Findings Of Fact On March 3, 1993, the Petitioner submitted an application to the Department for registration as an associated person of Securities America, Inc. Previously, on May 1, 1989, the Petitioner had filed an application with the Department for registration as an associated person of Integrated Resources Equity Corporation. On July 25, 1989, the Department denied the Petitioner's application for registration as an associated person of Integrated Resources Equity Corporation. Petitioner requested an informal hearing and on November 28, 1989, a hearing took place regarding the Department's intent to deny the Petitioner's application for registration with Integrated Resources Equity Corporation. On January 30, 1990, a Final Order was entered by the Department denying the Petitioner's registration of Integrated Resources Equity Corporation. The grounds for denial contained in the January 30, 1990 Final Order included the Petitioner's guilty plea to delivery of a controlled substance in the state of Wyoming in 1982, and the Petitioner's failure to disclose the guilty plea to the Department on the Petitioner's U-4 form (Uniform Application to Act as a Securities Dealer) on two occasions in 1987 and 1988. In addition, subsequent to the filing of his application, Petitioner was arrested on January 4, 1989 for the second degree felony of possession of cocaine to which he plead nolo contendere in the circuit court for Pinellas County, Florida on September 27, 1989. Petitioner did not amend his application and disclose this arrest and conviction. The Petitioner did not file an appeal regarding the January 30, 1990 Final Order issued by the Department. Additionally, on December 30, 1992, the Department again denied an application, submitted by Petitioner, for registration by issuing a Notice of Denial of Registration as an Associated Person under Chapter 517, Florida Statutes. The December 30, 1992, Notice of Denial was based upon the Petitioner's failure to timely respond to the Department's request for additional information, which failure amounted to a violation of Rule 3E-301.002(3), Florida Administrative Code. The denial was issued without prejudice to Respondent's right to reapply upon the submission of a new application and payment of the fee. The Petitioner did not file a petition for hearing in response to the Department's Notice of Denial of Registration dated December 30, 1992. In 1982, Petitioner was arrested for delivery of a controlled substance in the state of Wyoming. Petitioner plead guilty to this charge, adjudication of guilt was withheld and Petitioner was placed on probation by the court. That probation was terminated by court order. In 1989, Petitioner was arrested for possession of a controlled substance in Pinellas County, Florida. Petitioner plead nolo contendere to this charge, adjudication of guilt was withheld and Petitioner was placed on probation by the court. The record is unclear whether probation has been terminated by the court. At present, Petitioner is married. He and his wife have three children. In 1990, he and his family moved to Brevard County, Florida where he has been self-employed as a life and health insurance salesman for several companies. He has not been the subject of disciplinary action in this field. Petitioner denied he had ever sold cocaine; instead he insisted that his role was limited solely to that of being a delivery boy for other drug salespersons. He stated he has undertaken no specific drug rehabilitation program other than to discontinue involvement with controlled substances. In addition to his own testimony acknowledging and explaining his criminal record, he presented testimony regarding his character. Letters from character witnesses consisted of Petitioner's wife, mother, pastor and three other individuals. The pastor and other individuals wrote that they had known Petitioner only since 1991, or some point in time since the occurrence of his last criminal offense in 1989. Each of the individuals was impressed with Petitioner and believed him to be of good character, and indicated some knowledge, absent specific details, of his criminal background.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for registration as an associated person, submitted on March 3, 1993. DONE and ENTERED this 27th day of May, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Petitioner did not submit proposed findings. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1-10. COPIES FURNISHED: Bridget L. Ryan, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Ronald Liakos 788 Americana Boulevard, N.E. Palm Bay, Florida 32907 Honorable Gerald Lewis Comptroller Department of Banking & Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking & Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Findings Of Fact At all times pertinent to the allegations contained herein, the Florida Real Estate Commission was the state agency responsible for the licensing and regulation of real estate professionals in this state. Respondent was licensed by the Commission as a real estate broker under licenses Numbers 0117117 and 0257450-1. His licenses were effective at all times under consideration herein. On December 19, 1988, Richard and Charleen Mercier, owners of the Sherwood Lounge in Delray Beach, Florida, entered into a 6 month exclusive right to sell agreement with Richard Scott Realty for the sale of their property. At that time, Respondent was listed as the broker of record for Richard Scott Realty. The licensed sales person obtaining the listing was Walter P. Van Oostrum. The agreement called for the payment of a 10% commission upon sale. Thereafter, on April 4, 1989, the Merciers entered into another listing agreement with WMB Management, a different realty company with whom Respondent had become affiliated after his resignation from Richard Scott Realty on March 17, 1989. On April 18, 1989, Steven Yoo signed a contract to purchase the Sherwood Lounge for $60,000.00 Thereafter, the sale was closed and the closing statement reflects a brokerage commission of $7,500 to be paid from the proceeds of the sale. On May 2, 1989, Mrs. Mercier paid Respondent the additional sum of $2,500.00, by check number 219, drawn on the Carney Bank in Delray Beach, Florida. This check represented the balance due of the commission earned on the sale though there was no explanation as to how a commission of $10,000.00 could be earned on a $60,000.00 sale when the contract called for a commission of 10%. The check was cashed. Sometime thereafter, Respondent paid the sum of $500.00 to Mr. Van Oostrum in partial payment of his share of the commission on the sale of the Sherwood Lounge. According to their agreement, Mr. Van Oostrum was to receive 30% of the commission received by the brokerage on the sale. When Mr. Van Oostrum asked Respondent for the remaining $2,500.00 he was due, it was not paid. Thereafter, Mr. Van Oostrum filed suit in County Court in Broward County for the $2,500.00 due him. Respondent failed to appear or file a response and on December 29, 1989, the Court entered a Default and Final Judgement against Respondent in favor of Mr. Van Oostrum in the amount of $2,500.00 plus $80.00 costs. Though Mr. Van Oostrum thereafter made demand upon the Respondent for payment the judgement has not been satisfied. Respondent offered, in compromise and satisfaction, a payment of $100.00 plus a promise to pay an additional $100.00 "when he got it." This offer was not accepted by Mr. Van Oostrum. The balance due has not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered revoking all real estate licenses, as broker or salesman, held by the Respondent, Dominic Scacci. RECOMMENDED in Tallahassee, Florida this 24 day of August, 1992. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992. James H. Gillis, Esquire DPR - Division of Real Estate Suite N - 308, Hurston Building 400 W. Robinson Street Orlando, Florida 32801-1772 Dominic Scacci 1880 N. Congress Avenue, #405 West Palm Beach, Florida 33401 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900
The Issue Whether conviction of income tax evasion in a federal district court in Florida constitutes a violation of Chapter 470, Florida Statutes. If such a conviction is a violation of Chapter 470, Florida Statutes, whether a license nay be revoked or suspended under Chapter 470, Florida Statutes, pending an appeal of such conviction. 3, Whether a hearing on the merits can be heard pending a decision on an appeal of a conviction.
Findings Of Fact Respondent Clarence E. Prevatt holds funeral directors license No. 650 and embalmers license No. 760. Respondent was found guilty by a federal jury on November 14, 1974, of ten counts of willfully and knowingly attempting to evade and defeat a large part of the income tax due and owing by him to the United States of America and adjudged guilty of those crimes by court order dated December 20, 1974. Respondent has appealed his conviction to the United States Circuit Court for Fifth Circuit with oral arguments on said appeal having been heard December 1, 1975. The appeal is still pending. Respondent does not contest the fact of his conviction by a federal jury but contends that a hearing on the merits should not be heard prior to the determination of his appeal of his conviction. The Respondent was charged with the violation of the following subsections of Section 470.12, Florida Statutes: "470.12 Grounds for revocation of license.-- EMBALMER. (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty by a jury of, or has pleaded guilty to after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases. * * * (k) The licensee has violated any provision of this chapter. FUNERAL DIRECTOR. (c) The licensee is either a habitual drunkard or narcotic addict or has been found guilty of, or has pleaded guilty to, after being charged with, a crime in this state or any other state involving moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. * * * (p) The licensee has violated any provisions of this chapter." Respondent Prevatt further contends: That a conviction of federal income tax evasion is not a crime in the State of Florida and is not a crime involving moral turpitude and that regardless of the outcome of the appeal his license should not be' suspended or revoked under Section 470.12, Florida Statutes, supra. The Board contends: That a hearing on the revocation should proceed inasmuch as the statute does not require that Respondent be convicted but merely that he be found guilty under Section 470.12(2)(c), Florida Statutes, or that he be found guilty by a jury under Section 470.12(1)(c), Florida Statutes, and that the statutes do not require the Respondent be found guilty of a crime in Florida but merely requires the finding of guilty of a crime "in this state"; that the conviction by a federal jury in the City of Tampa, Florida, is a finding of guilty of a crime in this state; that Florida has laws prohibiting acts of perjury and laws making it a crime to intentionally deprive the true owner of money by false representations; that the condition of filing false and fraudulent income tax returns is an offense involving "moral turpitude"; that the legislature has the right to regulate the moral and character qualifications of professionals and has met the goal by enacting Section 470.12(1)(c), Florida Statutes, and Section 470.12(2)(c), Florida Statutes.
Recommendation It is recommended that embalmer license No. 760 and funeral director license No. 650 of Respondent Clarence E. Prevatt be revoked. DONE AND ORDERED this 2nd day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Rogers, Towers, Bailey, Jones & Gay 1300 Florida Title Building Jacksonville, Florida 32202 Raymond E. LaPorte, Esquire 408 Madison Street Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION BOARD OF FUNERAL DIRECTORS AND EMBALMERS In the Matter of the Revocation or Suspension of the license of Clarence E. Prevatt, licensed, CASE NO. 75-425 Funeral Director and Embalmer 3402 26th Street, Tampa, Florida. /
The Issue Whether Petitioner, as a prevailing small business party in an adjudicatory proceeding initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes, in these two cases.
Findings Of Fact As to Both Cases Petitioner, Larry D. Thomas, M.D., is a licensed physician in the State of Florida, having been issued license number ME 036360. Respondent, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. This matter was filed pursuant to Section 57.111, Florida Statutes. The actions in AHCA Case Nos. 1994-12341 and 1999-57795 were initiated by the Agency, an agent for the Department of Health, a state agency, and neither the Agency nor the Department of Health was a nominal party to the underlying actions. The attorney's fees sought by Petitioner are reasonable in the amount up to $15,000 for each case, and the statutory cap of $15,000 applies to each case separately. Petitioner prevailed in the underlying action, and there are no special circumstances that exist that would make an award of attorney's fees and costs unjust in these cases. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes, because he is a sole proprietor of an unincorporated professional practice, whose principal office is in this state, who is domiciled in this state, whose professional practice is in this state, and whose professional practice had, at the time the action was initiated by the state agency, not more than 25 full-time employees or did not have a net worth of more than $2 million, including both personal and business investments. As to Case No. 02-4843F In 1994, pursuant to Section 455.225, Florida Statutes (currently renumbered as Section 456.073, Florida Statutes), Petitioner was notified of the investigation by the Agency and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, which included an expert opinion by William Yahr, M.D., and medical literature that discussed the risks of the procedure at issue in the case. The expert opinion of Dr. Yahr stated that Petitioner did not fall below the standard of care in this case and that the patient died of a predictable complication of the procedure at issue in the case. The Administrative Complaint in the underlying case, DOAH Case No. 01-4406PL (AHCA Case No. 1994-12341), was filed on May 10, 1999, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; by failing to treat Patient D.J.P.'s preoperative coagulopathy; and by failing to use an alternate vein that would have allowed visualization of the shunt placement, thereby reducing the risk of causing hemorrhage given the patient's preoperative history. As required by statute, the probable cause panel that considered this matter was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine. Present at the May 5, 1999, meeting of the South Probable Cause Panel of the Board of Medicine (Panel) were Panel members Margaret Skinner, M.D., Chairperson of the Panel; John Glasgoe, M.D.; and Becky Tierney. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Agency Investigations; Larry McPherson, Senior Attorney for the Agency; and Susan Drake, M.D., Medical Consultant for the Agency. Prior to the May 5, 1999, meeting, the members of the Panel received and reviewed the Agency's entire investigative file, including Petitioner's response and Dr. Yahr's opinion, and the expert opinions of Henry Black, M.D., and John Kilkenny, III, M.D. The expert opinions available to the Panel were those completed in 1997 and 1999, respectively. Dr. Black opined that Petitioner met the standard of care in the case, but admitted that he did not perform the procedure at issue in the case; Dr. Kilkenny, who did perform the procedure at issue in the case, opined that Petitioner failed to meet the standard of care in the case; and Dr. Yahr opined in 1994 that there was no evidence that Petitioner failed to meet the standard of care in the case, but did not state whether he performed the procedure at issue in the case. In addition, the Panel had access to the written response to the investigation prepared by counsel on behalf of Petitioner, which was submitted on October 13, 1994. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the Panel that any questions they had regarding the materials that they received, the recommendations that had been made, or the investigation that had been conducted should be directed to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel discussed the complaint very briefly, asked no questions, and voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. The record in the underlying case does not demonstrate why there was an inordinate delay between the completion of the Agency's investigation in October 1994 and the Agency's retention of Dr. Black in 1997; why Dr. Kilkenny was retained in 1999 after Dr. Black had given his opinion on August 4, 1997, that there was no deviation from the standard of care by Petitioner; nor why Dr. Yahr's opinion was not given any consideration. While Dr. Black may not have had the appropriate qualifications to render an expert opinion in the case, both Dr. Kilkenny and Dr. Yahr did have sufficient qualifications to render an expert opinion in this matter. Further, there was no assertion by the prosecuting authority that any of the fact witnesses needed to prove this case were even available after five years of delay. Nor did the counsel for the Panel bring any special attention to the Panel members in regard to the possible proof problems with this case caused by the inordinate delay in bringing the case before the Panel. Finally, no explanation has been given for the delay in forwarding the Administrative Complaint, issued on May 10, 1999, to the Division of Administrative Hearings until October 15, 2001. As to Case No. 02-4844F The Administrative Complaint in the underlying case, DOAH Case No. 01-4407PL (AHCA Case No. 1999-57795) was filed on June 13, 2001, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; by failing to adequately monitor Patient H.H. post-operatively given Patient H.H.'s high risk for distal emboli and/or due to evidence of tissue ischemia; by failing to clamp the arteries distally prior to manipulation of the aneurysm; and/or by failing to take adequate steps to prevent emboli, such as ensuring periodic monitoring of the patient's condition post-operatively for evidence of ischemia or other problems. Pursuant to Section 455.225, Florida Statutes (now at 456.073, Florida Statutes), Petitioner was notified of the investigation by Respondent by letter dated November 12, 1999, and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, denying that he violated the standard of care. The Investigative Report was issued on February 11, 2000. The probable cause panel that considered this matter met on June 8, 2001, and was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine, as required by statute. However, the consumer member of the Panel was unavailable to attend the Panel meeting that day. Present at the June 8, 2001, meeting of the Panel were Panel members Fued Ashkar, M.D., Chairperson of the Panel, and Gustavo Leon, M.D. Also present at the meeting were Lee Ann Gustafson, Acting Board Counsel, and Randy Collette, Senior Attorney for the Agency. Prior to the probable cause meeting, the members of the Panel received and reviewed what was purported to be the Agency's complete investigative file, including Petitioner's response, and the expert opinion of James Dennis, M.D. The expert opinion available to the Panel was that of James Dennis, M.D., a board-certified vascular surgeon, who performed the procedure at issue in the case. Dr. Dennis opined that Petitioner failed to meet the standard of care in the case. Prior to consideration of the case, Ms. Gustafson advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Gustafson also advised the Panel that any questions they had regarding the materials that they received, the recommendations that have been made, or the investigation that has been conducted should be direct to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. Following the filing of the Administrative Complaint, Petitioner timely filed a request for a formal hearing. After probable cause was found in the underlying case, the matter was referred to the Division of Administrative Hearings, and shortly before the date of the scheduled formal hearing, the attorneys for Petitioner and Respondent discovered that Respondent's expert, Dr. Dennis had been retained by Petitioner's former attorneys, after probable cause had been found, to give an opinion on behalf of Petitioner in the underlying case. This resulted in the disqualification of Dr. Dennis' opinion. The formal hearing was continued, and Respondent retained another expert, Kenneth Begelman, M.D. He opined that Petitioner fell below the standard of care in the case, and his testimony was used at the formal hearing. No reference to the opinion of Dr. Dennis was made or used at the formal hearing. Dr. Begelman's opinion was also not available to the Panel at the time that probable cause was found against Petitioner, nor did Respondent seek to return jurisdiction to the Panel for their reconsideration. Any objection to this procedure was waived by the parties. At the formal hearing, a CT Scan of the patient in question and missing nurses' notes relating to Petitioner's postoperative monitoring were introduced into evidence. Upon review of this new evidence and under cross- examination, Respondent's expert, Dr. Begelman, could not conclusively determine whether Petitioner's surgical and post- surgical treatment of Patient H.H. fell below the standard of care. However, it is clear from the record in the underlying case that the evidence regarding Petitioner's performance of the procedure at issue in the case, as well as his postoperative care of the patient, was in dispute. The expert opinion of Dr. Dennis and Petitioner's response highlight this fact. The events involving Dr. Dennis, which occurred after the finding of probable cause by the Panel, and Respondent's subsequent use of Dr. Begelman at the formal hearing are not relevant to the determination of whether Respondent was substantially justified in finding probable cause against Petitioner in the underlying case. And, while the underlying case was ultimately resolved in Petitioner's favor, there were disputes of fact in this case and the Agency and Respondent clearly were substantially justified to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs, as to DOAH Case No. 02-4844F.
The Issue Whether the Petitioner, Patricia Smithwick Valz, is entitled to an award of attorney's fees as a "prevailing small business party" in the underlying administrative proceeding.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondents on the basis of allegations of misconduct set forth in an Administrative Complaint. The essence of the alleged misconduct is that the Respondents have conducted or advertised the business of a recovery agent without a valid Class "R" Recovery Agency license.
Findings Of Fact Rhonda L. Peroutka has a Class "CC" Private Investigator Intern license, Number CC99-00699, issued by the Petitioner agency. Rhonda L. Peroutka, in her capacity as President of A People Finder, Inc., holds a Class "A" Private Investigative Agency license, Number A97-00289, and a Class "ZA" Organizational Officer Position license, Number ZA97-00405, both issued by the Petitioner agency. Beginning on January 8, 1999, and continuing to the date of the final hearing in this case, the Respondents have been engaged in business activities in the State of Florida that involve the performance of repossessions for consideration. During the period of time mentioned above, the Respondents regularly and frequently entered into contracts with the Superior Bank in New Jersey to repossess motor vehicles in the State of Florida on which the Superior Bank had a lien. Pursuant to those contracts, the Respondents acted in the capacity of an independent contractor of the bank for the purpose of repossessing specific motor vehicles identified by the bank. The contracts between Superior Bank and the Respondents specifically authorized and directed the Respondent, A People Finder, Inc., to repossess a specifically described motor vehicle. Such contracts did not authorize the Respondents to forward or to subcontract the repossession authorization. Nevertheless, the regular practice of the Respondents is to subcontract the repossession work to licensed recovery agencies throughout the State of Florida. The subcontracting licensed recovery agencies perform the actual repossessions of the motor vehicles the Superior Bank seeks to have repossessed. Following a successful recovery of a motor vehicle, the subcontracting licensed recovery agencies bill the Respondents for their services. Thereupon, the Respondents advise Superior Bank of the successful recovery, and the Respondents submit a bill to Superior Bank for repossessing the motor vehicle. The Respondents do not advise Superior Bank that the actual repossession was performed by a subcontractor. The bills submitted by the Respondents to Superior Bank typically list as separate items a repossession fee, an administrative fee, and any miscellaneous costs associated with the repossession, such as the cost of making keys. Superior Bank pays the entire amount of the bill to the Respondents. When Superior Bank pays for a repossession, the entire amount of the payment is deposited into an escrow account controlled by the Respondents. Thereafter, the Respondents pay from the escrow account the amount due to the subcontracting licensed recovery agency, and they pay to A People Finder, Inc., the administrative fee that was charged to Superior Bank. The Respondents agree with the licensed recovery agencies with whom they contract to hold them "harmless from and against any and all claims, damages, losses, and actions including reasonable attorney's fees, resulting from and arising out of your efforts to collect and/or repossess. . . ." However, the Respondents do not carry insurance for the actions of a recovery agency during the course of a repossession. Neither of the Respondents has a recovery agency license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondents are guilty of the violations charged and imposing the following penalties: (a) a one-year suspension of all licenses held by the Respondents; (b) an administrative fine in the amount of $1,000.00 against Respondent, A People Finder, Inc.; and (c) an administrative fine in the amount of $1,000.00 against Respondent, Rhonda L. Peroutka. DONE AND ENTERED this 16th day of December, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 16th day of December, 1999.
The Issue Whether Respondent obtained his registration as a real estate salesman by means of fraud, misrepresentation, or concealment. On October 14, 1976, Petitioner's Administrative Complaint was sent by registered mail to the Respondent at his designated address: Post Office Box 805, U.S. Highway 52 West, Dade City, Florida 33525. A return receipt signed by the Respondent showed date of delivery as October 26, 1976. (Exhibit 1) However, Respondent did not execute and return an enclosed Election of Rights form that accompanied the Administrative Complaint wherein he could have indicated his desires as to an administrative hearing. Nevertheless, Petitioner requested that a Hearing Officer be appointed in the matter and issued a Notice of Hearing to Respondent at the same address by certified mail on January 19, 1977. This correspondence was returned by postal authorities as "Unclaimed" (Exhibit 2). An Order of the Hearing Officer changing the hour set for the hearing from 10:00 a.m. to 2:00 p.m. on February 15, 1977 was mailed to the Respondent on February 7, 1977. However, neither Mr. Bryant nor any representative in his behalf appeared at the hearing on February 15, 1977. It being determined that proper notice had been provided to the Respondent in accordance with Section 475.40 and Chapter 120, Florida Statutes, the Petitioner presented its evidence in uncontested proceedings.
Findings Of Fact Respondent filed his application for registration as a real estate salesman with Petitioner on October 10, 1972. He completed Question 9 therein in the following manner: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted? Yes If yes, state details in full. Yes - See back of sheet" On the back of the application page, Respondent listed the following: "Have 2 traffic tickets, Pasco County, Dade City, Fla. - County Court Improper Passing Out of Date inspection sticker" Respondent was issued his registration as a salesman by Petitioner, effective January 29, 1973, Certificate Number 20527. The certificate was renumbered 0010908 when reissued in 1974 and 1975. It was issued again as "Non Active Salesman" on April 19, 1976 with expiration date March 31, 1978. (Composite Exhibit 3) Records of the Sheriff, Pasco County, show that the Respondent was arrested on six different occasions during the years 1961 to 1970. Five of these arrests were based on worthless check charges and one arrest was for failure to appear, as set forth in the Administrative Complaint of Petitioner. (Exhibit 4, Administrative Complaint) Respondent was charged on October 23, 1970 on an information of the State Attorney for the Sixth Judicial Circuit of Florida in and for Pasco County, Case Number 2010, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. He was also charged on October 23, 1970 in the same Judicial Circuit, Case Number 2011, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. (Exhibit 5)
Recommendation That the registration of Respondent Joseph M. Bryant as a non-active real estate salesman be revoked, pursuant to subsection 475.25(2), Florida Statutes. DONE and ENTERED this 24th day of February, 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32389 Mr. Joseph M. Bryant Post Office Box 805 U.S. Highway 52 West Dade City, Florida 33525
The Issue The issue at the hearing was whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the real estate brokerage business. Petitioner's principal office is located in Niceville, Florida. Petitioner's business does not employ more than twenty- five (25) full-time employees and has a net worth not exceeding $2,000,000.00. In DOAH Case No. 88-3758, the Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint dated June 23, 1988. The Administrative Complaint alleged that the Petitioner was guilty of having failed to account and deliver to any person at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, deposit, draft or other documents or things of value, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain, under the circumstances in violation of Subsection 475.25(1)(d), Florida Statutes. The facts allegedly supporting the Administrative Complaint were Petitioner's failure, after entry of a County Court Judgment, to return a sum of money to the potential buyers of Petitioner's own house. The money was received by Petitioner and retained by Petitioner in a transaction involving the sale of his own home. The transaction did not involve Petitioner as a broker and did not involve Petitioner as an escrow agent. The escrow agent specified in the contract was another real estate company. The Administrative Complaint was based on the Board's determination of probable cause at its meeting on June 21, 1988. At that meeting, Mr. Fred Wilson, Chief Staff attorney for the Division of Real Estate, presented the case to the probable cause panel. The presentation of the case was wholly based on the investigative file developed by DPR's investigator. A review of that investigative file and the transcript of the probable cause proceeding does not support a finding of probable cause in this case. In order to support such a finding, the evidence considered by the Board must disclose that there is a reasonable basis in law and fact for the agency to proceed with its intended action. In this case, The agency's intended action was to clearly and convincingly establish that the licensee failed to account and deliver escrowed property to the person entitled to such property in violation of Section 475.25(1)(d), Florida Statutes and in light of the controlling law in this area as set forth in Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). It is clear that from the inception of these proceedings, the facts which drove the prosecution of this case were that a sale of real property was involved along with an unpaid civil court judgment and a buyer's check with the words "house down payment" written in the space for memos on the check. The investigative report did not contain any facts supporting an escrow between Petitioner and his potential buyers. Nor, did the report contain any facts which established that Petitioner acted as a real estate broker in the transaction involving his house. The investigative report seems to be more concerned with collection of the judgment debt than with ascertaining facts crucial to the determination of a violation in this case. As such, the Division did not have a reasonable basis in law and fact at the time it initiated the action against Petitioner and therefore said proceeding was not substantially justified. After hearing, a Recommended Order was entered on April 11, 1989, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that the Petitioner, Nevin H. Nordal, was acting as the seller of his own property and not as a broker in the transaction in question and that the sum of money received by the Petitioner was not properly escrowable property. Additionally, the recommendation was based on conclusions of law that Subsection 475.25(1)(d), Florida Statutes, the subsection under which the Petitioner was charged, only applies when escrowed property is involved and is not applicable in instances where a real estate broker is acting as the seller of his own real property unless the contract for sale establishes the seller/broker as the escrow agent, citing Fleischman. Other types of contractual disputes, whether involving personal real estate transactions by a licensee or not, may not be enforced by disciplinary action undertaken by a regulatory agency. The fact that a judgment had been rendered against the Petitioner by the civil court does not, by itself, make a contractual dispute actionable by a regulatory agency since such a judgment was nothing more than a debt similar to any debt owed to a bank or a department store. Mere refusal to pay such debts is not a ground for discipline under Chapter 475. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation contained in the Recommended Order and dismissed the Administrative Complaint on May 16, 1989. The Petition for Attorney's Fees and Costs pursuant to Rule 22I-6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, subsequently filed was timely, having been filed within sixty days (60) after the date on which the Petitioner became a prevailing small business party. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,160.00 and costs in the amount of $505.65 in DOAH Case NO. 88-3758. These fees and costs are reasonable. At the Final Hearing in this cause, Petitioner's attorney filed an Affidavit as to Additional Fees and Costs incurred by Petitioner in the preparation for and litigation of Petitioner's entitlement to an award of attorney's fees and costs under Section 57.111, Florida Statutes. Said Affidavit stated the additional attorney's fees incurred as $530.00 and the additional costs as $15.40. The additional fees and costs are reasonable. No evidence was presented that demonstrated the presence of any special circumstances which would make an award of attorney's fees and costs unjust in this case. Petitioner is entitled to an award of attorney's fees in the amount of $5,690.00 and costs in the amount of $521.05 for a total amount of $6,211.05 due to Petitioner from Respondent.
Findings Of Fact At all times material to this case, Respondent Bruce D. Robertson ("Respondent") was a licensed real estate broker, license #0343680, operating as a president and qualifying broker for IDC Properties ("IDC") At all times material to this case, IDC was a corporation registered as a real estate broker, license #0234614, located at 17980 San Carlos Boulevard, Fort Myers Beach, Florida. By agreement dated January 16, 1990, the Respondent agreed to pay to salesperson Randy Thibault a commission of $10,362.50 upon the closing of the sale of property at "Old Pelican Bay, Inc.," to Paula E. Brown, hereinafter referred to as the "Brown transaction". On July 5, 1990, the Brown transaction closed. The Respondent received the commission funds related to the sale of the property. The Respondent subsequently issued a check in the amount of $10,362.50 payable to Mr. Thibault. When Mr. Thibault attempted to negotiate the check, he was informed that the Respondent had issued a stop payment order on the check. Mr. Thibault thereafter filed a civil complaint against the Respondent in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida Case No. 90-5851-CA. The matter was heard in a bench trial. On October 3, 1991, Mr. Thibault obtained a Final Judgement in the amount of $11, 817.42 against IDC for the sum owed plus interest. On October 28, 1991, Mr. Thibault obtained a Final Judgement in the amount of $14,551.31 against IDC for the sum owed plus interest, attorney's fees and costs. On November 4, 1991, the Respondent filed a Notice of Appeal in the matter in the Second District Court of Appeal but subsequently abandoned the appeal. At hearing, the Respondent asserted that Mr. Thibault received his commission share at the closing. The Respondent presented no credible documentary evidence to support the claim. The Respondent also asserted that Mr. Thibault misled the Respondent as to Mr. Thibault's role in the sale of other unrelated property and that the Respondent intends to take legal action against him. The Respondent presented no credible documentary evidence to support the claim. The Respondent admitted that the Final Judgement obtained by Mr. Thibault remains unsatisfied and stated that stated that he will not pay the judgement pending resolution of the unrelated matter alleged above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a Final Order determining Bruce D. Robertson and IDC Properties, Inc., guilty of the violations set forth herein and revoking the licenses identified herein. DONE and ENTERED this 19th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6308 The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. The Respondent did not submit a proposed recommended order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Bruce D. Robertson IDC Properties, Inc. 17980 San Carlos Boulevard Fort Myers, Florida 33931
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint; whether those acts violate Subsections 475.6221(1) and (2) and 475.624(2), (4), and (14), Florida Statutes (2004),1 and Florida Administrative Code Rule 61J1-4.010(6)2; and, if so, what penalty, if any, should be imposed against Respondent’s license.
Findings Of Fact Petitioner is the state agency responsible for regulating persons licensed in Florida as real estate appraisers. Respondent is licensed in Florida as a residential real estate appraiser pursuant to license number 5451. Petitioner issued the current license to Respondent at 6775 Overlook Drive, Fort Myers, Florida 33919. On June 5, 2005, Respondent was a trainee appraiser in the state pursuant to registration RI 0005451. Respondent developed, signed, and communicated an appraisal report (the report) for property without the knowledge or supervision of a licensed appraiser (her supervisor). The property is located at 2248 Ephraim Avenue, Fort Myers, Florida (the property). Respondent affixed the digital signature of her supervisor to the report without his knowledge or consent and checked the certification box on the report indicating that her supervisor personally inspected the property. Respondent’s supervisor never inspected the property. Respondent’s supervisor did not assign the appraisal to Respondent. Respondent accepted payment for the report from someone other than her supervisor, specifically the appraisal client. Respondent did not enter into the experience training log, which is reviewed by her supervisor and others, the name, address, type of property appraised, and the signature and license number of her supervisor. The previous findings show that Respondent misrepresented herself as a licensed appraiser while Respondent was still a trainee. In addition, Respondent started her own appraisal company while she was a trainee. The name of the company is Hot Appraisals LLC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the charges alleged in the Administrative Complaint, ordering Respondent to pay $3,492.10 in investigative and administrative costs, and revoking Respondent’s residential appraiser license. DONE AND ENTERED this 14th day of September, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 14th day of September, 2007.
