The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of June, 1990.
The Issue The issue to be decided is the amount payable to Respondent in satisfaction of the Agency’s Medicaid lien from a settlement received by Petitioners from a third party, pursuant to section 409.910(17), Florida Statutes.1/
Findings Of Fact Nazyrah Jones was born May 13, 2008, at North Florida Regional Hospital. The attending physician was Dr. Anthony Agrios.2/ During her birth, Nazyrah suffered an anoxic brain injury, a deprivation of oxygen to her brain. As a result, Nazyrah is totally disabled, unable to sit up, stand, crawl, walk, speak, or feed herself. Nazyrah is unable to swallow and requires frequent suctioning of her airway to remove substances which are, or may become, aspirated. Nazyrah’s condition is permanent. Nazyrah’s mother, Callena Jones, lives alone with Nazyrah and is Nazyrah’s primary care-giver. Ms. Jones relies upon a home-health care agency, to assist with Nazyrah’s daily care. Ms. Jones currently attends Webster University where she is working toward a master’s degree in mental health counseling. No evidence was introduced upon which to base a finding that Ms. Jones is employed. Claims for compensation for birth-related neurological injuries alleging medical malpractice are governed by Florida’s Neurological Injury Compensation Plan administered by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to sections 766.301 through 766.316, Florida Statutes. NICA is the exclusive remedy for such medical malpractice claims, except that a civil action “shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property[.]” § 766.303(2), Fla. Stat. Ms. Jones filed a civil medical malpractice lawsuit on her behalf and on behalf of Nazyrah, against both North Florida Regional Hospital and Dr. Agrios, alleging “willful and wanton misconduct” on behalf of the medical providers. Petitioners obtained a settlement of $825,000.003/ from the medical providers related to Nazyrah’s injuries. Petitioners presented no evidence as to what portion of the $825,000.00 total settlement was designated by the parties as compensation to Petitioners for medical expenses, or conversely, for various other types of damages either Nazyrah or her mother may have suffered, such as pain and suffering, loss of enjoyment of life, or loss of future earnings. Neither the settlement agreement itself, nor any documents prepared in connection therewith, was introduced into evidence. No witness offered any testimony on this issue. Based upon the evidence presented at hearing, all of the settlement might have been apportioned to medical care, or none of it might have been. Petitioners offered the testimony of Richard Kolodinsky, a civil trial lawyer who has practiced since 1978, has been board certified in civil trial law for approximately 20 years, and is a member of the American Board of Trial Advocates, among other professional distinctions. Mr. Kolodinsky was retained by Petitioners to review the case and offer his opinion on the full value, or total damages, of the underlying medical malpractice claim. In preparation for his testimony, Mr. Kolodinsky reviewed Petitioners’ medical records, the Life Care Plan for Nazyrah Jones, the pleadings filed in the underlying medical malpractice lawsuit, a list of payments by Medicaid on behalf of Nazyrah Jones, the NICA statute, the settlement in the underlying medical malpractice lawsuit, the Guardian ad Litem report to the court evaluating the settlement, the court order approving the settlement, and a “tender” from Dr. Agrios. Mr. Kolodinsky testified that, in his opinion, the full value of the underlying medical malpractice claim was at least $25 million. Mr. Kolodinsky testified that his opinion was “based primarily on the Life Care Plan . . . in summary . . . that provided for costs of about $11 million over the child’s lifetime[.]”4/ Further, he testified that it’s my understanding that Ms. Jones is a college graduate and may have a master’s degree, if I’m remembering correctly, and so I looked at the potential for lost earnings that was also mentioned in the Life Care Plan. And for a college graduate, lifetime earnings are in the range of 2.1 million.5/ The Life Care Plan was not introduced into evidence. Mr. Kolodinsky testified, generally, that a Life Care Plan is usually prepared as evidence in a personal-injury case by a life care planner who evaluates the cost of services, as determined by a physician after examination of the injured party, to be needed by the injured party over his or her lifetime. Mr. Kolodinsky testified that, together, the expenses for Nazyrah’s ongoing care plus Ms. Jones’ potential lost earnings “brings us to a special damages number of about $13 million.”6/ Mr. Kolodinsky next testified as to his opinion of the full value of non-economic damages in the underlying case. His explanation was as follows: And so on top of that, you know, you have of course the noneconomic damages component . . . for a profoundly injured, profoundly handicapped child, that is a life of constant care and deprivation that this child suffers minute to minute and the mother deals with minute to minute and will deal with for the rest of their lives. So, you know, these are big numbers. You know, the valuation on personal injury and medical malpractice claims, you know, there was sort of a rule of thumb that people talk about three times the specials, but that really is a rule of thumb that almost never is accurately applied, and as we all know that is very difficult to predict what a jury would do in any particular cases but you have to think that when you have special damages in the $13 million range that the damages for the child could easily be another $10 million on top of that and for the mom somewhere in the couple million to 5 million range. So, that brings us up to in the 25 million plus range, and if there were no damage caps, if there were no limitations on insurance, if there was no NICA, if there were no problems with the case, and you were looking at, okay, what are the full damages for this case absence of any of those other issues, that’s what I would think that that would be worth.7/ On cross-examination, when questioned whether he had tried cases similar to Nazyrah’s, Mr. Kolodinsky testified, “I don’t do NICA cases and in part because of the limitations on damages,”8/ and that he has never tried a case involving an anoxic injury at birth “because of NICA.”9/ Mr. Kolodinsky has tried cases in which a child was a victim of medical malpractice, and has tried cases which involve Medicaid and Medicare liens. Mr. Kolodinsky conducted no jury verdict research and did not compare this case to any case tried to verdict. Mr. Kolodinsky’s testimony regarding Petitioners’ economic damages was imprecise, utilizing hedging language such as costs “of about $11 million” and earnings “in the range of $2.1 million.” Mr. Kolodinsky provided no basis for his opinions other than the Life Care Plan, which was not introduced into evidence and the genesis and role of which was explained only in the most general terms. Mr. Kolodinsky’s testimony regarding Petitioners’ non- economic damages was lacking in detail, failed to establish the basis for his opinion, and was unpersuasive. No other evidence was introduced as to the basis for Mr. Kolodinsky’s opinion on the full value of the non-economic damages in the underlying medical malpractice claim. Mr. Kolodinsky’s opinion was the only evidence introduced on the issue of valuing the total damages in the underlying medical malpractice claim. Respondent, Agency for Health Care Administration (AHCA), is the Florida state agency authorized to administer Florida’s Medicaid program. § 409.902, Fla. Stat. The Florida Statutes provide that Medicaid shall be reimbursed for medical assistance that it has provided if resources of a liable third party become available. § 409.910(1), Fla. Stat. Florida Medicaid, through AHCA, paid $172,890.44 for Nazyrah’s medical expenses. Thus, Respondent has asserted a Medicaid lien in the amount of $172,890.44 against any proceeds received from a third party. The amount to be recovered for Medicaid medical expenses from a judgment, award, or settlement from a third party is determined by the formula in section 409.910(11)(f), which establishes the amount at one-half of the total recovery, after deducting attorney’s fees of 25% of the recovery and all taxable costs, up to the total amount actually paid by Medicaid on the recipient’s behalf. The parties stipulated that application of the formula in section 409.910(11)(f) to the entire proceeds of the settlement yields $172,890.44.10/ Petitioners argued that the Agency should be reimbursed a lesser amount than the lien of $172,890.44. Petitioners offered two theories for calculating the correct amount to be reimbursed to the Agency. The first theory, and the one advanced by Petitioners’ expert, is that the Agency should recover from its lien in the same proportion that Petitioners’ recovered from the full value of the damages in the underlying case. Petitioners again relied upon Mr. Kolodinsky to establish the proportion of the Medicaid lien which the Agency should be reimbursed under this theory. In this regard, Mr. Kolodinsky testified as follows: So then you look at what proportion the settlement is to the 25 million and you get I think it’s like 3 or 4 percent. We can do the math and determine correctly. Then you apply the percentage, the 3 or 4 percent, to the $172,000 that Medicaid is seeking and that’s the net that Medicaid gets; 4 percent, 3 percent of 172,000, because that is the proportion that the settlement was of the total value of the case.11/ Mr. Kolodinky’s testimony, again, was imprecise and unpersuasive. Assuming the full value of the damages at $25 million, Petitioners recovered 3.3% of the full value of their claim in the $825,000 settlement. Under Petitioners’ first theory, the Agency should be reimbursed 3.3% of its lien for medical expenses, or $5,705.38.12/ Under an alternate theory, advanced for the first time in Petitioners’ Proposed Final Order, Petitioners maintain the Agency should recover in the same proportion that past medical expenses are to the full value of the damages in the underlying case. Under this theory, Petitioners designate the amount paid by Medicaid, $172,890.44, as Petitioners’ past medical expenses. Petitioners introduced no direct evidence to establish the amount to be recovered by the Agency under this theory. Petitioners posit, correctly, that $172,890.44 is .69% of $25 million. Applying that percentage to the settlement amount returns a figure of $5,692.50, which Petitioners claim is due to the Agency in satisfaction of its lien.13/ Both theories rely upon establishing the full value of damages in the underlying medical malpractice claim at $25 million. Petitioners did not prove the value of the damages in underlying medical malpractice by clear and convincing evidence. Petitioners failed to prove by clear and convincing evidence that the statutory lien amount of $172,890.44 exceeds the amount actually recovered in the settlement for medical expenses.
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of February, 1982.
Findings Of Fact The Respondents, Ernest Page and Page Realty, Inc. are licensed as real estate brokers in the State of Florida, having been issued license numbers 0187380 and 0223391, respectively. From approximately July 28, 1983, to approximately August 11, 1983, the Respondent, Ernest Page, knowingly obtained or used, or endeavored to obtain or use, certain personal property, including typewriters, copy machines, a television receiver, and a stereo receiver, each of which was valued at $100.00 or more, which was the property of Stewart Hudson or Michael Bethea, with the intent to temporarily or permanently deprive the owners thereof, and to appropriate this property to their own use. The Respondent, Ernest Page, had received and was in possession of property that he knew or had reason to know was stolen. The Administrative Complaint tracked the charging language of the information filed against the Respondent, Ernest Page, in the Circuit Court of the 9th Judicial Circuit of Florida. The Respondent, Ernest Page, was found guilty of six counts of grand theft second degree by a jury on January 31, 1984. He was adjudicated guilty by judgment dated March 28, 1984, of six counts of grand theft second degree, which crimes are punishable as third degree felonies. The Respondent, Ernest Page, was sentenced on March 28, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that real estate broker's license numbered 0187380 and 0223391, held by the Respondents, Ernest Page and Page Realty, Inc., respectively, be revoked. THIS RECOMMENDED ORDER entered this 31st day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 31st day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Edward R. Kirkland, Esquire 126 E. Jefferson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Department of Professional Regulation 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
Findings Of Fact On or about May 19, 1989, Viola DePeugh filed a complaint with the Department of Insurance, Bureau of Consumer Services, stating that the Petitioner, a licensed health and accident insurance agent for National States Insurance Company, visited the DePeugh home on or about May 4, 1989, and: tried to intimidate her and her husband; stated that the insurance agent who had sold them their Old Southern policy was "a crook and a liar" and not licensed by the Department; and stated that Old Southern had gone bankrupt and was about to go bankrupt again. The Respondent investigated the DePeugh complaint to the extent of interviewing the DePeughs and obtaining sworn written statements from them. Viola DePeugh's sworn written statement reiterated her May 19, 1989, complaint to the Department. She stated that the Petitioner had reviewed the DePeughs' Old Southern insurance policy, had stated that Old Southern had been bankrupt once before and was going bankrupt again, and had stated that her Old Southern agent was a "crook." Her husband, Forrest DePeugh, gave a sworn written statement that he had been present at the time of the Petitioner's statements to his wife and that he could verify his wife's statements. Besides the interviews with the DePeughs and their sworn written statements, the Department did not further investigate the DePeugh complaint. On or about September 21, 1989, the Respondent filed an Administrative Complaint charging the Petitioner with violations of parts of Chapter 626, Florida Statutes, based on the DePeugh allegations. The Administrative Complaint charges essentially that, in order to induce the DePeughs to change from their Old Southern policy to a policy the Petitioner was selling, the Petitioner falsely represented to the DePeughs that Old Southern Insurance Company had been in bankruptcy and was about to go bankrupt again and that the DePeughs' insurance agent was "a crook." The Administrative Complaint was referred to the Division of Administrative Hearings for a formal administrative proceeding and was assigned Case No. 89-5712. The Petitioner's defense to the Administrative Complaint was that he did not make the statements attributed to him, not that the statements were true. The Recommended Order in Case No. 89-5712 found that the Department did not prove by clear and convincing evidence that the DePeugh allegations were true. A Final Order dismissing the Administrative Complaint was entered on or about June 21, 1990. At the time of its filing on or about September 21, 1989, the Administrative Complaint against the Petitioner had a reasonable basis in law and in fact. If the DePeughs testified in accordance with Viola DePeugh's written complaint and sworn written statement, their testimony would have been legally sufficient to sustain the charges in the Administrative Complaint notwithstanding the Petitioner's denial of the charges. It was simply a case of the DePeughs' word against the Petitioner's word. There were no other witnesses, and there was no reason for the Respondent to think that further investigation would have uncovered extrinsic evidence that would support the Petitioner's denial of the charges or impeach the credibility of the DePeughs. Under these circumstances, it was not unreasonable for the Respondent to file the Administrative Complaint against the Petitioner.
The Issue The central issue is whether Bennett committed the violations as alleged and, if so, what discipline is appropriate. More specifically, did he violate Section 475.25(1)(b), (d) and (k), Florida Statutes, by committing fraud, culpable negligence or the like, by failing to account for and deliver trust funds, and by failing to properly maintain trust funds?
Findings Of Fact Respondent, Fred M. Bennett was, at all times relevant, licensed as a real estate broker in the State of Florida, having been issued license number 0161968 in accordance with Chapter 475, Florida Statutes. Harold E. McNally is a self-employed businessman from Chillicothe, Ohio. He met Fred Bennett in 1976 or 1977 when he bought some property in Orlando. Thereafter, the relationship continued with McNally buying and selling property as an investment, and Bennett acting as agent or purchaser. Four of McNally's properties in Orlando, Florida were held as rentals: 3939 Spoonbill Avenue 4525 Salvia Drive 7806 Toledo Street 1308 Forester Avenue Bennett collected the rents and sent them to McNally, after deducting his management fee. There was no written management agreement, but rather McNally leased the properties back to Bennett. Later, those leases expired and since the market was not good for sales, Bennett and McNally continued their relationships with Bennett sending the rents and deducting his fees. The rents were $450.00 and $485.00 per month and his fee was $93.00 per month in 1986. The rents remained the same in 1987, but the management fee was raised to $103.00 per month. Beginning in May 1986, the rents were not sent to McNally on a regular basis. McNally attempted to contact Bennett but was unsuccessful. By July 1987, Bennett owed McNally $11,169.00 for back rents and a $400.00 deposit on one of the houses. After McNally retained counsel and sent a letter informing Bennett that he was terminating the management arrangement, Bennett eventually returned the keys and (with the exception of one which he had applied to rent) transferred the tenants' deposits to McNally's new agent. Bennett attempted to account for the back rents with promissory notes. McNally never acknowledged the notes and filed them. The $11,169.00 was never paid. James D. Stayton is another real estate investor who dealt with Bennett. He had two properties which Bennett handled for him. Between September 20, 1984, when he acquired the property, and October 1986, when he removed the property from Bennett's control, Stayton was owed $7,447.44 in back rents. Again, Bennett signed a promissory note in this amount, but never paid on the note. Bennett admits that he owes the funds but denies fraud or dishonesty and claims that his failure to pay the rents was the result of a business deal that went bad. Bennett Does not claim that the rents were not collected. One tenant, Patricia Sulter established that she lived in the 4525 Salvia Drive unit and paid her deposit and rents regularly to Bennett during the months when Bennett failed to forward the funds as agreed, to Harold E. McNally.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Fred M. Bennett guilty of violations of Section 475.25(1)(b) and (d), Florida Statutes, imposing a $4,000.00 fine and suspending his license for four years. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 31st day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4903 The following constitute specific rulings on each of the findings of fact proposed by the Petitioner: Adopted in paragraph :1. Adopted in paragraph #3. Rejected as unsupported by the evidence. & 5. Adopted in paragraph #5. Adopted in paragraph 6, except for the finding that the funds were converted to Bennett's own use, which finding was not proven. Adopted in paragraph #6. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred M. Bennett Post Office Box 3102 Orlando, Florida 32802 Darlene Keller, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Daniel Bruce Caughey has been licensed by petitioner as an insurance agent at least since 1981. He began working for Caughey Insurance Agency, Inc. in 1971 as a file clerk. Once he was licensed, he worked as a salesman. In 1977, he assumed the executive vice-presidency of the agency, a position he still holds. Until the middle of March, 1983, respondent'- father, William Edward Caughey, managed the agency. He continues to own all 1,000 shares the corporation has issued, although he has not written a policy since he turned management of the agency over to the respondent and his brother Randy in 1983. In 1982 and thereafter until Jordan Roberts and Company, Inc. (JORO), a multi-line general agency, stopped underwriting automobile insurance, Caughey Insurance Agency, Inc. brokered automobile insurance through JORO. When an account current bookkeeping dispute arose between Caughey Insurance Agency, Inc. and JORO, William Edward Caughey retained an accounting firm, Sizemore. On Sizemore's advice, he rejected JORO's claim for more than $20,900. On October 21, 1983, a JORO representative told Daniel Bruce Caughey that JORO would no longer deal with Caughey Insurance Agency, Inc. unless he signed an "Individual Guarantee Agreement," personally guaranteeing the insurance agency's corporate indebtedness; and executed a promissory note in JORO's favor in the amount of $16,941. Respondent executed the documents. On December 3, 1986, JORO brought suit against the corporation and respondent personally. No. 86-21454 (Fla. 13th Cir.). On August 13, 1987, the court entered judgment against both defendants in the amount of $6,595.94. Jordan Roberts & Co. v. Cauqhey, No. 86-21454 (Fla. 13th Cir.; Aug. 13, 1987). Neither respondent nor the agency has paid the judgment. With the possible exception of filing the complaint that eventuated in the present proceedings, JORO has made no effort to collect. In Count I, JORO's complaint alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by ?CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William E. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. At hearing, both Daniel Bruce Caughey and William Edward Caughey testified that neither had withheld premiums owed JORO, and this testimony was not controverted.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 2nd day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, respondent became an officer after the brokerage agreement had been executed. With respect to petitioner's proposed finding of fact No. 7, the judgment could also be based on the promissory note. With respect to petitioner's proposed finding of fact No. 6, respondent did not sign as an individual guarantor. Respondent's proposed findings of fact Nos. 1 through 10 and 12 through 18 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, evidence respondent himself adduced showed that the judgment had not been satisfied. COPIES FURNISHED: Robert V. Elias, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Bruce A. McDonald, Esquire McDonald, Fleming & Moorehead 700 South Palafox Street Suite 3-C Pensacola, FL 32501 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, FL 32399-0300
Findings Of Fact At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be REVOKED. DONE and ORDERED this 15th day of September, 1986, 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 15th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER: Covered in finding of fact 4. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Wilbur W. Anderson, Esquire 413-B Larson Bldg. Tallahassee, Florida 32301 Jack Michael Schwartz 2027 N.E. 172nd Street North Miami Beach, Florida 33162
