The Issue The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether Respondent functioned as an employer is a preliminary issue to be resolved.
Findings Of Fact Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees. Respondent works in the fence construction industry and employs four people. Petitioner's investigator identified three people preparing a worksite for the erection of a privacy fence at 3000 Majestic Oaks Lane South in Jacksonville, Florida. The investigator then contacted Respondent and confirmed that the three identified individuals in addition to Respondent, were employed by Respondent for a total of four employees. The investigator determined none of the employees had workers’ compensation exemptions nor had Respondent secured the payment of workers’ compensation to his employees. On April 27, 2005, the investigator served a SWO on Respondent. The SWO required Respondent to cease all business operations in Florida. At the same time, the investigator served a Request for Business Records for Penalty Calculation on Respondent, requesting payroll records from Respondent for the period April 27, 2002, through April 27, 2005 (the audit period for penalty calculation). Respondent provided no records to the investigator. On May 23, 2005, the investigator determined 520 days had passed between the beginning of the audit period and September 30, 2003, and the penalty for noncompliance during this period was $52,000.00. The investigator also determined that during the period October 1, 2003, through the end of the audit period, the statewide average weekly wage paid by employers was $651.38; Respondent had four (4) employees; the imputed weekly payroll for Respondent’s employees was $320,848.00; using approved manual rates Respondent should have paid $97,969.40 in workers’ compensation premium; and the penalty for noncompliance during this period was calculated to be $146,954.12. On May 26, 2005, Investigator Bowman served the Amended Order of Penalty Assessment on Respondent. The Amended Order assessed Respondent with a penalty for the entire audit period in the amount of $198,954.12. The investigator obtained records created by Respondent demonstrating Respondent placed a bid on a job on June 1, 2005, and Respondent completed the job on July 1, 2005. On July 19, 2005, the investigator served a Corrected Amended Order of Penalty Assessment on Respondent, which assessed a penalty in the amount of $3,000.00 for violating the terms of the SWO. Respondent violated the SWO on two separate days, the day of the bid and the day the work was completed. No competent substantial evidence was presented regarding intervening business operations.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order affirming the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Corrected Amended Order of Penalty Assessment, requiring Respondent to pay a penalty in the amount of $200,594.12 to Petitioner, and requiring Respondent to cease all business operations in Florida. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 15th day of September, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers Compensation 200 East Gaines Street Tallahassee, Florida 32399-422 Martin D. Snyder 10367 Allene Road Jacksonville, Florida 32219 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carols G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following facts were found: At all times relevant hereto, respondent was licensed as a real estate salesman in the State of Florida having been issued license No. 0204657 which license was inactive and scheduled to expire on March 31, 1983. Respondent's license was renewed on April 1, 1983. On or about May 13, 1983, on Information filed by the office of the State Attorney of the 12th Judicial Circuit in the State of Florida, respondent was charged with the commission of prostitution, lewdness or assignation; contrary to Section 796.07, Florida Statutes. Thereafter, on December 19, 1983, respondent made her appearance in the County Court of Sarasota County, Florida, before the Honorable Robert Stahlschmidt, County Court Judge, and entered a plea of no1o contendere to the charge of prostitution. On the same day, Judge Stahlschmidt, withheld adjudication; sentenced respondent to sixty (60) days in the county jail which was suspended; fined respondent $340, including court costs; placed respondent on supervised probation for a period of one (1) year under the supervision of the Salvation Army Correction Division upon the condition that she serve 50 hours of community services and not be involved in any acts of prostitution.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the respondent be found guilty of violation of Section 475.25(1)(f), Florida Statutes, 1983. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board issue a letter of REPRIMAND to the respondent. Respectively submitted and entered this 17th day of May, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Gerald C. Surfus, Esquire 150 East Avenue South Sarasota, Florida 33577 Sharla Speakman Post Office Box 4202 Sarasota, Florida 33578 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802
The Issue Whether Petitioner, Nidia Cruz, was subjected to discriminatory acts and/or interference with her exercise or enjoyment of fair housing rights as alleged in her Petition for Relief.
Findings Of Fact Petitioner, Nidia Cruz, after notice, failed to appear at the final hearing. Respondent, Tabitha B. Legg, appeared at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Nidia Cruz. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 12th day of November, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Nidia Cruz 45 Emanuel Road, Lot 3 Brunswick, Georgia 31525 Tabitha B. Legg 6445 Addax Avenue Cocoa, Florida 32927 Nidia Cruz 145 Emanuel Road, Lot 3 Brunswick, Georgia 31525 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact In June, 1975 Randall J. Conley, attempting to set his son and daughter-in-law up in business, arranged for them, with his help, to purchase Roger Sparks' business known as Sparky's Pizza. By Exhibit 6 dated June 17, 1975 the owner and lessor of the premises executed, with Randall M. Conley and his wife Sandra, a Consent to Assignment whereby the lease between the lessor and Mr. Spaghetti and Roger Sparks was assigned to the younger Conley and his wife and the previous lessees were released from further liability under the five year lease they had executed on April 30, 1974. (Exhibit 10) By Collateral Assignment Note dated 6-2-75 Randall J. Conley, Randall M. Conley and Sandra Conley obligated themselves to pay the Florida Center Bank $9750 over a five-year period and pledged the equipment and fixtures in the pizza business as security therefor. In October, 1975 Sandra, who had been operating the business, left for another job preparatory to separating from her husband. The business closed on November 1, 1975 and Defendant learned that the lessees were delinquent in the rent and payments on the chattel mortgage. Thereafter he attempted to sell the business. In November, 1975 Charles Hicks, the owner of a small fast-food chain, while looking for a site for a franchisee, saw the empty Sparky's Pizza and ascertained that information on occupying the property could be obtained from Defendant. He called Defendant's office and was told the rent was $260 per month. Arrangements were made for Defendant to show him the property the same afternoon. On November 25, 1975 Defendant showed Hicks and his putative franchisee, Ronald Beasley, the property. After being assured that the rental included the equipment and fixtures they agreed to accept an assignment of the lease if the lessor agreed and to bind the transaction Hicks gave Defendant a check for $200 made payable, at the request of Defendant, to Randall J. Conley. No written agreement was executed by the parties at this time. The check stated on its face that it was a deposit on lease of building here involved. The following day Defendant called Hicks and told him that the lessor had agreed with the assignment and that he should bring a check for $7,000 to pay for the equipment, plus a check for the rent. Hicks objected to the purchase of the equipment and demanded return of his $200 deposit. Defendant refused to return the money and Hicks immediately tried to stop payment on the check. When he did so he learned that his check had been cashed by Defendant as soon as the bank opened that morning, November 26. After Hicks was unsuccessful in getting his deposit returned he reported the incident to the FREC and the complaint here under consideration was filed. Defendant contends that he was operating as the owner of the lease and not in his capacity as a broker; that the consent to assignment of the lease did not result in an assignment; that by executing the collateral installment note he was part owner of the business; that when his daughter-in-law left and the business folded he acquired the leasehold by abandonment; and that he was entitled to retain Hicks' deposit of $200 as liquidated damages. One witness called by Defendant testified that the bank's policy on chattel mortgage loans was that they would only make such loans to the owners of the business. However, he acknowledged that he did not handle the loan here involved and never saw any documents showing Randall J. Conley having an interest in the leased premises, the equipment and fixtures for which was the subject of the loan represented by Exhibit 9. Defendant had advertised the sale of the lease in the newspaper and therein indicated the assignee of the lease would be required to assume payments on the equipment. Neither Hicks nor Beasley ever saw any such advertisement.
Findings Of Fact On March 10, 1983 Marvin L. Lessne was issued a non- active broker license #0051792. His non-active license expired on September 30, 1984 and was not renewed. (Petitioner's Exhibit 1) On September 13, 1984, Marvin Lessne pled guilty to seven cases of Grand theft. (Petitioner's Exhibits 9 and 10). On January 7, 1985, he was sentenced by Judge Patricia W. Cocalis, Circuit Judge for the Seventeenth Judicial Circuit in and for Broward County. His total sentence was for two and a half years in prison, ten years of probation and full restitution to his victims. The total amount of money taken by Mr. Lessne from his victims was approximately $215,000.00. (Petitioner's Exhibit 10) By affidavit, Harold R. Huff, Director of the Division of Real Estate certified that a search of Division records failed to reflect that Marvin Lessne informed the Division of his conviction and subsequent incarceration.
Recommendation It is therefore, RECOMMENDED That a Final Order be entered finding that Respondent violated Section 475.25(f) Florida Statutes. (Count I, Administrative Complaint) and dismissing counts II and III of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1986, at Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986 COPIES FURNISHED: Sue Hartmann Division of Real Estate P.O. Box 1900 400 West Robinson Street Orlando, Florida 32802 Marvin L. Lessne 4341 Northwest 16th Street Apartment 101 Lauderhill, Florida 33313
The Issue Whether Respondent, Brenda W. Smith, violated sections 475.25(1)(b) and 475.25(1)(d)1., Florida Statutes (2013),1/ as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute real estate licensees, pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. Respondent is licensed by Petitioner as a real estate broker in the state of Florida, license BK 534400. Respondent’s address of record with Petitioner is Post Office Box 15453, Panama City, Florida 32406. Respondent’s brokerage, Spirits Realty, Inc., is a registered for-profit corporation in the state of Florida with its principal place of business listed as 3812 Dolphin Drive, Panama City Beach, Florida 32408, and a mailing address listed as Post Office Box 15453, Panama City, Florida 32406. On May 31, 2012, Respondent, on behalf of her brokerage, Spirits Realty, Inc., entered into a property management agreement (Property Management Agreement) with Ronald W. Roberts to manage the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408.3/ The term of the Property Management Agreement was for one year, beginning May 31, 2012, and provided: THIS PROPERTY MANAGEMENT AGREEMENT is made on the 31st day of May 2012 and is effective 31 May 2012 by and between Ronald W. Roberts whose address is 3555 Walden Land, Acworth, Ga 30102, hereinafter referred to as “Owner” and SPIRITS REALTY INC., BRENDA SMITH, LICENSED REAL ESTATE BROKER, Post Office Box 15453, Panama City, Florida 32406, hereinafter referred to as “Agent”. WITNESSETH in consideration of the mutual promises and covenants herein contained, the Owner and Agent agree as follows: The Owner represents to the Agent as follows: (a) The Owner is the sole owner and holder of marketable record title to the following described property: 3803 Long John Drive, Panama City Beach, Florida 32408. The Owner hereby appoints the Agent as the sole and exclusive Agent to Lease and manage the premises known as 3803 Long John Drive. This Agreement is for 1 year beginning 31 May 2012. Agent to enter into an agreement for 1 year lease, $1000 per month rental, tenant to pay Jun/July rent in advance (non-refundable); & $1000 security deposit. The owner agrees to the following: Spirits Realty Inc. Commission of 10% of the rents collected in each calendar month (which shall be deducted from rents collected each month). Spirits Realty Inc., Hancock Bank, holds the security deposit (for liquidated damages) and advanced last months [sic] rent in Escrow. If Agent is not available, Jesse Smith, Admin, is authorized signer. 4. [sic] Owner authorizes the broker to secure tenant; and enter into a 1 year lease. Manage tenant relations collecting, give receipts, holding and disbursing rents to owner, serving notices, initiating eviction & damage actions. Agent will receive and forward $2500 check from tenant to Ron Roberts, for sale agreement of furniture and furnishings, on site. The Property Management Agreement was signed by Ronald W. Roberts and notarized in Cherokee County, Georgia, on May 31, 2012. Notably, the Property Management Agreement does not require advanced notice on the part of the Owner to terminate the Property Management Agreement. On May 31, 2012, Respondent and/or Spirits Realty Inc., ostensibly acting on behalf of Mr. Roberts, entered into a four- page residential lease agreement drafted by Respondent (Lease) with Allen Pridgen and Lori Roark (n/k/a Lori Pridgen), as tenants, for the rental of Mr. Roberts’ property located at 3803 Long John Drive, Panama City Beach, Florida 32408 (the Premises). The term of the Lease was for one year, from June 1, 2012, through June 30, 2013. Curiously, instead of naming Mr. Roberts as the lessor, the first sentence on the first page of the Lease names “Spirits Realty Inc., Brenda Smith, Lic. Real Estate Broker, Agent” as “Lessor.” The bottom of the first page of the Lease states “Page 1 of 1.” In addition, page four of the Lease submitted by Respondent as part of her Exhibit R-7 (which page was not included in the copy of the Lease submitted by Petitioner as part of Exhibit P-2) is signed by Respondent and Spirits Realty, Inc., on and below the signature line labeled “Lessor,” respectively. By comparing the signatures of the “Lessees” on the last page of the Lease (page four) with the signatures on the exhibit entitled “Security Deposit/Advance Last Months [sic] Rent Receipt” (Deposit Receipt), it is apparent that Allen and Lori Pridgen both signed page four of the Lease on May 31, 2012, as Lessees. As documented by the Deposit Receipt, on May 31, 2012, Respondent collected from Allen and Lori Pridgen a $1,000 cash security deposit, plus $1,000 as the last month’s rental payment under the Lease. The Deposit Receipt, signed by both of the Pridgens, as well as Respondent, provides that the monies collected would be held in a “non-interest bearing account Spirits Realty, Inc. Escrow” with Hancock Bank in Panama City Beach, Florida. Mr. Roberts signed a typed statement on May 31, 2012, printed on paper with a fax number, date, and time in the top margin, stating: “The four page Residential Lease on Long John Drive, Panama City Beach, Florida, is hereby agreed upon and approved by the property owner Ronald W. Roberts.” The next year, Respondent prepared a document entitled “Lease Renewal Agreement” (Lease Renewal) for renewal of the Lease for another seven months, from June 1, 2013, to January 1, 2014. The initial paragraph of the Lease Renewal listed the parties as: Lessor4/: Allen Pridgen & Lori [Pridgen] Agent: Spirits Realty Inc., Lic. Real Estate Broker The Lease Renewal kept all terms of the Lease in effect and provided that the Security Deposit and last month’s rent would continue to be held in Hancock Bank. The Lease Renewal also stated: That tenants shall pay a monthly rental of $1,000 for each month by the 1st of each month to Spirits Realty, Inc., for the Renewal Term. Tenants agree to give 60 days written notice prior to vacating property, Or give notice of intent to renew lease for up to one year. According to dates next to their signatures, the Lease Renewal was signed by Alan and Lori Pridgen on May 30, 2013; by Brenda Smith for “Spirits Realty Inc and Brenda Smith, Lic Real Estate Broker” on May 31, 2013; and by Dorothy and Ronald Roberts as “Property Owner” on June 4, 2013. In late 2013, the Roberts decided to terminate the Property Management Agreement and manage the rental of the Premises themselves. The decision to terminate the agreement was made a short time after the tenants had a problem with a water leak and a faulty water heater. Because the tenants considered the problem to be an emergency, they dealt directly with the Roberts, who, as owners, authorized the tenants to pay for the required repairs directly and take the payment off the rent. On December 1, 2013, Mr. Roberts spoke to Respondent on the telephone and advised her that the Roberts no longer wanted to use Respondent’s brokerage, Sprits Realty, Inc., for property management services and that they were going to terminate the Property Management Agreement. Ms. Roberts was present with her husband during the telephone conversation and overheard the discussions. During the conversation, Respondent told Mr. Roberts that they needed to give her at least a 60-day notice of termination, and Mr. Roberts advised Respondent that their termination of the Property Management Agreement would be effective February 1, 2014. The next day, December 2, 2013, the Roberts sent a letter by certified mail to Respondent, at her address, and to Spirits Realty, Inc., at its address. The letter was signed by both Mr. and Ms. Roberts, witnessed and notarized, and stated: Dear Mrs. Smith, Per our conversation on December 1, 2013, please accept this letter as a 60 day formal notification that we wish to terminate the contract we currently have with Spirit Realty for Property Management Services. As of 2/1/2014, we will no longer require your services in handling the property management for 3803 Long John Drive, Panama City, Florida, 32408. Please forward the security deposit that you collected from the tenant, Alan Pridgen in 2012 and are currently holding in an escrow account. You can mail it to Ronald & Dorothy Roberts at 3555 Walden Lane, Acworth, Georgia 30102. We appreciate your time and services since Mr. Pridgen began occupying the property. Although multiple attempts were made to deliver the letters, they were returned unaccepted. The Roberts made additional attempts to contact Respondent by telephone, but were unable to do so. By another letter sent by certified mail to Respondent dated January 16, 2014, Mr. and Ms. Roberts again requested in writing that Respondent forward to them the $2,000 identified in the Deposit Receipt. The letter reiterated the fact that in a telephone conversation on December 1, 2013, Respondent was advised that the Roberts were terminating the Property Management Agreement. The letter was returned unaccepted. Although the Roberts letters to Respondent dated December 1, 2013, and January 16, 2014, were returned unaccepted, Respondent’s own exhibit, a copy of a certified letter that Respondent allegedly sent to the tenants on December 11, 2013, acknowledges that Mr. Roberts called on December 1, 2013, regarding both the Lease and the Property Management Agreement. The first paragraph on the third page of Respondent’s December 11, 2013, letter to the tenants states: 1 Dec 2013 Ron Roberts called SRI [Spirits Realty, Inc.] agent saying Alan [Pridgen] paid over $900 in improvement costs having to do with the air conditioner and hot water heater - & Alan would not be paying rent due 1 Jan 2014 – SRI would not receive a management fee – triggering liquidated damages clause. Breach of lease. Lease – Agreement/relationship of landlord & tenant (real property) or lessor and lessee – specifes [sic] 10% rent compensation. Further, during her cross-examination of Ms. Roberts at the final hearing, Respondent acknowledged that she had spoken on the telephone with Mr. Roberts on December 2, 2013, and that during the conversation the subject of breaking a contract with a real estate person was discussed. While it is found that the telephone conversation occurred on December 1, 2013, as opposed to December 2, 2013, it is evident that the conversation indeed occurred. Based on the evidence, it is found that on December 1, 2013, the Roberts effectively communicated their desire to terminate the Property Management Agreement, effective February 1, 2014. Further, although the certified letters were refused, it is found that the Roberts timely asked Respondent for return of the $2,000 reflected in the Deposit Receipt. In addition to the letters that the Roberts sent to Respondent, after speaking to the Roberts, Ms. Pridgen prepared a letter, at the Roberts’ request, for her husband to send to Respondent, dated December 1, 2013, which stated: Brenda, This letter is to inform you that I no longer wish to continue my contract with you and the Roberts. I have been renting this property since June of 2012, the original contract was for one year. I agreed to rent the property for an additional 6 months which is now up. I no longer wish to continue this contract with Spirits Realty Inc. Thank you Allen D. Pridgen The letter was sent to Respondent by certified mail on December 4, 2013, but Respondent never picked it up. Shortly after her conversation with Mr. Roberts on December 1, 2013, Respondent called the police and tried to have the Pridgens evicted from the Premises. The Roberts explained over the phone to the police officer that they, not Respondent, were the owners of the Premises. The Pridgens were not evicted. Ms. Pridgen’s credible testimony explained that they did not intend to vacate the Premises, but rather planned to continue to rent it directly from the Roberts. As of the date of the final hearing, the Pridgens were still leasing the Premises from Ms. Roberts. To date, Respondent has not returned to Ms. Roberts, as owner with responsibilities over the Lease, either the $1,000 Security Deposit or the $1,000 Advanced Rent she collected from the tenants. Instead, Respondent has retained the entire $2,000 and characterizes the funds as “liquidated damages” for the Roberts’ wrongful termination of the Property Management Agreement. The Property Management Agreement has no specific requirement for the manner in which it is to be terminated. Nevertheless, Respondent transferred the $2,000 reflected in the Deposit Receipt into Spirits Realty, Inc.’s, operating account at Hancock Bank. Respondent argues that she is entitled to retain the $2,000 because Ms. Roberts did not make a timely claim upon the escrow deposit following receipt of Respondent’s expressed intent to keep the escrow monies as “liquidated damages.” Respondent bases her argument on the Roberts’ alleged breach of the Property Management Agreement. As there was no breach and the Roberts’ request for return of the escrow funds was timely made, Respondent’s belief that she is entitled to liquidated damages has no merit. Respondent also suggests that she is entitled to retain the $2,000 reflected in the Deposit Receipt because the tenants failed to give 60 days’ notice of their intent to terminate the Lease. Respondent’s suggestion is premised upon the fact that she and her brokerage are erroneously named as the “Lessor” in the Lease that Respondent drafted. Respondent’s argument evinces that she either has a misunderstanding of her role as agent for the Roberts, or intended to take advantage of her position in a manner inconsistent with her obligations under the Property Management Agreement. Although erroneously listed as the “Lessor” under the Lease, neither Respondent nor her brokerage was a proper party to the Lease. Rather, in accordance with the Property Management Agreement, Respondent and her brokerage were only authorized as agents for Mr. Roberts in dealing with the Premises. Under the circumstances, even if the tenants had breached the Lease (which they did not), Mr. Roberts and his successor in interest, Ms. Roberts, not Respondent and her brokerage, would be entitled to make a claim against the tenants as the owners and actual lessors under the Lease. Incredibly, at the final hearing, Respondent submitted into evidence a copy of a document entitled “Lease Addendum” dated May 31, 2012, which was purportedly signed by the tenants, Alan Pridgen and Lori Pridgen. The purported “Lease Addendum” provides: Lease Addendum 31 May 2012 FS 83.575, 83.595 breach, liquidated damages, and termination FS 83.595(4) Tenant statue [sic] contains two liquidated damages provisions allowing the landlord (Lessor) an opportunity to impose liquidated damages on the tenant for early termination or for failure to give notice of intent not to renew lease. Lessor, Spirits Realty Inc. will receive the $2,000 advance fees, “early termination fee”, out of escrow, if a breach of the lease occurs. X I agree as provided in the lease agreement, $2,000 security (an amount that does not exceed 2 months rent) as liquidated damages or an early termination fee if I elect to terminate the lease agreement and Lessor waives the right to seek additional rent beyond the month in which landlord takes possession. FS 83.575 Lessee is required to give 60 days notice of intent not to renew the lease or Lessor, Spirits Realty Inc will receive the $2,000 advance fees security deposits as “liquidated damages”. Spirits Realty Inc is entitled to 5% real estate fee at close. In addition, Respondent submitted into evidence a second document entitled “Lease Addendum” purportedly signed by the now-deceased Mr. Roberts. That second “Lease Addendum” provides: Lease Addendum 31 May 2012 I agree with the Lease Addendum. Spirits Realty Inc will receive the $2,000 security deposits advanced fees out of escrow if there is a breach in the lease. Spirits Realty Inc will receive 5% real estate fee when the property closes. Lessor is acting as a Transaction Broker to lease/sale property. Ms. Roberts and Lori Pridgen credibly testified during the hearing that neither they nor Mr. Roberts, prior to his death, signed a separate Lease Addendum. Ms. Pridgen testified that she would not have signed any type of document which essentially gave up any and all rights to the escrow monies. Further, Ms. Roberts explained that her late husband, Mr. Roberts, who had an understanding of real estate matters, would not have signed such a document. Moreover, the documents presented as lease addenda are suspect. The type font is remarkably different from other documents obtained on May 31, 2012, in connection with the Lease and Property Management Agreement. Further, the paper signed by Mr. Roberts on May 31, 2012, in which he agreed to the Lease, has a fax number, date, and time at the top, but the purported lease addendum does not. Finally, the signatures on the lease addenda appear to have been copied from other signatures and taped into place. While reviewing the purported lease addendum during her cross-examination by Respondent at the final hearing, Ms. Pridgen testified: Okay. First of all, this is not the –- this has never been seen in our paperwork. The whole time that we’ve been doing paperwork with you for all these years, this was never ever seen till Brande sent it up here in the paperwork she had. And besides that, the print is not the same as any of your paperwork. And also, you can tell by the signature that they have been copied and paste onto the amendment. If the – somebody will just look at them, you didn’t clean up your work under your tape before you put it right there. So you - - you needed to clean your work up when you tape something like that because we’ve done it before. You have to clean up your work, or people can tell it when you look at it. Other than evincing Respondent’s nefarious intent to justify her retention of the $2,000, the purported lease addenda are given no evidentiary value. The evidence does not justify Respondent’s retention of the $2,000. The evidence adduced at the final hearing otherwise clearly and convincingly showed that Respondent wrongfully retained the $2,000 identified in the Deposit Receipt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Florida Real Estate Commission, finding that Respondent violated sections 475.25(1)(b) and 475.25(1)(d)1. as charged in the Administrative Complaint, imposing an administrative fine in the amount of $3,500, assessing reasonable costs pursuant to section 455.227(3)(a), and revoking Respondent’s license to practice real estate. DONE AND ENTERED this 29th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2016.
The Issue An administrative complaint dated June 22, 1989, alleges that Respondents violated Sections 475.25(1)(e), 475.25(1)(o), 475.42(1)(a) and 475.42(1)(e), F.S., by failing to pay an administrative fine and by operating as a broker without a valid current license. The issue in this proceeding is whether those violations occurred, and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Jeffrey Robert Horne, is currently licensed as a real estate broker in the State of Florida, having been issued license number 0433763 in accordance with Chapter 475, F.S. Respondent, the People's 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 0253302 in accordance with Chapter 475, F.S. Jeffrey Robert Horne is licensed and operating as the qualifying broker for The People's Realty, Inc., at 1125 U.S. Highway One, Sebastian, Florida 32958. On December 6, 1988, the Florida Real Estate Commission issued its Final Order in Department of Professional Regulation, Division of Real Estate v. Jeffrey Robert Horne, Case #0156666, DOAH #88-2547, finding Respondent Horne guilty of violations of Section 475.25(1)(a), (b) and (k), F.S., reprimanding him, and assessing a fine of $500.00 for each of the three violations, for a total of $1,500.00. The order was filed, and was sent to counsel for Respondent, on December 13, 1988. The order does not, on its face, designate a deadline for payment of the fine. Jeffrey Horne sent a check dated 1/26/88 to the Department of Professional Regulation, (DPR) in the amount of $500.00, for one-third of his fine. The check was dishonored for insufficient funds and was returned to DPR. A form letter was sent to Jeffrey Horne notifying him of the nonpayment and assessing a $25.00 service charge. On or about April 7, 1989, Jeffrey Horne submitted a cashier's check to DPR in the amount of $525.00. Jeffrey Horne's April 7, 1989, submittal immediately followed his receipt of this form letter: (Note: some portions of letter are handwritten) Records Section 4-5-89 Jeffrey R. Horne 414 Quarry Lane Sebastian FL 32958 Dear I refer you to D. KELLER'S letter dated 2-24-89 , a copy of which is enclosed for your convenience, regarding your check(s) in the amount(s) of $500_ being dishonored by your bank, said check(s) being applicable to your request(s) for fine by Real Estate Commission. Since you have not complied with the above, this is to advise that I have cancelled your ( )salesman, (X)broker, (X)corporate license(s) No.(s) 0433763 & 0253302 effective 1-26-89 , and request the immediate return of said license(s) to this office. Accordingly, if you are operating as a ( )salesman, (X)broker, and/or (X)corporation, you are doing so without being the holder of valid license(s) and in violation of Chapter 475, of the Florida Statutes. For your information, the above license(s) cannot be reacti- vated unless the required amounts of $500 and $25 service charge are submitted by certified check or money order and license applied for on proper form to the undersigned. If within 10 days from the date of this letter, you still have not complied, this matter will be turned over to our Investigation Section. Sincerely, P.S. Both licenses also expired 3-31-89. No renewal shows as processed DJP: Enclosure D. Janet Puckey, Records Administrative Assistant II cc: DPR-Tallahassee - Finance & Accounting People's Realty Inc., 9516 Fellsmere Hwy, Sebastian 329 (Petitioner's exhibit #10) Nothing in the record of this proceeding explains how an effective date of 1/26/89 was established, or by what authority an Administrative Assistant II could cancel a license. In anticipation of license expiration, Jeffrey Horne had sent two renewal fee checks, dated March 27, 1989 and March 28, 1989, in the amount of $57.00 each, to DPR. These checks were dishonored for insufficient funds. Form letters dated April 26, 1989, were sent to Jeffrey Horne and to People's Realty, Inc., informing them that the checks were dishonored and requesting payment of the full amount, plus $10.00 service charge for each check. The letters also included this warning: * * * If you do not comply with the above, your license will be cancelled fifteen days from the receipt of this notice and immediate return of your license will be requested. Accordingly, any real estate business conducted subsequent to the expiration of your old license will be in violation of Chapter 475, Florida Statute. Your license cannot be reactivated unless the dishonored check is paid in full and a $10.00 service charge is paid. * * * (Petitioner's Exhibit #5) Jeffrey Horne received the notices approximately April 28, 1989, and on May 22, 1989, he sent a money order to DPR for $132.00, intending to cover the two $57.00 renewals and $10.00 service charges. He was later informed that he was $2.00 short, and he eventually sent that amount. Larry Whitten was an Investigative Specialist II, assigned to the Division of Real Estate Palm Beach office, between January 1988 and September 1989. In response to a memo from Attorney Steven Johnson, Investigator Whitten contacted Jeffrey Horne to determine whether he was currently operating. Investigator Whitten cannot recall the exact dates of his one office and two telephone contacts, but they were sometime between May 24, 1989 (the date of the memo), and June 16, 1989. The telephone was answered, "People's Realty", and the office was open and staffed by Jeffrey Horne and another person. On June 12, 1990, Darlene F. Keller, Director of the DPR Division of Real Estate, executed a "Certification of Absence of Public Record", stating: I HEREBY CERTIFY that a search of the records of the Florida Real Estate Commission has revealed that as of June 19, 1989, $1,000.00 of the fine owed by Jeffrey Robert Horne had not been received, nor had the renewal fee of $67.00 been paid. The licenses of both Respondents were invalid from April 1, 1989 to June 14, 1989. WITNESS my hand and seal this 12th day of June, 1990. (Petitioner's Exhibit #6) Paragraph 10 of the Administrative Complaint which initiated this proceeding states: "On or before June 14, 1989, Respondent made good the renewal fee checks previously returned NSF." This statement is consistent with Respondents' exhibit #1, which includes the DPR letters acknowledging payments. However, this conflicts with the statement in paragraph 10, above, that as of June 19, 1989, the renewal fee of $67.00 had not been paid. The same claim is also repeated in paragraph 11 of the Administrative Complaint. The complaint alleges that both Respondents are licensed, and that from January 13, 1989 to March 31, 1989, Respondent Horne was licensed and operating as the qualifying broker for the People's Realty, Inc., but that from April 1, 1989 to June 14, 1989, they were operating without valid and current licenses. (Paragraphs #1-4, Administrative Complaint dated June 22, 1989.) It is apparent from the above that it is Petitioner's position that Respondents' licenses expired on March 31, 1989, for nonpayment of a renewal fee, and were reinstated on June 14, 1989, when (according to one version of DPR's account) the renewal fees were properly paid. The retroactive "cancellation" of Jeffrey Horne's license by D. Janet Puckey is either given no effect, or his license was retroactively reinstated when he sent the $525.00. Jeffrey Horne has been licensed as a real estate broker since 1987. Prior to that he was licensed in Florida as a real estate salesman. The incident which led to his discipline in 1988 occurred when he was a salesman and is his only infraction of record. At the time that his checks were dishonored in 1989, he was in financial straits, having incurred legal expenses due to the disciplinary proceedings, and having recently started over with his own business. He does not consider his financial situation a threat to his clients as he refuses to accept or hold funds in escrow. Rather, he has an arrangement with a title company to maintain the escrow account. When the DPR checks were written, he thought that they would be covered by commission checks he had deposited. When he was notified that the checks were bad, he provided restitution as soon as he could. The payment of $132.00 rather than $134.00, to cover the two $57.00 renewal fees and $20.00 in service charges was a mathematical error. Jeffrey Horne concedes that he continued to operate as a broker and to operate the People's Realty, without pause, during the relevant period. He denies that he was given a deadline for payment of his fine, and he was attempting to pay it in installments. Until he was contacted by the investigator, he did not believe that his license had been revoked and would have stopped operating if he had been clearly instructed. He also attempted to pay his renewal fees and, until he was informed otherwise by DPR, he believed the fees were paid. The notice, described in paragraph 7, above, is ambiguous, but appears to provide a 15-day grace period when a check has been dishonored. Horne received the notices on April 28, 1989, but did not send the money order until May 22, 1989. He is guilty, at most, of knowingly practicing with an expired license for nine days (May 13th until May 22nd). At the time of hearing, the entire $1,500.00 administrative fine had been paid, as had the renewal fees.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered finding that Respondents violated Section 475.42(1)(a), F.S., reprimanding them, and assessing a fine of $100.00, to be paid in full 30 days from the date of the Final Order. RECOMMENDED this 18th day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of July, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Gregory J. Gore, P.A. P.O. Box 780384 Sebastian, FL 32978-0384 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32801
