The Issue The issue presented is whether Petitioner should receive additional credit for his answers to certain questions on the October 1991 Certified General Contractor Examination.
Findings Of Fact Petitioner failed to achieve the minimum passing score on Part I of the Certified General Contractor Examination administered in October 1991. He filed a challenge to nine of the questions contained in Part I. Petitioner challenged questions numbered 2, 3, 4, 6, 9, 10, 14, 25, and 34. During the final hearing, Petitioner agreed that the Department's chosen answers to questions numbered 2, 3, 6, 10, 25, and 34 were the correct answers to those questions. During the final hearing, the Department agreed that Petitioner's chosen answer to question numbered 4 was correct and that Petitioner should be given additional credit for his correct answer. The Department thereupon re- computed Petitioner's score and determined that, with the additional credit for that answer, Petitioner's score on the examination is now 68, still less than the required minimum passing score. Petitioner chose answer "D" to question numbered 9. The Department's chosen answer of "A" is the only correct answer to that question. The question itself is neither vague nor ambiguous. Petitioner chose answer "C" to question numbered 14. The Department's chosen answer of "B" is the only correct answer to that question. The question itself is neither vague nor ambiguous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner failed to achieve a passing score on Part I of the October 1991 Certified General Contractor Examination. DONE and ENTERED this 7th day of August, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 7th day of August, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's six unnumbered paragraphs in his post-hearing submittal have been rejected as not constituting findings of fact, but rather as constituting argument. Respondent's proposed findings of fact numbered 1 and 4-7 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2 and 3 have been rejected as not being supported by any competent evidence in this cause. Copies furnished: Vytas J. Urba, Assistant General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. James George Suite 201 17325 Northwest 27th Avenue Miami, Florida 33056 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the application of the Respondent Melvin Haber for a mortgage broker's license should be approved or denied.
Findings Of Fact Respondent Melvin Haber applied for registration as a mortgage broker by filing an application for registration as a mortgage broker on December 20, 1976. On January 14, 1977, Petitioner issued to Respondent its Notice of Intent to Deny Respondent's Application for registration as a mortgage broker. The reasons for such denial were set forth in an accompanying document entitled "Administrative Charges and Complaint." Petitioner Division of Finance had determined that Respondent Melvin Haber did not meet the proper qualifications necessary to be licensed as a mortgage broker and that he had, through Guardian Mortgage and Investment Corporation, charged and received fees and commissions in excess of the maximum allowable fees or commissions provided by the Florida Statutes; and although he had stated otherwise on his application, Respondent in fact had been charged in a pending lawsuit with fraudulent and dishonest dealings; and had demonstrated a course of conduct which was negligent and or incompetent in the performance of acts for which he was required to hold a license. By letter dated January 19, 1977, to Mr. Joseph Ehrlich of the Comptroller's Office, Tallahassee, Florida, Petitioner received a request from the Respondent Melvin J. Haber in which he acknowledged receipt of his rejection for mortgage broker's license and stated, "I received notice today of my rejection for my mortgage broker's license. I would, therefore, withdraw my application and re- quest return of $75.00 as I will not answer the rejection as I can't afford an attorney at this time." A Special Appearance to Dismiss Complaint was entered on February 11, 1977. The grounds are as follows: "1. The Department of Banking and Finance does not have jurisdiction over this Respondent. There is no jurisdiction in any administrative proceeding over this Respondent. There is no pending application for any mortgage broker's license by this Respondent. The application originally filed for the mortgage broker's license was withdrawn on January 19, 1977. A copy of the letter withdrawing application is attached hereto as Exhibit A. The proceedings are moot and would serve no useful purpose. Permitting this tribunal to proceed on a non-existent request for broker's license would deny to the Respondent due process of law, equal protection of the law, and his rights under the State and Federal Constitutions applicable thereto." On March 4, 1977, the Division of Administrative Hearings received a letter from Eugene J. Cella, Assistant General Counsel, Office of the Comptroller, State of Florida, requesting a hearing in this cause be set at the earliest practical date, and enclosed in the letter requesting a hearing was a copy of the Division of Finance's Administrative Complaint and a copy of the Respondent's Special Appearance to Dismiss the Complaint. A hearing was set for April 22, 1977, by notice of hearing dated March 30, 1977. A letter was sent by Irwin J. Block, Esquire, informing the attorney for the Petitioner that the Respondent "intends to permit the matter to proceed solely upon the written Special Appearance to Dismiss Complaint heretofore filed." Evidence was submitted to show that between May 29, 1973 and continuing through November 25, 1976, Guardian Mortgage and Investment Corporation and Melvin Haber as Secretary/Treasurer charged and received fees and commissions in excess of the maximum allowed fees or commissions in violation of the Florida Statutes and the Florida Administrative Code. Respondent's application for registration as a mortgage broker indicated that Petitioner was not named in a pending lawsuit that charged him with any fraudulent or dishonest dealings. However, on August 5, 1976, a suit was filed in Dade County, Florida, which charged the Petitioner and others with fraud in violation of the Florida Securities Law. The application was filed by Respondent, was processed by Petitioner and a Notice of Intent to Deny Respondent's Application for Registration was filed together with Administrative Charges and Complaint. The Division of Administrative Hearings has jurisdiction upon request of a party for a hearing once an application has been received and the Division has investigated and fully considered the application and issued its Notice of Intent to Deny and filed a Complaint on the applicant. In this cause the question of whether the applicant is entitled to a refund of fees also must be resolved. An orderly procedure to finalize the resolution of the issues is desirable and necessary. The Proposed Order filed by the Petitioner has been examined and considered by the Hearing Officer in the preparation of this order.
Recommendation Deny the application of applicant Melvin Haber for a mortgage broker's license. Refund the Seventy-Five Dollar ($75.00) fee Respondent paid upon filing the application. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller Legal Annex Tallahassee, Florida 32304 Irwin J. Block, Esquire Fine, Jacobson, Block, Goldberg & Semet, P.A. 2401 Douglas Road Miami, Florida 33145
Findings Of Fact Santa Cruz Marketing, Inc., d/b/a SMI (hereinafter referred to as SMI), a Delaware corporation, is located at Suite 29, 1280 South Powerline Road, Pompano Beach, Florida 33069. Although SMI began operating as a business in Florida in December of 1988, it was not authorized to do business in Florida until December of 1991. At all times material hereto, Edward Winders has been the president/secretary, Jim Winders has been the vice president/treasurer, and Cecil Butler has been the general manager for SMI. Edward Winders and Jim Winders each own 50% of the stock of SMI. Cecil Butler has no ownership interest in SMI and is simply a salaried employee. Edward Winders and Jim Winders are responsible for the day-to-day operation of the business. Although Cecil Butler has some unidentified level of supervisory responsibility over some of the other employees, no evidence was offered that he in any way participates in management decisions regarding the operation of the business itself. SMI advertises by placing ads in newspapers throughout the United States. Its ad reads as follows: "Easy credit card, cash advance, $5000 credit line, no credit check! Call 1-800-347-0773." SMI's business operations consist of the following units: the origination department, the customer service department, the clerical section, and the shipping section. When a call is placed using the toll-free number, that telephone call is answered by an account representative in the origination department. A written script called a credit card presentation is utilized by the account representative. The account representatives do not deviate from that script. The account representative obtains basic information from the caller, gives a brief program description, and then causes to be sent a packet of information called the first mailer to the caller. The script utilized by the account representative, however, does not tell the account representative how to answer questions from the callers. No evidence was offered as to any procedures SMI may have in place for assuring the correctness of answers given to callers' questions. The credit card presentation script tells the caller that he or she has reached the "easy credit card division," advises the caller that "our credit card offers a $5,000 line of credit which includes cash advance availability, now our major credit cards are also available regardless of credit history!", advises the caller that there are no annual fees and that the lifetime membership is a "one time processing fee," advises the caller that he or she is participating in a "limited membership drive," and advises the caller that "all the information on our credit card will be in your package along with our customer service number." The first mailer greets the "prospective member," refers to SMI's credit card program, encloses a pre-approved application, sets forth the amount of SMI's "lifetime membership fee," encloses a "100% money-back guarantee certificate," encourages the recipient to return his or her application and membership fee within 10 days, and promises a $100 gift certificate usable on the charge balance. The lifetime membership fee is $75 if paid by money order or cashier's check and $85 if paid by personal check or C.O.D. No further information is given regarding the details of SMI's "credit card program." An enclosure in the first mailer is a one-page sheet entitled "Special Notice." It features a facsimile of a Visa card and a facsimile of a MasterCard card. The short text includes the following language: Mail today and receive all these privileges. *CASH ADVANCES *VISA CARD AVAILABLE *MASTERCARD AVAILABLE *$100.00 MERCHANDISE CERTIFICATE *ADD POSITIVE INFORMATION ON YOUR CREDIT REPORT HAPPY SHOPPING!!!! The enclosed return envelope is directed to Santa Cruz Marketing, Inc. The line underneath that states that the envelope is going to "SMI Card Distribution Center." If the recipient does not immediately comply, a second mailer is sent five days later. The enclosures are the same as in the first mailer. The "dear prospective member" letter is different and is "just a friendly reminder that we have not received your lifetime membership fee for your pre-approved $5,000 credit card." It encourages the recipient to "take advantage of this unique credit card offer!" and advises the recipient that if the recipient's deadline has already expired, then a call should be placed to SMI's customer service department at a non-toll-free number. After the recipient submits the pre-approved application and pays the membership fee, he or she then receives the membership package. That package begins with a letter greeting the "new card member" and contains the following introductory paragraph: Welcome to the wonderful world of home shopping with your SMI credit card. As a preferred card member, you are offered the opportunity to purchase merchandise from our fantastic color catalogues filled with a wide variety of items. Attached to the letter is an SMI credit card. That letter is the first advice given by SMI to its new "lifetime member" that he or she has paid $75 to join a home shopping club. The letter further advises the recipient that purchasing merchandise from SMI's catalogues will "enable you to establish that A+ credit rating you have always desired, but which may have been denied to you in the past." The letter further advises that SMI will submit monthly statements to the member and that the member can then pay 10% of the balance (with a minimum payment of $15) or the balance can be paid in full. The letter also advises that the new member will pay no interest charges on his or her purchases, "but please remember in order to help you establish your A+ credit rating, your payments must be made on time." The membership packet also contains two merchandise catalogues, an order form, and a price list. According to the price list and the terms of SMI's home shopping program, two prices are available to an SMI member. For each item, the member may pay a specified cash price and a specified shipping charge. Alternatively, the member can pay a credit price, which is higher than the cash price. If the member chooses to purchase the item on credit, the member will pay the higher price as follows: the member includes with his or her order form a specified portion of the credit price as a down payment on the item, with the balance of the credit price being charged to the member's charge account. The member paying the higher credit price will also pay the specified shipping charge. The promised $100 merchandise certificate is included in the membership packet. The certificate specifies that it can only be applied to the credit portion of an order after the down payment for that order is paid and that the certificate is void after 30 days from the date on which the membership was issued. The membership packet includes, for the first time, a description of SMI's cash advance program. The description of that cash advance program begins as follows: Once you have established a sufficient credit record with SMI, you will be extended 'cash advance privileges'. Simply prove your credit worthiness by shopping with your SMI credit card. All you have to do is, charge and pay for at least $500.00 of purchases of your unpaid balance. Once you have done that, you have qualified for a cash advance of $250.00. CASH ADVANCES OFFERS Immediate cash No interest charge Low monthly payments No processing fee Cash advances up to $2,500.00 According to the program, a cash advance of $2,500 would only be available if a member had charged and paid for $5,000 worth of purchases. The flyer also recites that the $100 merchandise certificate does not apply to cash advances. The next flyer contained in the membership packet is entitled "Qualify for a Visa or MasterCard." That flyer features facsimiles of both a MasterCard and a Visa card. The description of that portion of SMI's program begins as follows: Simply prove your credit worthiness by using your SMI Credit card. Just charge and pay for at least $750.00 of your unpaid balance. It's as simple as that! Once you have established a sufficient credit record, you will be sent a 'GOOD CREDIT REFERENCE LETTER' that you can use when applying for credit elsewhere. Plus, you will receive a 'MAJORITY APPROVED' application for a visa or mastercard with 'NO SECURITY DEPOSIT REQUIRED.' UNSECURED - NO SECURITY DEPOSIT REQUIRED (WE WILL DO IT FOR YOU) A $380.00 IMMEDIATE CREDIT LINE CASH ADVANCES COMPETITIVE INTEREST RATES ONE TIME PROCESSING CHARGE ONLY $35.00 ANNUAL CHARGE MAJORITY APPROVED WE ARE SO SURE THAT YOU WILL BE APPROVED THAT WE WILL SEND YOU A 'CASHIERS CHECK FOR $380.00' IF YOU DO NOT QUALIFY. The flyer points out that the $100 merchandise certificate does not apply to this part of the program. Another flyer contained in the membership packet explains a second way in which a member can qualify for a Visa or MasterCard as follows: New Collateralized Credit Card Program You Can Now Obtain a Major Bank Credit Card even though you may have previously been turned down! Under the 'collateralized credit card program' the member may obtain a secured major bank credit card which 'requires a security deposit equal to your initial credit limits.' If the member returns the coupon requesting details, SMI provides the name of another company, Access Credit Card Company, which company would charge an additional fee to provide the member with an application from New Era Bank. If the member followed that procedure, he or she would most likely obtain a Visa or MasterCard bank card from New Era Bank with a credit limit equal to the amount of money the member was willing to deposit in New Era Bank since that bank approves the majority of such applications. The membership packet contains three additional flyers. The first one relates to the SMI jewelry catalogue and explains that most gold items are sold by weight at current gold market prices, that prices fluctuate daily with the market, and that the member should check with SMI's ordering department by phone to receive current market prices. The second flyer gives the member information on joining the Select Coupon Club by paying a membership fee of $19.95 and receiving coupons for use at the supermarket. The third flyer describes a program whereby the member can pay $14.95 postage and handling and receive a Hotel Express Membership Directory and membership discount at participating hotels and resorts. A customer cannot obtain an SMI credit card prior to payment of the $75 membership fee. A customer cannot obtain credit for purchasing products from SMI's catalogues prior to payment of the membership fee. The SMI catalogues, received after payment of the fee, are not available to the general public. The customer is not informed prior to paying the membership fee, either during telephone conversations with SMI account representatives or from the first two mailers, that the credit card which the customer would receive can only be used to purchase goods from the two SMI catalogues. Although prospective members are advised in the first and second mailers that Visa and MasterCard cards are available, they are not told how they can obtain such cards until after they have paid their fee. Until after payment of the fee, they are not told that they can obtain a secured, i.e., a fully collateralized bank card by depositing in that bank monies equivalent to the credit limit then extended to them by the bank. Customers are not told prior to the payment of their membership fee, either by SMI account representatives during telephone conversations or in the first or second mailers, that the obtaining of a secured Visa or MasterCard card from New Era Bank will also require the payment of a processing fee and will carry a minimum $500 deposit requirement. Until after payment of the fee, they are not told that the alternative is to charge and pay for $750 worth of merchandise from SMI's two catalogues (not including the amount paid as a down payment on each item purchased) which amounts to $850 worth of charged merchandise if the customer uses the $100 gift certificate, in exchange for SMI then giving the customer a letter saying the customer is a good credit risk, which the customer can then present in applying for credit elsewhere. No evidence was offered that any other organization considers SMI's letter of recommendation meaningful. Prior to the payment of the fee, the prospective member is not advised that the cash advances which he or she would become entitled to receive are limited to an amount of one-half of the total balance the member has paid on the member's SMI charge account balance. No member has received a cash advance from SMI. No members have obtained a Visa or MasterCard card by charging and then paying for $750 worth of products from SMI's catalogues. Other than those documents previously described, no other documents, contracts, or statements are provided by SMI to prospective members or members. SMI purchases the products found in its catalogues at the distributorship cost, a lower price than members pay for the products when they purchase from SMI. As of July 1, 1991, SMI had 12,567 members. By the time of the final hearing in this cause, SMI had over fifteen thousand members. Eighty-four members had purchased items from the SMI catalogues. Petitioner received a consumer complaint regarding SMI in February of 1990. On June 28, 1990, Petitioner served on SMI a subpoena requesting that SMI provide to Petitioner the following information: Name of surety bonding company, location of surety bond and copy of surety bond; location and account number of Florida escrow account, proof of account; copy of information statement and consumer contract. SMI was unable to respond to the subpoena by providing that information because it did not have those items. SMI did respond to the subpoena, however, by providing copies of its advertising and the materials used in its mailers and membership packages. SMI further obtained a bond pursuant to Petitioner's direction to do so. In a series of letters from SMI's attorney to Petitioner, SMI submitted revised advertising and revised informational documents requesting Petitioner's approval of the revisions to bring SMI in compliance with the Department's requirements. The Department failed to respond to SMI's requests. Rather, on March 21, 1991, the Department served on Jim Winders and Cecil Butler an Administrative Complaint for Entry of a Cease and Desist Order and Imposing Penalties, alleging that Jim Winders and Cecil Butler were operating as a credit service organization without fully complying with Chapter 817, Florida Statutes. Jim Winders and Cecil Butler timely requested a formal hearing, and this cause was transferred to the Division of Administrative Hearings. While this administrative proceeding was pending, on July 1, 1991, the activities of loan brokers became regulated, and responsibility therefor was assigned to the Department. On August 12, 1991, the Department filed its Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties which included the allegations in the original Administrative Complaint, named SMI as a Respondent for the first time, added allegations that the three Respondents were operating as loan brokers, and further added allegations that the three Respondents were operating as retail sellers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondents SMI and Jim Winders guilty of the allegations contained in the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties as described in this Recommended Order; Finding Respondent Cecil Butler not guilty of the allegations contained within the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties; Ordering Respondent SMI to cease and desist from violations of the statutes regulating the operation of credit service organizations, loan brokers, and retail sellers; Ordering Respondent Jim Winders to cease and desist from violations of the statutes regulating the operation of credit services organizations and loan brokers; Imposing an administrative fine against Respondent SMI in the sum of $90,000 to be paid by a date certain; and Imposing an administrative fine against Respondent Jim Winders in the sum of $6,000 to be paid by a date certain. DONE and ENTERED this 12th day of March, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER The Department's proposed findings of fact numbered 1-30, 34-46, 56, 57, 59- 66, 71-83, 85-89, and 91 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 31, 32, 95, and 96 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. The Department's proposed findings of fact numbered 33 and 97 have been rejected as being contrary to the evidence in this cause. The Department's proposed findings of fact numbered 84, 90, 92-94, and 111 have been rejected as being irrelevant to the issues under consideration in this cause. The Department's proposed findings of fact numbered 47-55, 58, and 67-70 have been rejected as being unnecessary to the issues involved herein. The Department's proposed findings of fact numbered 98-106 have been rejected as being subordinate to the issues herein. The Department's proposed findings of fact numbered 107-110 have been rejected as not being supported by any competent evidence in this cause. Respondents' proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondents' proposed findings of fact numbered 12-19 have been rejected as being subordinate to the issues herein. COPIES FURNISHED: Bridget L. Ryan, Esquire Richard Bisbee, Esquire Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jan Peter Weiss, Esquire Parkway Plaza-Suite 21 1280 South Powerline Road Pompano Beach, Florida 33069 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issues to be resolved in this consolidated proceeding concern whether the Department of Banking and Finance (Department) should take disciplinary action and impose sanction on the licensure registration previously granted to Emerald Coast Finance, Inc. (Emerald), as referenced in the legal authority cited below, as well as the issue of whether the application for a consumer finance license filed by Emerald should be granted, in view of alleged false responses given on its application for that license.
Findings Of Fact The Department is an agency of the State of Florida charged with regulating licensure of various types of financial institutions and finance- related businesses, including sales finance companies and consumer finance companies and their business practices. Emerald, at times pertinent hereto, was registered as a sales finance company pursuant to Section 520.50, Florida Statutes. Its registration number is HI-0004555. Emerald is located at 229 Beverly Parkway in Pensacola, Florida. Its mailing address is Post Office Drawer 17308, Pensacola, Florida 32522. William F. Duggan, Jr., at all times pertinent hereto, has been president, director and majority stockholder of Emerald. His address is 5568 Sound Side Drive, Gulf Breeze, Florida 32561. Mr. Duggan is thus an officer and director of the registered and applicant corporation, and the evidence establishes that he had ultimate power to direct the management or policies of the corporation, even though Ms. Godwin, as secretary and office manager, by common practice, directed the day-to-day operations of the business of Emerald. On or about September 13, 1991, the Department received an application for a sales finance company license from Emerald. Questions 1-3 on the second page of that application were not answered. Consequently, the applicant was required to submit a completed application. On or about September 30, 1991, a completed application for the sales finance company license was received from Emerald. Question no. 3 on the second page of the application for that license states as follows: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Yes No If yes, list such persons, give details, and provide a copy of the allegations and documentation of the final disposition of the case. Emerald's answer to question no. 3 on that application was "No". On or about December 2, 1991, the Department also received an application for a consumer finance license from Emerald. Question no. 3 on the second page of the consumer finance license application states as follows: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended or otherwise acted against? Yes No If yes, list such persons, give details, and provide a copy of the allegations and documentation of the final disposition of the case. The applicant corporation answered question no. 3 of the consumer finance license application in the negative. The Department conducted an investigation which revealed that Mr. Duggan, the applicant Petitioner and Respondent's president, had had his insurance agent's license acted against by the Department of Insurance in 1989. The prosecution by the Department of Insurance was initiated upon allegations in an Administrative Complaint concerning certain alleged fraudulent or dishonest dealings with customers by Mr. Duggan as an insurance agent. That administrative prosecution never proceeded to hearing and no findings of fact or conclusions of law were made establishing that fraudulent or dishonest conduct or similar reprehensible conduct had occurred on the part of Mr. Duggan. Rather, the proceeding culminated in a stipulated settlement embodied in a consent order whereby Mr. Duggan was fined the sum of $500.00 and placed on probation for two years by the Department of Insurance. Mr. Duggan paid the fine and was under the impression that that was the end of the matter and that he was not in a probationary status. The fact remains, however, that he did have his professional insurance agent's license acted against by the Department of Insurance. The corporation, of which he is president, majority stockholder, and for which he has the power to direct management and policies, in completing the subject license applications denied, in effect, that such a license possessed by him, as an officer, director, or person with power to direct the management or policies of the applicant had been "otherwise acted against". The Department had no knowledge of the previous action taken against Mr. Duggan's insurance license at the time the application for the sales finance company license was submitted, approved, and the subject license issued. This is chiefly because the same question on the sales finance company license application had been answered in the negative. Because of this revelation concerning the past prosecution by the Department of Insurance, the Emerald application for a consumer finance license was denied by denial letter mailed to Mr. Duggan on March 22, 1992. The Department also commenced the prosecution to revoke, suspend, or otherwise impose sanction against the sales finance company license already held by Emerald. The evidence thus establishes that Mr. Duggan is president, director, and majority stockholder of Emerald. His is the ultimate decision in the management and policies carried out by the business of Emerald. He has the power to direct management and policies of Emerald. While it is true that Ms. Godwin, due in large part to Mr. Duggan's ill health, makes the vast majority of the decisions involved in running the business, including hiring and firing of employees, major decisions such as large expenditures or purchases and any decisions he wishes to make and not delegate to Ms. Godwin are within the power of Mr. Duggan. Although by practice he lets Ms. Godwin run most aspects of the business, Mr. Duggan has the power to solely direct management and policy at Emerald if he so chooses. When Ms. Godwin filled out and completed the subject applications and answered "no" to the relevant questions, she was unaware that by answering the questions in the negative, she was being untruthful, and that, imputedly, the corporation and Mr. Duggan, its president, in making application, were being untruthful. Ms. Godwin was aware that the insurance agent's license held by Mr. Duggan personally was acted against by the Department of Insurance; however, she did not consider that he had been "convicted" of anything and was of the impression that Emerald's and her own past history, as the executor of the application and as an officer of the company, were the past licensure history to be considered in answering that question. For Mr. Duggan's part, he, no doubt ill-advisedly, allowed Ms. Godwin to complete the applications and merely signed his name at the appropriate blank, without reading them. Consequently, his error in the process of completing the applications was failing to inform himself of what questions were asked and what answers had been supplied by Ms. Godwin. In summary, however, although a misrepresentation of material fact was made, it was not shown to have been accomplished through any fraudulent intent by Ms. Godwin, Mr. Duggan, and therefore, derivatively, Emerald, the corporation. In summary, it has been established that the president, director, majority stockholder, and person with ultimate power to direct management and policies of the applicant and licensed corporations had previously had his insurance license acted against by an agency charged with regulating such licensure. It has also been established that Emerald failed to disclose that prior action on the initial sales finance company license, resulting in a grant of that license, and failed to disclose it on the application for the consumer finance license.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Banking and Finance finding Emerald Coast Finance, Inc. guilty of violating Sections 520.53(1)(a), 520.53(3)(a) and (b), and 516.07(1)(a), Florida Statutes, and that Emerald Coast Finance, Inc.'s sales finance company license be subjected to a probationary status for a period of two years as to its License No. HI-0004555. It is FURTHER RECOMMENDED that an administrative fine in the amount of $500.00 be imposed against Emerald Coast Finance, Inc. It is FURTHER RECOMMENDED that a Final Order be entered granting the application for a consumer finance license. DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3393 and 92-4957 Department's Proposed Findings of Fact: 1-14. Accepted. COPIES FURNISHED: Leslie A. Meek, Esq. Office of the Comptroller State of Florida 401 North West Second Avenue, Suite 708 Miami, Florida 33128 John R. Grass, Esquire 120 South Alcaniz Street Pensacola, Florida 32501 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Floirda 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact The Petitioner, Hughlan Long, was employed by the Florida Industrial Commission from 1946 to 1952, during which time he was a member of the State and County Officer and Employee Retirement System (SCOERS). Petitioner was employed as a state attorney from 1953 to 1956. Again, during that time he was a member of SCOERS. During the period 1962 to 1964, Petitioner was a member of the Dade County Commission, at which time he was a member of SCOERS. On this occasion, as on each of the above occasions, the Petitioner obtained a refund of all contributions to SCOERS when he terminated his employment. In October of 1969, Petitioner became Public Defender for Dade County and was a member of SCOERS. From this position he was appointed a judge of industrial claims. He has stayed in that position since his appointment on December 28, 1970. Several days prior to his appointment as a judge of industrial claims, on December 1, 1970, Petitioner voluntarily transferred from SCOERS to the Florida Retirement System (FRS). Petitioner based his decision to transfer upon his reading of the statutes and the data available from the Division of Retirement upon the benefits available under the two systems. At the time he transferred to FRS, Petitioner was not eligible to purchase past service credit in SCOERS. Petitioner corresponded with Respondent and was advised he could receive two percent credit for his 10.18 years prior SCOERS service. The Division erroneously advised him that he would receive two percent credit for his past service, although at the time Petitioner was a member of FRS and only eligible for 1.6 percent credit for such service. Based upon the information provided to him, the Petitioner purchased his prior service credit of 10.18 years and paid the required interest, a total of $4,092.27. In 1975, the Division discovered its error and sent a letter to Petitioner. See Petitioner's Exhibit #11. This letter advised Petitioner that his purchase had been incorrectly computed based upon Chapter 122, Florida Statutes, because he did not have three years service prior to the time he transferred to FRS. The letter further stated, "therefore, after you completed the three continuous years you must claim prior service in this system (FRS)." This was the only reference or correction made by the Division to Petitioner until 1981. In 1981, Petitioner requested data on his retirement credit and was advised he would get 1.6 percent rather than two percent for his past service credit. No credible evidence was received that Petitioner was induced to purchase his past service by the erroneous information provided him. Petitioner filed a timely request for a hearing pursuant to Section 120.57, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the decision of the Division of Retirement to deny the Petitioner two percent service credit be upheld. However, because Petitioner was misadvised he should receive the option of accepting the benefit as provided by law or receiving his purchase price back with interest of six percent per annum. DONE and ORDERED this 11th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of February, 1982. COPIES FURNISHED: Jerold Feuer, Esquire 19 West Flagler Street Miami, Florida 33130 Augustus D. Aikens, Esquire Division of Retirement Cedars Executive Center Nevin G. Smith, Secretary 2639 North Monroe Street Department of Administration Suite 207C - Box 81 435 Carlton Building Tallahassee, Florida 32303 Tallahassee, Florida 32301
The Issue The issue for determination in this consolidated bid protest proceeding is whether the Florida Housing Finance Corporation’s (“FHFC”) intended award of tax credits for the preservation of existing affordable housing developments was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact FHFC and Affordable Housing Tax Credits FHFC is a public corporation that finances affordable housing in Florida by allocating and distributing low income housing tax credits. See § 420.504(1), Fla. Stat. (providing that FHFC is “an entrepreneurial public corporation organized to provide and promote the public welfare by administering the governmental function of financing or refinancing housing and related facilities in this state.”); § 420.5099(2), Fla. Stat. (providing that “[t]he corporation shall adopt allocation procedures that will ensure the maximum use of available tax credits in order to encourage development of low-income housing in the state, taking into consideration the timeliness of the application, the location of the proposed housing project, the relative need in the area for low-income housing and the availability of such housing, the economic feasibility of the project, and the ability of the applicant to proceed to completion of the project in the calendar year for which the credit is sought.”). The tax credits allocated by FHFC encourage investment in affordable housing and are awarded through competitive solicitations to developers of qualifying rental housing. Tax credits are not tax deductions. For example, a $1,000 deduction in a 15-percent tax bracket reduces taxable income by $1,000 and reduces tax liability by $150. In contrast, a $1,000 tax credit reduces tax liability by $1,000. Not surprisingly, the demand for tax credits provided by the federal government exceeds the supply. A successful applicant/developer normally sells the tax credits in order to raise capital for a housing development. That results in the developer being less reliant on debt financing. In exchange for the tax credits, a successful applicant/developer must offer affordable rents and covenant to keep those rents at affordable levels for 30 to 50 years. The Selection Process FHFC awards tax credits through competitive solicitations, and that process is commenced by the issuance of a Request for Applications (“RFA”). Florida Administrative Code Rule 67-60.009(2) provides that unsuccessful applicants for tax credits “may only protest the results of the competitive solicitation process pursuant to the procedures set forth in Section 120.57(3), F.S., and Chapter 28-110, F.A.C.” For purposes of section 120.57(3), an RFA is equivalent to a “request for proposal.” See Fla. Admin. Code R. 67.60.009(4), F.A.C. FHFC issued RFA 2015-111 on October 23, 2015, and responses from applicants were due on December 4, 2015. Through RFA 2015-111, FHFC seeks to award up to $5,901,631 of tax credits to qualified applicants that commit to preserve existing affordable multifamily housing developments for the demographic categories of “Families,” “the Elderly,” and “Persons with a Disability.” FHFC only considered an application eligible for funding from RFA 2015-111, if that particular application complied with certain content requirements. FHFC ranked all eligible applications pursuant to an “Application Sorting Order” set forth in RFA 2015-111. The first consideration was the applicants’ scores. Each application could potentially receive up to 23 points based on the developer’s experience and the proximity to services needed by the development’s tenants. Applicants demonstrating that their developments received funding from a U.S. Department of Agriculture (“USDA”) Rural Development program known as RD 515 were entitled to a 3.0 point proximity score “boost.” That proximity score boost was important because RFA 2015-111 characterized counties as small, medium, or large. Applications associated with small counties had to achieve at least four proximity points to be considered eligible for funding. Applications associated with medium-sized counties and those associated with large counties had to achieve at least seven and 10.25 proximity points respectively in order to be considered eligible for funding. Because it is very common for several tax credit applicants in a particular RFA to receive identical scores, FHFC incorporated a series of “tie-breakers” into RFA 2015-111. The tie-breakers for RFA 2015-111, in order of applicability, were: First, by Age of Development, with developments built in 1985 or earlier receiving a preference over relatively newer developments. Second, if necessary, by a Rental Assistance (“RA”) preference. Applicants were to be assigned an RA level based on the percentage of units receiving rental assistance through either a U.S. Department of Housing and Urban Development (“HUD”) or USDA Rural Development program. Applicants with an RA level of 1, 2, or 3 (meaning at least 75 percent of the units received rental assistance) were to receive a preference. Third, by a Concrete Construction Funding Preference, with developments incorporating certain specified concrete or masonry structural elements receiving the preference. Fourth, by a Per Unit Construction Funding Preference, with applicants proposing at least $32,500 in Actual Construction Costs per unit receiving the preference. Fifth, by a Leveraging Classification favoring applicants requiring a lower amount in housing credits per unit than other applicants. Generally, the least expensive 80 percent of eligible applicants were to receive a preference over the most expensive 20 percent. Sixth, by an Applicant’s specific RA level, with Level 1 applicants receiving the most preference and Level 6 the least. Seventh, by a Florida Job Creation Preference, which estimated the number of jobs created per $1 million of housing credit equity investment the developments were to receive based on formulas contained in the RFA. Applicants achieving a Job Creation score of at least 4.0 were to receive the preference. Eighth, by lottery number, with the lowest (smallest) lottery number receiving the preference. Rental assistance from the USDA or HUD is provided to existing developments in order to make up for shortfalls in monthly rent paid by tenants. For example, if an apartment’s base rent is $500 per month and the tenant’s income limits him or her to paying only $250 towards rent, then the USDA or HUD rental assistance pays the other $250 so that the total rent received by the development is $500. As evident from the tie-breakers incorporated into RFA 2015-111, the amount of rental assistance, or “RA Level,” played a prominent role in distinguishing between RFA 2015-111 applicants having identical scores. RFA 2015-111 required that applicants demonstrate RA Levels by providing a letter containing the following information: (a) the development’s name; (b) the development’s address; (c) the year the development was built; (d) the total number of units that currently receive PBRA and/or ACC;/3 (e) the total number of units that would receive PBRA and/or ACC if the proposed development were to be funded; (f) all HUD or RD financing program(s) originally and/or currently associated with the existing development; and (g) confirmation that the development had not received financing from HUD or RD after 1995 when the rehabilitation was at least $10,000 per unit in any year. In order to determine an applicant’s RA Level Classification, RFA 2015-111 further stated that Part of the criteria for a proposed Development that qualifies as a Limited Development Area (LDA) Development to be eligible for funding is based on meeting a minimum RA Level, as outlined in Section Four A.7.c of the RFA. The total number of units that will receive rental assistance (i.e., PBRA and/or ACC), as stated in the Development Category qualification letter provided as Attachment 7, will be considered to be the proposed Development’s RA units and will be the basis of the Applicant’s RA Level Classification. The Corporation will divide the RA units by the total units stated by the Applicant at question 5.e. of Exhibit A, resulting in a Percentage of Total Units that are RA units. Using the Rental Assistance Level Classification Chart below, the Corporation will determine the RA Level associated with both the Percentage of Total Units and the RA units. The best rating of these two (2) levels will be assigned as the Application’s RA Level Classification. RFA 2015-111 then outlined a Rental Assistance Level Classification Chart to delineate between the RA Levels. That chart described six possible RA Levels, with one being developments that have the most units receiving rental assistance and six pertaining to developments with the fewest units receiving rental assistance. A development with at least 100 rental assistance units and greater than 50 percent of the total units receiving rental assistance was to receive an RA Level of 1. FHFC also utilized a “Funding Test” to assist in the selection of applications for funding. The Funding Test required that the amount of unawarded housing credits be enough to satisfy any remaining applicant’s funding request. In other words, FHFC prohibited partial funding. In addition, RFA 2015-111 applied a “County Award Tally” designed to prevent a disproportionate concentration of funded developments in any one county. As a result, all other applicants from other counties had to receive an award before a second application from a particular county could be funded. After ranking of the eligible applicants, RFA 2015-111 set forth an order of funding selection based on county size, demographic category, and the receipt of RD 515 financing. The Order was: One RD 515 Development (in any demographic category) in a medium or small county; One Non-RD 515 Development in the Family Demographic Category (in any size county); The highest ranked Non-RD 515 application or applications with the demographic of Elderly or Persons with a Disability; and If funding remains after all eligible Non- RD 515 applicants are funded, then the highest ranked RD 515 applicant in the Elderly demographic (or, if none, then the highest ranked RD 515 applicant in the Family demographic). Draft versions of every RFA are posted on-line in order for stakeholders to provide FHFC with their comments. In addition, every RFA goes through at least one workshop prior to being finalized. FHFC often makes changes to RFAs based on stakeholder comments. No challenge was filed to the terms, conditions, or requirements of RFA 2015-111. A review committee consisting of FHFC staff members reviewed and scored all 24 applications associated with RFA 2015-111. During this process, FHFC staff determined that none of the RD-515 applicants satisfied all of the threshold eligibility requirements. On June 24, 2016, FHFC’s Board of Directors announced its intention to award funding to five applicants, subject to those applicants successfully completing the credit underwriting process. Pineda Village in Brevard County was the only successful applicant in the Non-RD 515 Family Demographic. The four remaining successful applicants were in the Non-RD 515 Elderly or Persons with Disability Demographic: Three Round Tower in Miami-Dade County; Cathedral Towers in Duval County; Isles of Pahokee in Palm Beach County; and Lummus Park in Miami- Dade County. The randomly-assigned lottery number tie-breaker played a role for the successful Non-RD 515 applicants with Three Round Tower having lottery number one, Cathedral Towers having lottery number nine, and Isles of Pahokee having lottery number 18. While Lummus Park had a lottery number of 12, the County Award Tally prevented it from being selected earlier because Three Round Tower had already been selected for funding in Miami-Dade County. However, after the first four applicants were funded, only $526,880 of credits remained, and Lummus Park was the only eligible applicant with a request small enough to be fully funded. All Petitioners timely filed Notices of Protest and petitions for administrative proceedings. The Challenge by Woodcliff, Colonial, and St. Johns Woodcliff is seeking an award of tax credits in order to acquire and preserve a 34-unit development for elderly residents in Lake County.4/ Colonial is seeking an award of tax credits in order to acquire and preserve a 30-unit development for low-income families in Lake County.5/ St. Johns is seeking an award of tax credits to acquire and preserve a 48-unit development for elderly residents in Putnam County.6/ FHFC deemed Woodcliff, Colonial and St. Johns to be ineligible because of a failure to demonstrate the existence or availability of a particular source of financing relied upon in their applications. Specifically, FHFC determined that the availability of USDA RD 515 financial assistance was not properly documented. For applicants claiming the existence of RD 515 financing, RFA 2015-111 stated: If the proposed Development will be assisted with funding under the United States Department of Agriculture RD 515 Program and/or RD 538 Program, the following information must be provided: Indicate the applicable RD Program(s) at question 11.b.(2) of Exhibit A. For a proposed Development that is assisted with funding from RD 515 and to qualify for the RD 515 Proximity Point Boost (outlined in Section Four A.6.b.(1)(b) of the RFA), the Applicant must: Include the funding amount at the USDA RD Financing line item on the Development Funding Pro Forma (Construction/Rehab Analysis and/or Permanent Analysis); and Provide a letter from RD, dated within six (6) months of the Application Deadline, as Attachment 17 to Exhibit A, which includes the following information for the proposed Preservation Development: Name of existing development; Name of proposed Development; Current RD 515 Loan balance; Acknowledgment that the property is applying for Housing Credits; and Acknowledgment that the property will remain in the USDA RD 515 loan portfolio. (emphasis added). FHFC was counting on the letter mentioned directly above to function as proof that: (a) there was RD 515 financing in place when the letter was issued; and that (b) the RD 515 financing would still be in place as of the application deadline for RFA 2015-111. FHFC deemed Woodcliff, Colonial and St. Johns ineligible because their RD letters were not dated within six months of the December 4, 2015, deadline for RFA 2015-111 applications. The Woodcliff letter was dated May 15, 2015, the Colonial letter was dated May 15, 2015, and the St. Johns letter was dated May 5, 2015. FHCA had previously issued RFA 2015-104, which also proposed to award Housing Credit Financing for the Preservation of Existing Affordable Multifamily Housing Developments. The deadline for RFA 2015-104 was June 23, 2015, and Woodcliff, Colonial, and St. Johns applied using the same USDA letter that they used in their RFA 2015-111 applications. Woodcliff, Colonial, and St. Johns argued during the final hearing that FHFC should have accepted their letters because: (a) they gained no competitive advantage by using letters that were more than six months old; (b) waiving the six- month “shelf life” requirement would enable FHFC to satisfy one of its stated goals for RFA 2015-111, i.e., funding of an RD 515 development; and (c) other forms of financing (such as equity investment) have no “freshness” or “shelf life” requirement. However, it is undisputed that no party (including Woodcliff, Colonial, and St. Johns) challenged any of the terms, conditions, or requirements of RFA 2015-111. In addition, Kenneth Reecy (FHFC’s Director of Multifamily Programs) testified that there must be a point at which FHFC must ensure the viability of the information submitted by applicants. If the information is “too old,” then it may no longer be relevant to the current application process. Under the circumstances, it was not unreasonable for FHFC to utilize a six-month shelf life for USDA letters.7/ Furthermore, Mr. Reecy testified that excusing Woodcliff, Colonial, and St. Johns’ noncompliance could lead to FHFC excusing all deviations from all other date requirements in future RFAs. In other words, applicants could essentially rewrite those portions of the RFA, and that would be an unreasonable result. Excusing the noncompliance of Woodcliff, Colonial, and St. Johns could lead to a “slippery slope” in which any shelf- life requirement has no meaning. The letters utilized by Woodcliff, Colonial, and St. Johns were slightly more than six months old. But, exactly when would a letter become too old to satisfy the “shelf life” requirement? If three weeks can be excused today, will four weeks be excused next year? St. Elizabeth’s and Marian Towers’ Challenge St. Elizabeth is seeking low-income housing tax credit financing in order to acquire and preserve a 151-unit development for elderly residents in Broward County, Florida. Marian Towers is an applicant for RFA 2015-111 funding seeking low-income housing tax credits to acquire and preserve a 220-unit development for elderly residents in Miami-Dade County, Florida. The same developer is associated with the St. Elizabeth and Marian Towers projects. In its scoring and ranking process, FHFC assigned St. Elizabeth an RA Level of two. RFA 2015-111 requires that Applicants demonstrate RA Levels by providing a letter from HUD or the USDA with specific information. That information is then used to establish an RA Level for the proposed development. As noted above, the RFA requires the letter to contain several pieces of information, including: (a) the total number of units that currently receive PBRA and/or ACC; and (b) the total number of units that will receive PBRA and/or ACC if the proposed development is funded. RFA 2015-111 provided that a development with at least 100 rental units would receive an RA Level of one. St. Elizabeth included with its application a letter from HUD’s Miami field office stating in pertinent part that: Total number of units that currently receive PBRA and/or ACC: 99 units. Total number of units that will receive PBRA and/or ACC if the proposed Development is funded: 100 units*. The asterisk in the preceding paragraph directed readers of St. Elizabeth’s HUD letter to a paragraph stating that: HUD is currently processing a request from the owner to increase the number of units subsidized under a HAP Contract to 100 by transferring budget authority for the one additional unit from another Catholic Housing Services Section 8 project under Section 8(bb) in accordance with Notice H-2015-03. Because of the foregoing statement from HUD, FHFC concluded that St. Elizabeth did not have 100 units receiving rental assistance as of the application deadline. Accordingly, FHFC used 99 units as the total number of units that would receive rental assistance when calculating St. Elizabeth’s RA Level, and that led to FHFC assigning an RA Level of two to St. Elizabeth’s application.8/ If St. Elizabeth had been deemed eligible and if FHFC had used 100 units as the total number of units that would receive rental assistance, then St. Elizabeth would have received an RA Level of one. Given the application sorting order and the selection process outlined in RFA 2015-111, St. Elizabeth (with a lottery number of six) would have been recommended for funding by FHFC, and that outcome would have resulted in Intervenors Isles of Pahokee and Lummus Park losing their funding. St. Elizabeth asserted during the final hearing that the 100th unit had obtained rental assistance financing since the application deadline on December 4, 2015. However, FHFC could only review, score, and calculate St. Elizabeth’s RA Level based on the information available as of the application deadline. While St. Elizabeth argues that the asterisk paragraph sets forth a “condition,” Kenneth Reecy (FHFC’s Director of Multifamily Housing) agreed during the final hearing that the asterisk paragraph was more akin to information that was not explicitly required by RFA 2015-111. FHFC did not use that additional information to declare St. Elizabeth’s application ineligible for funding. Despite being assigned an RA Level of two, St. Elizabeth’s application still could have been selected for funding because RFA 2015-111 merely established RA Level as a basis for breaking ties among competing applications. However, too many applicants for RFA 2015-111 had identical scores, and RFA 2015-111’s use of RA Level as a tiebreaker forced St. Elizabeth’s application out of the running. Under the circumstances, FHFC’s treatment of St. Elizabeth’s application was not clearly erroneous, contrary to competition, arbitrary, or capricious. As noted above, tie- breakers are very important, because there is often very little to distinguish one application for tax credits from another. Given that there was a degree of uncertainty about whether St. Elizabeth’s would have 100 qualifying units, FHFC acted reasonably by assigning St. Elizabeth’s application an RA Level of two for this tie-breaker rather than an RA Level of one. St. Elizabeth and Marian Towers argue that other applications contained language that indicated a degree of uncertainty. Nevertheless, those other applications received an RA Level of one. For example, FHFC assigned an RA Level of one to Three Round and Haley Sofge even though their HUD letters stated that both developments would be “subject to a Subsidy Layering Review to be conducted by HUD.” Marian Towers argued that if FHFC does not accept HUD or RD letters containing conditional language about the number of units that will be subsidized, then FHFC should have assigned an RA Level of six to Three Round and Haley Sofge. If Three Round and Haley Sofge had been assigned an RA Level of six, then Marian Towers (with a lottery number of five) would have been recommended for funding. St. Elizabeth and Marian Towers cited another instance in which an application received an RA Level of one, even though its application contained a letter from the RD program stating that “USDA Rural Development will consent to the transfer if all regulatory requirements are met.” (emphasis added). However, St. Elizabeth and Marian Towers failed to demonstrate that the language cited above applied only to those particular applications rather than to all applications for tax credits. For example, if all applications are subject to a subsidy layering review and compliance with all regulatory requirements, then inclusion of such language in a HUD letter (in and of itself) should not prevent an applicant from being assigned an RA Level of one. St. Elizabeth and Marian Towers also cited a HUD Letter used in another recent RFA by an applicant that received an RA Level of one. The HUD letter in question contained an asterisk followed by the following statement: “It is HUD’s understanding that two separate applications are being submitted – one for each tower comprising St. Andrew Towers. If funded, HUD will consider a request from the owner to bifurcate the St. Andrew Towers HAP contract in order to facilitate the separate financing of each tower.” However, St. Elizabeth and Marian Towers failed to demonstrate why the language quoted directly above should have resulted in the applicant in question being awarded an RA Level less than one. There is no indication that the total number of units receiving rental assistance would change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order awarding funding to Three Round Tower A, LLC; Cathedral Towers, Ltd; Isles of Pahokee Phase II, LLC; SP Manor, LLC; and Pineda Village. DONE AND ENTERED this 18th day of October, 2016, in Tallahassee, Leon County, Florida. S G.W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2016.
The Issue The issues in this case are whether Petitioner was overpaid certain wages by the Respondent, and, if so, whether repayment is warranted.
Findings Of Fact Petitioner was an employee of the Department until December 13, 2005. She was employed as a corrections officer and, as such, was eligible for criminal justice incentive pay. Criminal justice incentive pay is paid separately and apart from regular salary payments through a separate payment system used by the Department. A person whose employment with the Department is terminated would not be terminated automatically from the incentive pay payment system. Upon her termination from employment with the Department, Petitioner continued to receive incentive pay by direct deposit to her bank account. This occurred on five occasions following her termination. The total amount of the overpayments to Petitioner after taxes was $111.13. The Department asked Petitioner to return the money that had been overpaid, but Petitioner did not comply with the request. In her request for a formal hearing, Petitioner alleged some error in the amount of overpayments being claimed, but no evidence was presented to support that allegation at the final hearing. The Department presented evidence as to each of the incentive pay payments to Petitioner following her termination from employment. Respondent averred that all taxes withheld from the incentive payments would be credited to Petitioner upon return of the overpayment amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Corrections requiring repayment of the incentive payments made to Petitioner in the sum of $111.13. DONE AND ENTERED this 9th day of October, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of October, 2006. COPIES FURNISHED: Jennifer Sullivan 38618 Kapok Avenue Zephyrhills, Florida 33542 Matthew M. Deleo, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 James R. McDonough, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rosa Carson, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563
Findings Of Fact Petitioner is the administrative agency charged with responsibility for administering and enforcing the provisions of Chapter 493, Florida Statutes. Respondent, Mortgage Refunds Research and Consulting ("Mortgage"), is a Florida corporation that is wholely owned by Respondent, Richard Vidair. Respondent has sole responsibility for the direction, control, operation, and management of Mortgage. Respondent is not licensed as a private investigator and Mortgage is not a licensed private investigative agency. Respondent is considered by the United States Department of Housing and Urban Development to be a third party tracer. Respondent and his agency locate persons who may be owed refunds for mortgage insurance premiums. From sometime in August, 1990, through May 2, 1991, Respondent contacted individuals who may be owed mortgage insurance refunds by the federal government. Respondent solicited a fee contingent upon actual receipt of the mortgage refund from the federal government. Respondent obtained from the United States government a list of persons owed mortgage refunds. Such lists are available to anyone for a nominal processing fee. Respondent determined the whereabouts of persons named on the list. Respondent either telephoned or mailed a letter to the person named on the list and informed that person of the service offered by Respondent. Respondent included in the letter sent to the person a finder's fee agreement to be signed by the person on the list. Once the contract was signed and returned to Respondent, Respondent provided the person on the list with additional documents to be filled out for the purpose of filing a claim with the federal government. Government refunds were mailed directly to the person on the list. The terms of the finder's fee agreement required the person on the list to pay Respondent's fee within three days of the date the person received his or her money from the government. The agreement further provided that if Respondent's fee was not paid within 30 days, Respondent was entitled to a fee equal to 50 percent of the government refund. Finally, the agreement provided that all collection and legal expenses incurred by Respondent in collecting the finder's fee must be paid by the other party. Respondent received a letter in March, 1991, from the Division of Licensing notifying Respondent that his activities required licensure. After conferring with his attorney, Respondent terminated his activities in Florida but continued his activities outside the state. On October 14, 1987, an attorney for the Division of Licensing issued an internal legal opinion to then Division Director Dave Register. The opinion concluded that persons who engage in the business of locating individuals to whom mortgage insurance premium refunds are due from the federal government are not required to be licensed pursuant to Chapter 493, Florida Statutes. On October 30, 1987, Ken Rouse, General Counsel, Department of State, issued a legal opinion which rescinded the prior internal opinion and concluded that such activities must be licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 493.6118(1)(g), Florida Statutes, and Florida Administrative Code Rule 1C-3.122(1), imposing an administrative fine of $500 pursuant to Florida Administrative Code Rule 1C-3.113(1)(a)2, imposing an administrative fine of $150 pursuant to Florida Administrative Code Rule 1C- 3.113(1)(b)2, and ordering Respondent to cease all investigative activities until Respondent is properly licensed in accordance with Chapter 493. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23 day of January 1992. DANIEL MANRY 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 23th day of January 1992.
The Issue Whether Petitioner is entitled to receive attorney's fees and costs from Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On June 24, 1994, Dolly Davis, Insurance Specialist at the Department's Daytona Beach Service Office, sent a letter to Mary Russo, Examiner, Bureau of Specialty Insurers, which brought to the Department's attention that Capital was utilizing a billing service disclosure form in conjunction with its standard premium financing agreement to collect a charge for a supplemental product, allegedly in violation of Sections 627.8405 and 627.838, Florida Statutes. On August 25, 1994, Al Willis, Bureau Chief, Bureau of Specialty Insurance, sent a memorandum to Dennis Silverman, Legal Services, in which Mr. Willis requested the Division of Legal Services to issue an immediate final order to revoke Capital's license to transact premium financing or to fine Capital for allegedly violating Sections 627.8405 and 627.838, Florida Statutes. Mr. Willis explained in the memorandum that the Department became aware of the alleged violations through examinations of Ace Auto Insurance and Accountable Auto-Star, both of which were believed to be affiliated with Capital. On August 30, 1994, the Department issued its Notice of Intent to Non-Renew Capital National's license. The Department stated in the Notice that the Department had obtained evidence that Capital was financing automobile club memberships in violation of Section 627.8405, Florida Statutes, and was utilizing a form in conjunction with its premium finance agreement which had not been approved by the Department in violation of Section 627.838, Florida Statutes. The case was referred to the Division of Administrative Hearings for an administrative hearing. The parties agreed to submit memoranda of law and proposed recommended orders based on stipulated facts in lieu of an evidentiary hearing. The parties agreed that the sole issue to be determined by the administrative law judge was whether Capital was financing the purchase of automobile club memberships in violation of Section 627.8405, Florida Statutes. The parties stipulated that the billing service disclosure form used by Capital is executed on the same day the premium finance agreement is executed, and the billing disclosure form is physically a separate document from the premium finance agreement. On January 8, 1996, the administrative law judge entered a Recommended Order, concluding that although the billing service disclosure form was part of the premium finance agreement, Capital was not financing automobile club memberships and, therefore, was not in violation of Section 627.8405, Florida Statutes. On February 15, 1996, the Department issued a declaratory statement, In the Matter of Just Premium Finance, Inc., Case No. 12412-95-C-JAB, in which the Department took the position that Section 627.8405, Florida Statutes, prohibits as financing a premium finance company's collection of a charge for the purchase of a supplemental product, despite the fact that the premium company does not advance any funds or charge a rate of interest for performing the service. On March 1, 1996, the Department entered a final order concluding that Capital was financing automobile club memberships in violation of Section 627.8405, Florida Statutes. Capital appealed the final order to the Third District Court of Appeal, Capital National Financial Corporation v. Department of Insurance and Treasurer, Case No. 96-0826. On November 6, 1996, the Department issued a Report of Examination for Dome Premium Finance Company, in which the Department noted that Dome was engaging in activities prohibited by Section 627.8405, Florida Statutes, by utilizing a separate billing disclosure form for the payment of supplemental products. On November 18, 1996, the Department sent a letter to Richard Perry, President of Perry and Company, in which the Department requested confirmation that all companies managed or serviced by Perry and Company had terminated the practice of using separate consumer finance agreements. On January 12, 1997, Mr. Perry verified that all companies managed or serviced by Perry and Company had terminated this practice. Perry and Company manages and/or services the following premium finance companies: Freedom Premium Finance Corporation; Equity Premium, Inc.; Puritan Budget Plan, Inc.; and Gibraltar Budget Plan, Inc. Capital National was the only premium finance company to challenge the Department's interpretation of Section 627.8405, Florida Statutes, and thus, it was the only premium finance company to receive a Notice of Intent to Non-Renew its license. The Notice of Intent to Non-Renew was used for the first time against Capital and has never been used again. On March 12, 1997, the Third District Court of Appeal reversed the Department's final order, finding that Capital was not financing automobile club membership under Section 627.8405, Florida Statutes. On April 29, 1997, pursuant to the Third District Court of Appeal's Mandate, the Department issued an amended final order consistent with the Appellate Court's decision. Capital incurred total attorney's fees of $23,010 and costs of $2,024 in defending against the Department's Notice of Intent not to renew Capital's premium finance license. The Department has agreed that the fees and costs are reasonable. Capital is domiciled in the State of Florida. Currently Capital has ten employees. Since its inception, Capital has never had more than 15 employees.
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. In an effort to meet that prerequisite, the Petitioner has already taken the Florida Board Examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has never adopted a rule to the effect that Section 458.311(2), Florida Statutes, applies to applicants for a restricted license under Section 458.311(8), Florida Statutes. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1)(a)-(c), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M- 22.020(1), Florida Administrative Code, by adding to it a new subsection (d) reading as follows: (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendment quoted above. For reasons unknown to the Board's Executive Director, the Board's legal counsel had not yet filed the proposed rule amendment for adoption as of the date of the formal hearing in this case. On March 12, 1993, eleven days after the formal hearing in this case, notice of proposed rulemaking was published in the Florida Administrative Weekly. The proposed rulemaking noticed on March 12, 1993, is the same as, or substantially the same as, the proposed language described in Paragraph 5, above. The proposed rulemaking noticed on March 12, 1993, is presently the subject of a rule challenge petition filed by the Petitioner in this case. See Case No. 93-2166RP. The Petitioner in this case is also the Petitioner in Case No. 93-1801, which involves a petition filed pursuant to section 120.57(1), Florida Statutes, to challenge the proposed denial of the Petitioner's application for a license.
