The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate broker, holding license number BK-475943. At no time during the time Respondent has held this license has any disciplinary action been taken against her. Respondent was at all times material to the instant case, the sole officer and director of Bright Star Realty and Investments, Inc. (Bright Star), a Florida corporation. At no time material to the instant case was Bright Star a Florida-registered brokerage corporation.2/ In October 2008, Milton Gibbons entered into a contract (Purchase Contract) to purchase from Jason and Jennifer Van Buskirk property located at 8510 Northwest 46th Street, Lauderhill, Florida (Purchase Transaction). The Purchase Contract was drawn on a pre-printed "'As Is' Contract for Sale and Purchase" form approved by the Florida Association of Realtors and The Florida Bar. Respondent, acting on behalf of her unlicensed brokerage corporation, Bright Star, represented to Mr. Gibbons in the Purchase Transaction. Bright Star was listed in the Purchase Contract as a "[c]ooperating [b]roker" and the "only broker[] entitled to compensation in connection with this Contract." No other broker, including a listing broker, was mentioned in the Purchase Contract, notwithstanding that AmeriStar Properties of South Florida, Inc., had listed the property pursuant to an "Exclusive Right of Sale Agreement" it had with the Van Buskirks which was still in effect at the time Mr. Gibbons and the Van Buskirks entered into the Purchase Contract. Under the terms of the Purchase Contract, Mr. Gibbons was required to make a deposit totaling $9,600.00 to be "held in escrow by Bright Star," which was designated in the Purchase Contract as the "Escrow Agent." The Purchase Transaction never closed, and a dispute arose concerning the appropriate distribution of the $9,600.00 that had been deposited by Mr. Gibbons and was being held in escrow in accordance with the Purchase Contract. Pursuant to section 475.25(1)(d)1., Florida Statutes, and Florida Administrative Code Rule 61J2-10.032, Respondent, on behalf of the "Escrow Agent," Bright Star, notified Petitioner of the dispute in writing, using a form developed for that purpose. On the completed form that Respondent submitted, which was signed by her and dated May 11, 2009, she indicated that she was the "broker" and Bright Star was the "brokerage firm" involved in the real estate transaction in question; that her address was "520 NW 165 St. Rd. Suite 112, Miami Fl 33169"; and that the "amount in dispute" was $9,600.00. The Van Buskirks subsequently filed a complaint against Respondent with Petitioner. The complaint was investigated by one of Petitioner's investigators, Felix Mizioznikov. His investigation began in September 2009, and concluded in August 2010. On or about May 3, 2010, Mr. Mizioznikov sent to Respondent, by certified United States Mail, two packages containing the complaint and other materials. One package was sent to what Petitioner's computerized records reflected was Respondent's "license location"--12865 West Dixie Highway, #201, North Miami, Florida 33161. The other package was sent to what those same records reflected was Respondent's "mailing address"--520 Northwest 165th Street, #112, Miami, Florida 33159. Both packages were returned to Mr. Mizioznikov by the United States Postal Service. The returned package that had been sent to the 12865 West Dixie Highway address was stamped "MOVED LEFT NO ADDRESS." The returned package that had been sent to the 520 Northwest 165th Street address was stamped "UNCLAIMED." In June 2010, Mr. Mizioznikov visited both the 12865 West Dixie Highway address (where, he discovered, a law firm was located) and the 520 Northwest 165th Street address. There was no indication that Respondent had a business presence at either location. On June 21, 2010, Mr. Mizioznikov sent to Respondent's attorney, Joseph Gibson, Esquire, by facsimile transmission, an Office Inspection & Escrow/Trust Account Audit Form (signed by Mr. Mizioznikov), requesting that Respondent, within five days "provide [her] Broker business records and monthly reconciliation escrow statements for dates 5-2008-Current." Mr. Mizioznikov later contacted Respondent herself and requested her to produce these records. As of the date of the hearing, Respondent had not produced the requested records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order (1) dismissing Count One of the Administrative Complaint; and (2) finding Respondent guilty of Counts Two and Three of the Administrative Complaint and disciplining her therefor as described above. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of January, 2012.
The Issue Whether Respondent's license as a registered securities salesman/agent should be suspended or revoked for alleged violations of Sections 517.07 and 517.16(1)(a), Florida Statutes, as set forth in the Administrative Complaint. At the commencement of the hearing, it was noted that the Notice of Hearing was styled incorrectly in showing David R. Edstrom as Petitioner rather than Respondent. This clerical error was harmless in view of the language contained in the body of the notice which identified the word "Respondent" as being a registered securities salesman/agent. Notice of Hearing was issued on September 15, 1976, by the Hearing Officer. Neither the Respondent nor any representative in his behalf-appeared at the hearing. Accordingly, the matter was heard as an uncontested proceeding, pursuant to Rule 28-5.25(5), Florida Administrative Code. On October 6, 1976, Respondent informed the Hearing Officer that he had forgotten the hearing and inquired as to the possibility of another hearing. (Supp. Exhibit 1). By letter of October 12, 1976, counsel for Petitioner objected to Respondent's request, citing the trouble and expense of preparing for and attending the hearing, together with the difficulty encountered in securing witnesses. (Supp. Exhibit 2) On October 14th, Respondent renewed his request, and in the alternative, requested that his license be suspended temporarily until the outcome of an appeal of a criminal conviction. (Supp. Exhibit 3) Rule 28-5.25(9), F.A.C., provides that a hearing officer shall not grant a Motion for re-hearing or reconsideration. Although this Rule admits of no exception, it does not necessarily preclude the agency involved from authorizing a new proceeding in the interests of substantial justice, upon good cause shown. In this instance, Respondent's absence admittedly was due solely to his own negligence and therefore he is not entitled to the requested relief. It is noteworthy that the Notice of Hearing included the following sentence: "The right is reserved to take such action as the law permits if either party fails to appear at the time and place set for their hearing."
Findings Of Fact Respondent is a registered securities salesman/agent under license issued on October 3, 1972, by the Petitioner. (Admin. Complaint). Respondent was president of S.E.I., Inc., Miami, Florida at the time of the alleged statutory violations. (Testimony of Campbell, Exhibit 3). In the summer of 1973, Carl Eigner of Boynton Beach, Florida, having seen newspaper advertisements of Hartwell and Associates, Inc., concerning investments in promissory notes, contacted the firm and met one of its salesman, Bill Taylor. Taylor in formed Eigner that investments in promissory notes issued-by the 2609 corporation, a real estate developer, were safe and that the value of land covered by mortgages which secured the promissory notes, by law, had to be worth twice the cost of any investment. He further stated that the directors of S.E.I., Inc. investigated developers and if found to be in sound condition, recommended sale of their notes. Taylor also told him that he would receive a "valid registered mortgage" in Polk County. Eigner thereupon withdrew money to purchase a $10,000 promissory note issued by the 2609 Corporation, secured by a mortgage deed on 4 lots. Eigner paid $9,850.00 for the note by check to Taylor. The difference of $150.00 represented interest that Eigner otherwise would have received if he had left his funds on deposit. At the time of purchase, Taylor told Eigner that he had nothing to worry about because the land value had been checked by S.E.I., Inc. At no time did Taylor advise him that the note or mortgage was registered with or exempt from registration with the State Division of Securities. The promissory note provided for monthly interest payments at the rate of 12 percent per annum, commencing December 1, 1973. It also provided that the note or any payments thereunder could not be transferred by the holder to anyone who is not a bona fide resident of Florida without the prior consent of S.E.I., Inc. The note further provided. that it would be valid only upon approval by S.E.I., Inc., as sales/agent for the 2609 Corporation. In addition to the signature of the President of 2609 Corporation on the face of the note, it also contained the following: "Sale approved: S.E.I., Inc. by David R. Edstrom, President." This block showed the signature of Respondent. (Testimony of Eigner, Exhibit 3) The securities of 2609 Corporation have never been registered with the Petitioner pursuant to Chapter 517, Florida Statutes. (Exhibit 4) Petitioner submitted in evidence certified copies of an Information and verdicts in criminal proceedings in Palm Beach County, Florida against Respondent, Case No. 75-1242-CF. These proceedings resulted in the conviction of Respondent for the sale of unregistered securities to Carl Eigner and/or Edith Eigner, Robert S. Cox and/or David F. Cox, and Michael J. Leonardi and/or Diana Leonardi, and others in violation of Sections 517.07 and 517.302, Florida Statutes. The conviction is presently on appeal. Although received in evidence, the evidence of criminal convictions is not competent evidence to establish the facts upon which they were rendered and therefore cannot be used as a basis for a finding of fact in these proceedings. (See Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla., 1967).
Recommendation That the registration of Respondent, David R. Edstrom as a registered securities salesman/agent be revoked for violation of Section 517.07, Florida Statutes, as authorized by Section 517.16(1)(a), Florida Statutes. DONE and ENTERED this day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Gentry, Esquire Division of Securities Department of Banking and Finance 239 Carlton Building Tallahassee, Florida 32304 Mr. David R. Edstrom 5748 Northeast 16th Avenue Ft. Lauderdale, Florida 33334
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 January, 2001.
Findings Of Fact A McDonald's sign visible to automobile traffic on the I-75 is located .08 miles north of CR-54 along the I-75, 934 feet into the interchange between the I-75 and CR-54 in Pasco County, Florida. The I-75 at this location is part of the federal interstate highway system and is outside an incorporated town or city. The sign has no permit tags attached and no permit tags have ever been approved for the site. The property on which this sign is erected is approximately 77' by 52' with the southeast corner cut off owned by McDonald's Corporation. The site is connected to the restaurant site by a 15 foot strip of land which intersects a proposed road 275 feet north of the restaurant site. The sign is 1122 feet from the restaurant as measured along the paved surface between the sign and restaurant. Between this sign and the restaurant along CR-54 is a Standard station, an Amoco station, a Circle K shop and a Days Inn. The closest businesses to the sign are Abe Chevron station and the Days Inn Motel. Respondent presented proposed plans evidencing an intent to construct a McDonald's playland on the property on which the sign is located, presumably as an integral part of the restaurant. However, at the time of the hearing the property served only as a site for the sign. McDonald's playlands have been developed as a selling tool for families traveling over interstate highways and are generally located adjacent to the restaurant so children occupying the playland can be monitored by the parents from inside the restaurant. Respondent's witnesses were aware of no McDonald's playland located other than immediately adjacent to the restaurant building. Construction of the playland at the site of the existing sign has never-been started due to construction, drainage and sewage disposal problems at the restaurant site.
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
The Issue The issue in this case is whether the real estate license issued to the Respondent, Kenneth A. Norberg, should be revoked or otherwise disciplined based upon the acts alleged in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Kenneth A. Norberg, was a licensed real estate broker in the State of Florida having been issued License Nos. 0143669 and 0243001 in accordance with Chapter 475, Florida Statutes. The last licenses issued to Respondent were as a broker t/a Arden Real Estate Associates, 525 West Lantana Road, Lantana, Florida 33462. Respondent operates both an insurance business and a real estate business out of his office. There is a large sign outside the office near the street that indicates both "INSURANCE" and "REAL ESTATE" in large letters. Beneath those words in smaller print, are the words "Arden Insurance" Association and "Ken Norberg Real Estate". This sign is reflected in Respondent's Exhibit 1 and has been in place for approximately fifteen years. Sometime prior to March of 1989, Joe Ann Shoop was awarded ownership of a corporation known as Jerraang Enterprises, Inc. as part of a divorce settlement. That corporation owned certain property located at 7967 Overlook Road, Hypoluxo, Palm Beach County, Florida. There are two small cottages located on the property. Ms. Shoop's attorney is an officer of the corporation, but it is not clear whether he is a stockholder. Ms. Shoop visited Respondent's office in order to inquire about insurance for the property. While she was in Respondent's office, Ms. Shoop asked Respondent if he would be interested in listing the property for sale. She explained that she did not need the property and was anxious to sell it in order to get some cash. Respondent agreed to list the property. Sometime in March of 1989, Respondent received an offer to purchase the property from Bernadette Butler. Included with that offer was a $500.00 earnest money deposit. Respondent placed the $500.00 deposit into his escrow account maintained at the Bank of South Palm Beaches, Hypoluxo, Florida. Ms. Shoop accepted Ms. Butler's offer and a contract was agreed upon in March of 1989 with an anticipated closing date in May of 1989. The contract price was $30,000. The specific terms of that initial contract have not been established. Neither party offered the contract into evidence at the hearing. The parties agreed to extend the closing date of that contract and a new written contract was entered on June 23, 1989. That new contract indicated that the closing was to take place on July 26, 1989. The second contract provided that the sale was contingent upon the purchaser obtaining financing in the amount of $21,000.00. The purchaser was unable to arrange financing and the transaction failed to close by July 26, 1989. The parties verbally agreed to extend the contract, however, the evidence is inconclusive as to how long an extension was agreed to. By October of 1989, it became clear that the transaction would not close. At that time, Ms. Shoop demanded the deposit and began efforts to sell the property to someone else. Ultimately, the property was sold at auction for $15,000. Ms. Shoop claims that she was not advised and would not have agreed to a contract that was contingent upon the buyer obtaining financing. As indicated above, the terms of the first contract have not been established. However, it is clear that the second contract did provide a contingency for financing. On October 31, 1989, Respondent sent a letter to Ms. Butler indicating that Ms. Shoop had requested the release of the deposit to her. Respondent enclosed a copy of a Release of Deposit Receipt form for Ms. Butler to execute. Ms. Butler did not execute the form and/or authorize the release of the deposit to Ms. Shoop. Respondent retained the deposit in his escrow account for several more months. During this time, Ms. Butler continued her attempts to obtain financing and also began searching for additional properties. Ms. Butler indicated to Respondent her intention to apply the money held in escrow to any new purchases that may arise if the contract with Ms. Shoop did not close. On several occasions in late 1989 and early 1990, Ms. Shoop attempted to contact the Respondent and determine the status of the escrow money. Respondent did not answer her inquiries. On September 10, 1990, an investigator from the Department visited Respondent's office to conduct a random audit of Respondent's business and his escrow account. During this audit, the investigator discovered the deposit being held in escrow without a current contract. She advised Respondent that he needed to be sure to comply with the requirements of Section 475.25(1)(d), Florida Statutes and Rule 21V-10.032, Florida Administrative Code. In October of 1990, the Respondent sent a letter to both Ms. Butler and Ms. Shoop enclosing a Release of Deposit Receipt form pursuant to which he suggested that the parties divide the deposit equally. Respondent sent a copy of this letter to the Department to notify it of his attempt to resolve the dispute over the deposit. By letter dated October 11, 1989, Gerri E. Barnoski, an analyst for the Florida Real Estate Commission, (the "Commission") advised Respondent of his options. In this letter, Ms. Barnoski told Respondent that he had to either (1) arrange for arbitration, (2) place the matter before a civil court or (3) request an Escrow Disbursement Order from the Florida Real Estate Commission. The Respondent subsequently requested an Escrow Disbursement Order from the Florida Real Estate Commission and the matter is currently pending resolution by the Commission in Case No. E902949. The deposit remains in Respondent's escrow account. In sum, the evidence demonstrated that Respondent failed to promptly notify the Commission of the conflicting demands to the escrow deposit. Respondent claims that he never received a formal written demand from either party. However, the evidence is clear that by at least October of 1989, Respondent was aware of the conflicting demands for the deposit. After delay of approximately one year, Respondent finally attempted to resolve the matter in an appropriate manner. Respondent says he was concerned that attorney's fees would consume the entire deposit. However, this concern does not excuse the delay. There is no indication that Respondent was manipulating the transaction for his own personal gain and/or that he was trying to defraud either party. There is no indication that Respondent ever used the escrow account for improper purposes or withdrew money from the escrow account for his own personal or business use. At the time Petitioner's investigator visited Respondent's office in September of 1990, there was no sign immediately outside the entrance door to Respondent's office. The large sign alongside the roadway (which is described in Finding of Fact 2 above) was in place and there was a trademark indication of a Realtor on the entrance door. However, a sign which had previously been on the wall immediately next to the entrance door was missing. The evidence established that the sign at the entrance door was temporarily missing due to unusual circumstances. Respondent was in the middle of a hotly contested divorce. Respondent and his former wife had previously worked out of the office together. The sign next to the entrance door had both of their names on it. Respondent taped over the name of his former wife and the sign was subsequently vandalized. Respondent had delayed obtaining a new sign until the divorce proceedings were concluded. The evidence indicates the road side sign was in place approximately fifteen feet from the entrance. Visitors to the office were sufficiently alerted to the identity of the real estate broker within. In view of all the circumstances, Respondent was not in violation of the requirement that he have a sign on or about the entrance to the real estate office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding Respondent not guilty of the allegations contained in Count I of the Administrative Complaint, finding Respondent guilty of Counts II and III, reprimanding him, placing him on probation a period of one year and imposing a fine of $250.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. J. STEPHEN MENTON 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 24th day of June, 1991. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9-15. Subordinate to Findings of Fact 15-18. Adopted in substance in Findings of Fact 17. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as irrelevant. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 14. Subordinate to Findings of Fact 2 and 21. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 7-15. Subordinate to Findings of Fact 11. Subordinate to Findings of Fact 10-17. Adopted in substance in Findings of Fact 17. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Legal Section 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Kenneth A. Norberg Arden Real Estate Associates 525 West Lantana Road Lantana, Florida 33462 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue One issue posed for decision herein is whether or not the Petitioners are entitled to a transfer of License No. 16-1333 SRX (4-COP), an alcoholic beverage license which currently allows Jacob's Ladder, Inc., to serve liquor, wine and beer as Part of its restaurant business pursuant to Sections 561.32 and 561.321, Florida Statutes. Also at issue is whether or not the Petitioners are entitled to have a default judgment for removal of tenant," issued by the Seventeenth Judicial Circuit in Broward County, against Jacob's Ladder, Inc., recorded by Respondent as a lien pursuant to Chapter 561.65, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received including a stipulation by the parties, the following relevant facts are found. License No. 16-1333 SRX (4-COP) is issued to the premises at 1480 South Ocean Boulevard, Pompano Beach, Florida. Petitioners are owners in fee simple to this property. Petitioners leased this property to the past licensee, Jacob's Ladder, Inc. (Petitioners' Exhibit No. 1). Petitioners transferred the subject license to the lessee, Jacob's Ladder, Inc., for use while they operated a restaurant at the subject location (1480 South Ocean Boulevard, Pompano Beach, Florida). The transfer of the license was not a subject of the lease agreement and the record does not reflect that any consideration was exchanged for the license. Petitioner and Jacob's Ladder, Inc., subsequently executed a transfer application transferring the subject license back to Petitioners. The transfer application was then placed in escrow for the stated purpose of facilitating a license transfer in the event that the lessee defaulted on the lease agreement. (Petitioners' Exhibit Nos. 2 and 12.) Petitioners later learned that the property had been converted to a bar instead of a "family type restaurant." Thus, Petitioners concluded that the "conversion" resulted in a use of the premises in a function inconsistent with the lease and Florida's alcoholic beverage laws. Petitioners, therefore, sought and obtained a court order evicting Jacob's Ladder, Inc., from the premises (Petitioners' Exhibit No. 3). Respondent had notice that the Petitioners were lessors and owners of the property to which the subject license was issued both when Petitioners transferred the license to Jacob's Ladder, Inc., and when the Petitioners' attorneys informed Respondent of Petitioners' status as lessors and owners of the subject property. (Petitioners' Exhibit No. 4.) On January 22, 1979, Respondent, through its District Supervisor, filed charges and prepared an Administrative Complaint for Rule violations against Jacob's Ladder occurring in June of 1978. On February 1, 1979, Petitioners' attorneys met for an office conference with Respondent's Director and other staff personnel concerning the subject license. During this meeting, Respondent, in addition to being advised that Petitioners were the lessors of the subject premises, was also advised that Petitioners had taken possession and was seeking transfer of the license to Petitioners. During this meeting, Petitioners were advised by Respondent that Jacob's Ladder had continuously violated rules governing the special restaurant license which was issued; that Respondent intended to revoke the license and was presently proceeding to that end. On February 5, 1979, Petitioners signed a letter of agreement, stipulating to their future conduct and to the conduct of any future lessee. (Petitioners' Exhibit No. 6.) On February 9, 1979, Petitioners executed an application for transfer of License No. 16-1333 SRX (4-COP)(Petitioners Exhibit No. 12). Also on February 9, 1979, Respondent executed and forwarded two documents captioned a Notice to Show Cause/Notice of Informal Conference and a Notice of Informal Conference both of which were received at two locations by J. Epsimos, President of Jacob's Ladder, Inc., on February 13 and 15, 1979. (Petitioners' Exhibit No. 7.) Petitioners' letter of agreement, application for transfer and request for lien filing were mailed to Respondent on February 16, 1979. On March 8, 1979, Respondent returned Petitioners' transfer application, request for lien recording and letter of agreement. (Petitioners' Exhibit No. 5.) In May, 1979, Respondent drafted a revocation order which was not executed, at least in Part, due to Petitioners application for and receipt of a temporary injunction enjoining Respondent from executing the revocation order. The file on the revocation proceedings was closed on May 29, 1979. (Respondent's Exhibit No. 3.) Following the March 8, 1979, letter wherein Respondent returned Petitioners' application and advised that a revocation proceeding was Pending, Respondent proceeded with this effort to suspend or revoke License No. 16-1333 SRX (4-COP). (DOAH Case No. 79-898.) The licensee, Jacob's Ladder, Inc., communicated to Respondent that it did not contest the charges in the Notice to Show Cause filed February 9, 1979, and therefore, did not want a hearing. The matter was, therefore, closed by this Division on May 29, 1979. (See Respondent's Exhibit Nos. 2 and 3.) The licensed premises is one unit of a 57-unit condominium. The remaining 56 units are all residential. There are currently 41 Parking spaces which serve the condominium. According to the Director of Building and Zoning Enforcement for Broward County, the 41 Parking spaces are inadequate to serve the condominium units and are "clearly inadequate to serve 56 residential units in addition to the subject restaurant. Since the Premises were first licensed to serve alcoholic beverages in 1974, condominium residents have complained to the Director of the Respondent about problems they perceived were being created by the service of alcoholic beverages at the restaurant. (Testimony of Nuzum and Nerzig.) Respondent's Director denied the license transfer for two reasons. First, the premises could never serve as a legitimate restaurant but would continue to operate as a bar due to inadequate parking facilities and thus, would be unable to comply with pertinent rules, regulations and statutes governing special restaurant licenses. (Chapter 561, Florida Statutes.) This is so due to the inadequacy of the parking facilities. Secondly, the licensee bad been in violation of the beverage law in 1977 for the same type of violations charged in the subject complaint when the transfer application was submitted. 2/ The Department (Respondent) has an ongoing policy of refusing to record documents pursuant to Section 561.65, Florida Statutes, when the license against which the document is to be recorded is in a revocation proceeding. (Testimony of C. L. Ivey, Regional Supervisor, Barry Schoenfield, Bureau Chief of Licensing, and C. Nuzum, Respondent's Director.) Also, Chief Schoenfield testified to Respondent's policy of only recording liens from lenders that are licensed by the State. This policy appears to be sanctioned by Chapter 561.65, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the action of Respondent in refusing to transfer License No. 16-1333 SRX (4-COP), and refusing to record Petitioners' judgement and lien filings be SUSTAINED. RECOMMENDED this 27th day of May, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 27th day of May, 1981.
