Findings Of Fact From January 23, 1976, to March 31, 1976, Sherman was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings here advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Sherman. FREC introduced no evidence to show that Sherman represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Sherman either made the representations or knew them to be false. There was no evidence introduced to show that Sherman knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Sherman was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Sherman was guilty of a violation of a duty imposed by law.
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated March 22, 1982. This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself. At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf. Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.
Findings Of Fact The following findings of fact are contained in the Prehearing Stipulation: The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license. The Respondent did not renew such license until November 9, 1981. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981. The Respondent acted as broker on behalf of George B. Wilds and Jetie B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period. The following additional facts are found from the evidence presented at the hearing: Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2) In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent) On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2) Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)
Recommendation That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes. DONE and ENTERED this 14 day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1982. COPIES FURNISHED: David P. Rankin, Esquire Freeman & Lopez, P.A. 4600 West Cypress (Suite 410) Tampa, Florida 33607 William McCoy 5725 North 40th Street Tampa, Florida 33610 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801 Fred Wilsen, Esquire Department of Professional Regulation, Legal Services 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, Respondent was secretary to Kingsland, Inc., Ferndale Estates, Inc., and Fairwood villas, Inc., all corporations controlled by C. Thomas Petersen. Kingsland, Inc., is engaged in land development. Ferndale Estates and Fairwood Villas are corporations holding title to real estate for investment purposes. Respondent was not a director in any of these corporations. By mortgage dated June 30, 1981 (Exhibit 1), Kingsland, Inc. mortgaged certain registered properties to secure a loan from Metropolitan Bank and Trust Company without approval from Petitioner. Respondent's signature appears on that conveyance as corporate secretary attesting to the signature of Petersen as president of Kingsland, Inc. Similarly, Respondent attested to Petersen's signature on mortgage dated July 9, 1981 (Exhibit 2), on modification of mortgage dated February 8, 1982 (Exhibit 4), on mortgage dated May 12, 1982 (Exhibit 7), on mortgage dated May 20, 1982 (Exhibit 8), on deed to Winokur dated May 27, 1981 (Exhibit 9), and on deeds to nine separate third party purchases (Exhibit 10). On mortgage from Kingsland, Inc. to City National Bank of Miami (Exhibit 3), encumbering lots previously sold to third party purchasers and on mortgage dated March 5, 1982 (Exhibit 6), Respondent's signature does not appear. By mortgage dated March 9, 1982 (Exhibit 5), Respondent signed as a witness. All of those mortgages and deeds in Exhibits 1-10 involve the encumbering registered land without prior approval from Petitioner, or conveying to the mortgagee or buyer lands- previously sold to third party purchasers on contract for deed or unrecorded deed. Proceeds from those mortgages and sales went into bank accounts controlled by Petersen. At the time of these transactions, Respondent was handling the accounts of the so called Pan American Investors, a group of individuals who had purchased the land installment sales contracts from Kingsland, Inc., and was entitled to the monthly payments with interest being paid by the purchasers of lots in these subdivisions. During this period, Respondent exchanged letters with several of these investors and knew many of these lots were paid for or nearly so and that interim deeds were being issued to the original purchasers. No credible evidence was presented regarding who picked the lots to be included in those transactions involved in Exhibits 1-10, or that Respondent had any responsibility for or control in those selections. In 1977, when Suncoast Highlands Corporation owned by Petersen and Leonard Lenhardt acquired the stock of Kingsland, Inc. and Illinois Corporation from the Oehlerking family, Kingsland owned registered subdivisions in Marion County, Florida, known as Ocala Waterway Estates, Section 27 and 34, Kingsland Country Estates, Units 1 and 22, Kingsland Country Estates, Whispering Pines and Forest Glen. On the date of acquisition of Kingsland, Section 34 had 19 unsold lots, Section 27 had 51 unsold lots, and Unit 22 had 43 unsold lots. The most accurate office record of the transactions involving lands sold by Kingsland were the Alpha listings (Exhibits 11 and 12), a computer printout showing the names of purchasers alphabetically by subdivision. This listing contained numerous errors. No evidence was presented that Respondent was made aware, before attesting to Petersen's signature, that the mortgages and deeds in Exhibits 1 through 10 were being prepared or that she was given any opportunity to have input into the specific lots to be included in those instruments. She received no recognizable benefit from the proceeds received by Kingsland from those mortgages and deeds.
Findings Of Fact From February 5, 1976, to March 31, 1976, Rosenbaum was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Rosenbaum. FREC introduced no evidence to show that Rosenbaum represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wring to purchase United States property listed with the company. There was no evidence introduced to show that Rosenbaum either made the representations or knew them to be false. There was no evidence introduced to show that Sherman knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Rosenbaum was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Rosenbaum was guilty of a violation of a duty imposed by law.
Findings Of Fact At all times relevant hereto, Respondent, George May, was a licensed real estate broker, having been issued license number 0056693 by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 27). Respondent, Marie L. Bundick, was a licensed real estate salesman having been issued license number 0185873 by Petitioner (Petitioner's Exhibit 29). During the time the events herein occurred May was the active broker with, and Bundick a salesman for, Commercial Equity Corporation, 2450 East Commercial Boulevard, Fort Lauderdale, Florida. Between December, 1976, and June, 1977, May formed the following corporations: A-1989 Corporation, Future 5 Corporation and 8-Villas Corporation (Petitioner's Exhibit 30). He served as president of these corporations until they were involuntarily dissolved by the Department of State for failure to pay fees due that Department. In early 1976, May ran an advertisement in a Fort Myers newspaper expressing a desire to purchase acreage in that area. In response to that advertisement, Henry Minster, a Bonita Springs real estate broker, contacted May and advised him he had various parcels of property for sale in Lee County, including undeveloped acreage. In May, 1976, Minister, May and an undisclosed third party visited an unimproved tract of land in what is known as the East Bonita Drainage District. The property in question is approximately 4 air miles northeast of Bonita Springs and is located within Sections 16 and 21, Township 475, Range 26E, Lee County, Florida. It lies around 8 air miles from the Gulf of Mexico; by automobile the distance is approximately 17 miles. Because the area was not surveyed, and there were few, if any, signs on the property in that area, a common starting point to view the property was a television tower in the northeast quarter of Section 30, where the graded road ended. In order to reach the boundary of Section 21, one had to travel approximately one mile east- northeasterly from the tower through Section 29 on trails and other undeveloped land. Section 16, which lay directly north of Section 21, was virtually inaccessible by automobile or on foot. Access from the tower to the lower corner of Section 21 could not be had in a conventional automobile without exceptional weather; however, Minster, May and the other person were in a 4- wheel drive vehicle and proceeded generally east-northeasterly approximately one mile on a trail until they reached a point very close to the southwest corner of Section 21. Then they got out of the vehicle and viewed the property in the immediate area. Although they were at or very close to the western boundary of Section 21, May was never shown any property further eastward, nor was he taken to Section 16 which was approximately one mile north of there. However, Minster did point out the general area where the property in Sections 16 and 21 were located, and the type of topographical characteristics to be found in both Sections. He further advised May that there was no reasonable access to the property, no roads had been built, that it was covered with cypress and that the land was under water during part of the year. Minster also advised May that if he planned to subdivide the property, certain registration requirements with the State must be met, and that zoning requirements with Lee County must be adhered to before development of the property could begin. The property that May was to subsequently purchase was approximately 17 feet above sea level, and was generally covered in varying degrees with cypress, pine trees and palmetto (Petitioner's Exhibit 25). U.S. Geological Maps indicate the predominate characteristic of Sections 16 and 21 to be a swamp or marshland (Petitioner's Exhibit 5). There is no dispute that much of the property was under water during the rainy season. On August 23, 1976, May negotiated the purchase of 100 acres in Section 16 from Minster (Petitioner's Exhibit 6). On January 23, 1977, an additional purchase of 85 acres in Section 16 was made by A-1989 Corporation, of which May was president (Petitioner's Exhibit 7). On July 21, 1977, A-1989 Corporation purchased another 40 acres in Section 16 (Petitioner's Exhibit 8). Future 5 Corporation, of which May was president, made a purchase of 100 acres in Section 21 on October 6, 1977 (Petitioner's Exhibit 9). A final purchase of an undisclosed number of acres in Section 21 was made by 8 Villas Corporation, of which May was president, on February 27, 1978 (petitioner's Exhibit 10). A sixth contract to purchase land in August, 1978, in Section 10 was entered into by the parties but the sale was never consummated (Petitioner's Exhibit 12). Collectively, the above purchases of land roughly encompassed the southern one-half of Section 16 and the southern one-third of Section 21, Township 47S, Range 26E. After May began making purchases of the acreage from Minster, he initiated a sales campaign through newspaper advertisements to sell the property in 2 1/2 acre tracts to the general public. These sales were conducted through his realty firm, Commercial Equity Corporation. Although it is alleged that advertisements appeared in "various news publications in and about Broward County", only the following advertisements in the Pompano Beach Shoppers' Guide were made a part of the record: "2 1/2 acres: Invest for tomorrow today, miles of spectacular beaches, south Florida's fastest growing area. Near golf, best fishing,..." "2 1/2 acres in sun and fun Florida, watch yourmoney grow, $65.91 per month $950 down near beaches..." "Live again, get away, beautiful home site, near beaches, good fishing, exc. schools. South Florida,..." "2 1/2 acres, no qualifying, booming South Florida near beautiful beaches, only 7 pct. interest, low payments, $65.91 month. Parks, boating, highway and tax deductible. Be smart, buy today." (Petitioner's Exhibit 20) Under each of the above advertisements were telephone numbers which enabled the caller to reach either May or his secretary. After the caller gave his name and number, an associate was instructed to return the call and arrange a meeting. The above advertisements, or ones similar thereto, were read by, inter alia, William C. Park and Rahlyn Ramsaran who made inquiries concerning the possible purchase of land. Park was referred to Marie L. Bundick while Ramsaran was referred to Edmond Martell, both of whom were salesman for Commercial Equity Corporation. In June, 1978, Park, Bundick and another Commercial salesman (Bill Soloman) visited the area in question to view the property. They first drove to the television tower in Section 30, and then continued eastward on a "farm access road" until they reached a drainage canal. After following the drainage canal for approximately one-half mile they reached what purportedly was property similar to that which was for sale. It was represented to Park that they were "very close" to where Park's property was actually located, but in no event were they more than a 5-acre tract away. Park noticed a flooded area approximately 1/4 mile away and inquired of Bundick if the property he was buying was within the flooded area; she answered it was not. Based upon these representations, Park later agreed to purchase two tracts of acreage (5 acres) in Section 21 for $14,000 from 8-Villas Corporation (Petitioner's Exhibit 24). Park, a professional diving instructor, purchased the property with the expectation of eventually constructing a diving school on the land. These hopes eventually evaporated upon discovering the true character of his land. In December, 1978, Park received a telephone call from Department Investigator Stevens who advised Parks that other investors had complained of misrepresentations by May and were attempting to get refunds from May on their purchases. He asked Park to show him the property he had been shown by Bundick in June. Park and Stevens visited the area on December 6, 1978, and after seeing the property a second time in conjunction with maps, Park concluded the property shown to him and that actually purchased were not the same. He also concluded that a diving school could not be built on such low-lying property. Park later received a refund on his purchase from May after a Department investigator visited May concerning the sale. After responding to May's advertisement, Ramsaran visited the property in question in April or May, 1977, with Edmond Martell, a salesman for Commercial. They drove to the television tower in Section 30, and then walked approximately one mile into the rough terrain. Martell advised Ramsaran that the property he was going to purchase began within a couple of hundred feet from where they were standing. Based on that representation Ramsaran purchased three tracts of property in Section 16 for $35,000 on May 11, 1977 (petitioner's Exhibit 26). Because Section 16 was at least one mile north of where Ramsaran and Martell had originally stood when viewing the property, the representation by Martell to Ramsaran was clearly false. Ramsaran revisited the Bonita Springs area on several occasions shortly after that and began making inquiries concerning where his property was actually located. He also studied a map of the area to pinpoint its exact location. After becoming concerned that he may have bought something different from what he had been shown, he called Martell who advised him not to worry and to meet with May to discuss the matter. On May 18, 1977, Ramsaran visited May's office to complain that he had been "taken". May told him it was not a swamp, that it was high and dry and was "good property". He confirmed this representation in a letter given to Ramsaran which stated as follows: "This land is nor is it under water. This land is approximately 17 feet above sea level. The land is wooded and is situated approximately one and three-quarters miles northeast from the T.V. tower in Bonita Springs." (Petitioner's Exhibit 23). Having received this representation from May, Ramsaran's concerns were temporarily allayed until Department Investigator Stevens visited him several months later. That visit prompted Ramsaran to contact a Bonita Springs real estate broker to see if a survey of property could be made. When advised that the property was under water, Ramsaran returned to May and requested a refund of his money. May refused to do so until he was reminded he had guaranteed the property by letter previously given Ramsaran on May 16; May then agreed to make a refund. In March, 1979, after receiving "pressure" from Department investigators concerning the land sales that were being made, May quitclaimed all of the properties purchased back to Minster (Petitioner's Exhibits 13-17) . By letter he concurrently advised each of the investors to begin making their monthly payments to Minster rather than to May. Although Minster was not forewarned that May was going to convey the property back to him, Minster has retained ownership of the property since that time, and has continued receiving the monthly payments from May's former customers. Martell was taken by May to the property on three separate occasions to orient him concerning its location and characteristics. Minster also accompanied them on at least one occasion. They went to the television tower in Section 30, and from there traveled east-northeastly for about 3/4 of a mile along a trail into an area covered by pines, cypress and palmetto. After stopping, May pointed out the general direction in which the property was located and described it to Martell as being "high and dry". Despite asking both May and Minster for more specific instructions on several subsequent occasions, Martell was never actually told the precise location of the property being sold. When Martell began working for May, he was given pictures of the property and told to discuss the general growth of the area with customers and point out its location on a map. When visits were made to the property with prospects May told Martell to drive the prospects to the television tower, and to walk eastward from that point into the woods as far as possible. However, Martell acknowledged he was never sure where the property he was selling was actually located. Both May and Minster told Martell the property was high and dry and 17' above sea level. There were no inaccurate representations made by May to Martell concerning the local zoning ordinance or access to utilities. Bundick met May through a friend who was employed by Commercial. She began working as a salesman for Commercial in March, 1978, and continued in that capacity until January, 1979. Although Bundick had no experience in selling raw acreage, and preferred to sell residential and commercial property, May encouraged her to sell land. He did not take Bundick to the property in question; instead he gave her a map on which he had traced the directions. After unsuccessfully attempting to find the property on one occasion, Bundick again asked May to show her the property. May told her his secretary would accompany her to the exact location the next time she took a client to inspect the land. Sometime later, Bundick and May's secretary, Deborah Kemph, visited the property at which time Kemph told her the property they were standing on was that purchased from Minster. In all future dealings with customers, Bundick used that location as a reference point for selling property, and assumed that what was being shown and what was being sold were the same. To this date, she still does not know the exact location of the property that she sold. She claims she simply relied upon the advice given by May, and believes that if incorrect advice was given customers, the fault lies with May. During her association with Commercial, Bundick acknowledged that besides the sale to Park, she also sold 'several other' parcels of property to various customers. May stated he was inexperienced in the land sales business when he purchased the property from Minster. He claimed he was "setup" by Minster, an experienced broker, who used Commercial Equity Corporation to merchandise his property; however, this claim was not substantiated. May also claimed he was deceived when he was initially shown the property, and that the exact location of the property being sold was never shown to him. He further stated he deeded the property back to Minster only after drugs had been placed in his food by his secretary, and he did not understand the nature of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of misrepresentation for instructing his sales associates to inform prospective purchasers that the land being sold was high and dry as set out in paragraph 2 of Count III. It is further RECOMMENDED that Respondent Marie L. Bundick be found guilty of misrepresentation in her dealings with purchaser William Park as set forth in Subparagraphs 3(b) and (c) of Count VI. It is further RECOMMENDED that all other charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondent May's real estate broker's license be suspended for 6 months, and that Respondent Bundick's real estate salesman license be suspended for 30 days. DONE and ENTERED this 1st day of September 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1981.
The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to a discriminatory employment action on account of her race (black) and her disability ("severe asthmatic"). See, Section 760.10, Florida Statutes.
Findings Of Fact The Respondent, GAB Business Services, Inc. (GAB), is an insurance adjusting firm engaged in the business of adjusting insurance claims on a nationwide basis. At times pertinent hereto, it maintained a number of offices in Florida, also called "branches", one of which was located in Jacksonville, Florida, at which the Petitioner was employed at times pertinent hereto. The Petitioner was hired in March of 1985 and worked until May 31, 1992, when she was terminated because of a reduction in force enacted on a company-wide basis. Brian Sigman was appointed Branch Manager of the Jacksonville office, where the Petitioner was employed, on November 15, 1989 and served there in that capacity until May 1, 1991. After arriving as Branch Manager, he tried to assign the Petitioner property claim files and she told him that she did not want to do property insurance claims but never gave as a reason that she had an illness or disability which precluded her from handling such claims. Rather, she informed Mr. Sigman that she had a hard time visualizing hidden, structural elements of a building, such as what was behind a building wall, and, therefore, had a difficult time adjusting property insurance claims. Because at the time, in 1989, Mr. Sigman had six adjusters working in the office, he was able to give property insurance claim files to other adjusters to handle and let the Petitioner handle only casualty claims as she desired. She never informed him that she was unable to handle property claims because of asthma or other medical problems and never applied during that time for an accommodation for a disability. Mr. Sigman became aware at some point during his tenure that the Petitioner was being treated for allergies, but she never informed him of the effect of her allergies, as it related to the question of her handling property claims. There had been approximately six or more adjusters in the office since the Petitioner became employed there in 1985. Consequently, because of her aversion to handling property insurance claims, the Petitioner had been typically permitted to adjust only casualty claims, even before Mr. Sigman's tenure, since there were sufficient other adjusters in the office to handle the property claims. Property insurance claims generally deal with losses to a building while casualty claims most frequently involve third-party losses. Thus, the vast majority of the Petitioner's experience in working for the Respondent involved the handling of only casualty claims, with very little experience handling property insurance claims. In March 1991, Mr. Almus Shivley became the Branch Manager of GAB in Tampa, Florida. The Tampa branch included under its authority offices in Ft. Myers, Sarasota, Lakeland, Gainesville, and Jacksonville. All of the offices outside of Tampa are satellite offices, and each has a Supervising Adjuster supervising that office. A Supervising Adjuster reports directly to Mr. Shivley. Mr. Sigman was a Supervising Adjuster when Mr. Shivley became the Branch Manager in Tampa. When Mr. Shivley took over as Branch Manager working out of the Tampa branch office in 1991, he learned that the Petitioner was only handling casualty claims. He learned of this when she was asked to work property insurance claims and she declined to do so. She explained that she had asthma, and that various materials and smoke usually attendant to fire damage claims and locations, would, she feared, aggravate her asthmatic condition. Mr. Shivley accepted her representations to this effect and allowed her, for the time being, to work only casualty claims. The testimony of Sheila King establishes that as recently as February 1990, when she and the Branch Manager met with the Petitioner to ask her to handle property claims, she had made no mention of the asthma condition. Mr. George Walsh is in charge of the national operations of GAB, as they concern equal opportunity, affirmative action, salary administration and other personnel-type functions involving human resources. Mr. Walsh was involved with the hiring of the Petitioner and established that the Petitioner made no mention of the fact that she had any disability during the pre-hiring interview. The application form which the Petitioner executed and filed at the time of her hiring in 1985 contained a question concerning whether she had any disability which would restrict her ability to perform the job. She specifically answered "no" to that question. Mr. Walsh thereafter had no contact with the Petitioner until October 31, 1991, when she filed a "disability survey" form with him. A disability survey is a request by an employee for a disability accommodation, which can only be granted by the home office of the Respondent corporation. Mr. Walsh established that this was the first time he had any knowledge that the Petitioner had any sort of handicap of disability. He stated in his testimony that her job was thereupon analyzed in great detail because her request "went directly to the heart of our business". That is, the Petitioner was requesting the accommodation of not having to perform property insurance claims adjusting, which is a major portion of GAB's business since GAB is in the sole business of adjusting property and casualty insurance claims. In any event, Mr. Walsh reviewed her request under the appropriate company policies and determined that the number of casualty assignments and the work that the company was receiving was on a severely-declining trend in the Jacksonville office and, indeed, nationwide. He determined, however, to grant the accommodation to the Petitioner but informed her that "we could not guarantee that there would be enough casualty work in the future to allow her to perform only casualty work and still be a productive member of the office." In May of 1992, Mr. Shivley, the Branch Manager, made a recommendation to his superiors with the Respondent that the working force in Jacksonville be reduced because of a severe decline in business in that office. Prior to May of 1992, when the reduction in force took effect, there were already only three employees working in Jacksonville. After the reduction in force, only Mike Robinson, the Supervising Adjuster, who managed that office, remained. Almost two years after the reduction in force, at the time of the hearing, Mr. Robinson is still the only GAB employee in the Jacksonville office. The Petitioner, a black female, and Mr. Clark, a white male, were terminated as part of the reduction in force. Numerous offices of GAB, other than the one in Jacksonville, had suffered substantial reductions in force. A few years previously, the company had employed approximately 5,000 adjusters nationwide; and at the time of the hearing in this proceeding, it employed fewer than 2,000 adjusters nationwide. The Petitioner, upon being advised of her termination due to the reduction in force, was not offered a transfer nor requested to relocate by the Respondent. She was, however, offered an employment position in the company's Atlanta, Georgia, branch office. Under regular and customary company policy, when employees are transferred, the company pays relocation expenses, where appropriate. Since the Petitioner herein was terminated, the Respondent was under no obligation to pay relocation expenses if she took the offered position in the Atlanta office. Nevertheless, the Atlanta branch office offered her $3,000.00 in relocation expenses. Further, the job offered was one which accommodated her stated disability, being an "inside liability adjuster" position, handling only casualty claims. That was the type of work which she was performing in Jacksonville at her own request. The Petitioner took the position that the relocation expenses were insufficient for her to afford to move and refused the offer of employment. It was eventually accepted by a white female, who accepted the same amount of relocation financial assistance that had been offered to the Petitioner. Further, when Mike Robinson, the Supervising Adjuster in the Jacksonville office, was transferred to that office from Dallas, Texas, a much more distant location than Atlanta, he was only offered and paid $1,000.00 in relocation expenses. Mr. Robinson is a white male. In addition to Mr. Robinson, the testimony of Ms. Sheila King, the Human Resource Officer (Personnel Manager) for the Florida offices of GAB, establishes that two other employees were given only $1,000.00 for moving expenses, a black male and a white male. In conjunction with the reduction in force, the Petitioner and the white male, Mr. Clark, were terminated from the Jacksonville office because the volume of business did not justify any employees, other than the Supervising Adjuster. At the time of the hearing, some two years after the reduction in force, no employees have been hired to replace them. In fact, no employees have been hired at all, because the business volume only justifies the presence of the Supervising Adjuster and clerical staff in that office. GAB's offices in Florida, other than Tampa, are satellite offices and each has a Supervising Adjuster supervising the business and the employees of that office. Each Supervising Adjuster reports to Mr. Shivley, the Branch Manager in the Tampa office. In the summer of 1991, Brian Sigman left his position as Supervising Adjuster in the Jacksonville office, leaving an opening. The Petitioner applied for that position, among other employees who sought the promotion. Mr. Shivley recommended to his superiors that Adjuster Nan Hendricks become the Supervising Adjuster to replace Mr. Sigman. He found that Ms. Hendricks was an extremely good adjuster, being a multi-line adjuster handling a large volume of both property and casualty claims. She was a good performer at the functions of marketing, public relations, and generating new business. A multi-line adjuster is one who can handle any type of claim assigned to the Respondent's offices. The two most numerous types of claims handled by GAB are property and casualty claims, as described above. In considering who to hire for that position and ultimately deciding on Ms. Hendricks, the Respondent and Mr. Shivley determined that the Petitioner had little experience as a multi- line adjuster, even though she was so licensed, because she had handled almost entirely casualty claims, because of her own request that she not be given property damage claims. The Supervising Adjuster has to supervise the quality of the work performed by all adjusters and employees at the office. If an adjuster cannot work a property insurance claim, then the adjuster can gain no relevant experience performing such claims adjustment. A Supervising Adjuster needs to have had experience in performing such claims adjustment and performing adjustments of all types of claims. Mr. Shivley testified to this effect, saying "the Supervising Adjuster has to supervise the quality of the work that's going out of the office. If she can't work a property file, and if she can't handle a property file, then she can't supervise one". There is a regular and normally-followed company policy that, in considering who to place in supervising adjusting positions, such a person has to have had substantial experience handling all types of claims handled by GAB. The Petitioner did not have that type of experience and thus although she was considered for the position, she was found not to be qualified for it. Further, the Petitioner's performance, and evaluations of her performance, showed deficiencies over the period of time she was employed in the Jacksonville office. She was deficient in the areas of marketing, public relations, and generating new business, which, when coupled with the fact that she had no real, substantial, property claim adjustment experience, showed that she was not qualified for the promotion. Nan Hendricks left the employ of GAB after a short time as Supervising Adjuster in the Jacksonville office. When she left in 1991, she left because she was dissatisfied with the work of the office in terms of the rapidly- declining volume of business and the fact that both the Petitioner and Mr. Clark were performing their work in a sub-standard fashion. When she left the employ of GAB, Mr. Shivley recommended to his superiors that the position be awarded to Mike Robinson, who was then working in the Dallas, Texas, office of GAB. Mr. Shivley had experience with Mr. Robinson's capacity and abilities to work in a multi-line adjustment position and with the quantity and quality of his knowledge and experience at the job. He found him well-qualified for the position of Supervising Adjuster, due partially to his extensive experience in multi-line adjusting. The Petitioner was considered for the position but was not deemed to be qualified because she did not have significant experience as a multi-line adjuster and did not meet the qualifications, as explained more particularly in the above Findings of Fact, concerning the decision to promote Nan Hendricks as Supervising Adjuster. There has been no showing that the decision to terminate the Petitioner or the decision concerning the manner and amount of offered payment of her re-location expenses, had she taken the Atlanta job, was motivated by any discriminatory intent on account of her race or disability. In fact, the Respondent amply demonstrated that the termination was due to a legitimate reduction in force caused by loss of business in the Jacksonville office. The Petitioner's position was not later filled by another employee. Nevertheless, the company, without being required to do so, voluntarily offered the Petitioner a position in its Atlanta office at no reduction in salary. This position would even accommodate her disability by allowing her to only process casualty claims, even though the Respondent had a legitimate basis for terminating the Petitioner without any recourse, due to the reasons justifying the reduction in force. Further, the two promotions, one accorded to Nan Hendricks, a white female, and one to Mike Robinson, a white male, of which the Petitioner complains, were given to those two employees based upon their superior job performance and superior experience in being able to handle all types of insurance claim adjusting work. The Petitioner was shown to clearly not be so qualified. The Respondent's lack of discriminatory intent in terms of the Petitioner's race or disability was further demonstrated by the fact that a white female, a white male, and a black male were only offered and paid $1,000.00 in re-location expenses, when they moved their place of employment to distant offices in the company, especially Mike Robinson, who transferred to Jacksonville, Florida, all the way from Dallas, Texas. The Petitioner, however, was offered $3,000.00 to relocate from Jacksonville, Florida, to Atlanta, Georgia, when the company was not even obligated to offer any relocation expense, since the Petitioner's job offer in Atlanta did not involve a company- required transfer. Rather, it was a job merely offered to accommodate the Petitioner and to assist her in obtaining employment when she had to be terminated from the Jacksonville office. It has simply not been demonstrated that any of the employment actions of which the Petitioner complains and which are delineated in the above Findings of Fact were motivated by any discriminatory motive directed at the Petitioner's race or disability.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4399 Respondent's Proposed Findings of Fact 1-17. Accepted, except to the extent that they differ or are subordinate to the Hearing Officer's findings of fact on the same subject matter. Petitioner's Proposed Findings of Fact The Petitioner's proposed findings of fact are stricken and rejected on the basis that they were not timely submitted and the motion requesting extension of time for their submission was substantially late. COPIES FURNISHED: Reginald Estell, Jr., Esquire 816 Broad Street Jacksonville, FL 32202 Kalvin M. Grove, Esquire FOX AND GROVE 360 Central Avenue, 11th Floor St. Petersburg, Florida 33701 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Whether the Department of Financial Services (the “Department”) correctly denied the unclaimed property claim submitted by Choice Plus, LLC (“Choice Plus” or “Petitioner”), on behalf of Louis Nardi as attorney-in-fact for Felicia Leggiero (“Leggiero”).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of relevant and material fact: Choice Plus is registered with the Department as a “claimant’s representative” pursuant to section 717.1400, Florida Statutes (2020). In Florida, a claimant’s representative may file claims with the Department on behalf of owners of unclaimed property for a fee. See Joint Ex. 1, Bates Nos. 0001-17. The Department is the state agency charged with the responsibility of administering and processing claims, pursuant to the provisions of chapter 717, the Florida Disposition of Unclaimed Property Act (“Act”). See Joint Ex. 4, Bates No. 0045. Between 2005 and 2018, the Department received unclaimed stock shares and dividends reported in the names of John R. Leggiero and Felicia R. Leggiero, from various holders. The Department currently maintains the funds, totaling $116,322.10, in 24 unclaimed property accounts. See Joint Ex. 1, Bates Nos. 0001-3. The Claim by Choice Plus On or about May 26, 2020, Choice Plus filed a written claim, No. C8610372, on behalf of Louis Nardi, as attorney-in-fact for Felicia R. Leggiero, for 24 unclaimed property accounts. In support of the claim, Choice Plus provided the Department a copy of a Limited Power of Attorney (“LPOA”) and full disclosure statement, pursuant to section 717.135, executed by Louis Nardi; a copy of Louis Nardi’s driver’s license; a copy of Leggiero’s driver’s license; a Florida Certificate of Death for John R. Leggiero, indicating that he predeceased Felicia R. Leggiero; a copy of a durable power of attorney where Leggiero designated her brother, Louis Nardi, as her attorney-in-fact; and the results of a TLO.com search.1 See Joint Ex. 1, Bates Nos. 0001-17. The LPOA and full disclosure statement, executed on May 4, 2020, authorized Choice Plus to file a claim on behalf of Louis Nardi as attorney-in- fact for Felicia R. Leggiero, for a fee of $11,632.21. § 717.135, Fla. Stat. The LPOA included the following language: CP offers to advance its expertise and financial resources, including legal expenses, on Claimant’s behalf, to prove entitlement and secure release of property from any person or entity in possession of property. In exchange for CP’s resources Claimant irrevocably assigns Claimant’s right, title and interest in property up to the amount and/or percentage reference above as Compensation. If CP 1 A people and business location system that searches public and proprietary databases. fails to document Claimant’s entitlement, nothing will be owed to CP. See Joint Ex. 1, Bates Nos. 0004-5. As a part of the Department’s statutorily mandated review of the claim submitted by Choice Plus, it conducted a Driver and Vehicle Information Database (“DAVID”) search for Leggiero on June 17, 2020. The search indicated that she died on May 27, 2020. See Joint Ex. 4, ¶ 3; and Joint Ex. 5, Bates No. 0042. In part, because of her death, the Department issued a Request for Information (“RFI”) on June 18, 2020, to Choice Plus. The RFI noted that Felicia R. Leggiero was deceased, and requested probate documentation for her estate. See Joint Ex. 2, Bates No. 0018. As it turns out, this is a common request when the Department has questions or concerns about a claim that is filed, or needs additional documentation as it sorts through and evaluates the merits of a claim. On July 13, 2020, the Department received Choice Plus’s response to the RFI. The response consisted of a four-page memorandum which extensively outlined the law and the position of Choice Plus on the claim. In the memorandum, Choice Plus took the position that the claim was complete when filed, and that the claim determination was retroactive to the date of filing the claim. See Joint Ex. 3. Choice Plus further argued that the Department should not consider subsequent events, i.e., the death of the claimant, when determining entitlement to the unclaimed property. Interestingly, however, it took the position that the Department must pay the claim to the “estate” of the deceased claimant. Id. However, and of particular note, Choice Plus provided no documentation to show that (1) Felicia R. Leggiero’s estate had been submitted to probate court for administration; (2) that Choice Plus represented Felicia Leggiero’s estate; or (3) represented the personal representative of her estate. See Joint Ex. 3, Bates Nos. 0019-24. After its review of the claim file and the memorandum submitted by Choice Plus, the Department issued a Notice of Intent (“NOI”) on October 20, 2020, stating that it would enter a final order denying the claim filed by Choice Plus on behalf of Louis Nardi as attorney-in-fact for Felicia R. Leggiero. The Department took the position, essentially, that at the time it began its review of the claim, Leggiero had already died and that, therefore, as a matter of law, Leggiero no longer had any legal or beneficial entitlement to the unclaimed funds, as entitlement had already vested in her estate. See Joint Ex. 4, Bates Nos. 0045-49, ¶¶ 11-13. Director Graham also testified that the Department’s treatment of this particular claim was consistent with the Department’s treatment of similarly situated claims where the claimant or person entitled to the property dies after submitting a claim to the Department, but before the Department has the opportunity to review and evaluate the claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order affirming the denial of Petitioner’s claim. However, it is recommended that the Department should accept and consider the submission of a supplemental claim by any lawful beneficiaries or heirs of Felicia Leggiero to determine entitlement pursuant to the provisions of chapter 717 and other provisions of law. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael A. Alao, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Services Room 612.14, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. Michael J. Farrar, Esquire Michael J. Farrar, P.A. 18851 Northeast 29th Avenue, Suite 700 Aventura, Florida 33180
Findings Of Fact In Spring, 1976 Menkes was employed by FAR to secure property listings for resale. At that time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Menkes. FREC introduced no evidence to show that Menkes represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Menkes either made the representations or knew them to be false. There was no evidence introduced to show that Menkes knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Menkes was dishonest or untruthful.
