The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue is whether Respondent operated as a real estate broker or sales associate without a license, in violation of Section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent has not been licensed as a real estate broker, broker sales-associate, or sales person in the state of Florida. Respondent entered into an arrangement with Tina Mathews, who holds a valid broker or sales person's license, to find buyers in return for which she would split the commission with him. Although Respondent never showed the properties to prospective buyers, after finding them, he performed other, unspecified tasks to ensure that the deals closed and he would be paid. Respondent's defense is that he did not know that what he was doing was illegal. In fact, this case arose by a complaint filed by Respondent against Ms. Mathews, who had paid him several times in the past for similar work in connection with other transactions. When Ms. Mathews declined to pay Respondent in connection with three other transactions described in the Administrative Complaint, Respondent contacted Petitioner, which, after an investigation, brought these charges against Respondent for two transactions, as identified in the Administrative Complaint, for which Ms. Mathews paid him. In one letter (received June 12, 2007) from Mr. Haque to Petitioner, he acknowledges that he has "done 10 more deals with [Ms. Mathews] in the past for which she compensated me 1/3 of her commission. Enclosed are the HUDS for Ronald Nicolas and Beryl George . . .." These are the two transactions that are the subject of the Administrative Complaint, so there is no doubt that Respondent received compensation for his work on these two transactions. It is difficult to determine exactly what Respondent did to "earn" his share of the commission, although clearly he found the buyers. Although Respondent claims to have substantial work on each of these transactions, he is vague about what he did, and the weight to be accorded this admission is limited due to Respondent's persistent misunderstanding of this case as some sort of vehicle by which he can obtain payment for his share of the commission for the three subsequent transactions about which he filed a complaint against Ms. Mathews. The only remaining element of Petitioner's case against Respondent involves any ownership interest that Respondent may have had in the two properties identified in the Administrative Complaint. A summary of the investigator's interview with Ms. Mathews, who did not testify, states that she told the investigator that the deals that she did with Respondent were with properties that he owned. However, Respondent supplies the needed evidence as to this critical point when, in his post- hearing statement, he refers to this statement from the investigator and disputes it by stating: "The fact is, this is the only property in my complain [sic] I own with Ms. Mathews as agent of record." It is impossible to determine whether this admission applies to one of the two transactions that are the subject of the Administrative Complaint or one of the transactions for which he is, even now, seeking payment. At minimum, though, even if the statement applies to one of the two subject transactions, it applies to only one of them, and, by negative implication, Respondent concedes that he was not an owner of the other property. On the basis of this record, Petitioner has proved all of the above-cited allegations of the Administrative Complaint in connection with both transactions that underlie Count I.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding Respondent guilty of operating as a broker or sales person without a license and imposing an administrative fine against him of $5000. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 802 North Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Syed Haque 10100 Country Brook Road Boca Raton, Florida 33428
The Issue This is a case in which the Petitioner seeks to suspend, revoke, and/or take other disciplinary action against the Respondent's alcoholic beverage license. The primary grounds for the proposed disciplinary action are that the licensee has permitted patrons on the licensed premises to sell cocaine on numerous occasions in violation of various statutory provisions. The specific allegations are set forth in a Notice To Show Cause dated February 27, 1989. An Emergency Order Of Suspension was served on the Respondent on February 27, 1989. The Respondent requested an emergency hearing, which was conducted on March 7, 1989. Both parties offered evidence at the hearing. Following the hearing the parties requested and were allowed until March 17, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order. The Respondent has not filed any post-hearing documents. The proposed findings of fact submitted by the Petitioner are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact: The Respondent, Ocean Drive Hotel Corporation, d/b/a/ Ocean Haven Restaurant, is the holder of Alcoholic Beverage License Number 23-3568, Series 2-COP, for a licensed premises known as Ocean Haven Restaurant, which is located at 155 Ocean Drive, Miami Beach, Dade County, Florida. The licensed premises are located in a neighborhood which is somewhat less than wholesome; a neighborhood in which there is a substantial amount of illegal drug related activity. It is a neighborhood in which it is not uncommon for police officers to observe people who have been previously arrested for drug violations. The Respondent corporation owns the licensed premises, as well as the hotel premises of which the licensed premises are a part. The Respondent corporation is owned by Mr. Heriberto Velasco. Mr. Velasco is the president of the Respondent corporation and he is the manager of both the hotel and the restaurant businesses. Mr. Velasco lives in the hotel with his wife, his mother, and one of his sons. Mr. Velasco takes most of his meals in the restaurant which comprises the licensed premises, and usually visits the licensed premises at least three times a day for that purpose. There is no evidence that he regularly spends any other time supervising activities in the restaurant. There are four employees in the restaurant that comprises the licensed premises. Two of those employees are Gloria E. Berlioz and Antonia Rodriguez de Alcina. The latter is also known by the name of Nora. Ms. Berlioz and Ms. Alcina have both been employees on the licensed premises for a year or two. Ms. Alcina is employed as a waitress. Ms. Berlioz is employed as a cook. During the course of an undercover investigation during the months of January and February of 1989, the following transactions involving controlled substances took place within the licensed premises: On January 10, 1989, a patron known as Loraine sold cocaine to Investigator Huguet. On January 18, 1989, a patron named Roberto Cantero sold cocaine to Investigator Huguet. On January 19, 1989, an unknown white Latin male patron sold cocaine to a patron named Tommy. On January 25, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On January 26, 1989, an unknown Latin male patron sold cocaine to Investigator Huguet. On February 6, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 7, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. On February 10, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet in two separate transactions. On February 10, 1989, a patron named Roberto Cantero also sold cocaine to Investigator Lerra. On February 17, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet, in two separate transactions. On February 17, 1989, a patron named Roberto Cantero also delivered cocaine to an unknown white male patron. On February 22, 1989, a patron named Roberto Cantero again sold cocaine to Investigator Huguet. During the course of the vast majority of the drug transactions described in the preceding paragraph, the people involved in the transactions discussed the subject of drug transactions in normal conversational tones of voice. During the majority of those conversations, either Ms. Berlioz or Ms. Alcina was standing close enough to have heard the conversations. During some of the conversations, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter, within two or three feet from the conversations. During the course of the vast majority of the drug transactions described in Paragraph 5, above, the drugs involved in the transactions were openly displayed on the table top or on the counter top in front of the participants to the transactions. In each of the transactions involving purchases by Investigator Huguet, the investigator attempted to be obvious about what he was doing by holding the drugs in front of his face to inspect them before putting the drugs in his pocket. During the vast majority of those transactions, Ms. Berlioz or Ms. Alcina was standing close enough to have observed the transactions. During some of the transactions, Ms. Berlioz or Ms. Alcina was standing immediately on the other side of the lunch counter within two or three feet from the drug transactions. One of the drug transactions took place while Mr. Heriberto Velasco was standing several feet away. All of the drug transactions described in Paragraph 5, above, took place within the licensed premises during business hours when employees and patrons were present on the licensed premises. None of the employees ever called the police or asked any of the parties to the drug transactions to leave the licensed premises. Mr. Heriberto Velasco was aware that the licensed premises are located in a neighborhood in which there is a high level of illegal drug activity. Nevertheless, he did not take any special precautions to prevent or detect drug activity on the licensed premises other than to tell the employees to let him know if they saw any drug activity. Mr. Heriberto Velasco has never asked the Division of Alcoholic Beverages and Tobacco for assistance or suggestions with respect to preventing or eliminating drug activity on the licensed premises, even though the Division of Alcoholic Beverages and Tobacco advises all licensees of the availability of such assistance. Mr. Heriberto Velasco did not have actual knowledge that drug transactions were taking place on the licensed premises. He is opposed to drug trafficking and he has not knowingly permitted sales of drugs in his hotel or on the licensed premises. He has instructed his employees in the hotel and in the restaurant to call him if they observe any drug related activity so that he can throw out anyone involved in such activity. He has thrown people out of the hotel when he suspected they were involved in drug related activities. The employees in the licensed premises never told him about any drug related activity on the premises. Mr. Velasco never observed any activity on the licensed premises that he thought was drug related activity. Mr. Velasco does not know what crack cocaine looks like. Mr. Eric Velasco is the 20-year-old son of Mr. Heriberto Velasco. The son lives at the hotel with his parents and helps with the management of the hotel and restaurant to the extent he can between going to college and working at another near-by job. Mr. Eric Velasco has never observed any activity in the licensed premises that appeared to him to be drug related activity. He does not know what crack cocaine looks like. In brief summary, the vast majority of the drug transactions described in Paragraph 5, above, took place in plain view within the licensed premises. The open exchanges of drugs and money in conjunction with the open conversations about drug transactions demonstrate a persistent pattern of open and flagrant drug activity. The subject drug transactions were sufficiently open that they would have been noticed by a reasonably diligent licensee.
Recommendation On the basis of all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case revoking the Respondent's alcoholic beverage license number 23-3568, series 2-COP, for the premises located at 155 Ocean Drive, Miami Beach, Dade County, Florida. DONE AND ENTERED this 19th day of April, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1096 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate and unnecessary details. Paragraph 3: Rejected as constituting subordinate and unnecessary details. Further, some details proposed in this paragraph are not supported by clear and convincing evidence. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: Accepted in substance, with many subordinate and unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted in substance. Findings proposed by Respondent (None) COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Gino P. Negretti, Esquire 44 West Flagler Street Miami, Florida 33130 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Conclusions UPON CONSIDERATION of the Administrative Complaint attached hereto as Exhibit “A”, the transcript of the corresponding Division of Administrative Hearings (DOAH) case, the exhibits received into evidence, ‘the Proposed Recommended Order filed by the Administrative Law Judge in this matter and attached hereto as Exhibit “B’, any exceptions to the Recommended Order filed by either party, and being otherwise fully advised of the premises, it is hereby, ORDERED AND ADJUDGED: 1. The Findings of Fact, Conclusions of Law, and recommended penalty as _ detailed in the Recommended Order are hereby adopted. 2. Respondent is not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. . 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this ogee, of (Octien. 2008. W. Drago, Secretary Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, FL 32399-0750
Appeal For This Case Unless expressly waived, any party adversely affected by this Final Order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within 30 days of the effective date of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Final Order has been provided via U.S. Mail to Respondent, Todd Boetzel and Boetzel Landscaping, Inc., c/o Gregory T. Elliott, Esquire, Elliott-Berger, P.A., 7310 Gulf Boulevard, St. Petersburg, Florida 33706, wie ny of CC 2008. SARAH WACHMAN, AGENCY CLERK By: Mush Ah Min Brandy Nichols, Deputy Clerk Copies furnished to: Reginald D. Dixon, Informal Hearing Officer Sorin Ardelean, Assistant General Counsel Division of Regulation, Bureau of Unlicensed Activity Daniel Manry, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060 Steven Petrozak, d/b/a Southern Cross Construction, 6435 92" Place #901, Pinellas Park, Florida 33782
The Issue Whether or not on or about August 9, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Ruth Ira Holmes, did unlawfully offer to commit prostitution, lewdness or assignation, for the sum of $40.00 U.S. currency, with Beverage Sergeant R. A. Boyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about August 22, 1978, Beach Park Motel, Inc. , a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness or assignation for the sum of $40.00 U.S. currency, with Beverage Officer B. A. Watts, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness, or assignation for the sum of $50.00 U.S. currency, with Beverage Officer C. E. Lloyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, on its above-described licensed premises, by its agent, servant, or employee, or entertainer, one, Diana Alice Baumbach, did unlawfully beg or solicit a patron, customer, or visitor, Beverage Officer C. E. Lloyd to purchase a beverage, to-wit; "CHERRY DELIGHT", for such employee, servant, agent or entertainer, in violation of Section 562.131, Florida Statutes. (The charging document, i.e., Notice to Show Cause, originally contained other allegations found in its Counts 1 and 5; however, those counts were withdrawn by the Petitioner in the course of the hearing and are therefore removed from consideration through this Recommended Order.)
Findings Of Fact The Respondent in this cause is Beach Park Motel, Inc. , a closely held corporation. This corporation is a holder of Beverage License No. 15-002265, Series 4-COP, to trade as Beach Park Motel at a business premises located at 4290 Ocean Beach Boulevard, Coco Beach, Florida. This license is held with Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, which organization has responsibility for the licensure and regulation of those several business entities within the State that sell alcoholic beverages. This case is here presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint which contains six counts, Counts 1 and 5 having been withdrawn. The details of the remaining counts are as set forth in the issues statement of this Recommended Order. On August 9, 1978, Officers Richard Boyd and Bethel Watts, Jr., of the Division of Alcoholic Beverages and Tobacco, went to the licensed premises at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, for purposes of investigating alleged prostitution activities at the licensed premises. They entered the premises and took a seat at the bar around 9:30 p.m. While seated there, they observed Ruth Ira Holmes performing as an entertainer in the bar by dancing. This person, Holmes, was also referred to by a stage name, "Nina". Holmes then left the stage and approached Officer Boyd, who was sitting in a separate location from Officer Watts. This contact between Holmes and Boyd occurred thirty or forty minutes after the officers had arrived at the licensed premises. There ensued a discussion between Boyd and Holmes on the subject of purchasing marijuana. (The allegation concerning the Respondent's participation in this alleged possession and sale of marijuana has been withdrawn.) Holmes then went around the service bar and picked up her purse from behind the bar. Boyd and Holmes then left the interior of the licensed premises. Once outside Holmes produced two envelopes with a substance which appeared to be marijuana and the officer also observed in her purse a larger bag which had a substance of similar appearance. Boyd asked how much the contents of the larger bag would cost and gave her $25.00, purchasing those contents. The witness then returned the small envelopes to her purse. Boyd asked Holmes what she was doing after work and she replied, "Are you asking for a 'date'?" Boyd responded, "Yes" and Holmes stated, "You mean 'that'?" and thrust her body at him. Boyd asked her what it was going to cost and she replied that for $40.00 she would do anything he wanted. He accepted her offer and she gave him the key to Room 224, which was a key to the motel part of the Respondent's establishment. Holmes checked to make sure that no one was observing them and they proceeded to the motel room. When they reached the room, he gave her two twenty dollar bills. She placed the money in her purse and took off her clothing with the exception of a "G" string and stated to him, "Let's get started." Boyd moved-toward the door of the motel room, after which he produced his law enforcement officer's identification badge and officers of the Brevard County Sheriff's Department took Holmes into custody. Howard Warren, President of the Respondent corporation, was seen at the licensed premises that night. Later, in connection with an investigation of her activities, a statement was given to Officers Boyd and Watts by Ruth Ira Holmes in which she indicated to the officers that she had been employed in the licensed premises known as the "Booby Trap" to work as a dancer and Howard Warren, then President of the Respondent corporation, had hired her. Her rate of pay was $2.50 per hour. She further stated that she had been employed for about seven months and was paid at the end of each week by check from Howard Warren. The Petitioner's Composite Exhibit 4 admitted into evidence is a series of checks written by Howard Warren and made payable to Ruth Ira Holmes beginning on July 7, 1978, with the last check being drawn on September 1, 1978, and one of the checks being drawn on August 1, 1978. The observation of Holmes' dancing on the licensed premises on the night in question, the statement that she was an employee paid by Howard Warren and the series of checks drawn by Howard Warren to Ruth Holmes, also known as Ruth Ira Holmes, are sufficient to show that Ruth Ira Holmes was employed as a dancer by the Respondent to work at the licensed premises in such capacity on August 9, 1978. This determination is further borne out by the Petitioner's Exhibits 3 and 5 admitted into evidence which are copies of the payroll accounts of the Respondent showing that Ruth Holmes was an employee and by part of Petitioner's Composite Exhibit 6, which is a motel registration card showing Ruth Holmes to be registered in the same room, 224, spoken to before and shows her occupation to be dancer. Officer Watts returned to the licensed premises on August 22, 1978, and again operating in an undercover capacity. While seated at the bar, he was approached by Diana Baumbach, also known as 'Misty'. Baumbach asked Watts if he were having a good time and he told her that things were rather slow and that he had been led to understand that the "Booby Trap" was a place where the action was. Baumbach responded by telling Watts that she could provide him some action for $40.00, either a "blow job"/fellatio or "screw"/intercourse. During this conversation Baumbach indicated that she worked in the licensed premises. She also stated in the course of the conversation that when a certain girl who was dancing had finished her performance it would be Baumbach's turn. Baumbach was wearing a long sleeved jacket and bikini panties and after this initial discussion with Watts went to the dance area and performed for the crowd. Baumbach returned to the location of the officer and stated she was ready to go. They walked through the rear of the bar and she took him to Room 206 in the motel part of the Respondent's complex. They entered Room 206 and Baumbach stated that she wanted her $40.00 and Watts gave her two twenty dollar bills. Baumbach took off her coat and Watts stated that he wanted to check to see if anyone was outside. He opened the door and allowed an officer of the Cocoa Beach Police Department to enter the room and Baumbach was arrested. On September 6, 1978, Officer C. E. Lloyd of the Division of Alcoholic Beverages and Tobacco went to the licensed premises in an undercover capacity to investigate alleged prostitution at that location. He entered the licensed premises and took a seat at the bar in the area of the dance floor. After being seated, he was approached by Diana Baumbach, who asked him if she could sit down. She inquired if Lloyd would buy her a drink and he complied with that request and bought the drink. She then asked Lloyd if he "messed around" and his answer was, "Sometimes." She stated that she would give him a "blow job"/fellatio for $30.00 or "all the way"/intercourse for $50.00. She then stated that she could not go right away because the master of ceremonies was going to call her up to dance. She danced two times in front of the audience. The dancing she did was a topless routine. She returned to Lloyd's location and asked if he knew his way around and stated that he should go up to Room 216 and that she would follow up. When he arrived at Room 216 in that part of the Respondent's establishment, Baumbach was already there. They went inside the room and Baumbach again advised Lloyd that the price was $50.00. She took her clothes off and he took off his shoes and then went to the door, at which point he advised Baumbach that she was being arrested and she was arrested. Lloyd later spoke with Howard Warren about the solicitation for prostitution that had occurred on the part of Baumbach as a follow up to his investigation and the arrest of Baumbach. Baumbach, on the occasions of August 22, 1978, and September 6, 1978, at which points she solicited Officers Watts and Lloyd, respectively, for the purposes of committing prostitution, was an employee, agent and entertainer of the Respondent in the sense of the dance performances she gave for the benefit of the patrons in the licensed premises. This determination of employment is supported by the testimony of Carol Sue Warren, daughter of Howard Warren and manager of the "Booby Trap" during August and September, 1978, who testified that Baumbach was an employee of the Respondent at time which corresponds to August 22, 1978, and September 6, 1978. Moreover, the rendezvous between Ruth Ira Holmes and Officer Boyd on August 9, 1978; the rendezvous between Diana Alice Baumbach and Officer Watts on August 22, 1978, and the rendezvous between Diana Alice Baumbach and Officer Lloyd which occurred on September 6, 1978; all these meetings for purposes of committing prostitution in the motel which is a part of the Respondent's establishment located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, were types of activities known by the officials of the Respondent to be taking place. This knowledge on the part of the officials of the Respondent covered the period of August 9, 1978, through September 6, 1978, and pertained not only to the solicitation to commit prostitution, lewdness or assignation and the occurrence of such prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach but also pertained to such activities by other employees or dancers who worked in the licensed premises during this period of time. This knowledge on the part of the Respondent's officials, and in particular its president, Howard Warren, was not part of a pattern of conduct which actively condoned activities of prostitution by the employees and/or dancers who worked at the licensed premises, in fact the owners had a stated policy of not allowing prostitution or soliciting drinks or activities involved with drugs on the part of their female employees or others who might be dancing in the licensed premises and the Respondent's representatives had fired certain of the female employees in the past when they had been discovered committing acts of prostitution. Nonetheless, the Respondent in the person of Howard Warren stated that he did not wish prostitution in the licensed premises but didn't feel he could really effectively stop it and went further by rehiring Ruth Ira Holmes as an employee of the Respondent after she had been discovered committing acts of prostitution. Holmes, after returning as an employee, then continued her activities as a prostitute. Diana Alice Baumbach had also been employed by the Respondent and had been fired several times during the course of her employment, one of those firings occurring after her arrest for the prostitution incident involving Officer Watts that occurred on August 22, 1978. She was then rehired and was an employee of the Respondent on September 6, 1978, when she committed a further act of soliciting for prostitution which occurred with Officer Lloyd. Baumbach was also represented by Howard Warren as attorney following an arrest. Both Holmes and Baumbach were allowed to remain as tenants in the Respondent's motel, the same motel where the prostitution had occurred, and were allowed to do so following their arrests in August of 1978, for prostitution offenses.
Recommendation In consideration of the facts found herein, the Conclusions of Law reached and those matters offered in mitigation, it is RECOMMENDED that the license of the Respondent, Beach Park Motel, Inc. d/b/a Beach Park Motel, be REVOKED. 4/ DONE AND ENTERED this 6th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent committed the offenses alleged in the notice to show cause and, if so, what disciplinary action should be taken.
Findings Of Fact The bar At all times pertinent hereto, respondent, Melba Mosca, held alcoholic beverage license number 23-00737, series 2-COP, for the premises known as 71 Bar and Grill (the "premises"), located at 1220 Normandy Drive, Miami Beach, Dade County, Florida. The investigation On January 28, 1994, Officer Luis King of the Miami Beach Police Department, operating undercover, entered the licensed premises as part of an investigation of illegal drug activity. The premises is a small bar, containing one main bar, a pool table, a pinball machine and a jukebox. At the time he entered, Officer King observed between 15 and 20 patrons, a female bartender, and another individual behind the bar, later identified as "Dave." At the time, Dave appeared to Officer King to be the manager or in charge of the premises since he had the keys to the register, full access to the bar and the remainder of the premises, and actively controlled the bartender and patrons. During subsequent visits, Officer King discovered that Dave was the son of the owner, respondent Melba Mosca, and his activities in the bar, from bartending, scheduling the bartenders, and ordering bar supplies and food, confirmed his employment and management status in the bar. 1/ That evening, Officer King observed one Phillipi Blanco (Flip), a known narcotics dealer, on the premises, and the pattern of his activities suggested to Officer King that Flip might be dealing narcotics. Accordingly, Officer King resolved to return to the premises on another occasion. On February 11, 1994, Officer King returned to the premises at or about 9:30 p.m., and noticed Dave, the only employee on the premises, tending the bar. Dave appeared very agitated that evening, consistent with being under the influence of some controlled substance, and exhibited some strange behavior, such as exposing his genitalia while working behind the bar. On one occasion that night, Dave locked himself in the men's restroom with unknown patrons for approximately one-half hour, leaving the bar unattended. That same evening, Officer King met with Eugene Scott, who he had met the previous night, in the men's restroom, and Scott offered to sell Officer King one plastic baggie of cocaine for $30. Officer King accepted, and paid Scott $30 in exchange for the cocaine. 2/ On February 12, 1994, Officer King returned to the licensed premises at or about 7:30 p.m. Officer King did not recall if Dave was on the premises that evening, but about 8:40 p.m. he approached Eugene Scott by the back door and asked Scott if he could purchase some more cocaine. Scott stated that he did not have any cocaine but that he did have some marijuana. In exchange for $10, Officer King purchased a baggie of marijuana from Scott. As noted, this transaction occurred near the back door, and was not observable from the bar. During the evening of February 19, 1994, Officer King returned to the licensed premises to continue his investigation. While at the premises, Officer King played pool with a patron known as Manuel Fernandez (Manny), who he knew from previous visits and during the course of that game asked Manny if he could purchase some cocaine. Manny refused. Later, Officer King observed Flip and an unknown patron enter the restroom. Officer King and Manny entered the restroom and Officer King asked Flip if he could buy some cocaine. Flip refused, because he "did not know " Officer King "well enough." Immediately after Flip left the restroom, Manny asked Officer King what he wanted and Officer King replied that he wanted to purchase $20 worth of cocaine. Officer King handed Manny $20 and a few minutes later Manny joined Officer King at the pool table and handed him a plastic baggie, secreted inside a matchbook, containing cocaine. Dave was in the bar at the time, but the proof fails to demonstrate that he observed or had the opportunity to observe any of these discussions or transactions. On March 1, 1994, at or about 7:45 p.m., Officer King returned to the licensed premises to continue his investigation, and during the course of that visit engaged Dave in a game of pool. While playing pool, Officer King was approached by a patron known as "Gennie," who Officer King had observed on the premises previously. Gennie asked Officer King if he needed anything and Officer King replied that he wished to purchase $20 worth of cocaine. Officer King gave Gennie $20 and Gennie approached Dave and asked if he had any cocaine. Dave replied that it would be a little while, and shortly thereafter he left the premises. A few minutes later Dave returned with an unknown male, entered the men's restroom, and locked the door. A few minutes later, Dave exited the restroom, and he and Gennie engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and on her return handed Officer King a plastic baggie of cocaine and explained she had taken a "hit" before delivering it to him. Later that evening, Officer King asked Gennie if she could get him another $20 worth of cocaine. Gennie replied that would be "no problem," and approached Dave and asked him for another $20 worth of cocaine. Shortly thereafter, Dave and the unknown male again entered the men's restroom and locked the door. When he exited a few moments later, Dave went directly to Gennie and they again engaged in a hand-to-hand transaction. Gennie then went to the lady's restroom, and when she emerged a few moments later handed Officer King a small plastic baggie containing cocaine. Gennie again advised Officer King that she had taken a "hit" prior to delivery, as "her payment". On March 4, 1994, Officer King returned to the licensed premises to continue his investigation. Upon entering the premises Officer King went directly to the restroom and was followed by Scott. Scott asked Officer King if he "needed anything." Officer King told Scott he wished to purchase some cocaine, and later that he wished to purchase some marijuana and crack cocaine. Scott advised Officer King that it would be a while before he could get the cocaine, but that he could get the marijuana and crack cocaine immediately for $10 each. Officer King gave Scott $20, and Scott left the premises. A few minutes later, Scott returned to the premises and handed Officer King a plastic baggie containing marijuana and a rock of crack cocaine. Officer King then left the premises, but returned about 30 minutes later. While Officer King was playing pool with Dave, Scott returned to the premises, approached Officer King, and handed Officer King a plastic baggie containing cocaine. This transaction occurred openly, with no attempt by Scott to conceal the transaction from Dave. The owner's explanation Respondent, Melba Mosca, is 70 years of age, and has owned the 71 Bar and Grill since April 1993. According to respondent, she has been very alert to prevent drugs from being present on the premises, has signs posted in the bar prohibiting drugs, and has instructed her bartenders not to allow drugs and to phone the police if they see any drugs. Respondent further averred that in October 1993 she was hospitalized for an operation, and her ability to supervise the premises since that time was impaired. Notwithstanding, she was on the premises two to three times a day, and at shift change. According to respondent, her son Dave "watched" the premises for her when she was ill, but was not an employee. The testimony of Helia Mercado, respondent's nighttime bartender, was consistent with that of respondent. As heretofore noted in endnote 1, the testimony of respondent and Ms. Mercado that Dave was not an employee or agent of the owner was rejected as not persuasive or credible. Indeed, respondent's own testimony that Dave "watched" the premises for her, and Officer King's observation of his activities, compel the conclusion that Dave was an agent or employee of the owner. The testimony of respondent and Ms. Mercado that they had never observed any narcotics activity on the premises, as well as the efforts that were taken to discourage it, while of questionable credibility, stands unrefuted. Indeed, there is no proof of record that respondent was present on the premises when any of the transactions occurred that are the subject matter of the notice to show cause, and no proof that she or any of her agents or employees, except for Dave, were ever in a position to observe, much less observed, those or any other illicit activities on the premises. Under such circumstances, and given the limited number of transactions, the limited time of day at which they occurred, and the surreptitious nature of the majority of the transactions at issue, it cannot be concluded that respondent, based on the competent proof of record, fostered, condoned, or negligently overlooked such illegal activity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the notice to show cause. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April 1994.
Findings Of Fact The Respondent holds Real Estate Salesman's License No. 0355517 issued by the Board of Real Estate. Petitioner is employed as a real estate salesman at Norma Star Realty, Key Largo, Florida. During October, 1980, the Respondent applied for licensure as a real estate salesman with the Board of Real Estate. His application was approved, and the Respondent was admitted to the examination, which he passed. The Board of Real Estate issued a real estate salesman's license to the Respondent during December, 1980. In applying for licensure, the Respondent filled out the Board of Real Estate's standard application form. Paragraph 6 of the form sets out the following inquiry: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations) without regard to whether convicted, sentenced, pardoned or paroled? The Respondent answered "No" to this inquiry. The Respondent has been arrested on several occasions. On July 29, 1964, he was arrested in Las Vegas, Nevada, on a charge of sodomy. On August 6, 1964, he was arrested in Las Vegas, Nevada, on a charge of rape. On May 22, 1966, he was arrested in Las Vegas, Nevada, on the charge of notorious cohabitation. On January 31, 1969, he was arrested in Miami, Florida, on the charge of board bill fraud. All of these charges were ultimately dismissed. The Respondent was neither tried nor convicted in connection with any of the charges. The Respondent had been licensed as a real estate salesman in the State of Michigan. While in Michigan, he retained counsel, now deceased, who advised him that all of the Las Vegas arrests had been expunged from the Respondent's record, and that the Respondent could respond in the negative to inquiries as to whether he had ever been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Real Estate, dismissing the Administrative Complaint filed against the Respondent, Michael Timothy McKee. RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 10th day of December, 1981. COPIES FURNISHED: Harold W. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Arthur L. Miller, Esquire 9101 S.W. 66th Terrace Miami, Florida 33173 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue The issues to be determined are whether Respondent violated sections 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2011), and Florida Administrative Code Rule 61J2- 14.009, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate having been issued license number 3101946. During the time relevant to this case, Respondent was a sales associate affiliated with Bahia Real Estate ("Bahia"), a brokerage company owned by Raul and Ricardo Aleman, with offices located in Miami, Orlando, and Tampa, Florida. Respondent was employed in Bahia's Miami location. In 2010, Respondent acted as a sales associate on behalf of Michael Perricone for a real estate transaction involving the purchase of a condominium in the Blue Lagoon Towers ("Blue Lagoon") in Miami which was purchased as an investment. Mr. Perricone's sister, Francesca Palmeri, and her husband, Santo Palmeri, were present at the closing where they met Respondent for the first and only time. During the closing, which lasted approximately one hour, the Palmeris indicated to Respondent that they would be interested in making a similar purchase of investment property if another comparable condominium unit became available at Blue Lagoon. The Palmeris had no further interaction with Respondent until he contacted them at their home in Pueblo, Colorado, in 2011 to advise them of the availability of a condominium for sale at Blue Lagoon. On or about October 6, 2011, Respondent faxed a partially completed Bahia form "'AS IS' Residential Contract for Sale and Purchase" to Mrs. Palmeri for the Palmeris to use in making an offer on a condominium unit located at 5077 Northwest Seventh Street, Miami, Florida. Prior to forwarding the document to Mrs. Palmeri, Respondent wrote on the form the property description, the escrow agent name and address, the initial escrow deposit amount and additional deposit, the time for acceptance, the closing date, and listed himself as the "Cooperating Sales Associate" with "Bahia Realty Group, LLC." The Palmeris decided to offer a $125,000.00 purchase price. Respondent directed Mrs. Palmeri to complete the contract and provide a ten percent escrow deposit. Mrs. Palmeri entered a purchase price of $125,000.00, initialed each page, and signed the form as "Buyer." Respondent provided Mrs. Palmeri with instructions on how to wire the funds for the escrow deposit. On October 7, 2011, Mr. Palmeri wired $12,000.00 to J.P. Morgan Chase, which was then deposited in an account for Bonaventure Enterprises, LLC ("Bonaventure").1/ The Palmeris had no knowledge of Bonaventure, but, based upon the representations of Respondent, they understood the money they were asked to wire to the J.P. Morgan Chase account of Bonaventure was an escrow deposit for the property they intended to purchase at Blue Lagoon. The Palmeris had no discussion with Respondent regarding the reason for sending the escrow deposit to Bonaventure. They assumed that Bonaventure was somehow related to the seller or its title company. The condominium unit in question was bank owned; however, the Palmeris were not informed of this. No evidence was presented that Respondent had an ownership interest in Bonaventure. However, Bonaventure is owned by Respondent's brother and sister-in-law. At all times material hereto, Respondent was the managing member of Bonaventure. Bonaventure is not a licensed real estate broker. Bahia does not maintain an escrow account, and its sales associates are authorized to use title companies of their choice for receipt of escrow deposits. Respondent was aware that he was unable to accept the escrow deposit of the Palmeris in his own name, because, as a licensed real estate sales associate, he is prohibited from receiving the money associated with a real estate transaction in the name of anyone other than his broker or employer. In fact, Respondent was disciplined in 2010 for a similar violation.2/ Respondent claims that the Palmeris entrusted him with their $12,000.00 to hold for possible investments, not necessarily related to real estate transaction, and he was doing it as a favor for them as "friends." Respondent contradicted himself by stating his intention in directing the Palmeris to deposit their money into the Bonaventure account was to help them have cash on hand in Florida in order to meet the Blue Lagoon condominium seller's requirements to make the escrow deposit with the seller's title company within 24 hours after an offer was accepted. The Palmeris had no knowledge of the seller's unique restrictions on the escrow money. Further, Respondent's asserted motive in requesting the $12,000.00 to have cash on hand in Florida is undermined by the fact that, if the Palmeris could wire $12,000.00 to Bonaventure's bank account, they could also wire the funds directly to a title company chosen by the selling bank after acceptance of their offer. Shortly after returning the contract to Respondent and sending the escrow deposit, Mrs. Palmeri discussed increasing the purchase price by $1,000.00 for a total of $126,000.00. Based upon the language of the proposed contract, the Palmeris expected a response to their offer within 24 hours. Immediately thereafter, Respondent told the Palmeris that they were "in negotiations." However, almost a month passed before they heard from Respondent regarding the status of the purchase of the condominium. On or about November 4, 2011, Respondent contacted Mrs. Palmeri and stated that he had "good news." He indicated that the seller would be willing to sell the property for a price of $129,500.00. According to Respondent, the seller requested documentation from the Palmeris' bank indicating their ability to pay. Mrs. Palmeri indicated that this was not an acceptable counter-offer. Respondent suggested that he could negotiate a sales price of $129,000.00, but he needed the Palmeris to send an additional $9,000.00 to put into escrow. Mrs. Palmeri told Respondent that she was no longer interested in the property because their maximum offer was $126,000.00. During the same conversation, Mrs. Palmeri asked for the return of her deposit. Respondent expressed agitation that she was retreating from the possible purchase because he had done "so much work." Respondent clearly anticipated he would receive a commission if the deal was consummated. The Palmeris did not get an immediate return of their escrow deposit. Mrs. Palmeri called Respondent repeatedly and received no answer. She also sent an e-mail to J.P. Morgan Chase trying to find out the status of the deposit and received no reply. Mrs. Palmeri again attempted to contact Respondent on November 18, 2011, and left him a message that he needed to call her regarding the deposit. After receiving no response, she contacted Bahia and spoke with Ricardo Aleman. Mrs. Palmeri explained to Aleman that she had signed a real estate contract with Respondent on October 6, 2011. She no longer wanted to pursue this real estate transaction and wanted the escrow deposit returned. Aleman was unaware that Respondent was negotiating a real estate transaction for the Palmeris or had accepted their deposit money. Aleman contacted Respondent who confirmed by email that the Palmeris were no longer interested in purchasing the condominium at Blue Lagoon. Respondent wrote, "After a month of hard work . . . the client decided to drop. It was a little bit problematic. I lost time and money because the offer was already accepted and she had no reason to negotiate." Respondent assured Aleman he would return the deposit to the Palmeris. In accordance with Bahia's policies and procedures, its sales associates are required to complete a deposit form at the time of receipt of funds for escrow. No such receipt was received by Bahia from Respondent with regard to the transaction involving the Palmeris. However, it was not unusual for Bahia not to receive information regarding real estate transactions conducted by their sales associates until the time of closing. After discussing the matter with Aleman, Respondent advised the Palmeris that he could return their money within ten days. Respondent advised Mrs. Palmeri that he would send her two checks for the total amount--one check which she could cash immediately and a second check which would be postdated. In order to get a return of their deposit, Mrs. Palmeri agreed. On or about November 28, 2011, the Palmeris received two checks, each in the amount of $6,000.00, including one postdated for December 16, 2011. These checks were written on the account of Bonaventure and signed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order imposing on Alfonso Miranda an administrative fine in the amount of $6,000.00 and suspending the real estate sales associate license of Alfonso Miranda for a period of two years. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 2nd day of April, 2014.
