The Issue The issue for disposition in this case is whether Respondent has implemented an agency statement that meets the definition of a rule, but which has not been adopted pursuant to section 120.54, Florida Statutes.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Board) is charged with the management of state lands, including sovereign submerged lands. § 253.03(1), Fla. Stat. The Department of Environmental Protection (Department) is charged with the duty to “perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to which is or will be vested in the Board of Trustees of the Internal Improvement Trust Fund.” § 253.002(1), Fla. Stat. The City of Titusville operates a municipal marina, which includes a 205-slip docking facility for mooring of commercial and recreational vessels (Marina), on sovereignty submerged lands leased from the Board. Petitioner owns a Florida-registered vessel which he keeps at the Marina pursuant to an annual mooring/dockage agreement. On June 9, 2009, the City of Titusville and the Board entered into a “fee waived” lease renewal and modification for a parcel of sovereignty submerged land in the Indian River (Lease). The Lease allows the Marina to operate “with liveaboards as defined in paragraph 26, as shown and conditioned in Attachment A, and the State of Florida Department of Environmental Protection, Consolidated Environmental Resource Permit No. 05-287409-001, dated December 31, 2008, incorporated herein and made a part of this lease by reference.” Paragraph 26 of the Lease provides that: 26. LIVEABOARDS: The term “liveaboard” is defined as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. If liveaboards are authorized by paragraph one (1) of this lease, in no event shall such “liveaboard” status exceed six (6) months within any twelve (12) month period, nor shall any such vessel constitute a legal or primary residence. On or about July 31, 2015, Petitioner and the City of Titusville entered into the annual contractual mooring/dockage agreement, paragraph 4 of which provides that: 4. LIVEABOARDS: For the purposes of this Agreement, the term “liveaboard” is defined herein as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. Pursuant to requirements of the City’s Submerged Land Lease with the State of Florida, no vessel shall occupy the Marina in this “1iveaboard” status for more than six (6) months within any twelve (l2) month period, nor shall the Marina Facility constitute a legal or primary residence of the OWNER. Petitioner asserts that the alleged agency statement regarding “liveaboard” vessels “unreasonably and arbitrarily denies me the unrestricted right to stay on my vessel by limiting the number of consecutive days during which I may occupy the vessel,” and that “[t]he Board’s non-rule policy denies me the unrestricted freedom to enjoy my vessel as a second home.”
Findings Of Fact At all times relevant hereto, Respondent, George May, was a licensed real estate broker, having been issued license number 0056693 by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 27). Respondent, Marie L. Bundick, was a licensed real estate salesman having been issued license number 0185873 by Petitioner (Petitioner's Exhibit 29). During the time the events herein occurred May was the active broker with, and Bundick a salesman for, Commercial Equity Corporation, 2450 East Commercial Boulevard, Fort Lauderdale, Florida. Between December, 1976, and June, 1977, May formed the following corporations: A-1989 Corporation, Future 5 Corporation and 8-Villas Corporation (Petitioner's Exhibit 30). He served as president of these corporations until they were involuntarily dissolved by the Department of State for failure to pay fees due that Department. In early 1976, May ran an advertisement in a Fort Myers newspaper expressing a desire to purchase acreage in that area. In response to that advertisement, Henry Minster, a Bonita Springs real estate broker, contacted May and advised him he had various parcels of property for sale in Lee County, including undeveloped acreage. In May, 1976, Minister, May and an undisclosed third party visited an unimproved tract of land in what is known as the East Bonita Drainage District. The property in question is approximately 4 air miles northeast of Bonita Springs and is located within Sections 16 and 21, Township 475, Range 26E, Lee County, Florida. It lies around 8 air miles from the Gulf of Mexico; by automobile the distance is approximately 17 miles. Because the area was not surveyed, and there were few, if any, signs on the property in that area, a common starting point to view the property was a television tower in the northeast quarter of Section 30, where the graded road ended. In order to reach the boundary of Section 21, one had to travel approximately one mile east- northeasterly from the tower through Section 29 on trails and other undeveloped land. Section 16, which lay directly north of Section 21, was virtually inaccessible by automobile or on foot. Access from the tower to the lower corner of Section 21 could not be had in a conventional automobile without exceptional weather; however, Minster, May and the other person were in a 4- wheel drive vehicle and proceeded generally east-northeasterly approximately one mile on a trail until they reached a point very close to the southwest corner of Section 21. Then they got out of the vehicle and viewed the property in the immediate area. Although they were at or very close to the western boundary of Section 21, May was never shown any property further eastward, nor was he taken to Section 16 which was approximately one mile north of there. However, Minster did point out the general area where the property in Sections 16 and 21 were located, and the type of topographical characteristics to be found in both Sections. He further advised May that there was no reasonable access to the property, no roads had been built, that it was covered with cypress and that the land was under water during part of the year. Minster also advised May that if he planned to subdivide the property, certain registration requirements with the State must be met, and that zoning requirements with Lee County must be adhered to before development of the property could begin. The property that May was to subsequently purchase was approximately 17 feet above sea level, and was generally covered in varying degrees with cypress, pine trees and palmetto (Petitioner's Exhibit 25). U.S. Geological Maps indicate the predominate characteristic of Sections 16 and 21 to be a swamp or marshland (Petitioner's Exhibit 5). There is no dispute that much of the property was under water during the rainy season. On August 23, 1976, May negotiated the purchase of 100 acres in Section 16 from Minster (Petitioner's Exhibit 6). On January 23, 1977, an additional purchase of 85 acres in Section 16 was made by A-1989 Corporation, of which May was president (Petitioner's Exhibit 7). On July 21, 1977, A-1989 Corporation purchased another 40 acres in Section 16 (Petitioner's Exhibit 8). Future 5 Corporation, of which May was president, made a purchase of 100 acres in Section 21 on October 6, 1977 (Petitioner's Exhibit 9). A final purchase of an undisclosed number of acres in Section 21 was made by 8 Villas Corporation, of which May was president, on February 27, 1978 (petitioner's Exhibit 10). A sixth contract to purchase land in August, 1978, in Section 10 was entered into by the parties but the sale was never consummated (Petitioner's Exhibit 12). Collectively, the above purchases of land roughly encompassed the southern one-half of Section 16 and the southern one-third of Section 21, Township 47S, Range 26E. After May began making purchases of the acreage from Minster, he initiated a sales campaign through newspaper advertisements to sell the property in 2 1/2 acre tracts to the general public. These sales were conducted through his realty firm, Commercial Equity Corporation. Although it is alleged that advertisements appeared in "various news publications in and about Broward County", only the following advertisements in the Pompano Beach Shoppers' Guide were made a part of the record: "2 1/2 acres: Invest for tomorrow today, miles of spectacular beaches, south Florida's fastest growing area. Near golf, best fishing,..." "2 1/2 acres in sun and fun Florida, watch yourmoney grow, $65.91 per month $950 down near beaches..." "Live again, get away, beautiful home site, near beaches, good fishing, exc. schools. South Florida,..." "2 1/2 acres, no qualifying, booming South Florida near beautiful beaches, only 7 pct. interest, low payments, $65.91 month. Parks, boating, highway and tax deductible. Be smart, buy today." (Petitioner's Exhibit 20) Under each of the above advertisements were telephone numbers which enabled the caller to reach either May or his secretary. After the caller gave his name and number, an associate was instructed to return the call and arrange a meeting. The above advertisements, or ones similar thereto, were read by, inter alia, William C. Park and Rahlyn Ramsaran who made inquiries concerning the possible purchase of land. Park was referred to Marie L. Bundick while Ramsaran was referred to Edmond Martell, both of whom were salesman for Commercial Equity Corporation. In June, 1978, Park, Bundick and another Commercial salesman (Bill Soloman) visited the area in question to view the property. They first drove to the television tower in Section 30, and then continued eastward on a "farm access road" until they reached a drainage canal. After following the drainage canal for approximately one-half mile they reached what purportedly was property similar to that which was for sale. It was represented to Park that they were "very close" to where Park's property was actually located, but in no event were they more than a 5-acre tract away. Park noticed a flooded area approximately 1/4 mile away and inquired of Bundick if the property he was buying was within the flooded area; she answered it was not. Based upon these representations, Park later agreed to purchase two tracts of acreage (5 acres) in Section 21 for $14,000 from 8-Villas Corporation (Petitioner's Exhibit 24). Park, a professional diving instructor, purchased the property with the expectation of eventually constructing a diving school on the land. These hopes eventually evaporated upon discovering the true character of his land. In December, 1978, Park received a telephone call from Department Investigator Stevens who advised Parks that other investors had complained of misrepresentations by May and were attempting to get refunds from May on their purchases. He asked Park to show him the property he had been shown by Bundick in June. Park and Stevens visited the area on December 6, 1978, and after seeing the property a second time in conjunction with maps, Park concluded the property shown to him and that actually purchased were not the same. He also concluded that a diving school could not be built on such low-lying property. Park later received a refund on his purchase from May after a Department investigator visited May concerning the sale. After responding to May's advertisement, Ramsaran visited the property in question in April or May, 1977, with Edmond Martell, a salesman for Commercial. They drove to the television tower in Section 30, and then walked approximately one mile into the rough terrain. Martell advised Ramsaran that the property he was going to purchase began within a couple of hundred feet from where they were standing. Based on that representation Ramsaran purchased three tracts of property in Section 16 for $35,000 on May 11, 1977 (petitioner's Exhibit 26). Because Section 16 was at least one mile north of where Ramsaran and Martell had originally stood when viewing the property, the representation by Martell to Ramsaran was clearly false. Ramsaran revisited the Bonita Springs area on several occasions shortly after that and began making inquiries concerning where his property was actually located. He also studied a map of the area to pinpoint its exact location. After becoming concerned that he may have bought something different from what he had been shown, he called Martell who advised him not to worry and to meet with May to discuss the matter. On May 18, 1977, Ramsaran visited May's office to complain that he had been "taken". May told him it was not a swamp, that it was high and dry and was "good property". He confirmed this representation in a letter given to Ramsaran which stated as follows: "This land is nor is it under water. This land is approximately 17 feet above sea level. The land is wooded and is situated approximately one and three-quarters miles northeast from the T.V. tower in Bonita Springs." (Petitioner's Exhibit 23). Having received this representation from May, Ramsaran's concerns were temporarily allayed until Department Investigator Stevens visited him several months later. That visit prompted Ramsaran to contact a Bonita Springs real estate broker to see if a survey of property could be made. When advised that the property was under water, Ramsaran returned to May and requested a refund of his money. May refused to do so until he was reminded he had guaranteed the property by letter previously given Ramsaran on May 16; May then agreed to make a refund. In March, 1979, after receiving "pressure" from Department investigators concerning the land sales that were being made, May quitclaimed all of the properties purchased back to Minster (Petitioner's Exhibits 13-17) . By letter he concurrently advised each of the investors to begin making their monthly payments to Minster rather than to May. Although Minster was not forewarned that May was going to convey the property back to him, Minster has retained ownership of the property since that time, and has continued receiving the monthly payments from May's former customers. Martell was taken by May to the property on three separate occasions to orient him concerning its location and characteristics. Minster also accompanied them on at least one occasion. They went to the television tower in Section 30, and from there traveled east-northeastly for about 3/4 of a mile along a trail into an area covered by pines, cypress and palmetto. After stopping, May pointed out the general direction in which the property was located and described it to Martell as being "high and dry". Despite asking both May and Minster for more specific instructions on several subsequent occasions, Martell was never actually told the precise location of the property being sold. When Martell began working for May, he was given pictures of the property and told to discuss the general growth of the area with customers and point out its location on a map. When visits were made to the property with prospects May told Martell to drive the prospects to the television tower, and to walk eastward from that point into the woods as far as possible. However, Martell acknowledged he was never sure where the property he was selling was actually located. Both May and Minster told Martell the property was high and dry and 17' above sea level. There were no inaccurate representations made by May to Martell concerning the local zoning ordinance or access to utilities. Bundick met May through a friend who was employed by Commercial. She began working as a salesman for Commercial in March, 1978, and continued in that capacity until January, 1979. Although Bundick had no experience in selling raw acreage, and preferred to sell residential and commercial property, May encouraged her to sell land. He did not take Bundick to the property in question; instead he gave her a map on which he had traced the directions. After unsuccessfully attempting to find the property on one occasion, Bundick again asked May to show her the property. May told her his secretary would accompany her to the exact location the next time she took a client to inspect the land. Sometime later, Bundick and May's secretary, Deborah Kemph, visited the property at which time Kemph told her the property they were standing on was that purchased from Minster. In all future dealings with customers, Bundick used that location as a reference point for selling property, and assumed that what was being shown and what was being sold were the same. To this date, she still does not know the exact location of the property that she sold. She claims she simply relied upon the advice given by May, and believes that if incorrect advice was given customers, the fault lies with May. During her association with Commercial, Bundick acknowledged that besides the sale to Park, she also sold 'several other' parcels of property to various customers. May stated he was inexperienced in the land sales business when he purchased the property from Minster. He claimed he was "setup" by Minster, an experienced broker, who used Commercial Equity Corporation to merchandise his property; however, this claim was not substantiated. May also claimed he was deceived when he was initially shown the property, and that the exact location of the property being sold was never shown to him. He further stated he deeded the property back to Minster only after drugs had been placed in his food by his secretary, and he did not understand the nature of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of misrepresentation for instructing his sales associates to inform prospective purchasers that the land being sold was high and dry as set out in paragraph 2 of Count III. It is further RECOMMENDED that Respondent Marie L. Bundick be found guilty of misrepresentation in her dealings with purchaser William Park as set forth in Subparagraphs 3(b) and (c) of Count VI. It is further RECOMMENDED that all other charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondent May's real estate broker's license be suspended for 6 months, and that Respondent Bundick's real estate salesman license be suspended for 30 days. DONE and ENTERED this 1st day of September 1981, in 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 1st day of September, 1981.
The Issue Whether the Petitioner, Willis Phillips, may challenge the specifications of the invitation to bid at issue in this proceeding? Whether the Petitioner has standing to challenge the Department of Health and Rehabilitative Services' proposed award of lease number 590:2166 to the Intervenor, Rutherford Rentals, Inc.?
Findings Of Fact The Department issued an Invitation to Bid for Existing Facilities, lease number 590:2166 (hereinafter referred to as the "ITB"), seeking to rent office space in Madison, Florida. Responses to the ITB were to be filed with the Department by 2:00 p.m., March 6, 1990. Included as part of the ITB was a map of the City of Madison (hereinafter referred to as the "Map"). Joint Exhibit 1. On page 1, paragraph 3, of the Bid Submittal Form which was included as part of the ITB it was indicated that "[s]pace to be located in Madison, Florida within boundaries depicted in the attached map (Attachment B.) Bidder to mark location of site on map Attachment B." The ITB referred to the Map as a "Map showing bid zone boundaries." See page 4 of the ITB. The Map was labeled as "Attachment B" and included the following language at the bottom of the Map: "WITHIN CITY LIMITS WITH EXCEPTIONS OF UNDESIRABLE LOCATIONS AS INDICATED." The Map included two areas within the City of Madison which were cross- hatched. At the bottom of the Map the word "UNDESIRABLE" had been written in black. This word only appears below the larger of the two cross-hatched areas. The Department intended to exclude any office space located within both of the cross-hatched areas on the Map. The Petitioner spoke by telephone with Robert Smith, a Facilities Services Managers Assistant for the Department, prior to submitting a response to the ITB. The Petitioner initiated the conversation. Based upon this conversation, the Petitioner was aware that property located within either of the cross-hatched areas on the Map was excluded from consideration under the ITB. The property which the Petitioner intended to offer to the Department in response to the ITB is located in the smallest of the two cross-hatched areas on the Map. The Petitioner was informed by Mr. Smith that the property located within the smaller cross-hatched area was excluded as undesirable. Mr. Smith informed the Petitioner that he could not submit a response to the ITB offering to rent property located in the small cross-hatched area. The exclusion from consideration of property located in the areas within the City of Madison which were located in the two cross-hatched areas of the Map could have been more clearly designated. The Department's designation of the excluded areas, however, was not ambiguous. It was clear that the Petitioner's property was located in an excluded portion of the City of Madison and that the Petitioner was aware of the exclusion of his property. Despite the Petitioner's knowledged that his property was located within an excluded area, the Petitioner submitted a response dated March 6, 1990, to the ITB proposing property located in the smaller cross-hatched area. In the Petitioner's response to the ITB he did not indicate the location of his property on the Map. Instead, the Petitioner submitted a different map of a portion of the City of Madison which included his property. Rules 10-13.006 and 10-13.007, Florida Administrative Code, require that protests of the bid specifications of the Department must be filed within 72 hours of receipt of notice of the bid specifications. The ITB did not indicate that persons adversely affected by the ITB could challenge the specifications of the ITB or that any such challenge had to be filed within 72 hours of receipt of notice of the ITB. The following statement appears of the last page of the Bid Submittal Form included with the ITB and submitted by the Petitioner: I hereby certify as owner, officer, or authorized agent that I have read the Invitation to Bid Package and all its attachments, and agree to abide by all requirements and conditions contained therein. . . . This certification was signed by the Petitioner. The Department decided to award the lease to the Intervenor. The Department determined that the Petitioner's bid should be rejected because the proposed property was located in an excluded area. The Petitioner filed a Formal Protest and Petition for Formal Administrative Hearing on April 23, 1990, with the Department. The Petitioner challenged the Department's proposed award of the lease to the Intervenor and asserted that he was the lowest and best bidder. The Petitioner did not challenge the specifications of the ITB. The Department filed a Motion to Dismiss on Mazy 4, 1990. The Petitioner filed a Motion for Leave to File Amended Petition and an Amended Formal Protest and Petition for Formal Administrative Hearing on May 14, 1990. For the first time, the Petitioner challenged the specifications of the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting the Department's Motion to Dismiss and dismissing with prejudice the Formal Protest and Petition for Formal Administrative Hearing filed by the Petitioner. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of July, 1990. APPENDIX The Petitioner and the Department have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 See 9. 3-5 Not supported by the weight of the evidence. 6 6-7. 7 and 11 Not relevant. 8-10 and 12-15 These proposed findings are consistent with Ms. Goodman's testimony. Ms. Goodman's opinions, however, are not supported by the weight of the evidence. Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that the Petitioner was not aware that both cross-hatched areas were excluded areas. See 9. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2 and hereby accepted. 3 5-8. 4 7. 5 6. 6 12. 7 9. 8 13 and 17. 9 4. 10 12. 11 17. 12 15. 13 16. 14 18 and hereby accepted. 15 20. 21 and hereby accepted. 22 and hereby accepted. Hereby accepted. Cumulative. Hereby accepted. Copies Furnished To: John C. Pelham, Esquire Gary Walker, Esquire Post Office Box 13527 Tallahassee, Florida 32317-3527 John L. Pearce, Esquire District Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32303-2949 Clay A. Schnitker, Esquire Post Office Drawer 652 Madison, Florida 32340 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
The Issue Whether Gruber violated Section 475.25(1)(a) and (2) Florida Statutes.
Findings Of Fact Kenneth Scott Gruber is a registered real estate salesman. Gruber was employed by International Land Services Chartered, Inc. and paid by International Land Sales Chartered, Inc. from mid-November, 1975 until March, 1976. Gruber was a listing representative, or "closer". Gruber contacted prospects in behalf of International Land Services Chartered, Inc. and obtained listings for the company. Gruber denied making any false representations. No evidence was presented of any representations which he had made.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Kenneth Scott Gruber as a real estate salesman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 400 West Robinson Street Third Floor Orlando, Florida 32801 Kenneth Scott Gruber 9180 Dickens Ave. Surfside, Florida 33154 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION Petitioner, PROGRESS DOCKET NO. 2954 vs. DADE COUNTY KENNETH SCOTT GRUBER, DOAH CASE NO. 77-203 Respondent. /
Findings Of Fact Mini-Warehouses At Kendall, Ltd., d/b/a A+ Mini-Storage (Petitioner) is a business located in Dade County, engaged primarily in the rental of storage space. Petitioner employs 20 to 21 employees and has been operating for 13 to 14 years. Petitioner's property on which its business is located consists of approximately four acres and abuts property owned by the Florida Department of Transportation (Respondent), known as Parcel 0739, which contains approximately .0986 acres. On June 28, 1985, Petitioner executed a written lease agreement leasing Parcel 0739 from Respondent. The lease terms provided that it was a year-to- year lease, automatically renewable yearly until terminated by either party upon a 30-day notice, and that the yearly rental cost was $2,400 plus tax. Petitioner leased Parcel 0739 from Respondent because the parcel provides better access to Petitioner's property from the rear and prevents water from encroaching onto Petitioner's property. The same lease agreement was renewed yearly until 1991. In 1991, prior to the expiration of the lease, Respondent notified Petitioner that a new lease form would have to be executed. Respondent provided Petitioner with its Lease Agreement Form 225-080-03, OGC-00031, dated 7/92 (Form Lease) for execution. The Form Lease was developed by Respondent's Office of General Counsel and the General Counsel of each of its Districts, so that there would be a standard lease form statewide with minimal review by Respondent. The Form Lease contains blanks to be completed by Districts to comport with their specific situations. The Form Lease dramatically changed the terms and conditions of leasing Parcel 0739. Petitioner attempted to modify Paragraphs 6 and 8 of the Form Lease, but Respondent refused to agree to any modifications. Paragraph 6 of the Form Lease provides: 6. Indemnification. Lessee shall indemnify, defend, save and hold Lessor, its agents and employees, harmless of and from any losses, fines, penalties, costs, damage, claims, demands, suits and liabilities of any nature, including attorneys fees (including regulatory and appellate fees), arising out of, because of, or due to any accident, happening or occurrence on the leased land or arising in any manner on account of the exercise or attempted exercise of Lessee's rights hereunder, whether the same regards person or property of any nature whatsoever, regardless of the apportionment of negligence, unless due to the sole negligence of Lessor. Lessee's obligation to indemnify, defend, and pay for the defense or at the Department's option, to participate and associate with the Department in the defense and trial of any claim and any related settlement negotiations, shall be triggered by the Department's notice of claim for indemnifica- tion to Lessee. Lessee's inability to evaluate liability or its evaluation of liability shall not excuse Lessee's duty to defend and indemnify within seven days after such notice by the Department is given by registered mail. Only an adjudication or judgment after the highest appeal is exhausted specifically finding the Department solely negligent shall excuse performance of this provision by Lessee. Lessee shall pay all costs and fees related to this obligation and its enforcement by the Department. Department's failure to notify Lessee of a claim shall not release Lessee of the above duty to defend. Under Paragraph 6, Respondent intended to limit lessee's liability to its (lessee's) own negligence or damages it causes. Paragraph 8 of the Form Lease provides: 8. Eminent Domain. Lessee acknowledges and agrees that its relationship with Lessor under this Lease is one of Landlord and Tenant and no other relationship either expressed or implied shall be deemed to apply to the parties under this Lease. Termination of this Lease for any cause shall not be deemed a taking under any eminent domain or other law so as to entitle Lessee to compensation for any interest suffered or lost as a result of termination of this Lease, including but not limited to (i) any residual interest in the Lease, or (ii) any other facts or circumstances arising out of or in connection with this Lease. Lessee hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any sort, including but not limited to special damages, severance damages, removal costs or loss of business profits resulting from its loss of occupancy of the leased property specified in this Agreement, or adjacent properties owned or leased by it, when any or all such properties are taken by eminent domain proceedings or sold under the threat thereof. This waiver and relinquishment applies whether (i) this Lease is still in existence on the date of taking or sale; or, (ii) has been terminated prior thereto. Under Paragraph 8, Respondent did not intend for the lessee to waive any of its eminent domain rights or relinquish such rights subsequent to the termination of the lease, which would be improper. Presently, Respondent refuses to lease the Parcel to Petitioner unless Petitioner executes the Form Lease without modification. However, at hearing Respondent admitted that it has no intention of requiring Petitioner to agree to Paragraph 8 of the Form Lease. Rule Chapter 14-19, Florida Administrative Code, sets forth Respondent's rules on right-of-way property management. Rule 14-19.002 provides that the purpose of Chapter 14-19 is to set forth standardized methods for, among other things, the leasing of surplus property owned by Respondent. In 1992, the Form Lease was incorporated by reference in Rule Chapter 14-19. Rule 14-19.0012 specifically provides that the Form Lease is one of the forms incorporated by reference in and made a part of Chapter 14-19. Moreover, Rule 14-19.013 requires the Form Lease to be used for short term leasing. Chapter 14-19 is silent as to whether the Form Lease must be used in any of Respondent's other lease situations. Rule 14-19.013, Florida Administrative Code, does not apply to the circumstances of this case. Respondent has a Right Of Way Manual (Manual) for statewide use. Chapter 10, Section 6 of the Manual, entitled "Right of Way Property Leases" and effective January 21, 1993, provides in its "Purpose" section that the purpose of Section 6 is to establish uniform procedures for leasing property owned by Respondent. Also, the Manual's "Procedure" section mandates the use of the Form Lease for all of Respondent's leases. Prior to this mandate, Respondent had no standard lease form for its leases. In October 1992, Respondent required the Form Lease to be used in surplus property leases. The Form Lease is applicable statewide and implements procedures and policies involved in leasing surplus property. Parcel 0739 is considered by Respondent to be surplus property. The Manual is silent as to whether the Form Lease may be modified. Since the implementation of the Form Lease for surplus property, Respondent's District Offices have modified the Form Lease but rarely. In the rare instances when modification has been made, it has been on a case-by-case basis and only with approval of the District General Counsel. Respondent's Office of the Right-Of-Way Administrator under which the responsibility for leasing falls has no authority to approve or disapprove modifications made to the Form Lease by District Offices. However, Respondent's Office of General Counsel does have such authority, but it has not exercised its authority in any of the District situations in which the Form Lease has been modified. Even though there have been modifications to the Form Lease by Respondent's District Offices, although rare, no District Office has modified Paragraphs 6 or 8. Respondent admits that Petitioner has standing in this proceeding.
The Issue Whether Respondent, Brenda W. Smith, violated sections 475.25(1)(b) and 475.25(1)(d)1., Florida Statutes (2013),1/ as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute real estate licensees, pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. Respondent is licensed by Petitioner as a real estate broker in the state of Florida, license BK 534400. Respondent’s address of record with Petitioner is Post Office Box 15453, Panama City, Florida 32406. Respondent’s brokerage, Spirits Realty, Inc., is a registered for-profit corporation in the state of Florida with its principal place of business listed as 3812 Dolphin Drive, Panama City Beach, Florida 32408, and a mailing address listed as Post Office Box 15453, Panama City, Florida 32406. On May 31, 2012, Respondent, on behalf of her brokerage, Spirits Realty, Inc., entered into a property management agreement (Property Management Agreement) with Ronald W. Roberts to manage the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408.3/ The term of the Property Management Agreement was for one year, beginning May 31, 2012, and provided: THIS PROPERTY MANAGEMENT AGREEMENT is made on the 31st day of May 2012 and is effective 31 May 2012 by and between Ronald W. Roberts whose address is 3555 Walden Land, Acworth, Ga 30102, hereinafter referred to as “Owner” and SPIRITS REALTY INC., BRENDA SMITH, LICENSED REAL ESTATE BROKER, Post Office Box 15453, Panama City, Florida 32406, hereinafter referred to as “Agent”. WITNESSETH in consideration of the mutual promises and covenants herein contained, the Owner and Agent agree as follows: The Owner represents to the Agent as follows: (a) The Owner is the sole owner and holder of marketable record title to the following described property: 3803 Long John Drive, Panama City Beach, Florida 32408. The Owner hereby appoints the Agent as the sole and exclusive Agent to Lease and manage the premises known as 3803 Long John Drive. This Agreement is for 1 year beginning 31 May 2012. Agent to enter into an agreement for 1 year lease, $1000 per month rental, tenant to pay Jun/July rent in advance (non-refundable); & $1000 security deposit. The owner agrees to the following: Spirits Realty Inc. Commission of 10% of the rents collected in each calendar month (which shall be deducted from rents collected each month). Spirits Realty Inc., Hancock Bank, holds the security deposit (for liquidated damages) and advanced last months [sic] rent in Escrow. If Agent is not available, Jesse Smith, Admin, is authorized signer. 4. [sic] Owner authorizes the broker to secure tenant; and enter into a 1 year lease. Manage tenant relations collecting, give receipts, holding and disbursing rents to owner, serving notices, initiating eviction & damage actions. Agent will receive and forward $2500 check from tenant to Ron Roberts, for sale agreement of furniture and furnishings, on site. The Property Management Agreement was signed by Ronald W. Roberts and notarized in Cherokee County, Georgia, on May 31, 2012. Notably, the Property Management Agreement does not require advanced notice on the part of the Owner to terminate the Property Management Agreement. On May 31, 2012, Respondent and/or Spirits Realty Inc., ostensibly acting on behalf of Mr. Roberts, entered into a four- page residential lease agreement drafted by Respondent (Lease) with Allen Pridgen and Lori Roark (n/k/a Lori Pridgen), as tenants, for the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408 (the Premises). The term of the Lease was for one year, from June 1, 2012, through June 30, 2013. Curiously, instead of naming Mr. Roberts as the lessor, the first sentence on the first page of the Lease names “Spirits Realty Inc., Brenda Smith, Lic. Real Estate Broker, Agent” as “Lessor.” The bottom of the first page of the Lease states “Page 1 of 1.” In addition, page four of the Lease submitted by Respondent as part of her Exhibit R-7 (which page was not included in the copy of the Lease submitted by Petitioner as part of Exhibit P-2) is signed by Respondent and Spirits Realty, Inc., on and below the signature line labeled “Lessor,” respectively. By comparing the signatures of the “Lessees” on the last page of the Lease (page four) with the signatures on the exhibit entitled “Security Deposit/Advance Last Months [sic] Rent Receipt” (Deposit Receipt), it is apparent that Allen and Lori Pridgen both signed page four of the Lease on May 31, 2012, as Lessees. As documented by the Deposit Receipt, on May 31, 2012, Respondent collected from Allen and Lori Pridgen a $1,000 cash security deposit, plus $1,000 as the last month’s rental payment under the Lease. The Deposit Receipt, signed by both of the Pridgens, as well as Respondent, provides that the monies collected would be held in a “non-interest bearing account Spirits Realty, Inc. Escrow” with Hancock Bank in Panama City Beach, Florida. Mr. Roberts signed a typed statement on May 31, 2012, printed on paper with a fax number, date, and time in the top margin, stating: “The four page Residential Lease on Long John Drive, Panama City Beach, Florida, is hereby agreed upon and approved by the property owner Ronald W. Roberts.” The next year, Respondent prepared a document entitled “Lease Renewal Agreement” (Lease Renewal) for renewal of the Lease for another seven months, from June 1, 2013, to January 1, 2014. The initial paragraph of the Lease Renewal listed the parties as: Lessor4/: Allen Pridgen & Lori [Pridgen] Agent: Spirits Realty Inc., Lic. Real Estate Broker The Lease Renewal kept all terms of the Lease in effect and provided that the Security Deposit and last month’s rent would continue to be held in Hancock Bank. The Lease Renewal also stated: That tenants shall pay a monthly rental of $1,000 for each month by the 1st of each month to Spirits Realty, Inc., for the Renewal Term. Tenants agree to give 60 days written notice prior to vacating property, Or give notice of intent to renew lease for up to one year. According to dates next to their signatures, the Lease Renewal was signed by Alan and Lori Pridgen on May 30, 2013; by Brenda Smith for “Spirits Realty Inc and Brenda Smith, Lic Real Estate Broker” on May 31, 2013; and by Dorothy and Ronald Roberts as “Property Owner” on June 4, 2013. In late 2013, the Roberts decided to terminate the Property Management Agreement and manage the rental of the Premises themselves. The decision to terminate the agreement was made a short time after the tenants had a problem with a water leak and a faulty water heater. Because the tenants considered the problem to be an emergency, they dealt directly with the Roberts, who, as owners, authorized the tenants to pay for the required repairs directly and take the payment off the rent. On December 1, 2013, Mr. Roberts spoke to Respondent on the telephone and advised her that the Roberts no longer wanted to use Respondent’s brokerage, Sprits Realty, Inc., for property management services and that they were going to terminate the Property Management Agreement. Ms. Roberts was present with her husband during the telephone conversation and overheard the discussions. During the conversation, Respondent told Mr. Roberts that they needed to give her at least a 60-day notice of termination, and Mr. Roberts advised Respondent that their termination of the Property Management Agreement would be effective February 1, 2014. The next day, December 2, 2013, the Roberts sent a letter by certified mail to Respondent, at her address, and to Spirits Realty, Inc., at its address. The letter was signed by both Mr. and Ms. Roberts, witnessed and notarized, and stated: Dear Mrs. Smith, Per our conversation on December 1, 2013, please accept this letter as a 60 day formal notification that we wish to terminate the contract we currently have with Spirit Realty for Property Management Services. As of 2/1/2014, we will no longer require your services in handling the property management for 3803 Long John Drive, Panama City, Florida, 32408. Please forward the security deposit that you collected from the tenant, Alan Pridgen in 2012 and are currently holding in an escrow account. You can mail it to Ronald & Dorothy Roberts at 3555 Walden Lane, Acworth, Georgia 30102. We appreciate your time and services since Mr. Pridgen began occupying the property. Although multiple attempts were made to deliver the letters, they were returned unaccepted. The Roberts made additional attempts to contact Respondent by telephone, but were unable to do so. By another letter sent by certified mail to Respondent dated January 16, 2014, Mr. and Ms. Roberts again requested in writing that Respondent forward to them the $2,000 identified in the Deposit Receipt. The letter reiterated the fact that in a telephone conversation on December 1, 2013, Respondent was advised that the Roberts were terminating the Property Management Agreement. The letter was returned unaccepted. Although the Roberts letters to Respondent dated December 1, 2013, and January 16, 2014, were returned unaccepted, Respondent’s own exhibit, a copy of a certified letter that Respondent allegedly sent to the tenants on December 11, 2013, acknowledges that Mr. Roberts called on December 1, 2013, regarding both the Lease and the Property Management Agreement. The first paragraph on the third page of Respondent’s December 11, 2013, letter to the tenants states: 1 Dec 2013 Ron Roberts called SRI [Spirits Realty, Inc.] agent saying Alan [Pridgen] paid over $900 in improvement costs having to do with the air conditioner and hot water heater - & Alan would not be paying rent due 1 Jan 2014 – SRI would not receive a management fee – triggering liquidated damages clause. Breach of lease. Lease – Agreement/relationship of landlord & tenant (real property) or lessor and lessee – specifes [sic] 10% rent compensation. Further, during her cross-examination of Ms. Roberts at the final hearing, Respondent acknowledged that she had spoken on the telephone with Mr. Roberts on December 2, 2013, and that during the conversation the subject of breaking a contract with a real estate person was discussed. While it is found that the telephone conversation occurred on December 1, 2013, as opposed to December 2, 2013, it is evident that the conversation indeed occurred. Based on the evidence, it is found that on December 1, 2013, the Roberts effectively communicated their desire to terminate the Property Management Agreement, effective February 1, 2014. Further, although the certified letters were refused, it is found that the Roberts timely asked Respondent for return of the $2,000 reflected in the Deposit Receipt. In addition to the letters that the Roberts sent to Respondent, after speaking to the Roberts, Ms. Pridgen prepared a letter, at the Roberts’ request, for her husband to send to Respondent, dated December 1, 2013, which stated: Brenda, This letter is to inform you that I no longer wish to continue my contract with you and the Roberts. I have been renting this property since June of 2012, the original contract was for one year. I agreed to rent the property for an additional 6 months which is now up. I no longer wish to continue this contract with Spirits Realty Inc. Thank you Allen D. Pridgen The letter was sent to Respondent by certified mail on December 4, 2013, but Respondent never picked it up. Shortly after her conversation with Mr. Roberts on December 1, 2013, Respondent called the police and tried to have the Pridgens evicted from the Premises. The Roberts explained over the phone to the police officer that they, not Respondent, were the owners of the Premises. The Pridgens were not evicted. Ms. Pridgen’s credible testimony explained that they did not intend to vacate the Premises, but rather planned to continue to rent it directly from the Roberts. As of the date of the final hearing, the Pridgens were still leasing the Premises from Ms. Roberts. To date, Respondent has not returned to Ms. Roberts, as owner with responsibilities over the Lease, either the $1,000 Security Deposit or the $1,000 Advanced Rent she collected from the tenants. Instead, Respondent has retained the entire $2,000 and characterizes the funds as “liquidated damages” for the Roberts’ wrongful termination of the Property Management Agreement. The Property Management Agreement has no specific requirement for the manner in which it is to be terminated. Nevertheless, Respondent transferred the $2,000 reflected in the Deposit Receipt into Spirits Realty, Inc.’s, operating account at Hancock Bank. Respondent argues that she is entitled to retain the $2,000 because Ms. Roberts did not make a timely claim upon the escrow deposit following receipt of Respondent’s expressed intent to keep the escrow monies as “liquidated damages.” Respondent bases her argument on the Roberts’ alleged breach of the Property Management Agreement. As there was no breach and the Roberts’ request for return of the escrow funds was timely made, Respondent’s belief that she is entitled to liquidated damages has no merit. Respondent also suggests that she is entitled to retain the $2,000 reflected in the Deposit Receipt because the tenants failed to give 60 days’ notice of their intent to terminate the Lease. Respondent’s suggestion is premised upon the fact that she and her brokerage are erroneously named as the “Lessor” in the Lease that Respondent drafted. Respondent’s argument evinces that she either has a misunderstanding of her role as agent for the Roberts, or intended to take advantage of her position in a manner inconsistent with her obligations under the Property Management Agreement. Although erroneously listed as the “Lessor” under the Lease, neither Respondent nor her brokerage was a proper party to the Lease. Rather, in accordance with the Property Management Agreement, Respondent and her brokerage were only authorized as agents for Mr. Roberts in dealing with the Premises. Under the circumstances, even if the tenants had breached the Lease (which they did not), Mr. Roberts and his successor in interest, Ms. Roberts, not Respondent and her brokerage, would be entitled to make a claim against the tenants as the owners and actual lessors under the Lease. Incredibly, at the final hearing, Respondent submitted into evidence a copy of a document entitled “Lease Addendum” dated May 31, 2012, which was purportedly signed by the tenants, Alan Pridgen and Lori Pridgen. The purported “Lease Addendum” provides: Lease Addendum 31 May 2012 FS 83.575, 83.595 breach, liquidated damages, and termination FS 83.595(4) Tenant statue [sic] contains two liquidated damages provisions allowing the landlord (Lessor) an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew lease. Lessor, Spirits Realty Inc. will receive the $2,000 advance fees, “early termination fee”, out of escrow, if a breach of the lease occurs. X I agree as provided in the lease agreement, $2,000 security (an amount that does not exceed 2 months rent) as liquidated damages or an early termination fee if I elect to terminate the lease agreement and Lessor waives the right to seek additional rent beyond the month in which landlord takes possession. FS 83.575 Lessee is required to give 60 days notice of intent not to renew the lease or Lessor, Spirits Realty Inc will receive the $2,000 advance fees security deposits as “liquidated damages”. Spirits Realty Inc is entitled to 5% real estate fee at close. In addition, Respondent submitted into evidence a second document entitled “Lease Addendum” purportedly signed by the now-deceased Mr. Roberts. That second “Lease Addendum” provides: Lease Addendum 31 May 2012 I agree with the Lease Addendum. Spirits Realty Inc will receive the $2,000 security deposits advanced fees out of escrow if there is a breach in the lease. Spirits Realty Inc will receive 5% real estate fee when the property closes. Lessor is acting as a Transaction Broker to lease/sale property. Ms. Roberts and Lori Pridgen credibly testified during the hearing that neither they nor Mr. Roberts, prior to his death, signed a separate Lease Addendum. Ms. Pridgen testified that she would not have signed any type of document which essentially gave up any and all rights to the escrow monies. Further, Ms. Roberts explained that her late husband, Mr. Roberts, who had an understanding of real estate matters, would not have signed such a document. Moreover, the documents presented as lease addenda are suspect. The type font is remarkably different from other documents obtained on May 31, 2012, in connection with the Lease and Property Management Agreement. Further, the paper signed by Mr. Roberts on May 31, 2012, in which he agreed to the Lease, has a fax number, date, and time at the top, but the purported lease addendum does not. Finally, the signatures on the lease addenda appear to have been copied from other signatures and taped into place. While reviewing the purported lease addendum during her cross-examination by Respondent at the final hearing, Ms. Pridgen testified: Okay. First of all, this is not the –- this has never been seen in our paperwork. The whole time that we’ve been doing paperwork with you for all these years, this was never ever seen till Brande sent it up here in the paperwork she had. And besides that, the print is not the same as any of your paperwork. And also, you can tell by the signature that they have been copied and paste onto the amendment. If the – somebody will just look at them, you didn’t clean up your work under your tape before you put it right there. So you - - you needed to clean your work up when you tape something like that because we’ve done it before. You have to clean up your work, or people can tell it when you look at it. Other than evincing Respondent’s nefarious intent to justify her retention of the $2,000, the purported lease addenda are given no evidentiary value. The evidence does not justify Respondent’s retention of the $2,000. The evidence adduced at the final hearing otherwise clearly and convincingly showed that Respondent wrongfully retained the $2,000 identified in the Deposit Receipt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Florida Real Estate Commission, finding that Respondent violated sections 475.25(1)(b) and 475.25(1)(d)1. as charged in the Administrative Complaint, imposing an administrative fine in the amount of $3,500, assessing reasonable costs pursuant to section 455.227(3)(a), and revoking Respondent’s license to practice real estate. DONE AND ENTERED this 29th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2016.
The Issue The issue for determination in this case is whether the Respondent Wayne E. Belton violated Section s. 475.25(1)(b), Florida Statutes (1979), by inserting an option provision into a lease agreement without the specific authorization of the tenants and subsequent to the tenants signing the original agreement. At the hearing, Petitioner's Exhibits 1-10 were offered and admitted into evidence. Leslie and Glenn Strickland, the tenants and complainants, testified on behalf of the Petitioner. Wayne Belton testified on his own behalf. Proposed Recommended Orders have been submitted by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
Findings Of Fact The Respondent Wayne E. Belton is a licensed real estate broker with his principal place of business at 337 Northeast Second Avenue, Delray Beach, Florida. On or about November 23, 1979, the Respondent prepared a one-year rental agreement or lease for property located at 2717 Southwest Sixth Street, Delray Beach, Florida, which was owned by Mrs. Margaret Finlay. Mr. and Mrs. Glenn Strickland executed the agreement as the tenants. The lease was prepared pursuant to an open listing by the owner for either sale or lease. When the Stricklands signed the original agreement it did not contain any provision concerning purchasing the property in the future through an option agreement. Although the Stricklands had discussed an option agreement with the Respondent, they did not specifically agree to an option agreement which required the deposit of additional monies in escrow which would not be refunded if the option were not exercised. The owner of the property, Mrs. Finlay, was primarily interested in selling the property and demanded that Respondent obtain a binding option from the Stricklands. When faced with the conflicting demands of the tenants and the owner, the Respondent inserted an option provision in the lease agreement after the Stricklands had signed the original lease which did not contain such a provision. When the Stricklands failed to deliver the $1,500 option money required by the option provision, Mrs. Finlay, through her attorney, threatened to take legal action against the Respondent. In response to the owner's demand, the Respondent through his attorney, demanded that the Stricklands pay $1,500 for the option pursuant to the lease agreement. When the Stricklands received the demand letter from Respondent's counsel, they contacted an attorney who eventually settled the matter. The Stricklands were required to expend $138.00 in attorney's fees to correct the problem caused by the Respondent. The Respondent admitted inserting the option provision into the lease agreement after the Stricklands executed it, but denied acting with any intent to alter the agreement contrary to what he believed the parties intended. Rather, the Respondent believed that he was remedying his original omission to conform to what he believed the parties had orally agreed to.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner enter a final order finding that Respondent Wayne E. Belton violated Section 475.25(1)(b), Florida Statutes (1979) and imposing a reprimand and an administrative fine. DONE and ORDERED this 7th day of June, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 7th day of June, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Stephen G. Melcer, Esquire Suite 500 First Bank Building 551 Southeast Eighth Street Delray Beach, Florida 33444 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact As pointed out by the Petitioner, it is clear by the evidence presented that the land development was conducted as part of the joint venture operation and that the joint venturers, Petitioner and Kassuba, were equally liable on the notes and other evidences of indebtedness associated therewith. Petitioner urges further that maintenance of the record title for the venture property in Kassuba Realty was merely an accommodation for the two individual joint venturers and is likened to a resulting trust on behalf of the joint venturers. However, in Kendall supra, the Supreme Court of Florida held that the purpose of the statute 3/ which imposes documentary stamp tax on consideration for conveyance of real property was to place such tax on the total consideration involved in the transfer. This includes any outstanding mortgages, and "consideration" for the purpose of measuring the amount of documentary tax due including the value of an outstanding mortgage on the property which mortgage was not expressly assumed by purchaser although probably sold subject to the mortgage where purchaser had assumed burden of making mortgage payments after date of closing. And of course, outstanding mortgages are held to be consideration. Kendall, supra. Respecting the argument by Petitioner's counsel that the situation posed here is likened to a resulting trust arrangement, the First District Court of Appeal in Bradham v. Hays Enterprises, Inc., 306 So.2d 568 (1 DCA Fla. 1975), recognized that in order to sufficiently plead the existence of a resulting trust it must be asserted that it was the actual fund monies of the alleged beneficiary that were used to purchase the realty. No such showing was made in this case. The record is further clear that the parties utilized the procedures in which they utilized for obvious reasons, including favorable financing, management expertise, tax purposes and other reasons which they voluntarily embarked upon based on their individual circumstances. However, the statute which controls this situation is clear that taxes imposed by the documentary stamp tax statute on promissory notes and written obligations to pay excise taxes on the documents themselves and not upon transactions contemplated by documents. Chapter 201.08(1), F.S., see for example Choctawatchee Electric CO- OP, Inc. v. Green, 132 So.2d 559, cert. denied, 369 U.S.829. While Petitioner's counsel urged that it could have utilized other situations which would have placed it in a position of having to pay no documentary taxes, the undersigned is not disposed to make rulings on hypothetical situations not presented before me. Moreover, the Supreme Court in response to a similar contention raised in North American Company v. Green, 120 So.2d 603, said: "we are not privileged to make the taxability of a transaction dependent upon any consideration of some alternative procedure which might not have been taxable." The undersigned adopts this rationale. Accordingly I conclude that the department correctly levied the assessment of the documentary stamp tax pursuant to Section 201.02, Florida Statutes, based on the transactions in question.
Recommendation Based upon the findings of fact and conclusions of law stated above, it is recommended that the assessments made by the Respondent for documentary stamp taxes and the corresponding penalties be upheld. DONE and ENTERED this 24th day of June, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
