Findings Of Fact At all times material herein, the Respondent was a licensed Health and Legal Expense Insurance agent in the State of Florida. By criminal indictment filed October 4, 1984, Respondent was charged with the crimes of conspiracy to commit fraud, use of the mails to defraud and the use of a fictitious name or address to defraud. After a jury trial, Respondent was convicted of the offenses of conspiracy to commit fraud, in violation of Title 18, USC, Section 1341, Title 29, USC, Section 501(c), all in violation of Title 18, USC, Section 371, as charged in Count One of the Indictment and mail fraud, all in violation of Title 18, USC, Sections 1341 and 1342, as charged in Counts Two through Five of the Indictment. The American Federation of State, County and Municipal Employees (AFSCME) was at all times material herein a labor union affiliated with the AFL- CIO, a labor organization as defined in Section 402 of Title 29, United States Code. Florida Public Employees Council 79 (Council 79) was at all times material herein a labor union affiliated with AFSCME and the AFL-CIO, a labor organization as defined in Section 402 of Title 29, United States Code. The scheme upon which the Respondent's conviction rests, was directed toward both AFSCME and Council 79. At all times herein, Respondent was employed by either AFSCME or Council 79. Upon Council 79 being chartered, Respondent became its Tallahassee Regional Director. The record does not reflect any persons as victims of the scheme upon which the Respondent's conviction rests other than AFSCME and Council 79. Respondent's participation in the schemes upon which his conviction rests was as follows: (a) at the directions of William Van Zandt, Assistant to Jerry Wurf, President of AFSCME, and Thomas J. Fitzpatrick, President of Council 79, Respondent enrolled David J. Michalski as an employee of Council 79 and met with David J. Michalski in November 1979 to set up an address where payments on expense account vouchers and salaries would be delivered, and assisted David J. Michalski in opening an account at the bank for this purpose, and; (b) contacted George Albert Cuneo, Jr., President and owner of Cuneo Advertising, Inc., and requested that Cuneo mail bills for printing a Council 79 newspaper directly to G.A.D., Inc. G.A.D., Inc. was a corporation used by defendants other than Respondent to funnel inflated bills for advertising and public relations for payment by AFSCME or Council 79. The record is clear that Respondent had no knowledge of the schemes, was following orders of his superiors, and received no money, property, or other consideration for his participation in the schemes. The only evidence in the record concerning the Respondent's participation in the mail fraud is that the Respondent did apparently mail some matters concerning David R. Michalski's expense vouchers. Whether he mailed anything concerning the "kick-back scheme" or the inflated bills for advertising and public relations is not clear from the record. Respondent had never been convicted of a crime before this conviction. Respondent was sentenced to three (3) years on Count One but served only eight (8) months. The sentences in Count Two through Five were suspended and Respondent was placed on probation. Respondent was placed on probation for six (6) months on Counts Two through Four which began immediately and was placed on three (3) years probation on Count Five which was to run consecutively with the sentence imposed in Count One. After serving the eight (8) months of his sentence, Respondent returned to Tallahassee and enrolled in, and completed, a course in insurance at Tallahassee Community College hoping to further expand his existing insurance license. The record is clear that Respondent's reputation for truth and veracity in the community is good despite his conviction, and the Respondent enjoys a good reputation as far as his integrity in dealing with others in concerned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner, Department of Insurance, enter a Final Order dismissing all counts of the Administrative Complaint filed herein. Respectfully submitted and entered this 31st day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 31st day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 as clarified. Adopted in Finding of Fact 5 with the exception of the phrase "with in excess of ten numbers" which is rejected as immaterial since there was no substantial competent evidence in the record to show that any individual member had been defrauded or that any conspiracy to defraud was directed at any individual member. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 3. 2-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 9. Adopted in Finding of Fact 7. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Finding of Fact 9. Adopted in Findings of Facts 9 and 11. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 15. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. 19.-20. Adopted in Finding of Fact 16. COPIES FURNISHED: Robert V. Ellias, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Ben R. Patterson, Esquire PATTERSON and TRAYNHAM 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32315 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether the Department of Revenue can levy on petitioner's bank accounts where the petitioner failed to challenge the final sales tax assessment and failed to remit the tax, penalties, and interest due pursuant to the assessment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Petitioner, Forest Hill Convenience, Inc., is a Florida corporation. It owns one convenience store in Palm Beach County, Kwik Stop number 320, and owned a second convenience store in Palm Beach County, One-Stop Food Mart, during the time relevant to this proceeding. Samson Abraham Francis is Forest Hill's President and only corporate officer. In December 1993, at the request of Forest Hill and a third party which was interested in purchasing the convenience stores, Van T. Ho, a Tax Auditor IV with the Department, performed an audit of Forest Hill's books and records for the period October 1, 1992 through November 31, 1993. As a result of the audit, the Department identified sales tax deficiencies. Forest Hill was notified on January 10, 1994, that the audit had revealed a tax deficiency of $1,046.78, exclusive of penalties and interest. On January 11, 1994, Mr. Francis met with Ms. Ho to go over the audit results. On January 13, 1994, Ms. Ho telephoned Mr. Francis and notified him that she had discovered an error in the initial audit and that Forest Hill's sales tax deficiency was $5,217.45, for a total tax liability of $7,354.86, with penalties and accrued interest. Mr. Francis did not object to the revision during this telephone conversation, and Ms. Ho sent Forest Hill the revised audit papers, together with a Notice of Intent to Make Audit Changes dated January 18, 1994. In this Notice, Forest Hill was advised that it must submit any objections to the proposed audit changes, in writing, by February 17, 1994, and that, if no objections were filed, a Proposed Notice of Deficiency would issue on March 21, 1994. In a letter dated February 22, 1994, Mr. Francis requested an extension of time to allow Forest Hill's accountant time to review the Notice and the audit papers. Mr. Francis did not register a protest to the tax deficiency identified in the revised audit papers in this letter. A two-week extension was granted. Even though the Department did not receive an objection to the proposed audit changes, it offered, in a letter dated March 25, 1994, to schedule a meeting to resolve any objections Mr. Francis might have to the proposed tax liability. The Department did not receive a response to this letter, and, in a letter dated September 9, 1994, Mr. Francis was advised that the audit file was being forwarded to Tallahassee. A Notice of Proposed Assessment dated October 6, 1994, was sent to Forest Hill via certified United States mail to Mr. Francis's then-current home address. In the Notice, the Department advised Forest Hill that it owed the Department $8,320.21, consisting of $5,217.45 in sales tax, $2,284.02 in penalties, and $818.74 in interest, with additional interest accruing at the rate of $1.72 per day. The Department further advised Forest Hill that, if it did not request informal proceedings, the assessment would become final on December 5, 1995, and that no relief could be granted by the Department, the Division of Administrative Hearings, or the courts beyond sixty days from the date the assessment became final, that is, by February 3, 1995. The Notice was returned to the Department unclaimed after two attempts at delivery. Forest Hill did not timely file a request for informal proceedings to challenge the proposed assessment, and the proposed assessment became a final assessment on December 5, 1994. On January 24, 1995, a Tax Warrant was filed by the Department with the Clerk of Court in Palm Beach County, Florida, and Forest Hill was so advised in a letter dated January 24, 1995. Forest Hill did not challenge the final assessment in circuit court or by petition to the Division Administrative Hearings by the date specified in the Notice of Proposed Assessment. The Department issued a Notice of Delinquent Tax dated March 24, 1995, to Forest Hill's bank. On April 13, 1995, the Department received a letter from Mr. Francis, dated March 9, 1995, protesting the amount of the assessment. In a letter dated May 4, 1995, Linda Howe, the Department's West Palm Beach Collection and Enforcement Administrator, notified Forest Hill that the audit could not be reopened because all protest rights had expired. Ms. Howe advised Forest Hill that it could pursue a compromise with the Department, and she stated that a written request for such relief had to be filed with the Department within fourteen days, during which time she would suspend collection and enforcement action on the warrant. Forest Hill failed to respond to the Department's letter of May 4, 1995, and a Notice to Freeze, dated May 31, 1995, was sent to Great Western Bank in Delray Beach, Florida, freezing Forest Hill's assets in the amount of $9,050.25. Forest Hill did not satisfy the warrant, and, on June 13, 1995, the Department sent the Notice of Intent to Levy via certified United States mail to Forest Hill at its business address. The only basis on which Forest Hill challenges the Notice of Intent to Levy is that the amount of the assessment is incorrect and unfair. Forest Hill has, however, waived any right to contest the correctness or validity of the assessment. The Department followed the procedures established by statute and rule in proceeding to issue a final tax assessment against Forest Hill. Mr. Francis did not participate on Forest Hill's behalf in the informal proceedings offered by the Department to resolve his objections to the correctness of the tax deficiency, nor did he timely request a hearing to contest either the proposed assessment or the final assessment. The Department has met its burden of showing by a preponderance of the evidence that Forest Hill has an outstanding tax liability in the amount shown on the Notice of Intent to Levy. Forest Hill has failed to prove any ground upon which the Department's proposed levy is defective or illegal. It has, therefore, failed to establish that the Department cannot properly levy on the bank accounts and certificates of deposit subject to the Notice of Freeze and the Notice of Intent to Levy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Revenue enter a Final Order upholding the Department's Notice of Intent to Levy and allowing it to proceed with the garnishment of the bank accounts and certificates of deposit owned by Forest Hill Convenience, Inc., in the amount of $8,320.21, including tax, penalties, and interest, together with such interest as has accrued since October 7, 1994. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of March 1996. PATRICIA HART MALONO 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 12th day of March 1996.
The Issue Whether Respondent failed to maintain adequate current fiscal records relating to the financial operations of the facility, in violation of Section 400.419 (3)(c), Florida Statutes and Rules 10A-5.021(1) and 10A-5.024, Florida Administrative Code.
Findings Of Fact At all times relevant, Respondent, doing business as Oakbridge, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). During the inspection of the facility on July 19, 1990 and again on October 18, 1990, the date of the revisit of the facility, Respondent had no written accounting procedures. Therefore, they were not available for review and no expense records were maintained. Respondent resides on the premises and there were no residents of the ACLF on the date of the first inspection; one on the date of the second. Although Respondent acknowledged receipt of the HRS inspection report, she did not understand the need for preparing or maintaining the written accounting procedures or expense records until she had residents in the ACLF. A completed expense record was accepted by HRS in November, 1990, several months after the assigned date of compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 400.417(1) and 400.427, Florida Statutes and that a civil penalty be imposed in the amount of $100, pursuant to Section 400.419(3)(c), Florida Statutes. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of August, 1991. COPIES FURNISHED: Paula M. Kandel, Esq. Senior Attorney Department of Health and Rehabilitative Services Office of Licensure and Certification 7827 North Dale Mabry Hwy. Tampa, Florida Mildred H. Thompson Administrator, Oakbridge 5546 Ridge Road Seminole, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On October 14, 1985, Petitioner, Nicholas Cozzo, entered into a Stock Purchase Agreement for the sale of sixty (60) shares of the issued and outstanding capital stock of C & S Deli Sandwich and Fish, Inc., a Florida corporation, (the Company) to Robert A. Krueger and Joe Ellen Krueger (collectively, the Kruegers). As a result of the sale, Petitioner retained ownership of no further stock of the Company. (Exhibit A) On October 14, 1985, the Kruegers executed two (2) promissory notes in the amounts of $53,000.00 and $5,000.00, respectively, to Petitioner and a Security Agreement securing payment of the notes. (Composite Exhibit B and Exhibit C) On October 14, 1985, Petitioner tendered his resignation as Director, President and Treasurer of the Company. (Exhibit D) Petitioner's security interest to the furniture, furnishings, fixtures, equipment and inventory of the Company (the "collateral") was duly perfected by the filing of a Uniform Commercial Code Financing Statement with the Uniform Commercial Code Bureau, Florida Department of State, on October 21, 1985. (Exhibit E) A Uniform Commercial Code Financing Statement was recorded by the Petitioner in the Public Records of Pasco County, State of Florida, on October 15, 1985, in Official Records Book 1451, page 0493. (Exhibit F) In early 1987, the Kruegers defaulted under the terms of the promissory notes. Prior to April 24, 1987, Petitioner repossessed the furniture, furnishings, fixtures, equipment and inventory of the Company. No consideration was paid by Petitioner to the Company or the Kruegers upon his repossession of the foregoing described collateral. At no time did ownership of any of the capital stock of the Company revert back to Petitioner. On May 5, 1987, Petitioner by private sale disposed of the collateral to Vincent Lopez and Glen Delavega. (Exhibits G, H, and I) No surplus funds resulted from the sale of the repossessed collateral by Petitioner to Vincent Lopez and Glen Delavega. At no time material hereto did the Florida Department of Revenue issue a tax warrant against the Company respecting any unpaid sales tax. On or about May 6, 1987, Petitioner paid under protest to the Respondent Department of Revenue the delinquent unpaid sales tax of the Company in the amount of $1392.53. The Department is still attempting to verify that amount at this date. The Petitioner maintains he paid the amount in order for the Department to issue a sales tax certificate and number to Vincent Lopez and Glen Delavega. The Department maintains its procedure at the time was to issue a sales tax number to the new owners and then proceed against them under Section 212.10, Florida Statutes. It is the position of the Respondent that the Petitioner's repossession of the collateral constituted a sale within the purview of Section 212.10(1), Florida Statutes (1985), and Rule 12A-1.055, Florida Administrative Code, which places tax liability on the successor of a business whose previous owner has not satisfied outstanding sales tax obligations. Respondent further notes that the case Petitioner relies on, General Motors Acceptance Corporation v. Tom Norton Motor Corp., 366 So.2d 131 (Fla. 4th DCA 1979) was issued on January 10, 1979, while Section 679.105(5), Florida Statutes, which upholds tax laws when in conflict with security agreements, took effect January 1, 1980. Petitioner on the other hand claims that a lawful repossession of collateral under Florida's Uniform Commercial Code, Section 679.504, Florida Statutes (1985), does not constitute a "sale" of a business making him liable for the Company's unpaid sales tax. Petitioner continues to rely on GMAC, supra, and notes that it was cited by American Bank v. Con's Cycle Center, 466 So.2d 255 (Fla. 5th DCA 1985). A refund application was submitted by Petitioner to the Department of Revenue on June 10, 1987. This application was denied by the Department of Revenue by letter dated January 28, 1988. (Exhibit J)
The Issue The issue presented is whether Petitioner is entitled to be reimbursed for its attorney's fees incurred in the underlying proceeding.
Findings Of Fact On December 31, 1997, Respondent Department of Insurance issued its Notice of Intent to Issue Cease and Desist Order, alleging that Petitioner And Justice for All, Inc., d/b/a Legal Club of America, was engaged in the legal expense insurance business without being properly licensed, and Petitioner requested an evidentiary hearing regarding that Notice of Intent. That cause was thereafter transferred to the Division of Administrative Hearings and assigned DOAH Case No. 98-0442. Prior to the scheduled evidentiary hearing, the parties stipulated that there remained no genuine issues of material fact and that the controversy could be resolved based upon an agreed record, a joint pre-hearing stipulation, and proposed recommended orders. After the submission of those documents, a Recommended Order was entered on February 3, 2000, finding that Petitioner was not selling legal expense insurance and, therefore, was not subject to regulation by the Department. On May 2, 2000, the Department entered its Final Order modifying portions of the Recommended Order and finding that Petitioner was selling legal expense insurance and was subject to regulation by the Department. Petitioner appealed that Final Order. On September 26, 2001, the District Court of Appeal of Florida, First District, filed its Opinion finding that the Department improperly rejected the holdings in the Recommended Order, reversing the Department's Final Order, and remanding the cause for entry of an order consistent with its Opinion. On January 11, 2002, the Department entered its Amended Final Order determining that Petitioner was not selling legal expense insurance and was not subject to regulation by the Department. On May 1, 2002, Petitioner filed its Motion for Attorney's Fees in this cause seeking an award for fees incurred in the underlying proceeding in the amount of $7,500, pursuant to Section 120.595(3), Florida Statutes. On May 14, 2002, the Department filed its Response to Motion for Attorney's Fees, alleging that the Department does not dispute the factual or legal basis for Petitioner's Motion and further alleging that the Department has no objection to the Motion being granted.
Findings Of Fact Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-5. Accepted. 6-7. Accepted, as modified in the Findings of Fact. Rejected, irrelevant. Accepted. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-3. Accepted. 4. Rejected, not supported by the weight of the evidence. 5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Peter K. Hofmann 73 Quinlan Drive, #1 Greenville, South Carolina 29611 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the issues herein the Respondent, Linda H. Abraham, was licensed by the State of Florida as a real estate broker under license number 0323486. During the months of February and March 1983 Martha L. Tew owned a parcel of waterfront property located in Panama City Beach which was identified as being for sale by a sign on the property reflecting her husband's real estate company. Her husband was Ronald Eugene Tew and Mrs. Tew also held a salesman's license. Mr. Tew was contacted by Gregory A. Peaden, a contractor and developer in the Panama City Beach area on several occasions prior to March 1983 with offers to purchase the Tew property. The contacts with Mr. Peaden subsequently culminated in a contract dated March 8, 1983, between Greg Peaden, Inc., and the Tews in the amount of, initially, $180,000.00. During the negotiations for the property, Mr. Peaden had introduced the Respondent to the Tews as his broker. When, at the time of Use contract, Mr. Peaden advised the Tews he wanted Respondent to get a commission for the sale, Mr. Tew refused to pay any commission indicating that Respondent had performed no service for him; that he, Tew, was a broker himself; and that he had no intention of paying any commission to the Respondent or to anyone, for that matter. After some further negotiation, a second contract was prepared and agreed upon wherein the contract price was raised to $189,000.00 and the Respondent's commission was to be paid with the additional money from Mr. Peaden. The contract in question executed by the parties on March 8, 1983, reflected that the sum of $5,000.00 deposit was paid to Linda Abraham, Inc., by check. Mr. Tew contends that at this point he was led to believe that Respondent had the $5,000.00 check and, he contends, he would not have signed the contract if he had known that the check had not been delivered and placed in Respondent's escrow account. The actual signing of the contract took place in Respondent's office, a mobile home which she shared with Mr. Peaden's business. This trailer home was described as having Mr. Peaden's office on one end, and Respondent's on the other, with the living-kitchen area in the middle used as a reception area for both businesses. Mr. Peaden contends that once the contract was signed by the Tews, he gave a check drawn on one of his business accounts, that of Peaden and Guerino, a property management company he owned, to his secretary, Judy White, to deposit in Respondent's escrow account and thereafter promptly forgot about the matter until the date scheduled for closing, two months in the future. Ms. white, on the other hand, contends that Mr. Peaden at no time gave her a check for $5,000.00 to deposit to Respondent's escrow account. It is her contention that when she received the contract after it was signed, she, on her own, inserted the receipt portion on the bottom of the second page and signed as having received it merely to complete the contract. At the time, she contends, she did not know if the deposit was received from Peaden or not. She has never signed a contract like this before without a deposit and cannot give any other reason why she did it on this occasion. She is certain, however, that at no time did Mr. Peaden ever give her a $5,000.00 check or tell her to draw one for his signature on March 8, 1983, or, for that matter, at any time thereafter. What is more, neither Mr. Peaden nor the Respondent, at any time after the signing of the contract and prior to her departure under less than friendly circumstances approximately a week or so later, ever asked her whether she had made the escrow deposit or discussed it with her at all. Ms. white contends that she left Mr. Peaden's employ because he expected her to perform certain functions she was unwilling to do. When she left his employ, she did not feel there was any unfinished business that needed her immediate attention. To the best of her recollection, there were no sales contracts or deposits left in or on her desk - only bills. According to Respondent, the $5,000.00 deposit by Mr. Peaden was to stay in her escrow account. She understood Mr. Peaden was going to arrange with the bank to borrow the entire cash payment called for under the contract, including the deposit, and when that was done, it was her intention to give him back his $5,000.00 check. Under these circumstances, the amount in escrow would never be paid to the sellers but would be returned to Mr. Peaden and the Tews would receive the entire cash amount called for by the contract from the proceeds of the bank loan. Respondent also indicated that this procedure had been followed at least once, in a prior transaction. Under the circumstances, it is clear that no deposit was ever received from Mr. Peaden nor was it placed in Respondent's escrow account. Therefore, the contract, dated on March 8, 1983, was false in that it represented a $5,000.00 deposit had been received. The check for $5,000.00 dated March 8, 1983, payable to Linda Abraham, Inc. and drawn by Mr. Peaden on the Peaden and Guerino account with the stub admitted to show the date of issuance, does not establish that it was written on March 8, 1983, as contended. This check, number 1349, comes after two other checks, 1347 and 1348, which bear dates of April 4 and September 7, 1983 respectively. Mr. Peaden's explanation that the checks were drafted out of sequence is non-persuasive. Of greater probative value is the fact that neither Mr. Peaden nor Respondent bothered to review their bank statements on a regular basis. The check in question was drawn on an account not related to the construction and development business of Greg Peaden, Inc. Further, examination of Respondent's escrow account reflects that there were approximately eleven transactions over a three year period even though, according to her, she handled numerous other closings as well as this. Her explanation is that in most cases the attorney handling the closing served as escrow agent even though she was the sales broker. Her explanation is not credible. This appears to be a classic situation of movement of accounts to satisfy a particular end. The contract called for closing of the sale to be held on or before May 8, 1983, in the office of Panama Title Company. May 8, 1983, fell on a Sunday. As a result, the closing would not have been held that day, but it was not held the following day, Monday, May 9, 1983 either. Mr. Peaden admits that he had not checked with Panama Title prior to May 9 to see if everything was prepared for the closing. Instead, he contacted the title company for the first time at approximately noon on May 9. Apparently he received disquieting information because he thereafter called his attorney, Mr. Hutto, and asked him to check with the title company to see if and when the closing would be held. Mr. Hutto's inquiry reflected that the title insurance binder was ready but the closing statement and the package were not because the title company required a copy of the contract. At this point Mr. Peaden immediately had a copy of the contract delivered to the title company but later that day was advised that the closing still could not be held because of the failure to provide a survey. Mr. Hutto indicates that the reason given was that the release clauses called for in the contract required the survey to be furnished though he did not necessarily agree with that. In any event, closing was not held on May 9. At this time both Mr. Peaden and Respondent allegedly became concerned about the $5,000.00 deposit. Admittedly, neither had concerned themselves with it from the time of the signing of the contract. At this point, Mr. Peaden indicates that he examined his bank records which failed to show the deposit being made and his subsequent search of Ms. White's desk finally revealed the check, undeposited, still there. On May 11, 1983, a $5,000.00 deposit was made to the account on which the deposit check was drawn and on the same day, May 11, 1983 check number 1349, in the amount of $5,000.00 was presented against the account. When on May 10, 1983, Mr. Peaden and Respondent went to Mr. Hutto's office the primary reason for the visit was because Mr. Peaden had heard that the Tews were planning to sell the property in question to someone else at a price much higher than that agreed upon for the sale to Peaden. At this point Mr. Hutto indicated that if Peaden so desired, Hutto could "fix up the contract to jam up the works" until he could do something about it. His examination of the contract revealed that it was not recorded or acknowledged and under the laws of Florida, acknowledgment is required in order for a contract to be recorded. Hutto asked the Respondent if she had seen the parties sign the contract and when she said that she had, he had his secretary prepare a jurat. Unfortunately, his secretary prepared an affidavit type notary jurat rather than an acknowledgment and Hutto quickly admits that he did not look at it when it was given back to him. He says that if he had, he would have had it changed but in any event, without looking at what was given him, he gave it to the Respondent with the implication, at least, that she should notarize it and have the contract recorded. According to Hutto, Peaden, and the Respondent, the sole purpose for notarization and recordation was to preserve the status quo to protect Mr. Peaden's interest in the property so that the matter could be adjudicated in a lawsuit which was soon to be filed. Respondent contends she never intended any misconduct throughout this transaction nor did she do any of the things alleged in the Administrative Complaint. She contends she never saw the check which Mr. Peaden allegedly gave to his secretary for deposit to her escrow account. She merely assumed that it was given and never checked to insure that it had been placed in her account. She does not know why Mr. Peaden did not give her the check. When she took the contract to the Tews, she was operating under the assumption that the check had been received but did not verify this to insure that it had. She contends that since she represented the buyer, her duties were limited to insuring that he performed and this made it simple. She did not check on him because she had had so much experience with him, him being by far her largest account, if he said something, she believed him and when the contract was executed, she merely instructed the secretary, Judy White, to make the file and did not check on it again. As to the recordation and the notarization after the fact, she acted upon the advice of counsel, she states, and did what was suggested to her by Mr. Hutto. It should be noted, however, that Mr. Hutto did not represent her but instead represented Mr. Peaden and while because of her long-standing relationship with him and Mr. Hutto, she may have felt safe in relying on his advice, the fact remains that Hutto was not her attorney.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered real estate broker in Florida be suspended for six months and that she pay an administrative fine of $2,000.00. RECOMMENDED this 6th day of June, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1985. COPIES FURNISHED: Arthur Shell, Esquire Department of Professional Regulation Division of Real Estate 400 W. Robinson Street Orlando, Florida 32801 John D. O'Brien, Esquire P. O. Box 1218 Panama City, Florida 32402 Harold Huff Executive Director Division of Real Estate P. O. Box 1900 Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue Whether the license of the Respondents should be suspended or the Respondents should be otherwise disciplined for false advertising and misrepresentations in a real estate transaction.
Findings Of Fact Robert T. Gabor holds License #0029823 as a registered real estate broker and trades as Gabor Realty. Frances Gabor holds License #0029822, is the wife of Respondent Robert T. Gabor, and is associated with him as a real estate salesperson. An administrative complaint filed October 5, 1978, by the Petitioner, Florida Real Estate Commission, alleged that the Respondents were guilty of false advertising and misrepresentation in a real estate transaction. The Respondents requested an administrative hearing. On or about February 26, 1978, the Respondents placed an advertisement in the Sentinel Star in Orlando, Florida, advertising a home for sale as follows: BRANTLEY area FHA VA $26,500. * BUY OWNER * 3/4 ACRE * Immaculate 3 bdrm carpet 894-5828 A couple, Mr. and Mrs. Reese, called the telephone number indicated in said advertisement and went to see the home but decided against buying it. Thereafter, the Respondents placed a different advertisement in the newspaper: BRANTLEY 894-5828 BY OWNER * 3/4 ACRE * FHA * $800. DN $25,000. mtg. 30 yrs $228/mo pays all, 3 bdrm, 1 1/2 bath, 7 yr young. There was no indication in either of the foregoing advertisements for the sale of the house that the owners was real estate salespersons. The advertisements gave the home telephone number of the Respondents, although the Respondents had a real estate office in Orlando known as Gabor Realty which was listed under a different telephone number. The Reese couple read the second advertisement on the same property and again became interested in it. They met the Respondents at the house, viewed the house, and talked with the Respondents. The Reeses and the Respondents then went to a nearby restaurant where a standard contract form was completed and signed while they were seated in the restaurant. Mr. and Mrs. Reese noted at the time the contract was signed that Respondent Robert Gabor signed it as a realtor and Respondent Frances Gabor signed it as a realtor associate. The Reeses were surprised because they had not known they were dealing with real estate salespersons. In spite of their surprise, Mr. and Mrs. Reese did not terminate the negotiations but proceeded to try to work out arrangements so they could buy the house. The contract was contingent upon the buyers' ability to secure a $25,000 FHA mortgage for thirty (30) years. The sellers were to pay the points, and the closing costs were to be divided equally. At the time of the hearing there was an unresolved dispute as to what the closing costs had been orally estimated to be. On or about March 31, 1978, Mr. and Mrs. Reese gave the Respondent, Robert Gabor, an earnest money deposit of $400.00 which was placed in the Respondent's escrow account. The Reeses and the Respondents signed various documents, including the buyer's estimated closing statement and seller's estimated closing statement. One (1) day prior to the scheduled closing date, May 5, 1978, Respondents learned that the transaction might not be closed because of the Reeses' dissatisfaction with the amounts of the downpayment, closing costs and monthly payments, all of which were in excess of the amounts they had first seen advertised and felt they could pay. Mr. Reese attended the closing on the scheduled day, but refused to close and demanded the return of the $400.00 deposit. The Respondents attempted to make an adjustment and offered to amend the agreement whereby the Respondents would pay all closing costs "allowed by law" for them to pay. Upon the refusal by Mr. Reese to close, the Respondents refused to return the $400.00 deposit. Mr. Reese then informed the Respondents that he would file a complaint with the Florida Real Estate Commission. The Respondents, having proceeded to and attended the closing, felt justified in removing the $400.00 earnest deposit from the escrow account and placing it in the personal account of Respondent Robert Gabor. Respondent Frances Gabor accompanied Respondent Robert Gabor during the foregoing transactions but took no active part in the negotiations other than having been present and having signed documents. Mr. and Mrs. Reese knew or should have known that the costs of the home were in excess of the amounts indicated in the advertisements. They had both signed and received written documents indicating costs well in advance of the scheduled closing date. Respondents submitted a memorandum of law on June 6, 1979, and thereafter, on June 25, 1979, moved to dismiss the cause for failure by the Petitioner Commission to submit memorandum of law as requested by the Hearing Examiner. The Motion to Dismiss was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends dismissal of the charges against Respondent Robert T. Gabor and Respondent Frances Gabor. DONE and ORDERED this 6th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Royce D. Pipkins, Esquire 292 Highway 17 - 92 Post Office Drawer 965 Fern Park, Florida 32730
Findings Of Fact Petitioner purchased a used car in Florida in May of 1983 and paid 5 percent sales tax. Petitioner did not title said car in the State of Florida. When Petitioner returned to Maryland, his state of residence, Maryland imposed a 5 percent tax on said car when Petitioner titled said car. Petitioner applied for a sales tax refund to the Department of Revenue in the amount of $225.00. Respondent issued a Notice of Intent to deny said refund application on December 1, 1983. From the exhibits to which the parties stipulated, additional facts are found by the Hearing Officer. A bill of sale indicates that Petitioner purchased a 1979 Buick Regal from Eddy Auto Sales on May 14, 1983. A temporary registration and receipt issued by the State of Maryland on June 17, 1983, shows that Petitioner paid a "title tax" of $222.50 to the State of Maryland. By letter dated January 27, 1984, Agnes Stoicos of the Maryland Department of Transportation indicates that the Maryland tax is a 5 percent excise tax upon the issuance of all original and subsequent certificates of title, and the tax is used primarily for the construction and the maintenance of the Maryland highway system.
