The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this cause are presented through a bid protest filed by Hobbs Construction questioning the notice of the Florida Department of Transportation which rejected all bids on State Project No. 49010-3543, Franklin County, Florida, in which Hobbs was the apparent low bidder. In particular, Hobbs challenges the rejection of its bid, wherein the Department has claimed that Hobbs has failed to meet the Disadvantaged Business Enterprise contract requirements.
Findings Of Fact On June 14, 1984, Hobbs Construction and Development, Inc., submitted an application for recognition by the State of Florida, Department of Transportation, to perform work for the department in an additional work class for which Hobbs had not previously qualified. On June 22, 1984, this request for qualification was approved as evidenced by the correspondence of that date from J. Ted Barefield, Chief of Bureau of Contracts Administration, Department of Transportation, addressed to Hobbs. A copy of that correspondence may be found as Petitioner's exhibit number two admitted into evidence. The Notice of Qualification was received by Hobbs on June 26, 1984. Having been recognized in the new classification, Hobbs was entitled to qualify as a bidder on Budget Item 3112655, which is also known as State Project No. 49010-3543, Franklin County, Florida. (Prior to the new classification or qualification of Hobbs, Hobbs was entitled to purchase the plans for the aforementioned job, but was not entitled to receive the actual bidding documents [specifications] related to the job.) On June 26, 1984, the date that Hobbs was informed of its qualification to pursue the subject job in Franklin County, it obtained the bid packet, job specifications, from the Department of Transportation. Even before qualification, Hobbs being interested in the Franklin County job made attempts on June 21, 1984, to contact Disadvantaged Business Enterprise subcontractors, known as DBE subcontractors, realizing that the contract called for participation by a DBE subcontractor(s). Glen Powell Contracting, Inc., Lynnhaven, Florida, and Bryan L. Therman Contractors, Inc., of Chipley, Florida, were among the DBE subcontractors which Petitioner was interested in and attempted to contact. It was contemplated that those contractors would perform the installation of rip rap which constituted a high percentage of the project work. Oglesby and Hugg, a DBE subcontractor, was also contacted about installation of rip rap and indicated that they were not interested in the project. The contact with Therman was by talking to someone in hips office, leaving a message for Therman to call the Hobbs representative. The Therman group did not make a return call. Glen Powell and another official within the Glen Powell corporation, reviewed the project with officials of Hobbs' Construction Company and indicated that Powell would not be able to give a quote for the subcontracting rip rap work given the nearness of the time to submit the bid. Powell had been reached on June 25, 1984, and made the assessment of the bid materials on June 26, 1984, at which point he declined to give a price quote for the subcontracting rip rap work. Several DBE grassing subcontractors were also contacted by Hobbs and declined to perform work given the location of the project and the small amount of grassing to be installed. When the bid was submitted by Hobbs, the only DBE subcontractor that was listed was Black Olive Nursery and Landscaping of 21053 N.W. 37th Court, Miami, Florida. That class of work was landscaping in the amount of 9,599.30, which is approximately .6 percent of the Hobbs bid proposal in the amount of $1,585,170.30. Hobbs submitted the bid on the Franklin County project in time to meet the June 27, 1984, bid opening. When the bids were opened, Hobbs bid reported above was the apparent low bid for the project. As was the custom of the Department of Transportation, its Contracts Awards Committee met to determine the acceptability of the bids for the Franklin County project and to decide whether to go forward with the project in the face of the bids offered. At that time, the committee being of the belief that Hobbs and the second low bidder both failed to meet DBE participation requirements of the contract and being persuaded of the need to modify the plans and revise the specifications related to the installation of rip rap it was decided to reject all bids. That decision was by unanimous vote of the Contracts Award Committee of the Department of Transportation and this advice was accepted by the agency head. A copy of the minutes of that committee, which reflects the decision of the committee, may be found as Department's exhibit number two. On July 24, 1984, Hobbs was noticed of the Department's intent to reject all bids for reason that the Department desired to revise the plans and specifications and in view of the fact that, according to the Department, Hobbs had failed to meet the DBE contract requirements. A copy of this Notice of Bid Rejection may be found as Petitioner's exhibit number one admitted into evidence. That notice affords an opportunity for Hobbs to challenge the bid rejection through request for a Chapter 120, Florida Statutes hearing. Hobbs timely availed itself of that opportunity leading to the formal hearing which is the subject of this recommended order. To meet the DOE requirements of the contract, it was necessary for Hobbs to designate 2 percent of the contract amount for DOE subcontractor participation. In the alternative, if Hobbs was unable to achieve that goal, it was necessary for Hobbs to provide sufficient information to show that it had made a good faith effort to meet the goal. The issues joined in this case concern whether Hobbs timely provided its explanation of its good faith efforts to obtain DBE participation in the project and if that explanation was provided in a timely fashion, whether it was sufficient information to demonstrate good faith compliance. Within the specifications, a copy of which is found as joint exhibit number one, there are found Supplemental Special Provisions dating from May 31, 1984. Subarticles 2-5.3.2 and 2-5.3.3, deal with the question of DBE participation and the need to submit good faith efforts. The language of those provisions is as follows: 2-5.3.2 Submittals for Contracts with Goals: For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractors bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractors bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. 2-5.3.3 Submittals for Evaluating Good Faith- Efforts: If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals shall be submitted. In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs or WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifica- tions. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided, however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity, and intensity of these efforts. These provisions are under the general heading of Preparation of Proposals related to Articles 2 through 5. Subarticle 2-5.3.2 indicates that the bidder shall establish its participation information related to DBE subcontractor with the bid proposal or if the goals are not met, demonstrate that good faith efforts were made to meet the goals. The contract is awarded upon condition that the DBE participation goals are met, or upon establishing that good faith efforts were made to meet the goals and that the goals were not attainable. The form known as the DBE Utilization Form No. 1 was provided in this instance. It contemplates information as to success in meeting the DBE goals. A copy of that form may be found as part of the joint exhibit one. It contains no specific place to explain the good faith efforts that were made by the Petitioner to achieve those goals, in view of the Petitioner's lack of success in meeting the goals and Hobbs didn't submit good bid information with its bid. The bid was also submitted under the ausnices of Rule 14-78.03, Florida Administrative Code (May 1984). The first effort which Hobbs made at describing his alleged good faith efforts to employ the assistance of DBEs came on August 29, 1984, in correspondence of its project manager. This correspondence is found as State of Florida, Department of Transportation's exhibit number three and is correspondence directed to another official within Hobbs Construction. This statement of efforts to obtain minority or DBE participation in the project was along the lines of testimony given in the course of the hearing. No information, related to compliance, was given to the Department of Transportation prior to its notice of intent to reject the bid of July 24, 1984. Having no obligation to request that information from Hobbs, the Department of Transportation did not attempt to stir Hobbs into action on the issue of indication of good faith, prior to its notice of intent to reject Hobbs bid. Hobbs' explanation was eventually advanced ate the final hearing. Factually, even if one were to assume that the Petitioner could submit its prebid letting efforts at good faith compliance with the DBE goals, at a time beyond the filing of its bid proposal, the efforts do not comport with the concept of good faith as described in Subarticle 2-5.3.3 of the bid proposal and Section 14-78.03, (2)(b) 4.b., Florida Administrative Code related to an assessment of the efforts at good faith compliance. In this sense, Hobbs failed to afford sufficient time for DBE subcontractors to provide responses to the opportunity to offer quotations for the subcontracted work. The Subarticle and Rule contemplate seven days notice prior to the bid letting. The contracts made by the Petitioner were less than seven days prior to the letting of June 27, 1984. This left the one subcontractor who expressed some interest in the project, Powell, inadequate time to offer its price quote. Petitioner tries to explain its position on the question of the timeliness of its attempt by stating that it only became qualified five days before the bid letting and was only informed of that qualification one day before th opening. Given the fact that the Petitioner made application for such qualification on June 14, 1984, only thirteen days before the bid letting, its tardiness did not leave adequate time to afford potential DBE subcontractors the opportunity to respond to the work opportunity envisioned in this project. Finally, given the close proximity in time between the efforts of the Petitioner to seek DBE participation and the bid letting date and the problem related to the Petitioner's late expression of an interest in qualification for this class of job, Petitioner cannot be said to have offered much in the way of quality and intensity in the efforts to enlist DBE subcontractors for this project, as envisioned by the Subarticle and Rule provisions describing good faith efforts at compliance.
The Issue Whether the license of Respondent, O. Tom Macon, should be suspended, or whether other disciplinary action should be imposed.
Findings Of Fact The Respondent, O. Tom Macon, is a registered real estate salesman residing in Fort Myers, Florida, who holds License number 0054554 as a real estate salesman. On April 20, 1978, an administrative complaint was filed against the Respondent alleging that he was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in a business transaction. The Respondent requested an administrative hearing. In January of 1974, Mr. James Fortiner, Dr. David Brown, and Respondent Macon purchased the Professional Arts Building in Fort Myers, Florida. The transaction was documented by a deed from the seller to the Respondent as trustee. Title was transferred to a corporation, Professional Arts Building of Fort Myers, Inc., in December of 1974. James Fortiner transferred his interest in the property to Respondent Macon, leaving the Respondent with a two-thirds interest in the property and Dr. Brown with a one-third interest. At a later date Respondent Macon obtained a $20,000.00 personal loan from a man by the name of Phil Elliott, secured by a second mortgage on the subject property. He did not secure Dr. Brown's permission to mortgage the property or tell him of the encumberance. Subsequently, Respondent Macon contracted to sell the Professional Arts Building to Jeanne L. Eveleth in February of 1976. At the closing in March of 1976, which Dr. Brown did not attend, a check for $33,433.42 was deposited to the account of the Professional Arts Building, Limited. Simultaneously, Respondent Macon paid his personal debt to Mr. Elliott out of the proceeds of the sale and satisfied the mortgage. A final statement established that Respondent Macon owed personal debts to the limited partnership in the amount of $6,972.45, and that the limited partnership owed Dr. Brown this amount of money. After the sale of the property and the payment of Respondent's personal debt out of the proceeds, there were no assets left in the corporation. When confronted with this situation, the Respondent promised Dr. Brown he would pay him the money the Respondent had used without authorization, but in November of 1976, the Respondent went into voluntary bankruptcy. At that time Respondent Macon still owed Dr. Brown the full amount due to Dr. Brown as a result of the sale of the subject property. Bankruptcy, however, has no effect on the authority of Petitioner to discipline. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends suspension of Respondent O. Tom Macon's license until such time as he makes full restitution to Dr. Brown. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
The Issue The issue to be resolved is whether the Respondent's license as a real estate broker should be disciplined because he violated a lawful order of the Florida Real Estate Commission and because he failed to timely account for and deliver an escrowed real estate deposit.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility to prosecute Administrative Complaints pursuant to Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant to those statutes. Respondent Richard F. Gallo was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0029993 in accordance with Chapter 475, Florida Statutes. The last license issued the Respondent, as of November 7, 1990, was as a broker-salesman % Bucek & Bucek, Inc., in Port St. Lucie, Florida, with a home address of 2664 West End Road, West Palm Beach, Florida 33406. That is the same address Respondent placed on the request for hearing he filed in this case. On or about March 20, 1989, an Escrow Disbursement Order was issued by the Florida Real Estate Commission and received by the Respondent whereby the Respondent, as a broker, was ordered to disburse a $300 earnest money deposit to the buyers, Eugene and Dorothy McCrory, as a refund in accordance with the terms of a sales contract. The escrow funds were to be disbursed to the buyers in accord with the terms of their offer. As of March 22, 1990, the Respondent and not disbursed the $300 earnest money deposit to the buyer, Eugene McCrory. On April 11, 1990, almost one year after the filing of the Administrative Complaint, a stale-dated check for $300 was delivered to Eugene McCrory. From January 3, 1990 through January 22, 1990, Petitioner's Investigator Terry Giles made a diligent effort to locate the Respondent at his business address and listed home address, but could not contact him at either place. Investigator Giles has been unable to locate and interview the R Respondent and no response from the Respondent was made to Investigator Giles. The only statement received from Mr. Gallo was the letter addressed to counsel for the Commission in this case on July 9, 1990. (Exhibit 2) No proof of the contentions made in that letter was offered at the final hearing. The contentions are rejected as unsupported. The Respondent was aware that a Division of Administrative Hearing's case number had been assigned and therefore that the proceeding were forthcoming. (See, Exhibit 2.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Florida Real Estate Commission finding the Respondent: guilty of failing to account for or deliver money 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, as prohibited by Subsection 475.25(1)(d), Florida Statutes, as charged in Count I of the Administrative Complaint; and guilty of having violated the provisions of a lawful escrow disbursement order as prohibited by Subsection 475.25(1)(e), Florida Statutes, as charged in Count II of the Administrative Complaint. It is further recommended that the Final Order suspend all real estate certifications, licenses, permits and registrations of the Respondent as to Counts II of the Administrative Complaint, for a period of 2 years and that he be fined $1,000 and that such real estate certifications, licenses, permits and registrations of the Respondent also be suspended concurrently for a period of one (1) year as to Count I of the Administrative Complaint, and that he be fined an additional $1,000 for a total fine of $2,000. RECOMMENDED this 15th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 15th day of January, 1991. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Richard F. Gallo 2664 West End Road West Palm Beach, Florida 33406 Darlene F. Keller, Director Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Vickie Ann Hay is, and at all times material to this case was, a licensed real estate broker in the State of Florida, license #1483791. The most recent license was issued as a broker-salesman to AAIM Realty Group, Inc., 38 Homestead Road, Lehigh Acres, Florida 33936-6646. In or about March of 1990, Respondent Hay, while licensed and operating as a real estate salesman in the employ of C. Bagins First, Inc., was contacted by Vicki Wright, daughter of Respondent Regas. Ms. Wright told Respondent Hay that Ms. Wright had referred buyers interested in purchasing numerous vacant lots. During March and April of 1990, Respondent Hay used her father's name as a "straw buyer" and prepared approximately 173 contractual offers to purchase vacant lots from various owners at various prices. The offers recited that the "straw buyer' had placed in escrow a $100 deposit with Fleetwood Title Corporation with each offer to purchase. There were no such deposits made. Some of the offers were accepted verbally and others were accepted in writing by the sellers. With 173 offers being made, there should have been a total escrow deposit of $17,300 made in connection with the offers to purchase. There were no deposits made. Respondent Hay knew or should have known that no deposits were made. Respondent Hay failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.
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 reprimanding Respondent Vickie Ann Hay, placing the licensee on probation for a period of one year, imposing a fine of $1,000, and requiring Respondent Hay to complete a 45 hour salesman's postlicensing course. DONE and ENTERED this 2nd day of December, 1991, 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 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent Vickie Ann Hay did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order, except as follows: 3. At hearing, the Petitioner amended the allegation to state that Ms. Wright "referred" buyers interested in purchasing the lots. 6-7. Rejected, irrelevant. The allegations related to Respondent Regas were severed and are not relevant to this Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. 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 P. O. Box 1900 Orlando, Florida 32802-1900 (407) 423-6134 Ms. Vickie Ann Hay 811 Fireside Court Lehigh Acres, Florida 33936 (813) 368-6444 Robert L. Ratliff, III, Esq. 2359 Periwinkle Way Sanibel Island, Florida 33957
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the law of the State of Florida, in particular, Section 20.30, Florida Statutes, and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent Gustavo Mejido is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0059653 in accordance with Chapter 475, Florida Statutes. The last license issued said Respondent as a broker was for the address of the offices of G.M. Realty, Inc. Respondent, G.M. Realty, Inc., is now and was at all times material hereto a corporation registered as a real estate broker in the State of Florida having been issued license number 0208962 in accordance with Chapter 475, Florida Statutes. The last license issued was at the address of 715 S.W. 73rd Avenue, Miami, Florida. Respondent Gustavo Mejido was at all times pertinent hereto the qualifying broker for Respondent G.M. Realty, Inc. On August 30, 1990, Hector Sehwerert, an investigator employed by Petitioner, conducted an office inspection and audit of the office account and of the escrow/trust account maintained by Respondents. The audit reflected that there was a shortage in the escrow/trust account in the amount of $1,006.68. Respondents' sales escrow/trust liability was $88,220.00 while the balance of the escrow/trust account was $87,213.32. Respondents were unable to immediately explain the cause of the shortage, but on the same day the shortage was detected, Respondent Mejido caused the shortage in the escrow/trust account to be corrected. He caused the sum of $1,006.68 to be transferred from Respondent G.M. Realty's operating account to its escrow/trust account. The undisputed testimony at the formal hearing was that the discrepancy was caused by a clerical mistake. Respondents failed to reconcile its escrow/trust account for the month of July 1990, and for subsequent months as required by the rules of the Florida Real Estate Commission. While Respondents had utilized its own system of reconciling its books for 14 years without having any other difficulty, this system was defective because the reconciliation did not include a determination of the total amount of escrow liability. Respondents have agreed to use the reconciliation method recommended by the Petitioner in the future. The licenses of Respondents have not been previously disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Respondents have violated the provisions of Section 475.25(1)(e) and (k), Florida Statutes, and which issues a letter of reprimand to said Respondents for such violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May, 1991. CLAUDE B. ARRINGTON 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 16th day of May, 1991. COPIES FURNISHED: Steven W. Johnson, Esquire Florida Department of Professional Regulation Real Estate - Legal Section Hurston Building - North Tower Suite N-308 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Armando E. Lacasa, Esquire 3191 Coral Way Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 91-0376 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-6a. are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6b. are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 7 are rejected as being contrary to the finding that the month audited was July 1990, not August 1990. The remaining proposed findings are rejected as being the recitation of testimony or as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondents are adopted in material part by the Recommended Order.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-10., below. Stipulated Facts A call for bids was published by Respondent, Florida Board of Regents, for BR-198, Veterinary Medicine Teaching Hospital Expansion - Phase II (BR-198), located at the University of Florida, Gainesville, Florida, in the publication known as the Florida Administrative Weekly. Sealed bids were received on February 21, 1991, at which time the bids were publicly opened and read aloud. On February 27, 1991, Dooley and Mack Constructors, Inc. (Petitioner) was informed by the University of Florida that the first and second apparent low bidders for the project did not meet MBE requirements, and that Petitioner was now the apparent low bidder for the project. The University requested that Petitioner submit its MBE good faith efforts for review. On March 1, 1991, Petitioner was informed by the University of Florida that it failed to meet the MBE good faith effort requirements, and therefore, its bid was rejected. The reason for rejection of Petitioner's bid was that Petitioner's advertisement for MBE participation, as part of its demonstration of good faith effort, did not appear in the media at least seven days prior to bid opening. Intervenor, the next apparent low bidder, submitted good faith efforts for review by the University and was determined to be the lowest responsive bidder. Intervenor was awarded the project by the Chancellor of the Florida Board of Regents on March 18, 1991. By letter dated March 19, 1991, Petitioner was advised that the Chancellor had awarded the contract to Intervenor. Petitioner was provided an opportunity to file a notice of protest pursuant to Section 120.53(5), Florida Statutes. Petitioner filed a timely notice of protest with Respondent on March 22, 1991. Petitioner timely filed a formal bid protest in regard to this project which was received by Respondent on March 27, 1991. By facsimile (FAX) letter dated February 13, 1991, Petitioner requested that the Gainesville Sun, a newspaper in Gainesville, Florida, run an advertisement for one day to solicit bids from qualified MBE companies for BR- 198. The advertisement was published in the February 18, 1991 edition of the newspaper. The Project Manual, Section 1-3 of 1-10 Pages, Special Conditions section, paragraph 1.7.2.2., provides that advertisements for minority business enterprises must run or be published on a date at least seven days prior to bid opening. Other Facts The Project Manual is an assembled volume which contains instructions to bidders, bidding requirements, sample forms, and contract conditions and specifications for BR-198. A special condition of the bid requires that at least 15 percent of the project contract amount be expended with MBEs certified by the Department of General Services. 1/ In the absence of compliance with this requirement, a bidder must demonstrate that good faith efforts were expended to comply. A contractor desiring to demonstrate that a good faith effort was undertaken to meet the 15 percent goal is required by the bid's special conditions to have advertised to inform MBEs of subcontracting opportunities. The importance of advertising is to alert the minority community regarding projects that are out for bid and are available to subcontractors. The advertisements must have been run in trade association, or minority-focus media, or a local newspaper with a minimum circulation of 25,000. Advertisements must be run or published a minimum of seven days prior to bid opening. Petitioner's advertisement in a local newspaper, the Gainesville Sun, was not published until February 18, 1991, only three days prior to the February 21, 1991 bid-opening. Further, the advertisement was not faxed to the newspaper until February 13, 1991, and then with the written request to "please place as soon as possible and run for one day." A letter from the newspaper to Petitioner stated that the legal notice advertisement was published on February 18, 1991, as opposed to February 16, 1991, due to a date error on their FAX machine. The latter date, even if publication had occurred, would not have complied with bid requirements. Petitioner also submitted a project notice published in the construction industry bulletins F.W. Dodge Reports, dated February 1, 1991; CMD Reports, dated February 18, 1991; and the Mid State Notifier, dated February 1, 1991. The notices listed Petitioner as well as other bidding contractors. However, it is specifically found that no direct admissible evidence supports Petitioner's responsibility for initiating publication of these notices, a requirement of the good faith effort. Specifically, the notices were published as the result of information received by the publications from the University of Florida. Therefore, good faith efforts on Petitioner's behalf may not be established by either publication, regardless of publication date. Moreover, the F.W. Dodge Reports, CMD Reports, and the Mid State Notifier are private subscription publications directed toward the construction industry in general as opposed to any particular trade in the construction industry. Further, these publications are not directed to or focused on minority businesses. A trade association publication is generally published by not-for-profit associations, such as the Association of General Contractors, and various trade unions. Petitioner did not comply with advertising requirements related to a good faith effort, a prerequisite for bid award. Petitioner's failure to comply with constitutes a material defect in Petitioner's bid response.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in BR-198 to Intervenor as the lowest responsible bidder. DONE AND ENTERED this 27th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-2703BID 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. 1.-10. Adopted in substance, although not verbatim 11.-14. Rejected, unnecessary. Adopted in substance, though not verbatim. Rejected, unnecessary. Rejected, unnecessary, argumentative Adopted. Intervenor's Proposed Findings. 1.-16. Adopted in substance, though not verbatim. 17-18. Rejected, unnecessary. Respondent's Proposed Findings. 1.-10. Adopted in substance. 11.-22. Adopted in substance, though not verbatim. 23.-24. Rejected, unnecessary. 25.-40. Adopted in substance, though not verbatim. COPIES FURNISHED: William R. Dooley, Esq. 2070 Ringling Blvd. Sarasota, FL 34237 Jane Mostoller, Esq. Florida Board of Regents Suite 1522 325 West Gaines St. Tallahassee, FL 32399-1950 Alfred J. Malefatto, Esq. 777 South Flagler Drive Suite 310-East West Palm Beach, FL 33401 Chancellor Charles B. Reed State University System of Florida 107 West Gaines St. Tallahassee, FL 32399-1950
The Issue Whether Petitioner's application for licensure as a community association manager by examination should be granted.
Findings Of Fact Petitioner, Fred Storch (Storch), filed an application with Respondent, Department of Business and Professional Regulation, Community Association Managers (Department) on April 14, 1998, for licensure as a community association manager by examination. The application contained the following question: Have you now or have you ever been licensed or certified in any profession such as real estate, insurance, securities, etc., in Florida or in any other state, province, district, territory, possession or nation? If the applicant answered "yes" to the question, the application required the applicant to list the name of the profession, the license number, the date the license was first obtained, and the current status of the license. Storch answered "yes" to the question and indicated that he currently had a real estate salesperson's license in Florida and a real estate broker's license in New York. At the final hearing, Storch testified that he had a current mortgage broker's license and a real estate salesperson's license from New York and that he was currently licensed in Florida as a real estate salesperson and had been licensed in Florida as a mortgage broker. The application contained the following question: Has any license, certification, registration, or permit to practice any regulated profession been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? This includes any disciplinary action taken against you such as a reprimand, probation, etc. Storch answered "no" to the question. The following question was also on the application: Have you ever relinquished or withdrawn from any license, certification, registration or permit to practice any regulated profession in this or any other state, province, district, territory, possession or nation or is any proceeding now pending? Storch answered "yes" to the question and provided the following explanation. I relinquished my license as a Mortgage Broker because I was unable to submit to an audit on a timely basis due to my son's poor health. My son is afflicted with epilepsy, which cannot be controlled with medication. He is having surgery on April 21, 1998 at George Washington University Hospital, Washington, D.C., to eliminate the cause of his seizures. I have enclosed the documentation from the Comptroller's Office and my son's doctor. In 1994, Storch and the Florida Department of Banking and Finance (DBF) entered into a Stipulation and Consent Order which was incorporated in a Final Order, dated January 13, 1995. Storch and DBF agreed that Storch's mortgage broker's license was suspended until a location and occupational license was obtained. Storch agreed to pay an administrative fine of $500 and agreed to cease and desist all violations of Chapter 494, Florida Statutes. On February 12, 1997, DBF entered a Default Final Order and Notice of Rights, finding that Storch had acted as a mortgage broker without a current active license and that Storch had failed to provide his books and records for inspection as requested by DBF. Storch was ordered to cease and desist from violating Chapter 494, Florida Statutes, and all registrations and licenses previously issued to Storch, which included his mortgage broker's license, were revoked. By letter dated February 13, 1997, Storch advised DBF that he would be willing to turn in his license if DBF would not pursue any action against him then or in the future. On September 18, 1997, the Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Storch alleging that Storch had violated Section 475.25(1)(s), Florida Statutes, because his residential mortgage broker's license had been revoked. On December 17, 1997, the Department of Business and Professional Regulation, Division of Real Estate, entered a Final Order, disciplining Storch's real estate salesperson's license. The Final Order stated that Storch was guilty of violating Section 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint and required Storch to pay an administrative fine of $100.00 and investigative costs of $313.60.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Fred Storch's application for licensure as a community association manager. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of March, 1999. COPIES FURNISHED: Edward Broyles, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Thomas G. Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Fred Storch 7782 Edinburough Lane Delray Beach, Florida 33446
