Findings Of Fact From November 1979 to October 1980, and again from October 1982 to May 3, 1983, the Respondent, Ron Adams, who operated Adams Investigations, Inc., in Orlando, Florida, employed George S. Williams as, among other duties, a repossessor for the sum of $400 per week. During both periods of employment, Mr. Williams held no type of license covered or provided for by the provisions of Chapter 493, Florida Statutes. This fact was known by Mr. Adams, who admitted it to Mr. Willie Rister, an investigator for the Petitioner. At the time of the hearing, Respondent held a valid Class "A" license, a Class "C" license, and a Class "E" license. At the times in question, Respondent held at least a valid Class "A" license. No evidence was presented as to the "C" license, and the "E" license was not available until sometime in 1981. The Florida Legislature revised Chapter 493, Florida Statutes, effective July 1, 1980, to require a Class "E" or "EE" license for repossessors. Prior to that time, holders of a Class "A" or "C" license could repossess. The Division of Licensing was not prompt in notifying individuals of the change to the law or in making application forms available to the public. However, during the period leading up to the passage of the legislation in question, and afterwards, Respondent Adams served on the Private Security Advisory Council, an advisory body of the Department of State, to serve as liaison between the agency and the regulated industry. Members of this body generally are very familiar with the rules and regulations of the industry; and, according to Ms. Gast, who worked with the Council and who knows Respondent, Mr. Adams was instrumental in drafting the repossessor rules. Ms. Gast recalls that when the Council took the position that the Department of State should not allow credit for unlicensed experience in determining if an application meets the criteria for licensure as a repossessor, Respondent was present and voted for that position. Therefore, he was intimately familiar with the new legislation, its history, and its intended application.
Recommendation That Respondent pay an administrative fine of $100.
The Issue Whether Respondent committed the violation alleged in the Amended Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate sales associate, holding license number SL-691286. At no time during the almost ten years he has held this license has any disciplinary action been taken against him.2 From August 31, 2000, to March 31, 2002, and from April 16, 2002, to June 26, 2008, Respondent worked as a real estate sales associate for Tenzer Realty, Inc., and Associates (Tenzer Realty). Jack Tenzer is a Florida-licensed real estate broker. He has owned and operated Tenzer Realty since January 30, 1990. On or about December 13, 2007, Wiltamar Mendes executed a written agreement giving Tenzer Realty the "exclusive right to sell" residential property, located at 14081 Southwest 166th Street in Miami Florida, he and his wife owned (Subject Property). Under the terms of the agreement, "Tenzer Realty [was] to receive only [a] 3% commission" on the sale of the Subject Property, plus a "transaction coordination fee [of] $395.00 at closing." At no time has Mr. Tenzer ever had an interest in the Subject Property. Respondent was the listing agent for the Subject Property, and he represented the Mendeses throughout the sale process. In January 2008, Sulena Hernandez and her husband were looking to purchase a home in the Miami area. Roger Shapiro, a Florida-licensed real estate associate then working for Coldwell Banker, was helping them in their search and acting as their representative. Mr. Shapiro telephoned Respondent to make arrangements for the Subject Property to be shown to Ms. Hernandez. Ms. Hernandez, accompanied by Mr. Shapiro, was subsequently shown the Subject Property by the Mendeses.3 After the showing, the Hernandezes decided to make an offer on the Subject Property of $338,640.00 (money they hoped to obtain through a 100% financed Veteran's Administration loan4), with the "additional [monetary] term" that the Mendeses would "contribute 2% of the sale price toward [the Hernandezes'] closing cost[s]." The offer was written up for the Hernandezes by Mr. Shapiro on a Florida Association of Realtors (FAR)-developed Residential and Sale Purchase Contract form that Coldwell Banker used, on behalf of its clients, for such purposes (FAR Form). This FAR Form had eight pages, not including the "attached addenda." On the bottom of each page were spaces for the buyers and sellers to put their initials to "acknowledge receipt of a copy of th[e] page." Page 7 of the FAR Form contained the "Addenda" and "Additional Terms" provisions of the contract. The "Addenda" provision began as follows: 20. ADDENDA. The following additional terms are included in the attached addenda and incorporated into this Contract (check if applicable): This introductory language was followed by a lettered checklist of various possible "addenda" items, including "F. VA Financing," "H. As is w/Right to Inspect," "I. Inspections," "P. Back-up Contract," "Q. Broker - Pers. Int. in Prop.," "V. Prop. Disclosure Stmt.," and "Other." Next to (immediately to the left of) each listed item was a box (to be "check[ed] if applicable"). On the written offer he prepared for the Hernandezes (Contract Offer), Mr. Shapiro checked the "F. VA Financing," the "H. As is w/Right to Inspect," the "V. Prop. Disclosure Stmt.," and the "Other" boxes,5 and he attached an appropriately initialed addendum corresponding to each of these checked items.6 No other boxes were checked. Page 8 of the FAR Form was the signature page. Numbered lines 412 through 416 on page 8, as filled in by Mr. Shapiro (for the Hernandezes), read as follows: OFFER AND ACCEPTANCE (Check if applicable: ? Buyer received a written real property disclosure statement from Seller before making this Offer.) Buyer offers to purchase the Property on the above terms and conditions. Unless this Contract is signed by Seller and a copy delivered to Buyer no later than 5 ? a.m. ? p.m. on January 21, 2008, this offer will be revoked and Buyer's deposit refunded[7] subject to clearance of funds.[8] On numbered lines 417 through 420 on page 8, directly beneath this "Offer and Acceptance" provision, was the following "Counter Offer/Rejection" provision, which contained a box for the Mendeses to check if they wanted to counter the Contract Offer, as well as a box for the Mendeses to check if, alternatively, they wanted to reject the Contract Offer outright: COUNTER OFFER/REJECTION Seller counters Buyer's offer (to accept the counter offer, Buyer must sign or initial the counter offered terms and deliver a copy of the acceptance to Seller. Unless otherwise stated, the time for acceptance of any counteroffer shall be 2 days from the date the counter is delivered. Seller rejects Buyer's offer. On the next numbered line (421) on page 8, in the spaces provided, Ms. Hernandez signed her name and wrote in the date, "1/18/08." Acting under a power of attorney, she also signed (on numbered line 423) for her husband, who was on military deployment in Afghanistan at the time. The penultimate numbered line (433) on page 8 provided that the "[e]ffective date" of the contract would be "[t]he date on which the last party signed or initialed and delivered the final offer or counteroffer." Ms. Hernandez put her and her husband's initials in the spaces provided on the bottom of page 8, as well as in the spaces provided on the bottom of the preceding seven pages, to "acknowledge receipt of a copy of th[ese] page[s]." Mr. Shapiro sent the Hernandezes' signed, dated and initialed Contract Offer to Respondent (by facsimile transmission) for presentation to the Mendeses for their consideration. Respondent guided the Mendeses through their review of the Contract Offer and provided them with advice. On January 23, 2008, after they had finished going over the Contract Offer with Respondent, the Mendeses (on numbered lines 427 and 428) signed and dated the document. They also initialed the bottom of each of the offer's first eight pages, as well as the bottom of each addendum that had been attached thereto, in the appropriate spaces. This was all done in Respondent's physical presence. On behalf of the Mendeses, Respondent provided (by facsimile transmission) a copy of the signed, dated, and initialed document (Genuine Hernandez Contract9) to Mr. Shapiro. By their actions (which Respondent helped orchestrate), the Mendeses signified their intent to accept the Contract Offer, without revision. They checked neither of the boxes in the "Counter Offer/Rejection" provision (on numbered lines 417 through 420 on page 8), nor did they make any written entries elsewhere on the document, or attach any appropriately initialed additional addenda, reflecting a desire to accept an offer from the Hernandezes only on terms different than those set forth in the Contract Offer. Most significantly, for purposes of the instant case, the Mendeses made no changes to the "Addenda" provision. They checked no additional boxes (including the "P. Back-up Contract" box), nor attached any appropriately initialed addendum corresponding to an unchecked item. After receiving the Genuine Hernandez Contract from Respondent, Mr. Shapiro showed it to Ms. Hernandez. Ms. Hernandez, with the help of Mr. Shapiro, proceeded to take those steps necessary for her and her husband to close on the Subject Property on February 29, 2008, the agreed-upon closing date.10 These steps included having the Subject Property inspected and securing a mortgage loan commitment.11 Respondent and Mr. Shapiro had occasion to speak with one another over the telephone regarding these post- contract/pre-closing matters. (There was no direct communication at any time between Respondent and the Hernandezes.) At no time either before or after the effective date of the Genuine Hernandez Contract did Respondent advise Mr. Shapiro that the Mendeses intended to treat their contract with the Hernandezes as a "back-up contract," that is, a contract subordinate to another contract for the sale and purchase of the Subject Property. This was not information that could be gleaned from a review of the Genuine Hernandez Contract. Indeed, the Genuine Hernandez Contract affirmatively indicated that it was not a "back-up contract," inasmuch as the "P. Back-up Contract" box in the "Addenda" provision on page 7 was not checked, nor was there any corresponding "Back-up Contract" addendum attached to the document. Unbeknownst to Mr. Shapiro and the Hernandezes, by the time the Genuine Hernandez Contract became effective (which, according to numbered line 433, was January 23, 2008, "[t]he date on which the last party [the Mendeses] signed or initialed and delivered the final offer"), the Mendeses had already entered into a contract (using the FAR Form) to sell the Subject Property to another couple, Carlos and Aida Garcia, for $330,000.00 (95% of which would be financed), with no seller contribution toward closing costs (Garcia Contract). In the "Addenda" provision (on page 7) of the Garcia Contract (as in that provision of the Genuine Hernandez Contract), neither the "I. Inspections" box, the "P. Back-up Contract" box, nor the "Q. Broker - Pers. Int. in Prop." box was checked. Respondent was aware at the time that the Mendeses executed the Contract Offer and entered into the Genuine Hernandez Contract that it was the Mendeses' intention to proceed with the Garcia Contract as the primary contract12 and to treat the Genuine Hernandez Contract as merely a "back-up"13 (providing a ready alternative for the Mendeses, as insurance, in the event their deal with the Garcias fell through).14 This was information that any reasonably prudent buyer in the Hernandezes' situation would have wanted and expected to have, as Respondent surely must have known. As a Florida- licensed real estate sales associate representing the Mendeses, Respondent had a duty, in the interest of honest and fair dealing, to disclose this information to the Hernandezes (notwithstanding that he was not their agent15). Nonetheless, Respondent knowingly and dishonestly participated in a scheme to conceal from the Hernandezes the subordinate status of their contract to purchase the Subject Property.16 As it turned out, the Mendeses did not need to have a "back-up" buyer, as the Garcias closed on the Subject Property on February 11, 2008, as scheduled. Respondent "attend[ed] the closing with the Garcias." Respondent told neither Mr. Shapiro, nor the Hernandezes, that the Garcias had closed on the Subject Property. Mr. Shapiro found out about the Garcias and their having closed on the Subject Property, not from Respondent, but from a representative of Sunbelt Title (the title company). He obtained this information just a few days before the Hernandezes' scheduled February 29, 2008, closing. Mr. Shapiro, in turn, told Ms. Hernandez about the Garcias' purchase of the Subject Property. Ms. Hernandez was "shocked" to learn that the Mendeses no longer had title to the Subject Property and that therefore she and her husband would not be able to purchase the property from them. She had made all the necessary preparations to move from the rental property she was living in with her husband to the Subject Property. She even had family members who were going to be "flying into town" to help her with the move. Had the Hernandezes known that their contract was only a "back-up" to the Garcias', they would not have done the things they did in anticipation of their scheduled February 29, 2008, closing on the Subject Property. Ms. Hernandez hired an attorney, who contacted Mr. Tenzer to inquire, on the Hernandezes' behalf, about the situation. Mr. Tenzer had no "idea what [the attorney] was talking about." Respondent was unavailable at the time inasmuch as he was out of the country on vacation. Mr. Tenzer therefore went directly to the filing cabinets where all of Tenzer Realty's files (both active and closed) were supposed to be kept and proceeded to look for the file on the Subject Property. Pursuant to established Tenzer Realty office policy (with which Respondent should have been familiar), all contracts dealing with the Subject Property should have been in one file in these filing cabinets. Mr. Tenzer found only the Garcia Contract in the file on the Subject Property. The Genuine Hernandez Contract (to which the Hernandezes' attorney had referred in his conversation with Mr. Tenzer) was not in the file. Unable to locate a contract for the sale of the Subject Property to the Hernandezes, Mr. Tenzer left a note on Respondent's desk asking Respondent to see him about the matter as soon as he returned to the office from vacation. In his note, Mr. Tenzer emphasized that "it was urgent" that Respondent discuss the matter with him "immediately" upon Respondent's return. When Respondent returned to the office, he produced for Mr. Tenzer a document (Purported Hernandez Contract17) identical in all respects to the Genuine Hernandez Contract, except that three additional boxes in the "Addenda" provision on page 7 were checked: the "I. Inspections" box; the "P. Back- up Contract" box; and the "Q. Broker - Pers. Int. in Prop." box.18 (No additional addendum corresponding to any of these items was attached to the document, however; just the boxes were checked.19) There were no signatures or initials next to these three checked boxes.20 Respondent told Mr. Tenzer that this was a "back-up contract" and that the Hernandezes had been so informed. What Respondent had done was alter the "Addenda" provision of the Genuine Hernandez Contract in a weak and transparent attempt to make it appear as if the "back-up" nature of the contract was apparent from its face. Mr. Tenzer asked Respondent where the Purported Hernandez Contract had been "all this time." Respondent responded that he had kept it in his desk drawer. This response drew a rebuke from Mr. Tenzer, who chastised Respondent for not keeping the Purported Hernandez Contract in the file together with the Garcia Contract. Mr. Tenzer then inquired, "Why do we have another contract when one's already closed?" Respondent answered, unresponsively (as well as untruthfully), that he had notified Mr. Shapiro that the Garcias had closed on the Subject Property and that therefore the Hernandezes would not be purchasing the property. Upon reviewing the Purported Hernandez Contract, Mr. Tenzer noticed that the "Q. Broker - Pers. Int. in Prop." box was checked. When he questioned Respondent about this, Respondent told Mr. Tenzer that "that was done in error."21 The Hernandezes ultimately purchased another home in the Miami area. The purchase price of the home was more than the amount that they had agreed to pay to buy the Subject Property from the Mendeses. A complaint concerning Respondent's dealings in connection with the Subject Property was filed with Petitioner. The complaint was investigated by Felix Mizioznikov, an investigator with Petitioner. As part of his investigation, Mr. Mizioznikov interviewed Respondent, both over the telephone and "in person." During the "in person" interview, Respondent gave Mr. Mizioznikov his file on the Subject Property. The file contained the Garcia Contract, the Genuine Hernandez Contract,22 and the Purported Hernandez Contract. Mr. Mizioznikov's investigation led to Petitioner's filing the instant charge against Respondent alleging a violation of Section 475.25(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order finding Respondent guilty of "concealment" in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Amended Administrative Complaint and disciplining him for having committed this violation by suspending his license for four years, fining him $1,000.00, and requiring that he reimburse Petitioner for its reasonable investigative costs in this case. DONE AND ENTERED this 3rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2010.
The Issue Whether the Respondent, a licensed assisted living facility (ALF), committed the violations alleged in the Administrative Complaint, and, if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing ALFs in Florida. Loving Care is licensed by Petitioner as a 16-bed ALF at 380 Northwest South River Drive, Miami, Florida. Adrian Goett is the principal owner and authorized representative of Loving Care. Adjacent to Loving Care is an independent living facility owned by Mr. Goett and referred to at the formal hearing as 3320 Northwest Seventh Avenue, Miami, Florida (the adjacent facility). The adjacent facility is not licensed as an ALF. A survey of Loving Care in May of 2012 revealed that the facility had 28 residents, which exceeded its licensed capacity by 12 residents. In June and July 2012, four former Loving Care residents moved from that facility to the adjacent facility. A fifth resident moved from Loving Care to an unknown address. Resident 1 was admitted to Loving Care on November 22, 2010, and was discharged from Loving Care on June 4, 2012. Resident 1 moved from Loving Care to the adjacent facility. Resident 2 was admitted to Loving Care on August 18, 2002, and was discharged from Loving Care on June 4, 2012. Resident 2 moved from Loving Care to the adjacent facility. Resident 3 was admitted to Loving Care on July 2, 2010, and was discharged from Loving Care on July 13, 2012. Resident 3 moved from Loving Care to the adjacent facility. Resident 4 was admitted to Loving Care on June 21, 2011, and was discharged from Loving Care on June 4, 2012. Resident 4 moved from Loving Care to the adjacent facility. A Form 1823 (Form 1823) is a health assessment form approved by Petitioner that is completed for each resident of an ALF upon admission and every three years thereafter. The form is also completed if the resident experiences a change of condition. A Form 1823 was completed for Resident 1 on October 25, 2011. That assessment reflected that Resident 1 needed supervision for bathing, dressing, eating, and self-care. The assessment reflected that Resident 1 needed assistance preparing meals, shopping, making telephone calls, handling personal affairs, and taking medication. Resident 1 needed daily oversight in the categories "observing wellbeing," "observing whereabouts," and "reminders for important tasks." A Form 1823 was completed for Resident 2 on June 16, 2011. That assessment reflected that Resident 2 needed supervision and daily reminders for self-care grooming. Resident 2 required supervision with preparing meals, and handling personal and financial affairs. Resident 2 also needed assistance with self-administration of medication. Resident 3 had no records at Loving Care on October 1, 2012, the date of a survey. No records were produced at the formal hearing for Residents 4 and 5. There was no evidence that the respective needs of Resident 1 or 2 changed from the dates of their assessments to the dates of their discharge from Loving Care. After the four former residents of Loving Care moved to the adjacent facility, Loving Care provided those residents cleaning services and food. The adjacent facility charged the former residents rent. There was no evidence that Loving Care or the adjacent facility provided supervision or assistance with the residents’ activities of daily living. There was no evidence as to how those needs were being met. During the survey on October 1, 2012, the surveyors found two locked medication carts in the adjacent facility. The Administrator of Loving Care was summoned to the area and produced a key that unlocked the medication carts. Inside the carts were prescription medicines for Residents 1, 2, and 4. There was no evidence regarding how the medications came to be in the locked medication carts. There was no evidence as to who had keys to the cart, other than Loving Care’s administrator. These medicines were packaged using bingo cards, which is the way medications are typically administered to institutional residents. A bingo card is a sheet, with each dose of medication sealed in a blister package that is punched out when the dose is administered. Mr. Goett testified that all five of the residents cited in the Administrative Complaint lived independently after they were discharged from Loving Care. Mr. Goett denied that the adjacent facility provided any assistance with activities of daily living or any other services to its residents that would require the adjacent facility to become licensed as an ALF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of April, 2014. COPIES FURNISHED: Adrian Goett Loving Care Retirement Services, Inc. 380 Northwest South River Drive Miami, Florida 33128 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
