Findings Of Fact Respondent David L. Schuldenfrei was exclusively connected with International Land Brokers, Inc., as a real estate salesman, from October 30, 1974, to February 3, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's Offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of Post of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salespersons had noted. Petitioner's composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three, or four times over the year and a half that International Land Brokers, Inc. was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc. a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc. began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners, the salespersons worked from lists which International Land Brokers, Inc. had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 25th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Harry Tempkins 420 Lincoln Road Suite 258 Miami Beach, Florida
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner Department of Business and Professional Regulation, Division of Real Estate, is the state agency charged with the licensing and regulation of property appraisers in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this action, Respondent was a State of Florida certified residential real estate appraiser, holding license number RD-5554. From January 23, 2006, through September 20, 2006, and again from February 8, 2007, through December 3, 2007, Respondent was responsible for supervising Harvey Diaz, a registered trainee appraiser. During 2008, Brian Piper, who is employed by Petitioner as an investigations manager, received a complaint package from a lender. The complaint involved an appraisal of a residential property located at 1337 Northwest 26th Street, Miami, Florida, that Respondent and Harvey Diaz allegedly completed on August 18, 2006. On October 20, 2008, Investigator Piper visited Respondent's registered business location in an effort to investigate the complaint. During this initial visit, Investigator Piper spoke with Respondent's husband, Carlos Garcia, and requested a copy of the entire working file associated with the 1337 Northwest 26th Street property. Investigator Piper also asked for copies of appraisal logs for trainee Harvey Diaz, which certified appraisers are required to maintain in connection with the supervision of trainee appraisers. Several days later, Investigator Piper returned to Respondent's place of business. At that time, Respondent advised Investigator Piper that she had no record associated with the 1337 Northwest 26th Street address, and had not been involved with the preparation of an appraisal for that property. During this second visit, Respondent produced numerous boxes for Investigator Piper's inspection. No work file related to the 1337 Northwest 26th Street property was located. At no point did Respondent provide Investigator Piper with the requested appraisal logs. However, Respondent ultimately submitted the logs to Petitioner some eighteen months later, after the Administrative Complaint was filed. During the final hearing, Respondent credibly testified that she no had knowledge of, or involvement with, the appraisal of 1337 Northwest 26th Street. Respondent offered further testimony (which was corroborated by two exhibits) that she discovered in 2007 that her electronic signature had been stolen. The theft was reported to the appropriate law enforcement agency, as well as the Department of Business and Professional Regulation, Division of Real Estate. When asked on cross-examination why she did not provide the appraisal logs until after the filing of the Administrative Complaint, Respondent testified that the delay resulted from the crashing of her computer's hard drive, as well as the relocation of her business. The undersigned concludes, as an ultimate finding of fact, that Respondent was not aware of, and had no involvement with, the appraisal of 1337 Northwest 26th Street. As an additional ultimate finding, the undersigned concludes that Respondent did not hinder or obstruct Investigator Piper's investigation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 21st day of December, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
The Issue The basic issue is whether the Petitioner is qualified for registration as a real estate salesman. The Florida Real Estate Commission denied Petitioner's application and Petitioner timely requested a formal hearing. Following the hearing a transcript of the proceedings at hearing was filed on January 26, 1987, and the parties were allowed until February 10, 1987, within which to file their proposed recommended orders. Thereafter, at the request of the Petitioner the time for filing proposed recommended orders was extended to February 20, 1987. The Respondent filed a timely proposed recommended order. The Petitioner's proposed recommended order was filed one day late. The substance of all of the findings of fact proposed by both the Petitioner and the Respondent have been accepted and are incorporated into the findings of fact which follow. A number of additional findings of fact have also been made.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. On April 21, 1986, the Petitioner filed an application for licensure as a real estate salesman. By letter dated August 7, 1986, the Petitioner was advised that his application had been denied by the Florida Real Estate Commission. The denial letter stated the following grounds: Specifically, the denial is based upon your resignation from the Florida Bar Association, and your 1983 arrest and conviction for violating three counts of Sec. 7203 Internal Revenue Code and Title 26 US Code Sec. 7203. The parties agree that the Petitioner is qualified in all respects for the licensure he seeks other than with regard to the matters specifically mentioned in the above-quoted portion of the denial letter. The legal consequences of those matters are disputed. The Petitioner is a 44-year-old man who has continuously resided in the state of Florida since 1952. He was raised in a home that provided him with above average opportunities, from which he profited by receiving an excellent formal education which concluded with a law degree. He was licensed to practice law in the state of Florida from 1967 until July of 1985. During that time he achieved a statewide reputation as an expert in the field of worker compensation law. During the early and middle years of the 1970's, the Petitioner began to have marriage and family problems at the same time he was becoming more and more disenchanted with his chosen profession. Although he managed to continue to successfully manage his professional affairs, he began to neglect his family and personal affairs. This neglect resulted in a dissolution of his marriage and in his failure to file final 1040 Federal Income Tax Returns for the years 1978, 1979, and 1980. The Petitioner's failures to file income tax returns for three years were acts of omission; failures to perform a statutory duty. They were not acts involving any fraudulent intent to evade or to avoid income taxes. Contraindicating any such fraudulent intent is the fact that partnership informational returns which accurately set forth the Petitioner's gross income for the years 1978, 1979, and 1980 were filed on his behalf and he had filed and been granted requests for extensions of time to file final returns for each of the three years. The extended filing date for the last of the three subject returns expired in either June or September of 1981. As a result of the omissions described above, on or about September 1983, the Petitioner pled guilty to and was convicted of three counts of violating Section 7203, Internal Revenue Code, and Title 26, United States Code, Section 7203. On September 12, 1983, Petitioner was sentenced by the U.S. District Court for the Northern District of Florida to three concurrent 1-year terms of imprisonment and a fine of $15,000, followed by five years of probation. On July 5, 1984, the Florida Supreme Court granted leave for the Petitioner to resign from the Florida Bar during the pendency of disciplinary proceedings based on the conviction described above. The Supreme Court order granting leave for Petitioner to resign also provides that he has the right to reapply for reinstatement. One of the main reasons for Petitioner's decision to resign from the Florida Bar was a strong feeling that he never wished to practice law again because he felt that the practice of law was an unenjoyable and onerous occupation which placed his mental and physical health at risk. Petitioner currently owes perhaps as much as $80,000 in unpaid taxes. He has already paid the $15,000 in fines and has paid approximately $40,000 in back taxes. Prior to the Petitioner's convictions for failing to file income tax returns, the Petitioner had an excellent reputation for honesty, truthfulness, trustworthiness, good character, and fair dealing. Since his conviction the Petitioner has continued to enjoy an excellent reputation for honesty, truthfulness, trustworthiness, good character, and fair dealing. In the more than five years which have elapsed since the Petitioner's inactions which led to his conviction, the Petitioner has been involved (except for the period of his incarceration) in a series of lawful employment activities. There is no evidence that during the more than five years since the Petitioner's failures to file tax returns that he has acted other than as an honest, responsible, productive member of society doing his best to pay his debt to society, put the past behind him, and get on with the rest of his life. There is also no competent substantial evidence that any action or inaction of the Petitioner caused any harm to the interests of any of his clients. Because of the lapse of time since the conduct which resulted in the Petitioner's conviction and because of his subsequent good conduct and subsequent excellent reputation, it does not appear that the interests of the public and investors are likely to be endangered if the Petitioner is granted the license he seeks. His only crimes were misdemeanors and they resulted from his inattention to his own affairs, not from inattention to any matter entrusted to him by a client.
Recommendation For all of the foregoing reasons, it is recommended that the Florida Real Estate Commission issue a Final Order concluding that the Petitioner is qualified for the licensure he seeks. DONE AND ENTERED this 26th day of February, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 26th day of February, 1987. COPIES FURNISHED: Mr. Roger Sherman 900 Fort Pickens Road, #322 Pensacola, Florida 32561 Lawrence S. Gendzier, Esquire Assistant Attorney General Suite 212 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Suite 212 400 West Robinson Street Orlando, Florida 32801 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Marion Malt is guilty of violation of Section 475.25(1)(a) and (2), Florida Statutes.
Findings Of Fact Marion Malt is a registered real estate saleswoman. Marion Malt worked for International Land Services Chartered, Inc., as a listing representative or "closer". She was paid commissions through International Land Sales Chartered, Inc. In the course of her employment as a listing representative with International Land Services Chartered, Inc., Marion Malt contacted Joan Culpepper. Malt made representations to Mrs. Culpepper that she (Malt) had sold property and that the real estate market in Florida was good. She further represented that the Culpeppers could sell their property which they had purchased for $2,000.00 for approximately $20,000.00. Malt further represented that she could sell the Culpepper's property quickly, probably within sixty days. Similar representations were made to Genevieve Voli and David Bohrer. Mrs. Malt identified her signature on a letter which Mrs. Culpepper had identified as a letter received after her initial contact by a person identifying herself as Marion Malt. Marion Malt testified that she sent such letters to the persons whom she contacted. Marion Malt knew that International Land Services Chartered, Inc., had no sales staff, and further, Malt knew that she had not sold any property. Malt knew that the sales operation of International Land Services, Chartered, Inc. was totally dependent upon other brokers marketing the property listed by International Land Services Chartered, Inc., through advertisement in the catalogue prepared by International Land Services Chartered, Inc. Malt had no actual knowledge of any sales based upon the catalogue by International Land Services Chartered, Inc., yet she represented such sales had been consummated in her conversations with Culpepper, Voli, and Bohrer.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of Marion Malt as a real estate saleswoman. DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Oliver, Esquire Charles Felix, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Ronald E. Fried 2699 South Bayshore Drive Suite 400C Miami, Florida 33133
The Issue Whether or not the Respondent, Kenneth Kasha, is now and was at all times alleged, a registered real estate broker, and from January 31, 1974, to January 7, 1975, an active firm member of International Land Services Chartered, Inc., a registered corporate broker, and was acting in that capacity. Whether or not from January 31, 1974, to January 7, 1975, the Respondent, in the capacity of active firm member of International Land Services Chartered, Inc., solicited by telephone and mail, property owners nationwide, on the subject of their real property interest in the State of Florida, to obtain a fee in return for a listing to sell property; by representing and holding out to the property owners that a bona fide effort would be made to sell the property so listed with International Land Services Chartered, Inc. Whether or not the representation holding out that a bona fide effort would be made to sell the property listed with international Land Services Chartered, Inc., was false and was known to be false when made. Whether or not property owners acted in reliance of the comments by Respondent, Kenneth Kasha, and listed their property for sale with International Land Services Chartered, Inc. and paid a listing fee. Whether or not the solicitation of property owners nationwide was wholly a scheme to fraudulently secure money from the public, i.e., the advance listing fees, for reason that no bona fide effort was made to sell the properties so listed with International Land Services Chartered, Inc. Whether or not by reason of the foregoing, the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or devise, or breach of trust in a business transaction in this state; and has violated the duty imposed upon him by law or the terms of a listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design, or scheme in violation of 5475.25(1)(a), F.S. Whether or not for the reason of the foregoing factual allegations set forth above, the Respondent is guilty of a conduct of practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, all in violation of 5475.25(3), F.S.
Findings Of Fact From January 31, 1974, to January 7, 1975, the Respondent, Kenneth Kasha, was an active firm member of International Land Services Chartered, Inc. and was acting in the capacity of registered corporate broker. He was a holder of certificate number 0133731 during that time sequence. That license was held with the Florida Real Estate Commission, the Petitioner. Beginning with January 31, 1974, and continuing to the present, Kenneth Kasha was also the holder of what is now certificate number 0046189, held with the Florida Real Estate Commission by Kenneth Kasha as real estate broker to trade as Florida Landowners Service Bureau. During the tenure of his affiliation with International Land Services Chartered, Inc., from January 31, 1974, to January 7, 1975, Kenneth Kasha was the Secretary of that corporation. (The facts of his Iicensure by the Petitioner and his affiliation with the International Land Services Chartered, Inc., are more completely described in the Petitioner's Exhibits 4 and 10, admitted into evidence.) In the pendancy of his service for the above-mentioned corporation, Kenneth Kasha was involved in the advertising of properties which had been solicited from out-of-state owners who owned land in the State of Florida. His involvement in this advertising is established by the Respondent's Exhibit No. 10 admitted into evidence. Through this exhibit it is demonstrated that the International Land Services Chartered, Inc., was advertising with the National Multiple Listing, Inc. More specifically, the invoices in the exhibit have assigned reference numbers which correspond to the advertising sheet which was placed with the National Multiple Listing, Inc. These sheets would show a number of listings of property which had been solicited from out-of-state owners who had paid a fee for the right to have their properties listed through International Land Services Chartered, Inc., who in turn advertised in National Multiple Listing, Inc. The circulation of those listings may he traced by taking the reference number in the left margin on the individual listing sheet of National Multiple Listing, Inc., found in the Respondent's Exhibit No. 10, and comparing this with the certificates of circulation which are Respondent's Composite Exhibit No. 12, and which have a comparable reference number affixed. By doing this, it can be seen that the circulation of the individual listing sheets by National Multiple Listing, Inc., numbered as many as 2,500 contacts. An examination of the advertising done through National Multiple Listing, Inc., demonstrates that a potential purchaser could not determine the exact location of the land. At best that purchaser could locate the subdivision and development, municipality and/or county and state and the general size of the tracts of land. Some of the property does not have a purchase price. Therefore, the quality of the advertising that was done is somewhat suspect. At the time the International Land Services Chartered, Inc., was billed, it was in the name of Kenneth Kasha, who tendered payment in behalf of International Land Services Chartered, Inc. Moreover, when the International Land Services Chartered, Inc., had signed an agreement with National Multiple Listing, Inc., to have the latter corporation do the advertising for International, it had signed in the person of Kenneth Kasha and took effect on March 1, 1974. The period of the contract was for one year and this is shown by Respondent's Exhibit No. 8 admitted into evidence. A further understanding of Kenneth Kasha's involvement with the listings of out-of-state owners of Florida property through International Land Services Chartered, Inc., may be found in the testimony of Marvin Rothstein. Roths to in worked for the corporation approximately 3 or 4 weeks full time and then part time and in total obtained 10 or 15 listings for the benefit of the corporation. Mr. Rothstein described the technique for listing the out-of-state owners of Florida property with International Land Services Chartered, Inc. (These listings have been referred to as "advance fee" listings, and will be so referenced in the balance of this Recommended Order.) Mr. Rothstein had seen an advertisement in the paper placed by International Land Services Chartered, Inc., advertising for the employment of real estate salesmen. He answered that advertisement and was interviewed by Kenneth Kasha for a job with the subject corporation. Kasha explained to Rothstein that his duties would be to contact people by phone and find out if they would like to have their property listed. There were 4 or 5 other salesmen involved in International Land Services Chartered, Inc's, employ whose function it was to make the contacts and solicit listings. The salesmen worked in the evening hours 3 or 4 hours a night and would call the out-of-state owners and ask if they wanted to list their property with the corporation, International Land Services Chartered, Inc. The corporation had given the salesmen so-called lead cards to contact the people. (The office in which the salesmen were ,working was a very small office with 5 or 6 phones.) Mr. Rothstein described the contact with the out-of-state owners to be one to obtain a listing, in opposition to an effort to try and sell the property of the out-of-state owner. Mr. Kasha was the supervisor of the activities of the salesmen who were working at night. Through the Rothstein testimony, it is established that there was a script which the salesmen were called upon to follow. The salesmen would introduce themselves to the prospective landowner/client and ask if the landowner would be willing to list their property for resale. If the owner was interested, certain materials were mailed to the owner for their perusal, prior to any agreement for resale. The mailouts were made after positive responses that Mr. Rothstein would be given when he made his inquiry about listing the property. Mr. Rothstein is unfamiliar with the materials that were mailed out. He was never responsible for making a second contact with the parties initially solicited. He does know that a fee was charged for listing the property with International Land Services Chartered, Inc., and the purpose of the fee was explained to the parties to be for expenses for listing the property and for whatever other expenses that might be incurred by the corporation. Rothstein is unfamiliar with what the exact expenses would have been for the corporation to fulfill the functions of taking care of listings. To Rothstein's recollection, the amount of fee for listing was $25 or $50, that is the amount he would receive for obtaining a listing agreement with the out-of-state owner. He is not certain what the International Land Services Chartered, Inc., received as their portion of the listing fee. There was no agreement that Rothstein himself would be compensated by commission should the property be sold. Rothstein was also unfamiliar with the method which the corporation used to arrive at an asking price for the listed property. Rothstein was unaware of any appraisals that may have been done by the corporation during the tenure of his employment with the corporation. His knowledge of the advertising method was that there were multiple listings. These multiple listings would equate to the form of listings placed with the National Multiple Listing, Inc. One other matter that was discussed in the initial solicitation, was the fact that the possible purchasers of the land were constituted of foreign as well as domestic buyers. This comment was in connection with the overall statement that the owners were being solicited for a listing to bring about the resale of the property. Rothstein said that he did not know of any sales of the property during the time he worked for International Land Services Chartered, Inc. An examination of the Petitioner's Exhibit No. 6, which is a profit and loss statement for the period in question, indicates that income derived from the International Land Services Chartered, Inc.'s business activities far exceeded advertising and other expenses labeled as selling expenses. That document, Petitioner's Exhibit No. 6, does not indicate whether there was income derived from sources other than the "advance fee" listings. Moreover, there was no testimony given in the course of the hearing which would clearly identify the amount of money that was received from owners who desired the services of the "advance fee" listing. Finally, the Petitioner has failed to demonstrate through competent evidence the true nature of the specific details of the follow-up written information which was submitted to the potential client once that client had been solicited in the initial contact phase. On balance there is insufficient testimony to prove that the solicitation of the property owners was a scheme to fraudulently secure money from the public through "advance fee" listings, or that no bona fide effort was made to sell the properties that were listed with International Land Services Chartered, Inc. Consequently, the Petitioner has failed to show that the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device or breach of trust in a business transaction in this state; or that Kenneth Kasha has violated the duty imposed on him by law or the terms of listing contract in a real estate transaction, or that he has formed an intent, design or scheme to engage in said misconduct or has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(I)(a), P.S. Furthermore, the Petitioner has failed to establish that Kenneth Kasha is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions, and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, in violation of 475.25(3), P.S.
Recommendation It is Recommended that the Administrative Complaint brought against the Respondent, Kenneth Kasha, who is now licensed by the Petitioner, Florida Real Estate Commission, under certificate number 0046189, as a real estate broker, he dismissed and set aside. DONE and ORDERED this 17th day of February, 1973, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Mr. Kenneth Kasha Post Office Box 611238 North Miami, Florida 33161
Findings Of Fact Respondent Thomas Glenn Curtiss was exclusively connected with International Land Brokers, Inc, as a real estate salesman from January 13, 1975 to September 16, 1975. During the period of respondent's employment, Jeffrey Kramer, a real estate broker, was president and active firm member of International Land Brokers, Inc. One of the corporation's offices consisted of two rooms. The front room contained Mr. Kramer's desk, a secretary's desk, file cabinets, a duplicating machine, and a reception area. The back room was divided into six cubicles, each with a telephone. The office complex had a regular telephone line and a WATS line. Attached to the walls of most of the cubicles most of the time were portions of a packet of papers that was mailed to certain prospects. Pages two through five of composite exhibit No. 1, together with the last page, were at one time posted on the walls of some of the cubicles. Between the hours of six and half past ten five nights a week and at various times on weekends, salespersons in the employ of International Land Brokers, Inc. manned the telephones in the cubicles. They called up property owners, introduced themselves as licensed real estate salespersons, and inquired whether the property owner was interested in selling his property. When a property owner indicated an interest in selling, the salesperson made a note of that fact. The following day, clerical employees mailed a packet of papers to the property owners whose interest in selling the salesperson had noted. Petitioners composite exhibit No. 1 contains the papers mailed to one prospect. The contents of the materials which were mailed out changed three or four times over the year and a half that International Land Brokers, Inc., was in business. As a general rule, a week or so after the initial call to a property owner who proved interested in selling, a salesperson placed a second telephone call to answer any questions about the materials that had been mailed, and to encourage the property owner to list the property for sale with International Land Brokers, Inc. Property owners who listed their property paid International Land Brokers, Inc., a listing fee which was to be subtracted from the broker's commission, in the event of sale. When International Land Brokers, Inc. began operations, the listing fee was $200.00 or $250.00, but the listing fee was eventually raised to about $300.00. In the event the same salesperson both initially contacted the property owner and subsequently secured the listing, the salesperson was paid approximately 30 percent of the listing fee. If one salesperson initially contacted the property owner and another salesperson secured the listing, the one who made the initial telephone call was paid approximately $20.00 and the other salesperson was paid between $75.00 and $90.00 or thereabouts; when more than one salesperson was involved the sum of the amounts paid to the salespersons represented about 35 percent of the listing fee. In telephoning property owners the salespersons worked from lists which International Land Brokers, Inc. had bought from unspecified individuals, or compiled from county tax records.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the administrative complaint be dismissed. DONE and ENTERED this 4th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmann, III, Esquire and Mr. Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Neil Flaxman, Esquire 7800 Red Road Penthouse South South Miami, Florida 33143
The Issue This matter was referred by the Public Employees Relations Commission to the Division of Administrative Hearings for hearing to determine: Whether the Respondent, Seminole County, is a Public Employer within the meaning of Chapter 447, Florida Statutes. Whether the Petitioner, Union, is an employee organization within the meaning of Chapter 447, Florida Statutes. Whether there has been a sufficient showing of interest has required for the filing of a representation election petition under Chapter 447, Florida Statutes. Whether the employer organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees within the Public Employer? PRE-HEARING MATTERS Prior to the commencement of the hearing, Respondent filed the following motions with the Hearing Officer who made the indicated disposition of the motion: Motion for Discovery; denied on the basis of prior PERC rulings. Motion to Transfer Jurisdiction to Local PERC; denied because the local ordinance had not been approved by the Public Employees Relations Commission. Motion for Oral Argument on Motion to Transfer Jurisdiction; denied, see Petitioner's Motion to Amend, below. Motion to Dismiss Based on Employer Not Having Denied Recognition; denied. Motion to Dismiss or Limit Hearing on the Basis that Local PERC Ordinate Controls; denied. Motion to Dismiss on the Basis of Inappropriateness of Units Sought; denied. Motion to Quash Hearing on Basis that Acting Chairman Lacked Authority to Notice Hearing; denied. Motion to Dismiss on Basis of Lack of Due Process and Lack of Authority; denied. The Petitioner moved orally in response to the suggestion that paragraph 11 of the Petition indicated concurrence in local PERC authority to amend paragraph 11 to "no". Motion was granted by the Hearing Officer. After having presented its motions the Respondent thereafter filed its Answer, asserting therein certain affirmative defenses. Succinctly stated the position of the Respondent was that the county had defined the appropriate units within the Public Employer by local ordinances as professional, supervisory and blue collar, and that the unit sought by the Petitioner did not conform to the units the County had defined by ordinance. The Petitioner sought all employees of the Road and Arthopod Divisions of Seminole County excluding officers, clericals, supervisory and guard employees.
Findings Of Fact The Hearing Officer directed the Employer to go forward and present its evidence in support of its definition of the units. The Employer sought to call Pat Hill and Jack McLean, both previously subpoenaed by the Employer. Neither of the individuals were present in the hearing room. The Hearing Officer, noting that the time had not expired to oppose the subpoenas but that no opposition had been filed, allowed the Employer to proffer the testimony these witnesses would have given if present. The Hearing Officer notes that subsequently these subpoenas were quashed. Therefore, the proffered testimony will not be considered by the Hearing Officer. The Hearing Officer would, in light of the fact that the Commission's file was not present at the hearing, direct the Commission's attention to the proffer as it relates to the Commission's file for resolution of any matters appropriately raised. The Employer then called Carl Crosslin who was present but whose subpoena had been timely opposed by his Counsel. The subpoena having been issued by the Acting Chairman, the Hearing Officer deferred to the Acting Chairman for his ruling on the subpoena in question. The Hearing Officer allowed the Employer to proffer the testimony which would have been presented by Carl Crosslin and Commissioner Paul Parker. Thereafter, the Employer moved for a continuance which motion was denied by the Hearing Officer. The Employer then made a demand for presentation of the authorization cards, which were not present at the hearing. The Employer then sought to introduce the affidavit of Chris Haughee which was rejected by the Hearing Officer. The Employer then filed its motion for Determination of Managerial and Confidential Employees. This motion is preserved for consideration by the Commission. It is appropriate to note at this point that upon the conclusion of the taking of testimony the Petitioner amended its petition to seek a unit composed of non-exempt employees of the Road Construction and Maintenance Division, the Heavy Equipment and Vehicle Maintenance Division, and Arthopod Division of the Public Works Department of the County of Seminole, or in the alternative, all non-exempt employees of the Public Works Division and as a final alternative, a unit of all blue collar workers of the Public Employer who are in construction, maintenance and trades, but excludes clerical, secretarial and similar positions. The parties also stipulated to the managerial status of division directors within the Administrative Services Department and their secretaries. However, in light of the fact that not all division directors within the employ of the Public Employer were not included within the stipulation, and further, because the Employer has filed a motion for Determination of Managerial and Confidential Status and because the stipulation between the parties would not be binding upon others who might have an interest, the facts relating to the duties and functions of division directors and similar positions are set forth so that the Public Employees Relations Commission may resolve the status of these employees as it relates to the motion filed by the Public Employer. The general organization of the Public Employer is indicated on Exhibit 6. The Board of County Commissioners, as the elected representatives of the citizens of Seminole County, head the Public Employer. An executive assistant manages the office and staff of the Board of County Commissioners and functions as general coordinator for the other department heads of the county government. Each of the several departments of government is headed by a department head. Each department head is directly responsible for the management of his department to the Board of County Commissioners. Although the executive assistant, as a coordinator, would have some coordinating function with the department heads, the department heads are the first level of management below the Board of County Commissioners. The department heads prepare the budgets for their department, manage and direct their personal staffs and their division heads, make policy within their department, and participate in the resolution of grievances. They have the authority to hire and fire all employees making less than $10,000 per year and they participate in evaluations of all employees. Department heads have the ability to effectively recommend the employment and discharge of division heads and employees making more than $10,000 per year. All of the department heads meet on Mondays to discuss their joint duties and coordinate their activities. The division heads or directors have the authority to effectively recommend hiring and firing of personnel. The division heads assign work and determine the manner in which work shall be done by their subordinates. The division heads have the authority to discipline their personnel or effectively recommend disciplinary measures dependent upon the action taken. Division directors prepare and submit budget data to the department heads upon which the departmental budget is based. The division heads constitute the second level of supervision or management in county employment. Among their other functions they make determinations regarding the manner in which programs will be accomplished and participate in the resolution of grievances. In all but the smallest divisions and in all of the departments, the department heads and division directors have secretaries assigned to them to handle their personal correspondence, In the larger divisions and in the majority of the departments there are additional clerical personnel assigned to handle general typing and filing and to maintain fiscal records. The parties with regard to the RC petition in question have stipulated that the secretaries to the department heads and division directors should be excluded as confidential. There are divisions within the county government whose function is primarily administrative and whose employees perform administrative duties. These divisions or activities would include the Personnel Division, Microfilm Division, Division of Manpower Planning, Purchasing Division, Office of Management and Evaluation, Veterans' Service Officer, Division of Social Services and Seminole County Industrial Development Authority. In the aforelisted activities, all of the personnel are involved in totally administrative functions. In addition to these totally administrative divisions or activities, there are additional divisions in which there are mixed administrative and other functions. The administrative employees of these divisions would include Switchboard Operators and the Mail Clerk in Support Services Division; the Biologists in Operations Division of the Department of Environmental Services; the Operator Inspector, Pollution Control Technician, Account Clerk in the Division of Environmental Control of the Department of Environmental Services; Cashiers within the Division of Motor Vehicles of the Department of Public Safety; the Deputy Civil Defense Director in the Division of Civil Defense, Department of Public Safety; Permit Clerks and a Secretary II of the Building Division of the Department of County Development; two Secretaries and a Site Planner within the Office of the Land Development Administrator, Division of Land Development, Department of County Development; a Secretary, two Draftsmen, two Planners, Drafting Technician II, Planner (current plans), Senior Planner, Principal Planner and County Planner within the Planning Division of the Department of County Development. The following personnel hold positions within the county government below that of division director and perform functions which are not clerical or administrative in nature. These remaining personnel will be discussed by division. Within the Building Maintenance Division there is a Supervisor of Custodial Services, Supervisor of Courthouse Custodians, and Building Custodian Supervisor, all of whom report to the Director of Building Maintenance. The Supervisor of Courthouse Custodians directly supervises the fifteen custodians assigned to the Seminole County Courthouse. The Supervisor of Custodial Services supervises the custodians assigned to the maintenance of the other county buildings. The Building Custodian Supervisor supervises the electrical, carpentry, plumbing and air conditioning foremen under whose direction maintenance workers perform such maintenance as is required upon the various county buildings. These three supervisors have the authority to effectively recommend hiring, firing and disciplinary action and assign specific work to those employees under their direction. These supervisors constitute the first level of direct supervision over the county employees for although there are trades foremen designated they function as lead workers. Within the Support Services Division there are three Night Watchmen who are responsible for security of the County Courthouse and one Senior Night Watchman who assigns the work shifts of the Watchman. The testimony would indicate that the Senior Night Watchman functions in the role of a lead worker. It should be noted that this Division does not have a division director but is under the control of the acting executive assistant. Within the Division of Human Services is the Office of Animal Control which is headed by the Animal Control Officer. The Animal Control Officer is responsible for the operation of the County Pound and the supervision of the work of the four Animal Control Officers. He is assisted in his functions by the Animal Control Supervisor who is specifically charged with maintenance of the County Pound. The Animal Control Officer has authority to recommend hiring, firing and discipline of these employees who he evaluates. Within the Operations Division of the Department of Environmental Services there is a Chief Operator and three Operator Trainees who are responsible for the operation and maintenance of the county's water and sewage treatment facilities. The Operator Trainees are under the direct supervision of the Chief Operator whose responsibility is to train then to operate the system and to assign their duties. The Operator Trainees perform maintenance, read meters, and perform such other duties as the Chief Operator assigns necessary to the operation of these facilities. Within the Office of the Director of Public Safety and under the Director's control is Fire Prevention and Arson Investigator, a Training Officer, and two Mechanics. The Investigator and the Training Officer are trained firefighters. The two Mechanics are physically located at Station 14 and are responsible for the maintenance of the County Fire Department's Vehicles. The Fire Department is divided into three shifts or platoons. Each shift or platoon being supervised by a Sector Fire Coordinator. The Sector Fire Coordinator prepares the budget for his shift, establishes field operating procedures, and directs fire fighting, and has access to the personnel files of the employees. Also within the Department of Public Safety is the Communications Division which at present relates primarily to the Fire Department but which will in the future also encompass the 911 telephone number. The Communications' personnel are under the supervision of the Communications supervisor. The Communications' personnel are generally not firefighters, but receive emergency calls and dispatch equipment. Within the Motor Vehicle Inspection Division of the Department of Public Safety there are three Inspection Stations located within the county. The Motor Vehicles Inspection function is under the supervision of the Motor Vehicles Inspection Supervisor who acts as a division director and effectively recommends hiring and firing and discipline of employees and who helps prepare the budget for the Motor Vehicles Inspection activities. He is also responsible for work assignments and development of work procedures. Each Inspection Station is under the direction of a Chief Inspector who is responsible for assigning work at each station and responsible for the function thereof. There are four Motor Vehicle Inspectors at each Inspection Station and one Cashier. Within the Division of Parks and Recreation of the Department of County Development there is a Parks Coordinator/Designer who can effectively recommend hiring and firing and disciplinary action of personnel within the Division. The Parks Coordinator/Designer is also responsible for the direct or specific supervision of work. He functions as an assistant division director. The Parks Supervisor is also able to effectively recommend hiring, firing and disciplinary action. The Parks Supervisor provides direct supervision of the five Maintenance Workers, the Equipment Operator II, and three Trades Workers assigned to the Parks and Recreation Division. In addition to the positions enumerated above there are an additional twenty-nine CETA Workers assigned to Parks and Recreation primarily in the grades of Maintenance Worker and Equipment Operator. Within the Building Division of the Department of County Development the construction inspection function within the county is the responsibility of the Building Official who functions as the division director of the Building Division. He is assisted in his duties by the Plans Examiner who functions as the Deputy Building Official. Both employees have the authority to effectively recommend the hiring, firing and discipline of their subordinate employees. The actual inspection of construction is carried out by one of ten inspectors. There are three Chief Building Inspectors; one assigned to general construction, one to electrical, and one to plumbing, There are six Inspectors who work under the three Chief Inspectors and one Trailer or Mobile Home Inspector who reports directly to the Building Official. Within the Land Development Division of the Department of County Development is the Zoning Department. The Land Development Administrator functions as the division director. He is assisted in his Duties by the Zoning Administrator who acts as the Assistant Division Director. Both employees have the authority to effectively recommend hiring, firing and disciplinary actions. There are three Inspectors assigned to the Land Development Division. One inspects for compliance with the County Tree Ordinance, one inspects with regard to commitments made to the county by developers and the third inspects for violations of the county zoning code. The Engineering Division of the Department of Public Works is responsible for three basic functions: Traffic engineering, design and survey, and survey and inspection. The Traffic Engineer is responsible for the traffic engineering activity and supervises the other employees directly. Signs are prepared in the County Sign Shop which is under the supervision of the Sign Shop Foreman. An Electrician is also assigned to this activity together with an Electronics Technician. They are responsible for the installation and maintenance of traffic signals. A Radio Technician is also assigned to the Traffic Engineer activity. The Radio Technician is responsible for the repair of all county radios. The Design and Survey activity consists of a Design Engineer and a Design Technician who design and draft plans for county construction projects. The Assistant County Engineer heads up the survey and inspection type activity for the Engineering Division. He is responsible for the county's two survey crews which are made up of a Party Chief and three to four crew members. The Assistant County Engineer is responsible for directing the work functions and activities of his subordinates and has the authority to effectively recommend hiring, firing and discipline. The Assistant Road Superintendent is in charge of the Road Construction and Maintenance Division of the Department of Public Works. He is assisted in the performance of his duties by two foremen and three to four crew leaders. The Road Maintenance function contains three supervisors, two of which supervise a foreman and two crew leaders and the third supervisor who supervises a crew leader. Under each crew leader there are from four to six maintenance workers or equipment operators. The Assistant Road Superintendent and the three supervisors in maintenance all function in assigning work to crews and individuals and supervising the work activity. In addition, the Assistant Road Superintendent acts as the assistant to the Road Superintendent who functions as the division director. Both men would have authority to effectively recommend hiring, firing, and disciplinary action together with the three supervisors, The Division of Heavy Equipment Maintenance is under the supervision of the Shop Foreman who functions as a division director, He is assisted by the Parts Manager who acts as the assistant division director. The position of Chief Mechanic is currently vacant and the duties are being performed by the Assistant Chief Mechanic. The primary function of the Parts Manager is the purchasing and stockage of spare parts. The Shop Foreman, Parts Manager and Assistant Chief Mechanic all have the authority to effectively hire, fire and recommend discipline. These three individuals would also provide evaluations of the mechanics, mechanic helpers and equipment servicemen assigned to the Heavy Equipment Maintenance Division. The Arthropod Division of Seminole County is responsible for refuse disposal. The division director is the Refuse Superintendent. Working under him are the Refuse Supervisor and a Landfill Foreman. The Landfill Foreman is responsible for supervision of the actual landfill operations and directly is responsible for three Equipment Operator III's and an Equipment Operator IV. The Landfill Foreman is also responsible for supervision of truck drivers while they are at the landfill area. The Landfill Foreman, Refuse Supervisor and Refuse Superintendent (division director) all have the authority to effectively recommend hiring, firing and discipline and to make work assignments and to evaluate performance. There were approximately twenty-eight employees within the Arthropod Division at the time of hearing. With regard to the employees of the county generally the testimony indicates that all employees of the county are entitled to the same vacation, retirement, and insurance benefits and that their salaries are established within the framework of the pay classification plan. The Petitioner has argued that each division is a totally independent unit, therefore, a unit composed of employees of the Arthropod and Road Construction and Maintenance Divisions of the Department of Public Works would be appropriate. The Employer has urged that the employees of the county be divided into three units: (1) all professional employees (2) all supervisory employees and (3) all employees not contained in the first two units. The Employer's proposal would appear to lump all the clerical employees, all custodial and maintenance employees, and certain highly skilled or specially trained employees in the same unit. The record does not support the Petitioner's contention that the divisions of Seminole County government are independent. The record clearly indicates that divisions are subordinate to the departments of which they are a part. The record further indicates that even departments are not totally independent or autonomous since the department heads are responsible to the County Commission which in turn establishes the salaries and other benefits of employment for all employees of the county. The record clearly indicates that a unit limited to the Arthropod and Road Divisions or even to the Public Works Department would not encompass many employees with essentially the same job functions and in some instances the same job titles and pay classifications. There are maintenance workers, equipment operators and certain custodial personnel and mechanics located in other divisions of county government. The position of the Employer fails to recognize the disparity of interest between the employees which would be "left over" and compose the third unit it has proposed. The record indicates that there are essentially three types of employees below the grade or position of division director as follows: (1) Clerical, (2) Maintenance/Custodial, and (3) Highly skilled. A large portion of the total number of county employees would fall into the clerical category to include secretaries, clerk typists, filing clerks, and fiscal assistants. The maintenance/custodial category would appear to be the next largest grouping of employees and would include custodial and maintenance workers, vehicle operators, watchmen, and mechanics. The highly or specially skilled category would include various planners, biologists, draftsmen, personnel specialists, zoning and building inspectors, and the highest level of skilled trades workers and sanitariums. Based upon the foregoing categorization of county employees, the unit composed of maintenance/custodial employees would encompass all of the job titles and job classifications sought by the Petitioner within the Department of Public Works and consolidate a substantial portion of the total number of county employees who share similar duties and work environments. A unit composed of this category would be almost identical to the last alternative unit sought by Petitioner. At the same time it would prevent fractionalization within county government and better meet the criteria stated in Section 447.009(4), Florida Statutes. This report is respectfully submitted this 11th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Thomas J. Pilacek, Esquire Bowels & Pilacek 131 Hark Lake Street Orlando, Florida 32803 David Richeson, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Henry Swann, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
