Findings Of Fact In the beginning of the hearing, proof was made that the Respondent, William W. Buchanan, was a licensed real estate salesman in the State of Florida, in an active capacity from June 18, 1973 thru March 31, 1976. This proof was established through Petitioner's Exhibit no. 1, which is a certification and copies of the real estate registration document. The Respondent, while employed by Joe Z. Lovingood, Inc., his corporate broker employer, took checks from the corporate check book. Three of the checks that were taken from that checkbook were forged by making the Respondent the payer and showing the signature of Joe Z. Lovingood. These checks were dated May 7, 1974, and May 31, 1974. There were two checks of May 7, 1974 for $600 and 2,500 respectively and the May 31, 1974 check was for $500. The Petitioner's Exhibit no. 2 is a xerox copy of the aforementioned checks. The originals of the checks were not produced because they are in the care and custody of the State Attorney's Office for Sarasota County, Florida. The owner of Joe Z. Lovingood, Inc., Mr. Joe Z. Lovingood, did not allow these acts, nor allow any employee within his employ to authorize the Respondent to take the checks from the check book to make the checks payable to the Respondent nor to forge Mr. Lovingood's signature. Furthermore, neither Mr. Lovingood nor any employee of his corporation who was acting upon his authority allowed the Respondent to negotiate these checks, although the Respondent did negotiate them and expend the funds for his own personal use. The exhibits which show the Respondent's negotiation of the checks are Petitioner's Exhibits no. 3 and no. Petitioner's Exhibit no. 3 is a copy of a bank statement of the Joe Z. Lovingood corporation which indicates debits placed against the corporate bank account in the amount of the aforementioned checks. The Petitioner's composite Exhibit no. 4 shows copies of the forged checks with the endorsement signature on the back together with deposit credits, found in the bank statement on the Respondent's account. In addition, the testimony of the bank official of the Respondent's bank indicated a partial cash withdrawal from the amount of the $600 and $500 checks which were negotiated through the Respondent's bank. Joe Z. Lovingood, Joan Lovingood, his wife, and Harold Merritt, the former accountant for Joe Z. Lovingood, Inc., established that the Respondent had told them about taking the checks from the corporate checkbook, and forging the signature of Joe Z. Lovingood after practicing to sign the signature. They also testified that the Respondent told them that he had intercepted bank statements at the post office in order to cover up the theft of the checks and subsequent forgery. After the discovery of Mr. Buchanan's acts, Mr. Lovingood notified the Petitioner. In addition after consultation with his legal adviser and the prosecutors of the jurisdiction, he determined to give the Respondent an opportunity to reimburse Joe Z. Lovingood, Inc. To accomplish this end, Mr. Lovingood co-signed a note in the amount of $3,000 which the Respondent took out in order to improve Mr. Buchanan's financial position. The Respondent agreed to pay back the $3,600 that he had taken from the corporation together with interest and also to repay the $3,000 loan with interest. A statement of his agreement can be found in his letter of July 8, 1974, addressed to Joe Z. Lovingood, as President of Joe Z. Lovingood, Inc., which is Petitioner's Exhibit no. 5 and in his letter of July 8, 1974, addressed to the National Bank of Sarasota which is Petitioner's Exhibit no. 6. Through the date of the hearing, these funds had not been paid to the National Bank of Sarasota. In August of 1974, the Respondent entered into discussion with one Walter E. Lingard about the purchase of real estate. Out of the conversation a deposit was made in the amount of $200 and a receipt for deposit, offer to purchase and contract for sale was entered into by the Respondent and Mr. Lingard. Mr. Lingard was approached by Mr. Buchanan on the question of the purchase of property and informed him that a better piece of property was available in another location and the $200 deposit would be allowed as a partial deposit on the substituted parcel. The contract document on the first parcel contemplated for purchase is Petitioner's Exhibit no. 9. Petitioner's Exhibit no. 10 is a copy of the check from Mr. Lingard and Petitioner's Exhibit no. 11 is a copy of the contract pertaining to the substituted parcel of land. The deposit check was written to William Buchanan at the request of William Buchanan who told Mr. Lingard that he would see that it was placed with his employer, Joe Z. Lovingood, Inc. In September of 1974, the Respondent entered into a conversation with one Hans Hellmann. The nature of this conversation concerned the investment of Mr. Hellmann's money in a real estate purchase. To this end, Mr. Hellmann deposited $2,500 with the Respondent through a check made out to William W. Buchanan. Again, this check was made out to Mr. Buchanan at his request with an assurance to Mr. Hellmann that the deposit would be placed with Joe Z. Lovingood, Inc. The Petitioner's Exhibit no. 7, is a copy of a contract document and Petitioner's Exhibit no. 8 is a copy of the deposit check. Neither Mr. Joe Z. Lovingood nor any employee within his corporation knew of the negotiations, contracts or deposit checks which had been entered into between Mr. Lingard and the Respondent and Mr. Hellmann and the Respondent. Mr. Lovingood found out about these matters when his office was contacted about the status of one of the contracts. Joe Z. Lovingood, Inc. did not receive the deposit checks, at any time. The proceeds of the deposit checks that have been mentioned, were appropriated to the use of the Respondent, without the knowledge and authority of Mr. Joe Z. Lovingood or any employee within his corporation. Restitution for the amounts of the deposit checks has never been made to Mr. Lingard or Mr. Hellmann. The details of the contracts and the fact that the money was appropriated to Mr. Buchanan's use, were related by the Respondent, to Mr. Joe Z. Lovingood, his wife and Mr. Merritt.
Recommendation It is recommended that the registration of the registrant, William W. Buchanan, be revoked. DONE and ORDERED this 18th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William W. Buchanan 503 North Brink Avenue Sarasota, Florida 33577 Charles C. Felix Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
Findings Of Fact Respondent met Sibley Dennis Carpenter, Jr. (Carpenter) in 1974 or 1975, in connection with a land sale that is not otherwise relevant to this matter. In the summer of 1975, Carpenter asked respondent for assistance in obtaining financing for another, separate land transaction. On that occasion, Carpenter furnished respondent an unaudited, personal financial statement, prepared by an accounting firm, which put the net worth of Carpenter and his wife at slightly less than a half million dollars. On November 19, 1975, respondent became affiliated with Dennis Carpenter Realty, Inc., as a real estate salesman. Because he had other irons in the fire, he only appeared at the office of Dennis Carpenter Realty, Inc., once every month or two. Not until the spring of the following year, after he had been licensed as a real estate broker, did respondent have access to the company's books. In November of 1975, respondent met one Charles W. Van Cura, a hog farmer from Minnesota who expressed an interest in buying land in Florida, and referred Mr. Van Cura to Carpenter. Carpenter, possibly in the company of respondent, showed Mr. Van Cura certain real property belonging to Harvey H. Westphal and Margaret Westphal. Mr. Van Cura made an offer of one hundred fifteen thousand dollars ($115,000.00) for the property and deposited seven thousand five hundred dollars ($7,500.00) with Carpenter towards the purchase price, as evidenced by a binder receipt and deposit, dated December 31, 1975, and signed by Carpenter. Respondent's exhibit No. 1. Carpenter presented the offer to the Westphals, who refused Mr. Van Cura's offer but made a counteroffer of one hundred thirty-five thousand dollars ($135,000.00), by crossing out Mr. Van Cura's figures, substituting their own and signing their names. Both the offer and the counteroffer were "subject to receiving Federal Land Bank Loan of 70 percent of purchase price . . ." Van Cura told Carpenter he was unwilling to accept the Westphals' counteroffer. Carpenter persuaded respondent to buy the property himself, and, on January 6, 1976, Carpenter, respondent and Van Cura met in respondent's office. After some discussion, respondent drew two checks aggregating seventy- five hundred dollars ($7,500.00) to Van Cura's order. Petitioner's composite exhibit No. 6. Van Cura executed a receipt, respondent's exhibit No. 2, reciting that he had received seventy-five hundred dollars ($7,500.00) from respondent. At the time of this transaction, Carpenter could not have refunded Van Cura's deposit from the escrow account of Dennis Carpenter Realty, Inc., because there were insufficient funds in the account. Unbeknownst to respondent, Carpenter had never deposited Van Cura's money in the escrow account. On January 30, 1976, Carpenter drew up a written offer on behalf of respondent to purchase the Westphal property for one hundred thirty-five thousand dollars ($135,000.00). Petitioner's exhibit No. 1. The binder receipt and deposit recited that respondent "and or assigns" had deposited seventy-five hundred dollars ($7,500.00) with Carpenter in earnest money. Although the Westphals accepted this offer, the transaction never closed, for reasons which were not developed in the evidence. The Westphals never made demand for the seventy-five hundred dollar ($7,500.00) deposit, and respondent never got the money back from Carpenter. Respondent has since decided to "treat it . . . as a loan, or write it off." (R119) At no time did respondent relate to the Westphals the history of the earnest money deposit. In May of 1976, respondent was licensed as a real estate broker, and became secretary-treasurer of Dennis Carpenter Realty, Inc. Respondent and Carpenter agreed between themselves that the corporation should open an escrow account on which each could draw individually. This is reflected by a corporate resolution, dated May 4, 1976. Respondent's exhibit No. 7. Such an account was opened. When the first bank statement revealed to respondent that Carpenter had drawn improper checks against the escrow account, however, a second corporate resolution was drafted, dated July 23, 1976, respondent's exhibit No. 9, which authorized respondent, but not Carpenter, to draw against the escrow account.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 15th day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 Mr. W. O. Birchfield, Esquire 3000 Independent Square Jacksonville, Florida 32201
The Issue The issues posed for decision herein are whether or not the Respondent, Loretta Woloszyk, failed to account for or deliver a security deposit received by her, in violation of Section 475.25(1)(c), Florida Statutes, and whether or not Respondent derivatively violated Subsection 475.25(1)(a), Florida Statutes, in that she is guilty of a breach of trust in a business transaction and, therefore, violated Subsection 475.25(1)(a), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Loretta Woloszyk, Respondent herein, is presently registered with the Board of Real Estate as a broker/salesperson. On or about April 15, 1977, Respondent Woloszyk entered into a deposit receipt contract executed with John F. and Jeannine M. Chrest as purchasers of a house owned by Respondent Woloszyk located at 210 North G Street, Lake Worth, Florida. Pursuant to the terms of said deposit receipt contract, John E. Knowles signed as broker for receipt of a $300 cash deposit from the Chrests as purchasers. On or about April 22, 1977, the $300 deposit was placed in the escrow account of Sunshine Estates, Inc., the corporate broker by which the Respondent was employed. The deposit receipt contract was contingent upon the buyer qualifying for a Veterans Administration (VA) mortgage loan in the amount of $26,900. The relevant portion of the contract provided as follows: VA Appraisal: It is expressly agreed that, notwithstanding any other provisions of this contract, the purchaser shall not incur any penalty by forfeiture of earnest money or otherwise be obligated to complete the purchase of the property described herein, if the contract price or cost exceeds the reasonable value of the property established by the Veterans Administration. The purchaser shall, however, have the privilege and option of proceeding with the consummation of this contract without regard to the amount of the reasonable value established by the Veterans Administration. By letter dated May 25, 1977, the Chrests were notified that the subject property was appraised at $18,750, and thus was not acceptable under the minimum property appraisal standards of the Veterans Administration. With this notification, John Chrest went to the offices of Sunshine Estates, Inc., and demanded a return of his $300 earnest money deposit. John E. Knowles, as broker in receipt of the Chrests' $300 deposit, returned the $300 deposit check to Respondent Woloszyk, who deducted $200 from the Chrests' $300 deposit based on a separate rental transaction with the Chrests on the same subject property. During the hearing, John Chrest testified that he contacted Respondent for purchase of her residence situated in Lake Worth Farms. Mr. Chrest agreed during cross-examination that he initially contacted Respondent to "buy or rent Respondent's residence". He also testified that upon receipt of the VA appraisal at an amount below the agreed upon purchase price of $26,900, he agreed to pay to Respondent rent in the amount of $150 plus a $50 security deposit, which amount was deducted from the Chrests' security deposit. The FHA-VA deposit receipt contract contains a special condition entered by and between the parties (Woloszyk and the Chrests) indicating that "Buyer will pay rental of $225 per month until closing, beginning on or before May 1, 1977. Buyer will honor rental agreement for Kenneth Johnson, tenant, from April 1, 1977, to March 31, 1978, or $80 per month rent." Based thereon, and on John F. Chrest' s admission that be agreed to the rental fee which was deducted from his deposit received by Respondent Woloszyk, the administrative charges alleged are without basis. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMEND: That the Administrative Complaint filed herein be DISMISSED in its entirety. RECOMMEND this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1979 COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Ms. Loretta Woloszyk 733 Husiingbird Way, Apt. #3 North Palm Beach, Florida 33408
The Issue The issue for determination is whether $3,940.92 was properly deducted from James Arnstein's $5,000.00 lottery prize.
Findings Of Fact On March 7, 1988, James Arnstein, a resident of Satellite Beach, in Brevard County, Florida, filed his claim as an "instant winner" of $5,000.00 in the Florida Department of Lottery's "Cool Million" scratch card game. (Pet. Ex. #1, composite) The Department immediately determined that Mr. Arnstein was on a list of individuals allegedly owing a debt to a state agency or owing child support. The Department of HRS certified to the Department of the Lottery that James Arnstein owed $3,940.92 in child support arrearage as of March 7, 1988. (Pet. #1, composite) The prize funds were transmitted to the Comptroller's Office where the $3,940.92 was deducted, and the balance of $1,059.08 was sent to Mr. Arnstein with his notice of right to a hearing. In his request for hearing and in his testimony at the hearing, James Arnstein argued that he does not owe the funds because his wife left the state and he was unable to see the children. He now has the children with him and desires the money for their support. He admitted that there were times when he did not pay support. In 1981, James Arnstein and his wife, Mary Ann Arnstein, were separated. His wife obtained Aid to Families with Dependent Children (AFDC) on behalf of the couple's children, and agreed to have HRS pursue child support from James. As assignee of the child support benefits, HRS' child support enforcement program obtained an order in Brevard County Circuit Court Case No. 81-517-FD-0, on March 26, 1981, from Judge Frances Ann Jamieson requiring that James Arnstein pay 76.00 biweekly to HRS, through the court depository. (HRS exhibit #1) According to the depository records, as of December 31, 1982, Mr. Arnstein was $3,116.00 in arrears on those payments. (HRS Exhibit #1) James and Mary Ann Arnstein were divorced on October 4, 1985. The Final Judgement of Dissolution in Brevard County Circuit Court Case No. 85-3368- FD-T granted sole custody of the four children to Mary Ann, and ordered James to pay $75.00 per month, per child, for support and maintenance. (HRS Exhibit #2) Mary Ann from time to time still received AFDC benefits for the children, and again assigned the child support payments to HRS. On January 28, 1987, the HRS child support enforcement program obtained an order in Case No. 85-3368-FD-T, finding James Arnstein in contempt for nonpayment of support, establishing an arrearage of $3,383.00, and ordering weekly payments of $14.00 on the arrearage, and $70.00 on the regular support. The payments were to be made to HRS through the court depository. (HRS Exhibit #3) Sometime around January 1987, Mary Ann left the state with the children. James Arnstein claims that he stopped making payments at that point because he did not know where the children were, and could not visit them as provided in the Judgement of Dissolution. Ms. Arnstein apparently ended up in Massachusetts and received AFDC in that state. On January 8, 1988, the HRS child support enforcement program obtained an order for child support in Civil Action No. 87-13357-FD-M, in Brevard County Circuit Court under the Uniform Reciprocal Enforcement of Support Act (URESA), requiring that the $70 per week child support payments be made to the court depository and be disbursed to the social services agency in Hingham, Massachusetts. The URESA Order includes this handwritten statement: "Jurisdiction reserved on welfare reimbursement and on arrearages under DOM since Pet. violated paragraph 7 of the Order." (HRS Exhibit #4) Paragraph 7 of the Dissolution of Marriage Judgement forbids removal of the children from the state, without written consent of the Court, except for one 14-day period per year. The statement on the URESA Order is ambiguous as it could relate to arrearages and reimbursement due to the Massachusetts Agency, rather than HRS, or it could relate to support payments which Mr. Arnstein failed to make under the January 28, 1987, contempt order. Neither the HRS witness nor Mr. Arnstein could explain the statement, although Mr. Arnstein claims, erroneously, that he is somehow fully exonerated from paying any of his past due support obligations. On April 5, 1988, Circuit Judge John Dean Moxley suspended the URESA Order of January 8, 1988, and directed the Clerk to hold all monies paid by James Arnstein in escrow. (Respondent's exhibit #1) The URESA Order and its subsequent suspension would be irrelevant, but for the parties' conflicting claims as to its effect. James Arnstein argues that it forgives his past debts; the state agencies in their joint proposed recommended order argue that payments due under the URESA order were only partially made from its entry until March 7, 1988, when the arrearage was certified to the Department of the Lottery. There is no evidence to support this latter argument. HRS Exhibit #5, a certified copy of the court depository support payment record relating to case #87-13357 (the URESA proceeding), reflects regular payments between January 12, 1988, and March 16, 1988, and a $213.92 credit (overpayment), as of July 20, 1988, the date of the computer printout. HRS Exhibit #6 is a certified copy of the court depository support payment record for case #85-03368 (the dissolution and subsequent contempt proceeding). This record reflects a total arrearage as of July 20, 1988, (the date of the record's computer printout) of $7,765.00, including nonpayment on the $70.00 per week support under the January 28, 1987 contempt order. The only payment reflected in the record is $28.00 paid on April 15, 1987, on the $3,383.00 arrearage account established by the January 28, 1987 order. There is no record in this proceeding of the total arrearage as of March 7, 1988, the date of HRS' certification to the Department of the Lottery. There is no credible explanation of the basis for the figure that was certified, $3,940.92. There is, however, an outstanding judgement of arrears dated January 28, 1987, of $3383.00, which accrued prior to Ms. Arnstein's leaving the state according to James Arnstein's testimony. There is evidence that as of the date of the hearing in this case, only $28.00 had been paid on that arrearage, leaving a balance of $3,355.00. Nothing in the URESA order affects that debt, although the support payments allegedly due after Ms. Arnstein left the state with the children are left in question by the reservation of jurisdiction noted on the order.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Office of the Comptroller enter its final order finding that the amount properly deducted from James Arnstein's lottery prize was $3,355.00 rather than $3,940.92, and providing for an appropriate means of payment of $585.92 to James Arnstein. The final order should provide that it is entered without prejudice to HRS' right to assert its claim for child support in circuit court, and once that claim is perfected, to recover the funds in any manner provided by law, including the attachment of any future lottery prize. DONE and RECOMMENDED this 23rd day of August, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2372 The following constitute my specific rulings on the findings of fact proposed by the Petitioner agencies in this proceeding: 1-3. Adopted in the Background statement and in paragraph 3. Adopted in paragraph 3. Adopted in part in paragraph 3. The second sentence is rejected as irrelevant. Substantially adopted in paragraphs 4, 5 and 6. The characterization of the URESA order as governing the outcome of this case is rejected as contrary to the weight of evidence, both the testimony of HRS' witnesses and HRS Exhibit #5. The explanation of the reasons the court did not address reimbursement for past public assistance and arrearages is conjecture and facially inconsistent with the handwritten portion of the court's order. 7-8. Rejected as contrary to the weight of evidence, and the evidence did not establish a URESA arrearage, nor does the HRS Exhibit #3, referenced as authority for this proposed finding, address missed payments from 1/28/87 to 3/1/87. There was no explanation in this proceeding as to why the cancellation of AFDC or certification for IRS intercept is relevant or material to the issue of a lottery intercept. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Plaza Level The Capitol Tallahassee, Florida 32399 Jo Ann Levin, Esquire Office of Comptroller The Capitol, Suite 1302' Tallahassee, Florida 32399-0350 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Louisa Hargrett, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, Florida 32301 James Arnstein 517 Wilson Avenue Satellite Beach, Florida 32937
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
Findings Of Fact On November 19, 1981, the Florida Real Estate Commission, then Board of Real Estate, received the application of Kay M. Harvey, Petitioner, asking that she be licensed to practice real estate as a salesperson. A copy of that application form may be found as Respondent's Exhibit No. 2, admitted into evidence. Following the review, and by correspondence dated February 19, 1982, the application for licensure was denied. A copy of that denial statement may be found as Respondent's Exhibit No. 1, admitted into evidence. The basis for denial was as set forth in the Issues Statement to this Recommended Order, with the exception of the assertion that the answer to Question No. 6 was incomplete. That assertion was first offered at the final hearing in this cause. In keeping with the opportunity expressed in the letter of denial, Petitioner requested a formal Subsection 120.57(1), Florida Statutes, hearing. The Director of the Division of Administrative Hearings was then requested to assign a Hearing Officer and the case was considered through the process of a formal hearing conducted on July 30, 1982. Petitioner is a resident of Jacksonville, Florida, residing at 2612 Sandra Lane. She has lived in Jacksonville for the period of her life. She is now twenty-nine (29) years old and is employed by State Farm Mutual Insurance Company. She has held employment with that organization for ten and one half (10 1/2) years. During that time, she has held various clerical positions and at present is a rate clerk. In that capacity she calculates insurance premium rates and informs customers of their premium rates. Her position includes making decisions on the question of premium adjustment refunds for the benefit of customers. This responsibility includes a determination on the part of Petitioner on the subject of proper refund; however, Petitioner does not prepare the refund draft nor mail the refund check. Petitioner does not handle cash money in other facets of her employment. On the topic of the answer to Question No. 6, which is the focus of the dispute between the parties, when asked to describe her understanding of the instructions given to an applicant who was answering Question No. 6, she stated, "I feel that it is asking me whether I've ever been arrested, and if I have, what it was for, and whether I was on parole or not." On July 1, 1981, Petitioner was arrested for obtaining property by the issuance of a worthless check. The arrest occurred in Duval County, Florida, for an offense committed in that county. The amount of the check was two hundred eighty-eight dollars ($288.00), constituting a felony offense. Petitioner pled guilty to the offense and was placed on probation. The probation was successfully concluded on July 8, 1982, following restitution by Petitioner. This pertained to the circuit court case, Docket No. 81-5065CFR, Duval County, Florida. In connection with the offense involved with the issuance of the two hundred eighty-eight dollar ($288.00) check, Petitioner purchased carpet from a merchant in Duval County, The Carpet Barn. When the check was processed, Petitioner was informed that she did not have sufficient funds to honor the check. This information was provided by an employee of the merchant. The check was then processed a second time and again Petitioner was informed that there was insufficient money in the account to allow the check to be negotiated. Petitioner was again told by the employee of The Carpet Barn that there were insufficient funds. Petitioner also received notice from her bank that there was insufficient money to honor the claim for a two hundred eighty-eight dollar ($288.00) payment. The check was not suitable on the first occasion due to the Petitioner's failure to deduct certain service charges from her bank account, which service charges had the effect of reducing the amount of available funds to be spent for other purposes. The check was not honored on a second occasion due the submittal of another check issued by the Petitioner, which had been outstanding, causing the reduction of available monies in the Petitioner's checking account, such that there were insufficient funds to honor the two hundred eighty-eight dollar ($208.00) check when it was processed on the second occasion. In the face of the shortages, Petitioner was requested to provide money to balance the checking account and allow payment of the two hundred eighty-eight dollar ($288.00) check. This was not done. Petitioner then requested that she be given a month to place sufficient funds in the account to honor the claims by The Carpet Barn, and was granted that opportunity. Following the second submission for payment, an employee of The Carpet Barn contacted the personnel office where Petitioner worked and spoke with the Personnel Manager about the subject of the outstanding check. Petitioner was disturbed by this contact and called the employee of The Carpet Barn and entered into an argument on the subjects of the check and that employee's contact with Petitioner's employer. The employee of The Carpet Barn indicated that the matter would be turned over to the local State Attorney for prosecution. Petitioner then contacted The Carpet Barn to try to arrange for the payment of the check and was told that they expected total payment and no settlement was arrived at, in view of the fact that Petitioner was suggesting payment of a lesser amount. The Petitioner and the merchant being unable to resolve their differences, Petitioner was prosecuted. She retained the carpet she had purchased and an amount of two hundred sixty or seventy dollars ($260.00 or $270.00) in her checking account, which represented the difference between the initial cost of the carpet and the charges in her account which had been deducted, causing the disallowance of the payment of the full amount of the two hundred eighty-eight dollar ($288.00) check. At the time of the incident involving the check, Petitioner was making an annual salary of twelve to thirteen thousand dollars ($12,000.00-$13,000.00) and the merchant was repaid the amount of two hundred eighty-eight dollars ($288.00), in keeping with the terms of Respondent's probation. The repayment was made through installments over a period of eleven (11) months. The other conditions of probation related to maintenance of her position in employment with the State Farm Mutual Insurance Company and submission of periodic reports were compiled with. In 1975 or 1976, Petitioner, while married, wrote a check at a time when the bank upon which the funds were drawn did not believe that she had check writing privileges, in that the bank was not aware that a signature card had been executed by Petitioner, thereby entitling her to write checks on a joint account with her husband. Prior to being notified by Respondent that it wished to inquire about the event of 1975 or 1976, Petitioner did not feel that any crime had been committed or that any criminal law investigative record of the events involving this particular check existed. At hearing, Petitioner did acknowledge that she had been charged with the offense in 1975 or 1976, related to checks or worthless checks, in the sense that she received a court summons about the check. Petitioner, by her explanation, was taken "downtown" and signed papers and was fingerprinted. The signature card had in fact been signed and filed with the bank, but the bank, not being cognizant of that signature at the time the check was written, refused to accept it. On the date of court appearance, under summons, an official of the bank accompanied Petitioner to that proceeding and the matter was dismissed. If Petitioner were licensed, one Terry Baker, licensed broker in Florida, has indicated that he might employ Petitioner. Petitioner indicated that to guard against problems of the type which occurred with the check incidents, that she would be more careful in her calculations in protecting the interests of her clients as a real estate salesperson.
Findings Of Fact The petitioners, Leo A. Price and Elizabeth R. Price, are husband and wife. They have been members of the Florida retirement System (FRS) since their transfer on January 1, 1979. Previously, the petitioners were members of the Teachers' Retirement System (TRS) Plan D. In order to transfer to FRS, they moved from TRS Plan D, to TRS Plan E, on December 31, 1978, and then into FRS on January 1, 1979. In transferring from TRS to FRS, a member is entitled to a refund of excess TRS contributions. In early 1979, Mr. Price received refund warrants totalling $16,060.61 which represented TRS contributions of $10,138.73 and accrued interest of $5,921.88. In early 1979, Mrs. Price received refund warrants totalling $17,515.03 which represented TRS contributions of $11,383.91 and accrued interest of $6,131.12. The petitioners failed to cash these refund warrants and to date have not negotiated them. In November, 1979, the petitioners visited the Division of Retirement and discussed the cashing of these warrants based on questions of taxation. This discussion was followed by a letter dated December 30, 1979, to A. J. McMullian III, State Retirement Director, in which the petitioners again discussed the taxation questions and advised the respondent that they had not cashed the warrants. They asked that new warrants be issued and that they be paid interest on the amount of the warrants for the period of time from the issuance to the cashing of the warrants. By letter dated January 25, 1980, Mr. McMullian advised the petitioners to cash the warrants and further told petitioners that interest could not be paid. In their petition for an administrative hearing, the petitioners alleged that they were under-refunded; however, at the hearing the parties stipulated that only two issues are presented for resolution: Whether the petitioners are entitled to interest on their contributions from July 1, 1978, through December 31, 1978, and Whether the petitioners are entitled to interest on the total amount of the uncashed warrants from the date of issuance to the present. Ruth Sansom, Assistant Bureau Chief, Bureau of Benefits, Division of Retirement, testified that she has worked with TRS and FRS in a supervisory capacity since 1963. In these seventeen years, Section 238.10, Florida Statutes, has consistently been construed as providing for the payment of interest on contributions based on a fiscal year. The fiscal year is from July 1 to June 30. On June 30 of each year, interest is calculated on the total accumulated contributions then on deposit. If no contributions are on deposit on June 30, no interest is credited for this fiscal year. Since the petitioners received refunds of excess accumulated contributions on December 31, 1978, no interest was paid for the 1978-79 fiscal year because no contributions were on deposit on June 30, 1979. At the time that refund warrants are issued, the funds backing the warrants are transferred from the retirement system trust fund to the Treasurer's Office and the Division earns no more interest on these funds. The petitioners contend that they were advised by Leon Burnett of the Division of Retirement not to cash the warrants in their possession pending the outcome of this case. Ruth Sansom testified that it is standard practice to advise members not to cash benefit warrants if the amount of the benefit is in question, but that refund warrants may be cashed and adjustments made in the future. In a separate case (Case No. 80-1029), Mr. Price is challenging the amount of his benefit warrants. However, at the hearing in this case the petitioners did not understand the difference between a refund warrant and a benefit warrant, although this subject was discussed at their November, 1979, meeting with Mr. Burnett, and Mr. Price had in his possession both refund warrants and benefit warrants which had not been cashed.
Recommendation BASED UPON the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Leo A. Price and Elizabeth R. Price, seeking interest on their contributions for the period of time from July 1, 1978, through December 31, 1978, be denied. It is further RECOMMENDED that the claim of the petitioners, Leo A. Price and Elizabeth R. Price, for interest on the total amount of their uncashed warrants from the date of issuance, be denied. THIS RECOMMENDED ORDER entered on this 19 day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-1779 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1980. COPIES FURNISHED: Leo A. Price and Elizabeth R. Price 1000 N.E. 96th Street Miami, Shores, Florida 33138 Diane R. Keisling, Esquire Cedars Executive Center Suite 207C, Box 81 2639 North Monroe Street Tallahassee, Florida 32303
