Findings Of Fact The facts here involved were not in dispute. Prior to February, 1973 Respondent, Michael L. Whitman, had a listing on the acreage here involved. On February 26, 1973 Gifford Realty Company procured a buyer for this property and an Option to Purchase was executed. (Exhibit1). This agreement provided that sellers would pay Whitman, for services rendered, a commission of 10 percent of the purchase price and Whitman was to divide the commission equally with Gifford. Thereafter on April 27, 1973 the sellers and buyers entered into an agreement (Exhibit 2) to transfer the property from seller to buyer upon terms and conditions similar to the option, which terms and conditions are contained in Exhibit 2. One condition of the agreement, not relevant to the issues here involved, was that the buyer would be able to have the property rezoned to RPF- 15, which would allow multi-family dwellings to be erected thereon. When application for rezoning request for multi-family dwellings. After general agreement between all parties the Agreement to Purchase the property was assigned to Pinellas County. On December 11, 1973 the original sellers and buyers executed an additional agreement (Exhibit 3) which modified Exhibit 2 respecting zoning, approved the assignment of the contract to the county, and provided for closing after August 1, 1974 but no later than August 7, 1974. In the Agreement (Exhibit 5) between the original buyers and the county, the purchase of the property was contingent upon the county acquiring federal funds. When it subsequently became evident that federal funds could not be obtained the county elected to purchase the property in accordance with the terms of the original agreement a modified by the time of closing as contained in Exhibit 3. During the period in 1974 prior to August, some question arose whether or not the county would purchase the property without the benefit of federal funds, and when the county representative proceeded to the scheduled closing on August 7, 1974, the sellers did not appear. After changes of breach of contract were exchanged between the sellers and the county the closing of the transaction occurred on September 4, 1974. The sale price of the property was $792,4000 and the commission due thereon was $79,240. Unbeknownst to Gifford, Whitman had agreed with the sellers to accept $20,000 case at closing and a promissory note for the remaining $59,240 of the commission payable over a five-year period. Following the closing Respondent Whitman forwarded to Gifford $10,000 and a copy of the promissory note payable to Whitman executed by the sellers. Gifford demanded payment of his full share of the commission ($39,620) forthwith. Alternatively he demanded that his share of the commission be paid in full fro the proceeds of the promissory note prior to Whitman receiving any commission. When these demands were rebuffed Gifford engaged an attorney who proposed litigation. When the first annual installment on the note was due and paid to Whitman, Gifford demanded his share (Exhibit 9). By this time Whitman, too, had engaged the services of an attorney who advised Whitman to withhold disbursement of the note payment received until Gifford agreed to settle the dispute other than by litigation.
Findings Of Fact At all times material hereto, Petitioner has been in the business of manufacturing and selling extruded aluminum patio furniture. Petitioner is owned by Robert L. Gass, Jr., who was also the owner of the real estate which Petitioner occupied as a tenant. It was necessary for the Department to acquire the real property owned by Gass and to relocate Petitioner as a result of a federally-funded highway construction project, I-595 in Broward County, Florida. Accordingly, Gass and Petitioner became entitled to benefits pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Pursuant to a contract with the Department, employees of Kaiser Engineers were responsible for both the acquisition of real property and the relocation of personal property of businesses and persons displaced by the I-595 project. Some of Kaiser's employees were involved with acquisition (acquiring ownership of real property) and different employees were responsible for relocation assistance (relocating personal property). An appraisal of the land and improvements at the manufacturing site was performed on behalf of the Department. The Department's real estate appraiser called in a machinery and equipment appraiser to appraise certain "immovable business fixtures and special purpose process systems." The machinery and equipment appraiser prepared an appraisal containing 20 categories/items, consisting primarily of the components of Petitioner's painting machinery and assembly line. A three-page listing of those 20 categories/items was compiled and became entitled "Inventory." Gass and the Department entered into negotiations for the acquisition of his real property. Gass was concerned about the "down time" Petitioner would incur if Petitioner were required to disassemble, move, reassemble, and install its assembly line and painting system process. It was important to Gass that Petitioner have a replacement assembly line and painting system process operational before moving to the relocation site. Gass was aware of the relocation benefit under which a displaced business might be eligible to purchase new equipment and machinery and have it fully installed and operational before the business is physically relocated. On August 22, 1988, Gass entered into a Right-of-Way Purchase Agreement with the Department under which the Department purchased from Gass the real property which was Petitioner's manufacturing site. Exhibit "A" to the Right- of-Way Purchase Agreement was the Inventory of the 20 categories/items prepared by the machinery and equipment appraiser. Petitioner subsequently made application to the Department for relocation benefits to purchase replacement items for the categories/items contained in the Inventory. The Department denied that claim for relocation benefits, and Petitioner timely requested a formal hearing regarding the Department's determination. The matter was thereafter transferred to the Division of Administrative Hearings where it was assigned DOAH Case No. 90-8112. In that dispute, the Department took the position that the 20 items in the Inventory were immovable trade fixtures and, therefore, items of real property, that those items had been purchased by the Department as part of its acquisition of the real property, and that Petitioner was entitled to no relocation benefits relative to those items. Petitioner, on the other hand, contended that the Inventory items were personal property, that they were not converted into real property because the Right-of- Way Purchase Agreement referred to them, and that Petitioner, through Gass, had specifically reserved its right to receive relocation benefits regarding those items due to negotiated language which Gass had required and which was included in the Addendum to the Right-of-Way Purchase Agreement. The threshold issue to be adjudicated in the underlying proceeding was whether the items of property listed in the Inventory were items of personal property, as Petitioner contended, or trade fixtures and items of real property, as the Department contended. Expert real property appraisers and expert machinery and equipment appraisers testified in the evidentiary hearing. The one area of agreement among them was that whether a piece of equipment is considered real property or personal property is a "gray area." On September 12, 1991, a Recommended Order was entered in DOAH Case No. 90-8112. That Recommended Order determined that all of the items listed in the Inventory were items of personal property, that the Right-of-Way Purchase Agreement was ambiguous, and that Petitioner was entitled to relocation benefits for substitute personal property in the amount of $275,900. On December 10, 1991, the Department entered its Final Order essentially adopting the Recommended Order. The Final Order specifically held that all of the items listed in the Inventory were items of personal property and that Petitioner was entitled to relocation payments for substitute personal property in an amount not to exceed $275,900 upon submission of the appropriate documentation. At the time that the Department denied Petitioner's claim for relocation benefits regarding those items listed in the Inventory and advised Petitioner of its right to request an administrative hearing regarding that determination, the Department believed, in good faith, that it had purchased the 20 categories/items listed in the Inventory as part of its acquisition of the real property at Petitioner's manufacturing site. At that same time, the Department believed, in good faith, that the 20 categories/items listed in the Inventory were not items of personal property and that Petitioner was not, therefore, entitled to relocation benefits for that personal property. At the time, the Department's decision to deny Petitioner's claim for relocation benefits was substantially justified. At the time, the Department's determination had a reasonable basis in law and in fact. When the Department and Gass entered into the Right-of-Way Purchase Agreement and Addendum and attached the Inventory as Exhibit "A" thereto, the Department believed that it had paid Petitioner, through Gass, those monies to which Petitioner was entitled related to the 20 categories/items listed in the Inventory. The Department did not foresee that Petitioner would be entitled to additional payments regarding those same items because language added to the Department's standard form contract increased the ambiguity in that document so that there was never a "meeting of the minds" as to whether the 20 categories/items listed in the Inventory were agreed to be real property acquired by the Department in the Right-of-Way Purchase Agreement or were agreed to be personal property and the subject of relocation benefits. Accordingly, circumstances exist which would make the award of attorney's fees and costs in this proceeding unjust.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges in the Administrative Complaint be DISMISSED. DONE and ENTERED this 1st day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 1st day of March, 1982.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of February, 1999.
Findings Of Fact The Respondent, Llera Realty, Inc., is a corporate real estate broker, and J.M. Llera is the active real estate broker in that corporation. Llera Realty, Inc., and J.M. Llera represented the buyers in the negotiations for purchase and sale of the subject real property. Coral Realty Corporation is a corporate real estate broker, and Alberto E. Trelles is the active real estate broker with that corporation. Coral Realty Corporation and Alberto Trelles represented the seller in the negotiations for purchasee and sale of the subject property. The property in question was owned by Saul Lerner, who was represented in these negotiations by Julius Friedman, attorney at law. The purchasers were Messrs. Delgado, Salazar and Espino, who are officers of Inter-America Housing Corp., said corporation eventually being the purchaser of the subject property. Lerner made an oral open listing on a piece of real property which included the subject property. Trelles, learning of the open listing, advertised the property to various brokers. Llera was made aware of the availability of the property through Trelles' ad and presented the property to Delgado, Salazar and Espino. Lengthy negotiations followed during which various offers were tendered by the buyers through Llera to Trelles to Friedman in Lerner's behalf. These offers were rejected. Eventually, negotiations centered on a segment of the property, and an offer was made by the buyers for $375,000 on this 7.5-acre tract. This offer was made through Llera to Trelles to Friedman, and was also rejected by Lerner. The buyers then asked to negotiate directly with the seller and agreed to pay a ten percent commission to the brokers in the event of a sale. The buyers then negotiated with the seller and eventually reached a sales price of $410,000 net to the seller for the 7.5 acres which had been the subject of the preceding offer. Buyers executed a Hold Harmless Agreement with the seller for any commission that might become due, agreeing to assume all responsibility for such commissions. The buyers through their corporation, Inter-America Housing Corp., purchased the property and refused to pay commissions on the sale and purchase. Thereafter, the Respondents brought suit against the buyers and their corporation. The Respondent's suit alleges the facts stated above in greater detail and asserts that the buyers took the Respondent's commission money to which they were entitled under the oral agreement with the buyers and used this money to purchase a portion of the property. The Respondents asked the court to declare them entitled to a commission and declare an equitable lien in their behalf on a portion of the subject property together with punitive damages. In conjunction with this suit, counsel for the Respondents filed a Notice of Lis Pendens. The Respondents questioned the propriety of this in light of Section 475.42(1)(j), Florida Statutes, and were advised by their counsel that the filing of Lis Pendens in this case was proper. The court subsequently struck the Lis Pendens on motion of the defendant buyers; however, the court refused to strike the portion of the complaint asserting the right to and requesting an equitable lien in behalf of the Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the real estate licenses of the Respondents. DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Leon County, Florida, STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Peter M. Lopez, Esquire 202 Roberts Building 28 West Flagler Street Miami, Florida 33130 ================================================================= DISTRICT COURT OPINION ================================================================= NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF LLERA REALTY, INC., J. M. IN THE DISTRICT COURT OF APPEAL LLERA, CORAL REALTY CORP. OF FLORIDA and ALBERTO TRELLES, THIRD DISTRICT JANUARY TERM, A.D. 1980 Appellants, vs. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee. / Opinion filed July 1, 1980. An Appeal from the Board of Real Estate. Lopez & Harris and Peter M. Lopez, for appellants. Howard Hadley and Kenneth M. Meer and Salvatore A. Cappino, for appellee. Before NESBITT, PEARSON, DANIEL, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge. PEARSON, TILLMAN, (Ret.), Associate Judge. This appeal by respondents Llera Realty, Inc., J.M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charge that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission. 1/ The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because "[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally." The commission rejected that portion of the hearing officer's conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their licenses suspended for thirty days. We affirm. The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of person who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered". . . at the time the act or service was performed "may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, "No business known to modern society has a longer or more respectable history." In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Section 475.17 et seq., Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state's recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well- established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So. 2d 714, 717 (Fla. 2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O'Kelley, 149 Fla. 706, 6 So.2d 857 (1942). The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of his privileged group to the disadvantage of the public. Finding no error, we affirm the administrative decision.
Findings Of Fact Petitioner R. G. Furniture is in the business of manufacturing and selling extruded aluminum patio furniture. Petitioner is owned by Robert L. Gass, Jr., who was also the owner of the real estate which Petitioner occupies as a tenant. For purposes of this administrative proceeding and for purposes of relocation assistance benefits, the parties have stipulated that R. G. Furniture, Medallion Furniture, Mar-Tec Furniture, R. G. Cushion Co., Robert L. Gass, Jr., and all other related entities, corporations, or persons shall be treated as one party so that there will be no duplicity of claims made or of benefits paid. The patio furniture, umbrellas, and related items are both sold and manufactured by Petitioner on-site. Straight tubes of aluminum are cut to size, bent into shape, welded, finished, and electrostatically painted. Strapping is then applied, and the furniture is then fitted with custom-made cushions. After this process is completed, the furniture is shipped to the customer or sold on the showroom floor. The furniture moves through the system on an overhead conveyor through each stage of the fabrication process. The paint system is extremely complex and critical to the operation of the plant. As the furniture goes through the paint machine, a dry, powdered paint is applied through an electrostatic process which bonds positive and negative charges, after which the dry paint is melted in an oven and cured. Gass was the fee owner of the real property on which Petitioner, a company owned by him, operates. On September 3, 1987, the Department notified Gass that his real property was needed for a new highway, I-595 in Broward County, Florida. The project requiring acquisition of the real property and the relocation of Petitioner is a federally-funded highway construction project. The September 3, 1987, letter also notified Gass of a prenegotiation meeting. Pursuant to a contract with the Department, employees of Kaiser Engineers were responsible for both the acquisition of real property and relocation of personal property of businesses and persons being displaced by the I-595 project. Their duties included advising displacees regarding their rights, negotiating settlements, and approving payment of claims. Some of Kaiser's employees are involved with acquisition (acquiring ownership of real property) and different employees are responsible for relocation assistance (relocating personal property). An appraisal of the land and improvements at the manufacturing site was performed on behalf of the Department. The Department's real estate appraiser called in a machinery and equipment appraiser to estimate the then-current replacement cost new, market value in-place, and salvage value of certain "immovable business fixtures and special purpose process systems". That appraisal was performed by Gary Maehl as of December 19, 1987. The appraisal prepared by Maehl for Kaiser Engineers contained 20 categories/items, consisting primarily of the painting machinery and the assembly line. Although the cover sheet to Maehl's full report is entitled "Immoveable Business Fixtures and Special Purpose Process Systems," there is no evidence that Gass ever saw more of the report than the 3-page listing of the 20 items which was entitled "Inventory." The components of the 20 categories/items are all movable. They are either freestanding or are attached to the building by nuts and bolts. Seventeen of the 20 items are easily movable. The component parts of the painting system and assembly line are bolted together. Those parts are bought and sold new and used on the open market. Even the freight elevator is movable. At all times material hereto, Gass has intended to continue in the furniture manufacturing business at a replacement site. It is not disputed that the painting machinery and assembly line are necessary to the operation of the furniture factory. Gass began receiving correspondence and informational packets from Kaiser Engineers regarding various relocation benefits to which he and his businesses would be entitled as eligible displacees. By March 9, 1988, Gass had been notified of his company's eligibility for relocation benefits, and negotiations for the acquisition of his real property had begun. Using its standard form Right-Of-Way Purchase Agreement, the Department made a written offer to Gass to acquire his property, one of the largest properties involved in the I-595 project. Gass, through his attorney, rejected that offer. One of Gass' concerns involved the "down time" he would incur in his business if he were required to disassemble, move, reassemble and install his assembly line and painting system process. The disassembly, moving, reassembly, and installation would take from 3 to 6 months, or more, essentially putting him out of business for an extended period of time. One of the relocation benefits for which a displaced business may be eligible involves the concept of substitute personal property. Under that concept, a business may purchase new equipment and machinery, such as an assembly line or specialized process, and have it fully installed and operational before relocating the business. At that time, the old machinery and equipment is shut down, and the business moves to the relocation site ready to continue production with its operational replacement equipment. In that manner, a business suffers only the disruption involved in the physical move of its other personal property and its employees. It was important to Gass that he have a replacement assembly line and painting system process operational before moving to the relocation site. On August 22, 1988, Gass entered into a Right-Of-Way Purchase Agreement with the Department to which was attached an Addendum required by him. The Addendum was specifically incorporated by reference. The Agreement also required a higher purchase price than the Department's first offer to Gass. Although the Department contends that the Agreement is used only to purchase real property, paragraph III. (c) of the Department's standard form agreement contains the following language: "All personal property included in the purchase price shall be delivered to PURCHASER in the same condition existing as of the date of this agreement." The Addendum also contained, in part, the following language: Seller shall retain title to all movable items and all items of personal property not identified as fixtures in the attached Exhibit "A". Seller retains his right to relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and PURCHASER agrees to pay said benefits upon receipts [sic] of appropriate application from Seller. Exhibit "A" was the listing of 20 items prepared by appraiser Gary Maehl. The total purchase price for the land, improvements thereon, and the 20 items on the Maehl inventory was $3,985,000. The parties to the Agreement added a footnote to specify that the total purchase price included all costs and attorneys fees in settlement in lieu of condemnation. Terry E. Morris, the land acquisition director of Kaiser Engineers, who personally handled the acquisition of the manufacturing site since the parcel was one of the largest properties involved in the project, designated $477,000 of the purchase price to be for the items listed on the Maehl inventory. This figure represents their depreciated value in-place. Gass netted $88,000 from the transaction. Although R. G. Furniture has not yet moved to its replacement site, Gass made application to the Department for relocation benefits to purchase replacement items for the items contained in the Maehl inventory, primarily those items needed to begin assembling and installing a new assembly line and painting system process. The Department's denial of that claim is the subject of this proceeding. Although relocation benefits are usually not payable prior to the relocation, except in cases of justified hardship, the concept of substitute personal property would embody payment prior to relocation, and the parties have stipulated that the issue of eligibility regarding the items listed in the Maehl inventory only is ripe for adjudication. The relocation benefit involving substitute personal property is computed using two different formulas. One of those formulas contemplates that the property being replaced will be sold, and the sales price will be deducted from the cost of purchasing and installing the replacement equipment. There is no prohibition against the Department being the purchaser of the property which is being replaced. Petitioner is an eligible displacee. It is an on-going business being displaced as a result of a federally-funded highway project. All of the items listed in Maehl's inventory are items of personal property. Petitioner is entitled to relocation benefits for substitute personal property for those items. At the time of the final hearing in this cause, the cost of substitute items including installation at the replacement site was $752,900. The estimated cost of moving and reinstalling the replaced items, with no allowance for storage, is $494,100.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner entitled to relocation benefits for substitute personal property and paying Petitioner the sum of $275,900 as partial payment of the relocation benefits to which Petitioner is entitled. DONE and ENTERED this 12th day of September, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 September, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's second through fourth, eleventh, and twelfth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Petitioner's first, fifth through tenth, and thirteenth through eighteenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 1, 2, 4-8, and 10-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 9, 14, 15, 19, 20, 23, and 24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 17, 18, 21, and 22 have been rejected as not being supported by the weight of credible evidence in this cause. Respondent's proposed findings of fact numbered 16 and 25 have been rejected as being unnecessary for determination of the issues herein. COPIES FURNISHED: Ben G. Watts, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Charles G. Gardner Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 J. Philip Landsman, Esquire Margaret Z. Villella, Esquire Platt, Haas & Landsman, P.A. Broward Financial Centre 500 East Broward Boulevard, Suite 1850 Ft. Lauderdale, Florida 33394
The Issue Whether Choice Plus, LLC is entitled to Unclaimed Property Account Number 103851316.
Findings Of Fact On January 25, 1999, Donald C. Rogers died. On August 19, 1999, the Estate of Donald C. Rogers, (“decedent”) was submitted for probate. The Department received the following described unclaimed property: Account Number: 103851316 Reported Amount: $28,007.01 Reported Name: Rogers, Donald C. Sr. Reported Address: Hillsborough SSN#: None Holder: Clerk of Court Property Type: Cash On March 22, 2005, the probate court entered an Order Granting Petitioner to Distribute Funds and to Distribute Surplus Funds into Registry of Court. The Personal Representative for the Estate had been unable to locate Sean Henry Casner (“Casner”), the decedent’s grandson. Casner’s share of the Estate was $23,689.95. The Order for Discharge was rendered June 24, 2005. On November 3, 2012, Casner executed a Limited Power of Attorney (“LPOA”) authorizing Choice Plus to act on his behalf as Claimant’s Representative. The LPOA disclosed that Choice Plus’ fee was 25 percent of the funds recovered. The 25 percent equaled $5,922.49; the net amount to Casner was $17,767.46. On April 29, 2013, the Department received a completed claim form filed by Choice Plus on behalf of Casner. On August 12, 2013, Choice Plus withdrew its claim on behalf of Casner by email. On August 17, 2013, Casner sold his interest in the property related to the above-referenced account (“account”) to Choice Plus by means of a purchase agreement. On or about August 19, 2013, Casner cashed the $13,029.47 check from Choice Plus for the purchase agreement. On September 3, 2013, the Department received a claim from Choice Plus on behalf of Casner, as the purchaser of the account. The Purchase Agreement disclosed the following: $23,689.95=Approximate Dollar Value of the Property $23,689.95=Amount to be Paid to Buyer $13,029.47=Net Amount to be Paid to Seller Property Account Number(s): 103851316 The Department issued a Notice of Intent to enter a final order denying the claim filed by Choice Plus as the purchaser for the unclaimed property relating to Account Number 103851316. The Department determined Choice Plus failed to comply with section 717.1351, Florida Statutes, by deleting the percentage line in the Purchase Agreement without a flat fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is REOMMENDED that a final order be entered granting Choice Plus claim to the unclaimed property Account Number 103851316. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 24th day of June, 2014. COPIES FURNISHED: Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 Josephine Schultz, Esquire Department of Financial Services Legal Services, Room 601 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
