Florida 34294-5167 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
