Findings Of Fact At all times relevant to these proceedings, the Respondents were licensed as real estate brokers in Florida. In March, 1979, a Ms. Stockton contacted Respondent Rappaport and proposed renting a small wood-frame house which he owned and was then using as a storage facility. Rappaport verbally agreed to rent the premises for nine months, giving Stockton an option to purchase at the end of that period. Monthly rental payments of $100, plus $75 in tenant repairs, were to constitute partial down payment on the purchase price of $25,000. However, at the conclusion of the nine month period in December, 1979, Ms. Stockton made a counter offer that would have required Rappaport to make substantial improvements or accept a reduced price of $20,000. Since Rappaport did not accept the counter offer, there was no valid contract. Around December, 1979, Respondent Rappaport became a 50 percent stock owner of Respondent Mike Novak Realty Corporation. Respondent Michael T. Novak retained 50 percent stock ownership in this corporation and, as part of the merger, acquired a 50 percent interest in certain properties previously owned solely by Rappaport. The residential parcel discussed above, along with an adjacent office building, were included in this transaction. On January 30, 1980, the Respondents contracted to sell the above described residence and office building to a group of investors for $175,000. The contract required that termite inspections and any fumigation would be provided by the sellers. The required termite inspections were provided, but the inspector furnished a certificate only on the office building since the wood-frame house was found to have termites. He reported this fact to Mike Novak Realty, but nothing was done to correct the problem prior to closing. The termite infestation was discovered by the purchasers after they had closed on the property. Respondent Rappaport was aware of the termite problem prior to closing since it had been called to his attention by the Stocktons in mid-1979. After being confronted by the purchaser subsequent to the closing, Respondents agreed to pay the fumigation costs which amounted to $300. They did not, however, reimburse the buyers for these expenses on demand, but did so only after this Administrative Complaint was filed. Although these omissions by Respondents leave much to be desired in terms of broker reliability, there was no evidence of intentional concealment of the termite infestation or willful withholding of the $300 fumigation payment. Rather, this negligence by Respondents resulted, at least partly, from the minimal interest shown by the contracting parties in the condition of the wood- frame house. Respondents had reached their valuation of this property virtually without consideration for the wood-frame house. The buyers were primarily interested in the office building and the land occupied by the house. They expressed their intention to tear down or move this house so they could develop the underlying land. Even though two members of the purchasing group had real estate experience and all were represented by counsel, none of them noticed the missing termite inspection report. Furthermore, none of the buyers had even entered the wood-frame house to determine its condition prior to closing.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing the charges contained in the Administrative Complaint. DONE and ENTERED this 23rd day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1983. COPIES FURNISHED: Grover C. Freeman, Esquire 4600 West Cypress Avenue Suite 410 Tampa, Florida 33607 Peter J. Kelly, Esquire Post Office Box 3324 Tampa, Florida 33601 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent materially understated payroll and thus should be deemed to have failed to secure payment of workers' compensation, which is a sanctionable offense.
Findings Of Fact Petitioner Department of Financial Services ("Department") is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. Respondent Bicon, Inc. ("Bicon") is a corporation domiciled in Florida and engaged in the business of hauling construction debris, which is considered a non-construction activity for the purposes of workers' compensation coverage requirements. Bicon's workers' compensation carrier from October 1, 2003 to May 4, 2005 (the "Focal Period") was Bridgefield Employers Insurance Company ("Bridgefield"). Bridgefield's Policy Number 830-29266 (the "Policy") initially covered Bicon for the period from May 11, 2002 to May 11, 2003. Bridgefield renewed the Policy twice, each time for a one-year period. The premium for the Policy was based on Bicon's payroll. Before the beginning of each policy period, Bicon provided Bridgefield an estimate of its payroll for the upcoming period.2 Bridgefield then established an estimated premium for the period, which Bicon was expected to pay in installments. After the policy period had ended, Bridgefield audited Bicon's records to determine actual exposures. Once the audit had been completed, the estimated premium was adjusted as necessary, upward or downward, to reflect actual exposures for the policy period. The audit covering the first renewal period (May 11, 2003 to May 11, 2004) caused Bridgefield to conclude that there existed a premium shortfall of $274,281.66, for which sum Bridgefield billed Bicon on May 2, 2005.3 Given that the estimated premium for the period had been $22,634.44,4 this was a significant upward adjustment. The premium increase was attributed to exposure arising from Bicon's use of an alleged uninsured subcontractor, which exposure Bridgefield's auditor valued at $816,231.00. Bridgefield's Audit Summary Sheet contains the following instructions pertaining to uninsured subcontractors: If no evidence of coverage is submitted to the insured for a subcontractor and only labor is provided, the auditor must include either payroll of the subcontractor's employees or the Total Contract Price. If the labor and material portions of the contract are not broken down in the Insured's records, the auditor must include the Total Contract Cost prorated according to manual rules. No persuasive or convincing evidence was offered establishing whether the auditor calculated the subcontractor exposure for the first renewal period based on the subcontractor's payroll or, alternatively, on the contract price. Bicon paid $53,091.40 against the audit adjustment, leaving a balance of $221,190.26, which remained outstanding as of the final hearing. Bicon has disputed the findings of Bridgefield's audit, but the record does not disclose the nature and grounds of its objections. The estimated premium for the second renewal period (May 11, 2004 to May 11, 2005)——which had been calculated in March 2004, apparently before the findings from the audit of the first renewal period were available——was $20,097.48.5 The retrospective audit convinced Bridgefield that the estimated premium had fallen short by the amount of $186,653.88, for which Bridgefield billed Bicon on September 13, 2005. This shortfall was attributed to Bicon's use of five alleged uninsured subcontractors, which the insurer claimed gave rise to an exposure appraised at $718,462.00. No persuasive or convincing evidence was offered to establish whether the auditor calculated this exposure based on the subcontractors' respective payrolls or, alternatively, on the contract prices. Bicon disputed these audit findings, and as of the final hearing had not paid any part of the audit adjustment. The record does not disclose the nature and grounds of Bicon's objections to this audit. The Department's case against Bicon is premised on the liability for workers' compensation that attaches to a contractor who engages a subcontractor to perform any part of the contractor's contractual obligations to a third party. In such a situation, if the subcontractor is uninsured, then the contractor is obligated to provide workers' compensation to all of the subcontractor's employees. The Department alleges that, during the Focal Period, Bicon sublet work to the following uninsured subcontractors: Precision Equipment Fabricators & Repair, Inc.; S&S National Waste, Inc.; Mickelson Enterprises, Inc.; and Wheeler Employee Leasing, Inc. The Department alleges further that, in its dealings with Bridgefield, Bicon materially understated the amounts of its uninsured subcontractors' payrolls——a practice that, the Department contends, is deemed by statute to constitute a failure to secure the payment of workers' compensation. Despite these allegations, the Department did not elicit any direct evidence that Bicon's alleged subcontractors were performing jobs or providing services that Bicon was contractually obligated to carry out for third parties. Rather, in this regard, the Department's investigator testified (via affidavit) as follows: [T]he vast majority of the work being performed [by Bicon's alleged subcontractors] was the hauling of debris by truck drivers, which is a non-construction activity. However, the duties performed by the employees of Precision Equipment Fabricators & Repair Inc., were construction in nature, specifically, the installing/erecting of debris chutes at construction sites. Aff. of J. Turner at 3. Notably absent from the investigator's account is any testimony that the alleged subcontractors were performing Bicon's contract work. There is, however, some circumstantial evidence that Bicon sublet part of its contract work to other entities. In its application for workers' compensation insurance, for example, Bicon described its business operations as follows: "haul[ing] clean recyclable construction materials (sand, gravel, concrete, wood) from construction sites to waste management locations." The Department accepts this description, for in its Proposed Recommended Order, the Department requested a finding that "Respondent is . . . engaged in the business of hauling construction debris, which is a non-construction activity." The undersigned so found above. It is reasonable to infer, from the basic undisputed facts about Bicon's business, that Bicon provided hauling services to third parties (its clients or customers) to whom it was contractually bound. The inference is sufficiently strong that the undersigned is convinced, and finds, that such was the case. The evidence shows that Bicon considered various entities, including S&S National Waste, Inc. ("S&S"); Mickelson Enterprises, Inc. ("Mickelson"); and Wheeler Employee Leasing, Inc. ("Wheeler"), to be its "subcontractors." Indeed, at the Department's request, Bicon produced one of its subcontracts, which is in evidence, wherein Mickelson was designated the "subcontractor." The undersigned is convinced, and finds, that Bicon did, in fact, enter into subcontracts, express or implied, with S&S, Mickelson, and Wheeler. It is undisputed, moreover, that these three companies——S&S, Mickelson, and Wheeler——performed the work of hauling construction debris, which happens to be Bicon's core business. Therefore, it is reasonable to infer, and the undersigned finds, that, to some extent, S&S, Mickelson, and Wheeler provided hauling services to Bicon's customers. None of the aforementioned subcontractors had workers' compensation insurance in place during the Focal Period. The evidence is insufficient to prove that Precision Equipment Fabricators & Repair, Inc. ("Precision") was a subcontractor of Bicon that performed Bicon's contract work. On the contrary, Mr. Turner's testimony, which was not contradicted, shows that Precision was engaged in a different business from Bicon's——one involving construction activities (i.e. installing debris chutes) as opposed to the non- construction work of hauling. There is no persuasive or convincing evidence in the record establishing that Bicon was contractually obligated to anyone to perform such construction services. There is no persuasive or convincing direct evidence that Bicon ever understated the payroll of S&S, Mickelson, or Wheeler in communicating with Bridgefield. There is, indeed, no evidence in the record of any statement made by or on behalf of Bicon, to Bridgefield, concerning either the subcontractors' payrolls or the amounts that Bicon had paid, expected to pay, or owed its subcontractors pursuant to the subcontracts that it had made with them.6 The Department's theory, which is implicit (though unstated) in its litigating position, is that Bicon must have understated the subcontractors' payrolls because: (a) during the audits following the first and second renewal periods, Bridgefield picked up additional exposure, which it attributed to uninsured subcontractors; and (b) no other explanation accounts for the large discrepancies between the estimated premiums and the audited premiums.7 The flaw in this theory is that the incriminating fact which the Department urges be inferred (material understatement of payroll) is plainly not the only possible cause of the known effect (audit findings relating to uninsured subcontractors). Without being creative, the following possibilities, all of which are reasonable and consistent with the proved facts of this case, spring readily to mind: Estimating its anticipated exposures, Bicon told Bridgefield that it estimated its payments to uninsured subcontractors would be $X, and in fact, Bicon had estimated that it would pay uninsured subcontractors $Y——a materially greater sum than $X. Or: in fact, Bicon truly had estimated that its payments to uninsured subcontractors would total $X, but its estimate turned out to be low, and the actual aggregate of such payments was $Y, a materially greater sum. Bicon said nothing to Bridgefield about its payments to uninsured subcontractors until the audits because: prior to the audits, Bridgefield had never asked Bicon to disclose such information. Or: prior to the audits, Bridgefield had asked Bicon an ambiguous question about its estimated payroll exposures, which Bicon reasonably had understood as not inquiring about payments to uninsured subcontractors. Or: although, prior to the audits, Bridgefield had asked Bicon a clear and unambiguous question calling for Bicon to disclose such information, Bicon had remained silent on the issue. Bicon told Bridgefield about its payments to uninsured subcontractors, but Bridgefield, which knew that the actual amount of such exposure would be included at audit in determining the final premium, declined to use the information in calculating the estimated premium. The Department failed to prove, by any standard, that something like 1.a. occurred in fact. Further, the Department failed to exclude numerous hypotheses of innocence——such as 2.a., 2.b., and 3.——which are reasonable and consistent with the evidence. Accordingly, the undersigned declines to infer, from the proved facts, that, in its communications with Bridgefield, (the existence of which must be inferred, for there is no direct evidence of such communications), Bicon materially understated either the amounts of its subcontractors' payrolls or the amounts Bicon paid or owed to its subcontractors for the work they performed for Bicon's customers pursuant to subcontracts. Consequently, it is determined, as a matter of ultimate fact, that Bicon is not guilty of materially understating payroll——and hence failing to secure payment of workers' compensation——as charged under Section 440.107(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order rescinding the Stop Work Order and exonerating Bicon of the charge of failing to secure the payment of workers' compensation by materially understating payroll. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006.
Findings Of Fact On February 19, 1993, Respondent, AHCA, published in the Florida Administrative Weekly, Volume 19, No. 7 at Page 859, a request for proposal "to provide identification and recoupment of medicaid overpayments to hospital vendors for the period prior to January 19, 1991." The RFP noted that all determinations or identification must be made and provided to the Department within sixty (60) days of the date of contract signing. The RFP provided that all proposals were to be provided no later than 3:00 p.m. on March 19, 1993. In the RFP, the Department "reserved the right to reject any and all proposals." The RFP generated four (4) bids (proposals) of which Petitioner submitted one. Petitioner's proposal was discussed by AHCA who in turn consulted with the United States Attorney for the Northern District of Florida for an opinion. Petitioner's proposal was reviewed with Gary Clark, the Assistant Secretary for Medicaid, and Terry Flynn, an Assistant United States Attorney in Florida. Petitioner's proposal to AHCA proposed to the Department of Health Rehabilitative Services' medicaid unit that, for a forty percent (40 percent) finders' fee, they would identify and recover medicaid overpayments made to certain unnamed hospitals which had been stockpiling funds in the event that the overpayments were discovered by medicaid. Approximately 55 percent of Florida's medicaid funds comes from the federal government. Assistant Secretary Clark requested a written opinion from the United States Attorney from the Northern District (of Florida). By letter dated April 12, 1993, the United States Attorney's Office for the Northern District formalized its opposition to such a contract for the following reasons: Title 31, U.S. States Code, Section 3730 allows for qui tam actions to be initiated by individuals. Should the federal government elect to pursue the qui tam action, the individuals who provide evidence to initiate the action can be awarded up to ten percent (10 percent) of proceeds recovered. (In recovery actions under the Federal Tort Claims Act, damages can be assessed in the amount of triple the face amount of false claims). If the federal government does not elect to pursue the qui tam action, the individual may pursue the case on its own and can be awarded up to twenty percent (20 percent) of the proceeds. The U.S. Attorney's Office inquired of Petitioner the source of their knowledge of overpayments. They refused to disclose. The U.S. Attorney's Office officials questioned whether the proposers had any civil or criminal liability and whether they were knowing participants in obtaining medicaid overpayments for any such hospital. The U.S. Attorney opined that it would be inappropriate for AHCA to enter into such a proposal. The conclusion was buttressed by the fact that the State of Florida was without authority to bind the federal government with such agreement as it would not preclude a federal grand jury from subpoenaing necessary evidence and testimony nor would it preclude the U.S. Attorney's Office from prosecuting civil and criminal violations which might surface from information gleaned from the proposal. Based on the U.S. Attorney's Office opposition, as related to AHCA, and Respondent's inability to determine whether or not the proposers had any civil or criminal liability, either state or federal, AHCA made the decision to reject any and all bids submitted in response to the RFP. The notice of rejection of all bids by AHCA was served on all parties on April 19, 1993. That notice was also posted at the site of the bid letting. In addition to rejecting all proposals, the RFP was withdrawn and negotiations with all proposers were suspended. Throughout the RFP, which was prepared by Karen Kutrer, a planner for AHCA, AHCA reserved the right to reject any and all proposals. Some of these reservations are set forth on pages 10, 11 and 23 of the RFP. Subsequent to the rejection of all bids by AHCA, the U.S. Attorney's Office advised AHCA that it was no longer opposing such a contract although it was still uncertain whether the proposers had "clean hands." AHCA further discussed the matter with its staff but decided that it would no longer initiate proposals pursuant to the subject RFP and declined to negotiate further with the proposers based on its determination that it was not in the agency's best interest to enter into such an agreement with proposers like Petitioner. This was done since it could not grant any immunity from prosecution in the event that the proposals provided the source for civil or criminal prosecution. AHCA also determined that the Petitioner had other alternatives, i.e., they could initiate qui tam actions on their own.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent (AHCA) enter a Final Order rejecting Petitioner's bid protest filed herein. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of November, 1993. COPIES FURNISHED: Roger Maas, Esquire Senior Attorney 1317 Winewood Boulevard Building 6, Room 271 Tallahassee, Florida 32399-0700 Richard K. Slavin Project Director 1400 Miami Gardens Drive, #210 North Miami Beach, Florida 33179 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue for determination in this proceeding is whether the Respondents violated Section 475.25(1)(b), Florida Statutes, by inducing a seller to enter in a contract for sale of real estate, based on a $50,000.00 earnest money deposit that was never made.
Findings Of Fact Respondent Fred Marberry, Jr. is now and was at all times material hereto a licensed real estate broker-salesman in the State of Florida, having been issued license number 0369879 in accordance with Chapter 475, Florida Statutes. Respondent Bernon Earl Thomas is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 0433736 in accordance with Chapter 475, Florida Statutes. During the relevant time, from July through September 1985, Fred Marberry was President of Marberry and Mack Development, Inc., and maintained an office in Altamonte Springs, Florida. James Mack was the Vice-president, Secretary and Treasurer of the company. During the relevant time, from July through September 1985, Bernon Thomas was a real estate salesman with General Realty Management Corporation. His office was in Kissimmee, Florida. In 1985, the two Respondents had worked together on the potential sale and development of a multi-family project in Kissimmee. Thomas was aware of the availability of some commercial property in Kissimmee known as Cross Creek that he felt would be a good deal and shared that information with Marberry. Thomas got his information on Cross Creek from Larry Heninger, who was working with the owner, R. S. Futch, in putting together a development package to present to potential buyers and developers. Heninger had expended considerable effort in working with an engineer and permit agencies and had made contacts with a number of businesses interested in locating on the property. The engineering reports, correspondence and figures supplied to Marberry by Thomas indicated that the parcel comprised 14.75 usable acres. There were letters from the City saying that sewage capacity, utilities and similar public services would be based on this amount. Marberry told Thomas that the development package looked good and to continue working on it. Some time in mid-July 1985, Larry Heninger informed Thomas that some third parties were also interested in the Cross Creek property and that if Marberry and Mack, Inc., wanted to present an offer, they would need to do so immediately as Mr. Futch was leaving on a vacation for several weeks. Thomas called Marberry to relay this information. The details of the conversation are in dispute, but it is uncontroverted that Thomas was made a Vice-president of Marberry and Mack, Inc., for the sole purpose of executing a sales contract immediately. Arrangements were made for Thomas to draw up the contract/offer and have it taken to the Orlando airport where R. S. Futch was either leaving or was en route on his vacation. Marberry and Thomas disagree on what was discussed with regard to an escrow deposit. Thomas contends that Marberry authorized him to provide for a $50,000.00 escrow deposit to be held by Fred Marberry, licensed real estate broker upon acceptance of contract. Marberry denies this and claims that he never maintained an escrow account, that escrow funds were always handled by his (Marberry's) attorney. Marberry claims that the day after signing, when he actually saw the contract, he said something to Thomas about his failure to delete the escrow language on the contract form. Thomas denies this. Both Marberry and Thomas agree that all parties should have known that the deposit could not be escrowed upon acceptance, since Marberry was not there for the signing. The contract was prepared and signed by Thomas in Thomas' Kissimmee office and was taken to the Orlando airport. The contract, prepared on the standard Florida Bar and Association of Realtors approved form, provided a purchase price of $1,600,000.00, the $50,000.00 escrow deposit, and closing on August 25, 1985. The contract provided that closing could be extended by the buyer for 30 days with an additional $50,000.00 deposit. The contract contained the following special clauses: Contingent upon financing. Above described property of [sic] being viable to building Comm. Prop. with all necessary zoning and available utilities. [Pet. Ex. #5] At the airport, R. S. Futch accepted the offer by Marberry and Mack, made a few changes on the contract, initialled them and signed the contract; the changes were also initialled by Bernon Thomas. Later Thomas called Marberry and told him about the changes. The morning after the contract was signed, Marberry and Thomas visited Heninger's engineer to review the project. They reviewed the engineering plans and learned that the property was in a floodplain. Drainage was a problem and parking was a problem and it appeared that only 4.3 acres was actually buildable. On leaving the engineer's office Marberry told Thomas that there was no way the project could work; they could never get financing for a $1.6 million parcel of 14.75 acres, with only 4.3 buildable acres. Marberry felt the contingencies in the contract could not be met and the contract was off. Thomas still believed in the project, and since he had already put so much time and effort in it, he wanted to keep working on pulling it together. Marberry did not dissuade him, but said only to keep him informed on what was going on. Thomas told Heninger that Marberry didn't want the contract. Heninger said he wanted the contract to stay intact and encouraged Thomas to keep working on it. He also tried to get Thomas to do the deal himself, but Thomas told him he did not have the funds. Thomas claims that Heninger told him not to worry about the $50,000.00; Heninger denies this. Nothing was communicated in writing regarding the contract being terminated. The $50,000.00 deposit was never made. The deadline for closing passed, and sometime in September 1985, Larry Heninger arranged a meeting between R. S. Futch and Fred Marberry in a motel in Orlando. The purpose of the meeting was to either extend the contract entered in July (according to R. S. Futch), or to negotiate a new contract for the property (according to Fred Marberry). During the meeting Futch was told that no $50,000.00 deposit had been made on the original contract. The meeting apparently terminated and shortly later Futch filed suit for the $50,000.00. The testimony of the principal witnesses in this case: Marberry, Thomas, Futch and Heninger, establish a picture of lack of communication, misunderstanding, bungling, and unprofessionalism. It is impossible to determine from the rambling and disjointed stories of these witnesses, that either Fred Marberry or Bernon Thomas, individually or together, engaged in "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust..."
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Administrative Complaint against both Fred Marberry and Bernon Thomas, be dismissed. DONE and ORDERED this 11th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert D. Gatton, Esquire Maitland Center 1051 Winderley Place Maitland, Florida 32751 Bernon Earl Thomas 4226 Match Point Drive Augusta, Georgia 30909 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent has been licensed as a professional engineer in the State of Florida since 1964 (license number PE 0010812), having become licensed by examination in the field of mechanical engineering. He has practiced professional engineering since 1964 in and around Fort Walton Beach and Okaloosa County, Florida, as an individual practitioner and as an officer of the Royster Construction Company. The Respondent's formal education and professional experience are in the fields of civil, structural, and mechanical engineering. Although testimony indicates that the Respondent has had some contact with the field of electrical engineering, he lacks significant formal education or professional experience in that specialty. Findings regarding Count I In July 1984 plans for a proposed project to be known as the White Sands Bowling Center were prepared, signed, and sealed by the Respondent in his capacity as a professional engineer. The plans included sheets numbered 1 through 9, of which sheet number 6 and sheet number 9 depict electrical components of the proposed structure. Findings regarding Count II The electrical engineering plans (sheet number 6 and sheet number 9) contain errors and omissions including the following: The "symbol legend" necessary to define components depicted on the plans has been omitted. Fixture types and wattage specifications necessary to determine adequate and appropriate loading of circuits have been omitted. Electrical component and fixture circuit identification numbers necessary to identify such components and fixtures have been omitted. Specifications necessary to determine air conditioning connections have been omitted. Details of fire alarm circuitry required by applicable building codes in force at the time of design have been omitted. Emergency exit fixtures and circuitry required by applicable building codes in force at the time of design have been omitted. Electrical panel details necessary to complete construction have been omitted. Details of connections necessary for installation of indicated aluminum wiring have been omitted. The specification depicted for grounding of the electrical system is not in compliance with applicable building codes in force at the time of design. The electrical riser depicted on the plans is incomplete and does not provide sufficient information to complete construction. The Respondent failed to meet a standard of due care in the preparation of the plans depicting electrical engineering for the White Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count III The mechanical engineering plans (sheet number 7, air conditioning, and sheet number 8, plumbing) contain errors and omissions including the following: Specifications of air conditioning units and associated ducting are in conflict and do not provide details necessary to complete construction. Details showing "returns" from outside air are in conflict with known standards of design and do not provide details sufficient to complete construction. Specifications of condensation features do not provide sufficient detail to complete construction and are not in compliance with applicable building codes in force at the time of design. Toilet exhaust system details are not sufficient to complete construction and are not in compliance with applicable building codes in force at the time of design. Details of water supply system source and sanitary collection and disposal required by applicable building codes in force at the time of design have been omitted. The Respondent failed to meet a standard of due care in the preparation of the plans depicting mechanical engineering for the white Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count IV The structural engineering plans (sheet number 3) do not contain details sufficient to complete construction, and if built as designed, there is no reasonable assurance that the structure would comply with applicable building codes in force at the time of design. The Respondent failed to meet a standard of due care in the preparation of the plans depicting structural engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.
The Issue Respondents' alleged violation of Section 477.02(6), Florida Statutes.
Findings Of Fact Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1) Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin) Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)
Recommendation That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser P.O. Box 1752 c/o Golden Touch Coiffeurs Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida
The Issue Did Respondent violate Section 475.25(1)(b), Florida Statutes, through fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction?
Findings Of Fact Petitioner is responsible for the licensing and regulation of persons who practice real estate in Florida. Authority for the licensure and regulation is set forth in Chapters 20, 120, 455, and 475, Florida Statutes, and associated provisions of the Florida Administrative Code. Respondent has been licensed as a Florida real estate broker at all times relevant to the inquiry. Respondent holds license no. 0237202 as broker for Shad and Shad Realty, Inc., located at 9955 Lem Turner Road, Jacksonville, Florida 32208. At all times relevant to this case, Respondent served as a property manager for the Veteran's Administration in relation to property held by that governmental body. The property management function which Respondent performed for the Veteran's Administration was as a management broker. Property at 3128 Plum Street, Jacksonville, Florida, was one of the properties managed by Respondent for the Veteran's Administration. In the interest of selling the property Respondent invoiced the Veteran's Administration and charged a management fee for his services in relation to that parcel to be paid by the Veteran's Administration. Respondent's management involved the correction of problems with the home at that address. Among the fee services provided by Respondent was the arrangement to have the house treated to rid the premises of fleas, the installation of signs, installing a lock, and certain other repairs. In these circumstances, Petitioner would have other persons responsible for performing the work or would perform the work himself. A related responsibility which Respondent performed for the Veteran's Administration in reference to the Plum Street property was to order a wood-destroying organism inspection to be performed by a licensed firm, J. F. Yearty and Sons, Inc., of Jacksonville, Florida, and for that firm to report the results of its findings in writing. That inspection was performed on June 7, 1995, and a report was prepared. The report which Respondent was provided and read, pointed out visible evidence of wood-destroying organisms observed to the extent, "old signs of powder post beetles scattered throughout the substructure." The report referred to live wood-destroying organisms observed as subterranean termites in the wall studs, sills, and bracing of the right side of the home. The report also stated the following: Water rot to the siding and trim scattered around the entire house. Heavy subterranean termites damage to the wall studs, sills, and bracing on the right side. Water stains to the kitchen and bathroom subflooring. Water stains to the flooring on the porch left front corner of the house. Respondent sent the inspection report to the Veteran's Administration. Realizing that the report referred to active termites, Respondent ordered termite treatment for the home. In doing so he understood that there were problems with termites in the wall studs, sills, and bracing. In his experience Respondent further understood that the extent of the damage that had been found at the home could be major. Respondent obtained a termite bond following the treatment. Respondent knew that there was a contract pending for the purchase of the Plum Street property. The buyer was John Harold Bamping. Mr. Bamping was represented by Shirley Jean Irons as a real estate sales agent for Lester W. Jenkins Real Estate, Inc., Lester Jenkins Broker, whose business address is 5147 San Juan Avenue, Jacksonville, Florida 32210. In preparation for the closing on the Plum Street property, Ms. Irons went to Respondent's office, who was acting as the seller's representative for the Veteran's Administration in this context. Ms. Irons obtained a property receipt, the termite bond involving the treatment of the Plum Street property and the keys to the property. The bond constituted evidence that the property had been treated for termites but did not explain the degree of the problem for which treatment was necessary. At the time these items were picked up, Ms. Irons asked Respondent's wife for the termite inspection report related to the property. The wife told Ms. Irons that reports were not given out, only bonds. Ms. Irons told the wife that Ms. Irons needed the termite inspection report. The wife summoned Respondent from another part of the Respondent's office. Respondent then told Ms. Irons that he did not furnish the termite inspection report, properly referred to as wood-destroying organism inspection report. Respondent told Ms. Irons that the bond for termite treatment would be the only item provided to Ms. Irons in relation to the upcoming real estate closing. At hearing, Respondent indicated that his practice is not to provide a copy of the termite inspection report unless it is specifically asked for and then that Respondent does not always give the report to the party requesting the report "because that's VA property. That belongs to the VA." The VA refers to Veteran's Administration. Ms. Irons made John Bamping and Audrey Bamping his wife aware of the fact that Respondent was not providing a copy of the wood-destroying organism inspection report for purposes of the closing. This meant that the only evidence of the circumstances associated with the termite problem remained the termite bond. On July 11, 1995, the transaction closed for purchase of the Plum Street property, utilizing forms prepared by the Veteran's Administration. Ms. Irons and the Bampings attended the closing. Subsequent to the closing the Bampings became aware of the wood-destroying organism damage at the Plum Street house. The problems discovered were not evident when Ms. Bamping first saw the home before it was purchased. After the Bampings discovered the extent of the problem, they obtained a copy of the wood-destroying inspection report from Yearty and Sons which reflected the exact nature of the problems with the dwelling. Attempts were made to try and resolve the issue concerning the damage to the home. Eventually, the Bampings found it necessary to hire an attorney to assist them in addressing the damage to the home caused by the wood-destroying organisms. A suit was filed against the Veteran's Administration and damages were recovered in the amount of $2,000, and the Veteran's Administration was released in full from all claims for the wood-destroying organism damage. The Bampings also authorized their lawyer to file a complaint with Petitioner concerning Respondent's failure to disclose the wood-destroying organism inspection report.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(b), Florida Statutes, and imposing a 30-day suspension and a fine of $1,000. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 9th day of April, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N308 400 West Robinson Street Orlando, Florida 32801-1772 Vernon B. Shad Shad and Shad Realty, Inc. Post Office Box 9750 Jacksonville, Florida 32208 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and 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
