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 Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent Gustave A. Miller was a licensed real estate broker with license number 0060208, and Respondent Pamela Michaels was a licensed real estate salesman with license number 0059873. At all times pertinent to this case, Respondent Miller operated Gus Miller Real Estate, Inc., 5505 E. Colonial Drive, Orlando, Florida; and Respondent Michaels was a salesperson working for him at that office. On or about November 15, 1981, Respondent Michaels prepared a contract for the sale of property owned by Betty B. Stahl (1/2 interest) and Helen Vierbickas or Flora Belle Turner Van Trease (1/2 interest) in Orlando, Florida, to Timothy Karl Kunke and Shawna Jean Kunke. Purchase price was to be $64,000 with $1,000 paid as deposit. Buyer was to apply and qualify for a loan guaranteed by the Federal Housing Administration (FHA). Seller was to clean and paint the inside of the house, but did not enter into a contract with Respondents to accomplish this work. The contract contained the usual provision for the division of forfeited deposit in the event of buyer default. Due to a death in the buyer's family, he was not able to qualify for an FHA loan, and without any coordination with or approval of seller, Respondent Miller deducted $235 from the deposit held by him, as his fee for painting the property, and refunded $765 to the Kunkes. Thereafter, on or about December 4, 1982, Respondent Michaels presented a second contract for the sale of the same property to Mrs. Stahl, although the majority of her dealings were actually with Mr. Stahl, who was advising his wife. The buyer listed this time was Robert G. McRae, and the contract reflected a deposit in the amount of $4,000 paid by check to Gus Miller Real Estate, Inc. This contract, which was accepted by the sellers, also called for the buyer to apply for and qualify for an FHA loan, and seller agreed to pay the discount points on that loan, not to exceed 3 percent. Though the $4,000 was reflected as paid on the front of the contract, the provision reflecting the receipt of earnest money to be held in escrow on the bottom of the reverse side of the contract was not filled in or signed by either Respondent, even though Respondent Miller's firm name was stamped in. Nonetheless, when Mr. Stahl asked Respondent Michaels about the check at the time the contract was signed by Mrs. Stahl, Michaels assured him they had it in their possession and agreed to send him a photocopy of it, which she failed to do. In the prehearing stipulation, Respondents agreed that no deposit had been paid. At some point in time, Respondents admitted they did not have the deposit. Mrs. Vierbickas, a friend of Mrs. Stahl's sister, Mrs. Van Trease, was told by Respondent Michaels that they did not have the check, but she is unsure when she was told this. I find, nonetheless, that Respondents continued to represent to the Stahls that the deposit had been received and was being held by them until after the transfer was cancelled for other reasons. McRae signed the contract on December 4, 1981. That same day, he was taken by Respondent Michaels to the Orlando office of Countrywide Funding Corporation where, before an employee of that Company, Joyce Freed, he filled out an application for an FHA mortgage in the amount of $61,300. On that same visit, he signed a certificate that the property to be covered by the mortgage would serve as his primary home. He also acknowledged in writing that he understood FHA financing could not be utilized for any purpose other than owner- occupied properties. He subsequently signed additional documents in relation to the loan in which he affirmed that the property to be financed would be occupied by him, even after the mortgage commitment was received from the FHA. On January 11, 1982, McRae certified on a U.S. Department of Housing and Urban Development (BUD) form that he intended to occupy the property. Coincidentally, that same day, a lease was signed by a Barbara Sullivan, on behalf of herself and her husband, purporting to lease the home McRae was then occupying for one year at $650 per month with an advance deposit of $1,300 paid. McRae was not asked to sign this lease, which was witnessed by both Respondents and notarized by Respondent Miller. McRae did not receive any rent from this lease, which was not a bona fide conveyance of an interest in the property. It was not intended to convey the property, but was generated by Respondents for some purpose not related to a tenancy by the Sullivans. McRae testified that when Michaels took him to Countrywide's office, he did not intend to occupy the property to be purchased, but instead intended for his daughters to live there. However, when he saw from the forms he was signing that there was a requirement for the property to be owner-occupied, he, at that moment, changed his mind; and when he signed the documents, minutes thereafter, he intended to move in. I find this testimony to be unworthy of belief. During the period from the date of the sales contract with McRae to the date of the proposed closing, the interest rate went up higher than was called for in the contract, and McRae refused to close. Sometime later, in late February, 1982, a Larry Werts came to the property in question and discussed with Mr. Stahl the possible purchase of Mrs. Stahl's one-half interest in the property for $27,500 in cash. Werts was, however, unable to secure this much cash. Thereafter, he indicated he would make an offer on the entire parcel through Respondent Michaels; and subsequently, Respondents, together, brought a contract to Mrs. Stahl, signed by Werts, which reflected a purchase price of $50,000. The Stahls rejected this offer as being too low.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the license of each respondent be suspended for one year, that each respondent pay an administrative fine of $1,000, and that each respondent be reprimanded in writing, but that the execution of the suspension be deferred for one year with a provision for automatic recission. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert W. Olsen, Esquire 205 N. Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact 1. On October 15, 2009, the Department issued a Notice of Intent to enter a final order denying claim number C2782114 on the grounds that Mr. Merkle failed to submit the recovery agreements with the claim, and that he was not a registered claimants' representative. See Exhibit A. The Notice of Intent was served on Mr. Merkle by Certified Mail™ Service on October 21, 2009. See Exhibit B. 2. On December 22, 2009, Mr. Merkle requested a hearing. See Exhibit C. On January 4, 2010, the Department referred the matter to the Division of Administrative Hearings for formal proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes. See Exhibit D. The Division of Administrative Hearings ("DOAH") assigned the case number 10-0005. 3. On February 26, 2010, the Department moved the administrative law judge to relinquish jurisdiction to the agency based on a lack of material facts in dispute. See Exhibit E. 4. On March 4, 2010, the administrative law judge entered an order relinquishing jurisdiction to the agency for final agency action. See Exhibit F. No exceptions to the recommended order were filed. 5. The factual allegations contained in the Notice of Intent, incorporated herein by reference, are adopted as findings of fact in this case.
Conclusions On October 15, 2009, the Department of Financial Services ("Department") issued a Notice of Intent to enter a final order denying claim number C2782114 filed by LeRoy H. Merkle, Jr., ("Mr. Merkle"), for funds held in the state treasury in the name of Anne (a/k/a Anna) Marie Clegg (the "Reported Owner"), pursuant to Chapter 717, Florida Statutes (the "Disposition of Unclaimed Property Act" or the "Act"). In order to take final agency action concerning the - claim, the Chief Financial Officer has considered the record in this matter, and makes the following Findings of Fact and Conclusions of Law:
Appeal For This Case Any person adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.110. Review proceedings must be instituted by filing a notice of appeal with DFS Agency Clerk Julie Jones, CP, FRP, Florida Department of Financial Services, 200 E. Gaines Street, Tallahassee, FL 32399-0390, Telephone (850) 413-4177, Julie. Jones@MyFloridaCFO.com, and a copy of the same accompanied by the required filing fee with the appropriate District Court of Appeal within thirty 30) days of rendition of this Order. DONE and ORDERED this__/p/h___ day of hyo ct , 2010. TAMMY TESTON Chief of Staff Case No. 107119-09-CI Page 3 of 4 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished by Certified Mail™ Service and facsimile as indicated, this lo AL day of Aga A f ; 2010, to: LeRoy H. Merkle, Jr., Esquire 800 West Platt Street, Suite 4 Tamanna Plasidn 22406 41 7108 2133 3935 23134 0410 (article number) and facsimile: 813-251-3377 Mark W. Brunner 2950 South Holly Avenue Amelia, Ohio 45102 91 7108 2133 3935 23238 0627 (article number) Michael Lee Brunner 1408 Wilson Dunham Hill New Richmond, Ohio 45157 91 7108 21335 3935 2318 0834 - {article number) L_ LORI L. JOBE Fla. Bar No. 16650 Assistant General Counsel Florida Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 copies to: Walter T. Graham, Chief Unclaimed Property Bureau Fletcher Building, Room 352 M Tallahassee, Florida 32399-0358 Lori L. Jobe, Esquire Division of Legal Services Fletcher Building, Room 464 Tallahassee, Florida 32399-4247 Case No. 107119-09-CI Page 4 of 4
The Issue Whether or not the Respondent, State of Florida, Department of Revenue, is entitled to documentary stamp tax in accordance with Section 201.02, Florida Statutes, in the amount of $326.10 and penalty in the like amount of $326.10 in accordance with Section 201.17, Florida Statutes, for a transaction between Petitioners in an assignment of interest of Gallagher's of Miami, Inc., to the Petitioners.
Findings Of Fact The Petitioners were the stockholders of Gallagher's of Miami, Inc. Among the assets of Gallagher's of Miami, Inc., were the rights under a sublease undertaken between B.G.L. Corporation and Gallagher's of Miami, Inc. dated September 25, 1976 and recorded in Official Record Book 5663, at page 261 of the Public Records of Dade County, Florida. This sublease was an amendment to a sublease which was dated June 1, 1976, recorded in Official Record Book 4768, Page 176 of the Public Records of Dade County, Florida, between B.G.L. Corporation, a Florida corporation as lessor, and KSJ Corporation, a Florida corporation as lessee. One of the conditions of Gallagher's lease obligation was responsibility for the payment of a mortgage dated May 1, 1965, recorded in Official Record Book 4592, at Page 161, of the Public Records of Dade County, Florida, from KSJ Corporation, a Florida corporation to Joseph Z. Lipsky and Evalyn Lipsky, as amended by agreement dated August 30, 1965 between KSJ Corporation and Joseph Z. Lipsky and Evalyn Lipsky. Pursuant to a plan of liquidation of Gallagher's of Miami, Inc. that corporation executed and delivered to Petitioners an assignment of the lessee's interest in the aforementioned lease to which Gallagher's of Miami, Inc. was a party. The assignment of lease can be found as Exhibit A to the Petition filed by the Petitioners. The contents of such assignment are found to be fact. By letters of July 30, 1975 and March 10, 1975, the Respondent indicated its intention to assess tax in the amount of $326.10 upon the document representing the assignment between Gallagher's of Miami, Inc. and the Petitioners. The amount of documentary stamp tax was premised on the aforementioned mortgage which at the time of the proposed assessment was valued at $108,750. In addition the Respondent indicated its intention to impose a penalty in a like amount of $326.10. The assignment was in fact executed, pursuant to a plan of liquidation, which plan is shown as Petitioners' Exhibit C attached to the petition. The Petitioners' Exhibit C is established as fact. Petitioners in receiving the assignment in liquidation of Gallagher's of Miami, Inc. received such assignment in proportion to their stock holdings in that corporation. The assessments of $326.10 for documentary stamp tax and $326.10 in penalty on such assessment, and the challenge to the assessments are the subject matter in this cause. Subsequent to the assignment of leases and agreement between Gallagher's of Miami, Inc. and the Petitioners a further assignment was made between the Petitioners and Stan-Mil, Inc. of the same property which took place on December 16, 1974.
Recommendation It is recommended that the assessment of documentary stamp tax under 201.02 F.S. in the amount of $326.10 and the penalty in the amount of $326.10, as a penalty pursuant to 201.17 F.S. be set aside. DONE and ENTERED this 28th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1977. COPIES FURNISHED: Lewis M. Kanner, Esquire Williams, Salomon, Kanner & Damian 1003 DuPont Building 169 East Flagler Street Miami, Florida 33131 Caroline C. Mueller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 =================================================================
Findings Of Fact Finding no record that Taxpayer had filed or paid intangible taxes for the years 1979 and 1980, on June 17, 1982, DOR notified Taxpayer they were reviewing Taxpayer's intangible personal property tax account for the years 1979 through 1982 (Exhibit 16). During the audit which followed Taxpayer presented copies of the 1981 and 1982 tax returns and cancelled checks evidencing payment. The audit disclosed small discrepancies in these returns and those discrepancies were satisfied by the Taxpayer and are not an issue in these proceedings. On December 15, 1982, Gateway Hospital sold its assets to Humana Corporation and in December 1983 the corporation was dissolved and a liquidating trust was established to settle accounts and distribute proceeds to the stockholders. After this date none of Taxpayer's employees were located at the Gateway Hospital address, 5115 - 58th Avenue North, St. Petersburg, Florida. One of Taxpayer's contentions on the timeliness issue is that all notices from DOR were sent to the 58th Street address and were either not received or not timely received by Taxpayer. No special notification to DOR of a change of address was submitted by Taxpayer. The 1983 intangible tax return showed Taxpayer's address as 5800 49th Street, Suite 201, St. Petersburg, Florida. However, in the petition for hearing dated March 21, 1985, Petitioner's address is shown as 5115 58th Avenue North, St. Petersburg, Florida 33709. On April 2, 1984, DOR sent Taxpayer Notice of Proposed Assessment (Exhibit 6) for tax years 1979, 1980, 1981, 1982, and 1983 in the amount of $19,786.36 with interest through February 23, 1984. This notice advised Taxpayer that this was final agency action and of its right to petition for an administrative hearing within 60 days or file an action in circuit court within 60 days, and that failure to so petition or file would render the proposed assessment final and no action could thereafter be brought to contest the assessment. This notice was sent certified mail and receipted for at the 58th Avenue North address. Alan Steinbach, the chief operating officer of the liquidating trust, testified he never received Exhibit 6. Subsequent to June 19, 1984, DOR sent Notice of Demand for Payment (Exhibit 7) to Taxpayer to the 58th Avenue North address. This document, the top part of which is identical to Exhibit 6 except interest has been computed to 6/19/84, was received by Steinbach. Steinbach contacted DOR and told Randy Miller, Executive Director, that this was the first notice of a delinquency he had received from DOR and needed additional time to show the taxes had been paid. Miller agreed to allow Taxpayer more time and communicated this to Steven J. Barger, Jr., Chief, Bureau of Audit Selection. By letter dated August 13, 1984 (Exhibit 8), Barger advised Steinbach that the collection procedure would be delayed 30 days to permit Taxpayer time to submit the information necessary to set aside the assessment. By letters dated September 11, 1984 (Exhibit 9) and October 17, 1984 (Exhibit 12), the collection procedures were further stayed until December 12, 1984. During this period Taxpayer presented evidence that the 1982 and 1983 intangible personal property taxes had been paid and all errors in those returns were corrected and the correct taxes paid. By Notice of Proposed Assessment dated 1/9/85 (Exhibit 14) an audit assessment for the tax years 1979-1983 was forwarded to Taxpayer showing the tax, penalties and interest for the tax years 1979 and 1980 through 1/3/85 in the amount of $12,296.30 were due and no taxes were due for the other years. The explanation of appeal rights attached to this audit assessment advised the Taxpayer had 60 days from the date of assessment to contest the assessment in an administrative proceeding or a judicial proceeding. On March 21, 1985, the instant petition was filed. During the period prior to January 9, 1985, Petitioner was unable to locate tax returns or cancelled checks showing payment for 1979 and 1980 although Taxpayer produced returns and cancelled checks for all of the other years from 1977 through 1983. DOR also located evidence showing intangible personal property taxes paid by Taxpayer before and after 1979 and 1980, but could find no record of returns being filed or taxes paid for the years 1979 and 1980. Upon receipt of a tax return and payment DOR photographs the return and payment check on microfilm, enters the data from the return in the computer, and forwards the tax return to the archives in the Department of State. An index for a tax year is compiled after the close of that tax year. Until this index is prepared, DOR cannot readily locate any tax return. As a result, whether or not a tax return was filed by a particular taxpayer cannot be ascertained by DOR until six to nine months after the close of the tax year. At the time Exhibit 7 was forwarded to Taxpayer, DOR could not have located the Taxpayer's 1983 return which, in fact, had been filed, as had the 1981 and 1982 returns. Taxpayer could not locate the returns or cancelled checks representing payment for the years 1979 and 1980. When asked why Taxpayer did not obtain bank records to establish payment, Steinbach responded that the corporation wrote 1000- 1500 checks per month and too many check would have to be screened. Since all payments by Taxpayer for the five years for which returns were produced were made in June, except for one year, 1983, which was paid in July, that does not appear to be an onerous task to avoid a tax liability of more than $12,000.
Findings Of Fact Structural Homes, Inc., the Petitioner, is in the business of constructing prefabricated, custom-built homes at its plant in Florida City, Florida. These homes are primarily sold to customers in the Florida Keys. The homes consist of a prefabricated steel frame, which Structural Homes purchases, constituting the skeleton of the house. The frame is modular and is delivered, generally, a minimum of two modules, or sections, for the typical home because of building code requirements related to minimum square footage, which necessitates using two frame units to build a legally minimal size house. The frames are delivered from the supplier to the Structural Homes' plant in Florida City, where employees of Structural Homes' plant in Florida City, house around the skeleton consisting of adding frame walls, paneling, exterior siding walls, plumbing and flooring. The customer is given the opportunity during the assembly or construction of the home to select all tile, carpeting and other floor covering materials. The work at the job site, before construction of the home, consists primarily of only digging and installing the foundation, including anchor bolts for anchoring the house upon when it is delivered to the job site. The homes are assembled at the plant and then moved to the lot for bolting down to the foundation. One module or unit of such a house requires one trip by truck to deliver to the job site. Thus, there must be at least two trips to deliver the two units used to construct a house of the minimal 750 square foot size. Thus, the house is assembled almost solely at the Petitioner's plant and delivered in several trips to the job sited and bolted down. Although many more trips are necessary from the Petitioner's facility to the job site that involve various items of finish labor and construction, for all intents and purposes the house is, to a great degree, assembled at the plant and then delivered to the job site. At the job site, the house is bolted down to its foundation, carpet or other finish floor covering is put in and the plumbing, which was "roughed in" or "stubbed in" at the foundation at the job site, is connected with plumbing already installed in the house modules at the Petitioner's plant. In effect then, the only work done at the job site is foundation preparation, site erection of the completed modules, and connection of utility services, which are done at the lot. Pursuant to the Department's audit, it was determined that the bulk of the assessment, $8,389.49, including penalties and interest, related to tax on the fabrication of the completed homes at the factory. There was also a tax assessed on rental of the plant building from the Petitioner's landlord in the amount of $533.19, including penalties and interest, as well as a use tax on purchases by the Petitioner of materials generally from out-of-state vendors where no tax was paid, which assessment originally amounted to $2,697.18. After negotiations between the parties, the Department ultimately issued its revised notice of assessment, which culminated in the instant administrative proceeding. The parties stipulated at the hearing that there were no disputed issues of material fact, but pursuant to agreement, elected to proceed formally before the undersigned anyway.
Recommendation Having considered the foregoing Findings of Fact and Conclusion of Law, and the evidence in the record, it is therefore RECOMMENDED: That a Final Order be entered upholding the tax assessment involved herein and that the subject taxes, penalties and interest are due. DONE and ORDERED this 1st day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 2nd day of August, 1983.
The Issue Whether the proposed repeal of Florida Administrative Code Rule 69I-44.021 amounts to an invalid exercise of delegated legislative authority within the meaning of sections 120.52(8)(b) and/or (e), Florida Statutes, (2015).1/
Findings Of Fact Unclaimed Property The Department is responsible for administering and enforcing chapter 717, Florida Statutes. The aforementioned chapter is entitled as the “Florida Disposition of Unclaimed Property Act,” and it requires the Department to: (a) receive unclaimed property; (b) safeguard unclaimed property; and (c) process claims for the return of unclaimed property to its rightful owner. See generally ch. 717, Fla. Stat. Chapter 717 applies to property such as traveler’s checks, money orders, gift certificates, bank deposits, and proceeds from life insurance policies that have been outstanding, unredeemed, or inactive for a certain number of years. See §§ 717.104(1) & (2), .1045, .106, & .107, Fla. Stat. In return for a fee, licensed private investigators, certified public accountants, and attorneys research the Department’s unclaimed property records in order to assist their clients with making claims on unclaimed property. See §§ 717.124, .135 & .1400, Fla. Stat. Pursuant to sections 717.124 and 717.126, Florida Statutes, the Department is authorized to require proof of entitlement, personal identification, and (if applicable) proof of the filer’s authority to act as the claimant’s agent. See § 717.124, .126, Fla. Stat. Also, “the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.” § 717.126(1), Fla. Stat. Section 717.138, Florida Statutes, authorizes the Department to adopt rules to implement the provisions of chapter 717. The Department has utilized that authority to adopt Florida Administrative Code Rule 69I-20.0021, which sets forth the procedures for filing unclaimed property claims. Rule 69I-20.0021 has several provisions requiring claimants to demonstrate to the Department that they are entitled to the unclaimed property at issue. For instance, rule 69I-20.0021(1) provides that “[c]laims for unclaimed property in the custody of the Department shall be submitted to the Department on the form(s) prescribed and supplied by the Department, together with documentation proving entitlement to the unclaimed property.” (emphasis added). Rule 69I-20.0021(1)(b) mandates that “[a] complete paper format claim shall include the correct claim form identified in this rule, fully completed with all blanks filled in and manually signed and dated by all claimants or the Claimants’ Representative, proof of entitlement, and all supporting documentation as described and required by this rule, and Rule 69I-20.00022, F.A.C.” (emphasis added). Also, rule 69I-20.0021(2) provides that “[t]he Department will only review the merits of a claim that has been deemed complete as filed. The Department will determine whether the claimant has established ownership and entitlement to the unclaimed property.” (emphasis added). Rule 69I-20.0021 also incorporates by reference certain forms. For example, rule 69I-20.0021(4)(a) states that “[c]laims by apparent owners for unclaimed property shall be submitted on Form DFS-UP-106, entitled Claim Filed by Apparent Owner, which is hereby incorporated by reference, effective 1-3-05.” This form must be accompanied by “[p]roof demonstrating that the claimant is the owner and is entitled to the unclaimed property as required by Rule 69I-20.0022, F.A.C.” See Fla. Admin. Code R. 69I-20.0021(4)(c)2. (emphasis added). Also, rule 69I-20.0021(6) states that “[a]ll claims for unclaimed property filed by a Claimant’s Representative shall be submitted on Form DFS-UP-108, entitled Claim Filed by Claimant’s Representative on Behalf of the Claimant, which is hereby incorporated by reference, effective 1-3-05.” This form must be accompanied by “[p]roof demonstrating that the person(s) or entity being represented is entitled to the property being claimed consistent with Rule 69I-20.0022, F.A.C.” See Fla. Admin. Code R. 69I-20.0021(6)(b)4. (emphasis added). Escheated Property The Department also plays a role in administering (and returning to its rightful owner) other types of property governed by other chapters within the Florida Statutes. For instance, the Department is involved with: (a) property resulting from judgments deposited with a court pursuant to section 43.19, Florida Statutes; (b) escheated property gathered pursuant to section 732.107, Florida Statutes; (c) property held by a personal representative pursuant to section 733.816, Florida Statutes; and (d) funds held by a guardian following the death of a ward pursuant to section 744.534, Florida Statutes. When a person dies with an estate but has no known heirs, the decedent’s property escheats to the state. See § 732.107(1), Fla. Stat. That property is sold, and the proceeds (i.e., the “escheated funds”) are paid to the Department for deposit into the State School Fund pursuant to section 732.107(2), Florida Statutes. In 2009, the Department was receiving repeated inquiries from claimants regarding the proper claim forms for property governed by sections 43.19, 732.107, 733.816, and 744.534, Florida Statutes. The Department responded by adopting rule 69I-44.021 which establishes a hard copy claim form specifically for the aforementioned properties. Unlike rule 69I-20.0021 which requires a claimant to demonstrate to the Department that he or she is entitled to the unclaimed property in question, rule 69I-44.021(1) requires a potential claimant to simply prove his or her entitlement to a court. That is consistent with provisions within chapter 732 that require courts (rather than the Department) to determine whether a claimant is entitled to escheated property. See §§ 732.107(3) and (4), Fla. Stat. (requiring an action to re- open the administration of probate and prove entitlement to a probate judge, while allowing the Department of Legal Affairs the right of intervention to protect the state’s interests). For those claimants who successfully demonstrate to a court that they are entitled to particular funds, rule 69I- 44.021 incorporates by reference a form (Form #198) that those claimants are to file with the Department.3/ Unlike the situation with claimants using the forms incorporated by reference in rule 69I-20.0021, claimants using the form incorporated by reference in rule 69I-44.021 are not required to prove to the Department that they are entitled to the property in question. In 2013, the Florida Legislature amended section 717.124, to provide that the claims procedure for unclaimed property also applies to property governed by sections 43.19, 732.107, 733.816, and 744.534. See § 717.124(8), Fla. Stat. (providing that “[t]his section applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.”). As a result of an internal review of its rules, the Department determined that rule 69I-44.021 should be repealed given that section 717.124(8), effectively made the procedure set forth in rule 69I-20.0021 applicable to escheated property. Choice Plus Pursues Escheated Property for its Clients Choice Plus is a private investigative agency licensed pursuant to chapter 493 that files claims with the Department as a claimant’s representative (“locator”). In exchange for its services, Choice Plus receives a fee paid from approved property claims. In addition to seeking the recovery of unclaimed property pursuant to chapter 717, Choice Plus also assists in the recovery of funds that have escheated to the State of Florida pursuant to section 732.107. Choice Plus files several hundred claims in Florida for unclaimed property each year. It files five to 10 claims in Florida each year for escheated property. The President of Choice Plus testified during the final hearing that Choice Plus had filed 19 claims for escheated property with the Department using Form #198 and attaching the pertinent documentation. See Fla. Admin. Code R. 69I- 44.021(2)(a) (providing that “[t]he claim form must be accompanied by a certified copy of the final order or judgment awarding the funds to each claimant, supporting documentation establishing each claimant’s right to the funds, and a government-issued photographic identification issued to each claimant.”). According to the President of Choice Plus, the Department began to require Choice Plus to re-establish entitlement to escheated funds in 2013. In other words, the Department now allegedly conducts its own review of the evidence that a court already found to be sufficient for establishing entitlement. Choice Plus asserts that proving entitlement to escheated funds a second time causes it to spend additional time and money in making a claim. According to Choice Plus, this extra effort adds $5,000 to the cost of the average claim for escheated property. In fact, Choice Plus is currently appealing the Department’s denial of an escheated property claim. That appeal is proceeding under appellate case number 1D15-3184 before the First District Court of Appeal and involves the estate of a deceased Florida resident named Eleanor Rigley.4/ Because Ms. Rigley died intestate and without any known living heirs, the proceeds from the sale of her residence escheated to the State of Florida and were paid to the Department for deposit in the State School Fund. See § 732.107, Fla. Stat. Choice Plus learned of Ms. Rigley’s escheated property and hired a genealogist who found ten individuals related to Ms. Rigley. Choice Plus subsequently entered into contracts with each of the ten individual claimants authorizing Choice Plus to obtain the escheated funds on their behalf. In accord with section 732.107 and rule 69I-44.021, Choice Plus then petitioned the Pinellas County Circuit Court to reopen Ms. Rigley’s estate and declare that the ten Choice Plus clients were Ms. Rigley’s heirs. On June 12, 2013, the Pinellas County Circuit Court entered an Order reopening Ms. Rigley’s estate and declaring the ten Choice Plus clients to be Ms. Rigley’s heirs. The Circuit Court then directed the Department to distribute the funds from Ms. Rigley’s estate to the claimants. On July 12, 2013 and as required by rule 69I-44.021, Choice Plus filed with the Department Form #198, a certified copy of the Pinellas County Circuit Court’s Order awarding the escheated funds to the claimants, supporting documentation submitted to the Circuit Court, and a photocopy of each claimant’s government-issued photo identification. However, the Department issued a Notice of Intent to deny Choice Plus’s claim on January 23, 2014, and ultimately issued a Final Order on June 29, 2015, denying the claim. In that Final Order, the Department allegedly concluded that it has sole jurisdiction to determine the disposition of funds within its possession, including escheated funds held pursuant to section 732.107. Accordingly, the Department concluded that the Circuit Court’s ruling was not binding on it. The Department also allegedly concluded that the denial was justified because Choice Plus failed to submit “appropriate documentation” connecting the individual claimants to Ms. Rigley by a preponderance of the evidence. In the ensuing appeal, Choice Plus argued that the Department’s Final Order must be reversed because the Department does not have the authority to determine entitlement to escheated funds held by the Department pursuant to section 732.107. As for why the Department lacks the necessary authority, Choice Plus argued that section 717.124 is the only provision within chapter 717 that applies to escheated funds held by the Department. The 2013 amendment to section 717.124, which added subsection (8), merely stated that “[t]his section applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.” (emphasis added). In contrast, the amendment did not state that “[t]his chapter applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.” (emphasis added). Thus, Choice Plus argued that the Department cannot apply section 717.126 to escheated fund claims because the Florida Legislature only made section 717.124 applicable to such claims. As noted above, section 717.126 mandates that “the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.” In other words, Choice Plus argued that the Department cannot second-guess the Pinellas County Circuit Court, an argument that carries over into this proceeding. The Department responded in its Answer Brief by asserting that it has correctly determined that the chapter 717 claims process applies to all unclaimed property once it is transferred to the Department, including unclaimed estate proceeds that may eventually escheat to the State of Florida.5/
The Issue Whether either Petitioner is entitled to Unclaimed Property Account Number 108502717.
Findings Of Fact The Department receives unclaimed property and disburses that property from the State of Florida Treasury to the rightful owners. During the last fiscal year, the Department's Bureau of Unclaimed Property received in excess of $300,000,000 of unclaimed property, and paid claims in excess of $212,000,000. The Department has the duty to evaluate the merits of each claim for unclaimed property and to pay only those claimants who can establish, by a preponderance of the evidence, that they are the rightful owners of the unclaimed property. Anja Sova was born in 1921 in Finland, but resided in Lake Worth, Florida. Her husband's brother was married to Iina Sova, who resided in Finland. Anja Sova opened several accounts with different banks during her lifetime; two of those accounts were opened at Washington Mutual Bank, and she designated Iina Sova, her sister-in-law, and Silja Lappalainen, her grand-niece and Iina's granddaughter, as joint pay-on-death beneficiaries. In January 2001, at the age of 79, Anja Sova opened a Certificate of Deposit (CD) account with Sterling Bank, depositing $95,000.00 in the account. The CD designated the pay- on-death beneficiary as Silja Sova. Anja Sova signed the signature card for this CD three times, once right next to the name of the designated beneficiary, Silja Sova. The bank had no other information as to the beneficiary. Anja Sova died in a car accident in 2002. The accounts with Washington Mutual were paid to the designated beneficiaries, her sister-in-law, and her grand-niece. Unclaimed Property Account Number 108502717 consists of the matured Sterling Bank CD, worth $127,031.97, and designates Silja Sova as the pay-on-death beneficiary. It had been held by Sterling Bank until its remittance to the Department as unclaimed property. American Research is a corporate claimant representative, and represents the residual heirs of Anja Sova's estate. Choice Plus is also a corporate claimant representative, and represents Silja Lappalainen, Anja Sova's grand-niece. American Research ran searches through various private, social, and governmental databases in the United States, and found no person named Silja Sova. In 2013, American Research also requested and received an Extract from the Population Information System in Finland. This database was created in 1969. The Extract revealed one person named Silja Sova; that person is a child born in 2009, who lives in Finland. No credible evidence was presented on whether the Extract includes only living persons, or if it also includes deceased persons (persons who were born between 1969 and 2001 and died before November 2013, when the search was done through the Extract). American Research argued that Silja Sova simply does not exist. It is unknown, however, whether Anja Sova's husband had more brothers with the surname Sova, or whether Anja Sova's father-in-law had brothers. The undersigned cannot find, given the scant evidence presented, that Silja Sova does not exist, and never existed, in Finland. American Research also proposed the theory that Anja Sova purposely created a fictitious name when designating Silja Sova as the beneficiary. There was no credible evidence presented to support this theory, either; it was mere speculation. An Order for Subsequent Administration was entered by a probate court in Palm Beach County, Florida, on April 11, 2013. It establishes the residual beneficiaries of Anja Sova's estate, but it does not include Silja Lappalainen, Anja Sova's surviving grand-niece. Choice Plus was also unable to locate a person named Silja Sova, and argued that the CD mistakenly designated the pay-on-death beneficiary as Silja Sova when it should have read Silja Lappalainen, Anja's grand-niece who had also been a beneficiary on the Washington Mutual accounts. Curiously, Choice Plus represents Silja Lappalainen, but did not offer testimony from her at the hearing.1/ Instead, Choice Plus offered into evidence an affidavit from Iina Sova, the deceased's sister-in-law, disclaiming any interest in the account. The affidavit is not found credible or reliable; it is written in a language that the affiant did not speak, there is no indication that a certified translator was present while the statement was being made, and the affidavit is replete with hearsay. Unfortunately, there was no credible evidence presented to support Choice Plus's argument that the designation of Silja Sova as the pay-on-death beneficiary was indeed a mistake that a then 79-year-old great-aunt made. The record is void of any credible evidence which meets the preponderance of the evidence standard, entitling either Petitioner to Unclaimed Property Account Number 108502717.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that American Research and Investigations, Inc.'s claim for Unclaimed Property Account Number 108502717 be DENIED. It is also RECOMMENDED that Choice Plus, LLC's claim for Unclaimed Property Account Number 108502717 be DENIED. DONE AND ENTERED this 18th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 18th day of April, 2014.
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.
