The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations set forth in a three-count Administrative Complaint. The Administrative Complaint alleges two violations of Section 475.25(1)(b), Florida Statutes, and one violation of Section 475.25(1)(d), Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent, Richard R. Kaufman, was a licensed real estate salesperson in the State of Florida, having been issued license number 0368819. In January of 1997, Melody Ferron took a foreclosure course. The purpose of the course was to teach people how to invest in real estate with little or no money down. Shortly thereafter, Melody Ferron ran a newspaper ad seeking properties in which she could invest for little or no money down. Donna Vivio responded to her ad. Ferron looked at Vivio's property (a mobile home) and was initially interested in buying it. Then Ferron's interest waned, due to the illness of her father, and Ferron decided she would be unable to buy Vivio's property. In the meantime, the Respondent had looked at Vivio's property and he expressed an interest in buying the property. For reasons not revealed in the record of this case, Respondent chose not to enter into an agreement to purchase the Vivio property in his own name. Eventually, the Respondent told Vivio that he was unable to buy her property himself, but that he and Ferron would find someone else to buy the property and he and Ferron would manage and sell Vivio's property. On or about February 18, 1997, the Respondent and Ferron went to see Vivio and took with them a document titled Agreement to Sell Real Estate. Pursuant to that agreement Donna Vivio agreed to sell her property to "Melody Ferron and/or assigns" for a total purchase price of $46,000.00. The agreement also provided for Donna Vivio to hold in trust the deposit in the amount of $10.00. At some time prior to February 18, 1997, the Respondent and Ferron entered into some form of oral joint venture agreement pursuant to which they would work together to acquire the Vivio property, fix up the property, and then sell it, hopefully for a profit. The record in this case reveals hardly any of the terms of the joint venture agreement between the Respondent and Ferron. Specifically missing from the record in this case is any information about what each would be contributing to the joint venture by way of funds or services, or about how any proceeds from the activities of the joint venture would be shared by the two joint venturers.2 On or about March 13, 1997, the Respondent prepared a document titled Deposit Receipt and Contract for Sale and Purchase. The document identified the buyer as Paul and Melinda Street and the seller as Richard Kaufman and Melody Ferron. The document was signed by Paul and Melinda Street on or about March 13, 1997. The document was never signed by Ferron. The record in this case does not reveal whether the Respondent signed the document. The document purported to be a contract for the sale of the same property Ferron had agreed to purchase from Vivio. The document described immediately above provided for the Streets to pay a deposit of $300.00 upon signing the document, and to pay an additional $700.00 deposit within a few days. The document provided that the deposit money would be held by Respondent and Ferron. The document also included a provision reading as follows: "Seller agrees to allow buyer to preoccupy this property for which buyer agrees to pay seller $800.00 per month as long as buyer is in conformance with the terms of this contract. Buyer shall pay seller on the 1st of every month during preoccupancy." Shortly after the Streets signed the document described above, the Respondent asked Vivio to move out of the subject property so that the Streets could move in. Within a few days, Vivio moved out and the Streets moved into Vivio's mobile home. Vivio did not clearly understand the transactions that were taking place regarding her property. However, Vivio trusted the Respondent because he had a real estate license and because, on at least one occasion, the Respondent reassured her by saying, "Don't worry, I have a real estate license and I would never do anything to jeopardize my license." It was Vivio's understanding that when the Streets moved into her house, someone would be paying the mortgage and the maintenance fees on her property. It is not clear from the record in this case what was represented to Vivio as to who would make the mortgage and maintenance fee payments on her property. The Respondent never promised anything to Vivio.3 Vivio does not know if the Streets ever paid any money to the Respondent. There is no clear and convincing evidence in the record that the Streets ever paid any money to the Respondent. Vivio does know that after the first month, no one was paying the mortgage or the maintenance fees on her property. Eventually, Vivio's house was foreclosed by the mortgage holder. Ferron does not know if the Streets ever paid any money to the Respondent. The Respondent never gave Ferron any money.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges in the Administrative Complaint for lack of sufficient evidence. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998.
The Issue There are two issues presented in this case. The first issue is whether a statement by the Department of Banking and Finance (the "Department"), denying joinder of multiple unrelated abandoned property claims, in a Final Order directed to Petitioner is an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes. The second issue is whether the Department has a policy of delaying decisions on unclaimed property claims past the statutory 90th day, such that the policy constitutes an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department is the State agency responsible for administering the Florida Unclaimed Property Act, Chapter 717, Florida Statutes. As such, the Department is responsible for collecting and maintaining unclaimed property and processing claims for the return of the unclaimed property to its missing owners. The Department accomplishes this task through a staff composed of 12 full-time employees and 14 OPS employees. Individuals as well as private investigative agencies file claims for property held by the Department. Private investigative agencies account for appropriately 12 percent to 14 percent of the claims filed and approximately 38 percent to 42 percent of the property value returned to owners. The Department's Claims Process The Department has established internal procedures so that claims are processed timely, efficiently, and accurately. Claimants must submit claims in writing on a form supplied by the Department. The Department logs-in each claim on the day it is received. If the Department determines a claim is in compliance with Rules 3D-20.0021 and 3D-20.0022, Florida Administrative Code, and the proof submitted with the claim is sufficient to establish the claimant's ownership and entitlement to the funds, it is paid. If the Department determines that the claim is incomplete, within 5 to 15 days of its receipt of the claim, the Department sends the claimant a pre-screen letter advising the claimant of the additional information required to prove the claim. Rule 3D-20.0021(1), Florida Administrative Code. When the claimant resubmits the claim with the additional material that has been requested, the claim is re-logged into the computer and a 90th day is set. Rule 3D-20.0021(2), Florida Administrative Code. Claims supervisors receive a daily computer report alerting them of the claims which are 61 days old and aging. They receive high priority. Complex claims which are submitted with initial insufficient proof are referred to the legal department for review and resolution. During fiscal year 1999/2000 the Department processed and approved approximately 107,000 claims having an aggregate value of approximately $67 million. Throughout the review process, the Department assists claimants in developing the proof necessary to prove the claim in lieu of summarily denying the claim. In mid-1999, the Department's Unclaimed Property Program went on-line, which significantly increased the number of claims filed. From around July 1, 1999 through December 31, 2000, the Department processed claims for approximately 132,900 unclaimed property accounts. The statutory 90-day period for determination was exceeded for an estimated 5000 of those accounts: 1,146 claims were denied and 3,991 claims were approved. However, of those 3991 approved accounts, 1,254 accounts were from an extended project with the FDIC which took about a year to complete. In sum, excluding the 1,254 FDIC accounts, the Department exceeded the 90th day on approximately 3 percent of the claims filed during this period. The Petitioner Petitioner is a licensed private investigator who specializes in the recovery of unclaimed property held by the Comptroller's office. Petitioner maintains both an individual and an agency license to engage in the business of locating missing owners of unclaimed property. He has been licensed by the Florida Department of State as a private investigator since 1993. In the course of Petitioner's business, his clients sign a form agreement which authorizes Petitioner to represent the client in recovering the abandoned property held by the Comptroller's Office. Petitioner represents the client through the entire claims process until the claim is either paid to his trust account or denied. If the claim is paid, Petitioner deducts his fractional share and costs and forwards the net value of the claim to the client. If the claim is denied, Petitioner's agreement with his client authorizes him to file a request for hearing on the client's behalf. Petitioner's Agreement Form Petitioner's agreement states that Petitioner has located property which may belong to the client, and pending the requisite proof of ownership, that Petitioner will recover the property for the client. The agreement provides that for his services, the "Agent is assigned a fee of 30 percent" and further provides that the agreement is an "irrevocable limited power of attorney." Lastly, the agreement recites that in any dispute between Petitioner and his client, "proper venue is in Volusia County, Florida." Petitioner's Business Since 1998, Petitioner has filed claims for approximately 3,000 unclaimed property accounts. Of those 3,000 accounts, 152, roughly 5 percent of Petitioner's claims, have exceeded the 90-day determination period. Petitioner files claims for all types of unclaimed property, but primarily involving dissolved corporations. Because of the nature of his business niche, Petitioner's claims are often more complex because they involve older accounts, lost or destroyed corporate documents, and archived banking information. Moreover, a decision by a bankruptcy trustee about whether or not to reopen a bankruptcy estate may also be needed to establish entitlement to the property, if the company was liquidated through a bankruptcy proceeding. Claimants, including Petitioner, routinely request the Department's assistance in obtaining additional information from the reporting company in order to establish ownership and entitlement on behalf of their client. Prior to August 2000, Petitioner had not requested the Department provide a denial letter of any of his claims in which the 90th day had exhausted while additional information was gathered. The Controversy In August 2000, Petitioner had six claims, representing four separate clients, pending with the Department, all of which were over the 90 days. In each case the Department determined the evidence provided was insufficient to establish the client's ownership of the property. Over the months during which these claims were pending, Petitioner met with the Department on several occasions to address the proof issues. On August 9, 2000, the Department sent Petitioner a letter outlining the deficiencies in each of the four files and advising Petitioner that unless he could provide the evidence needed by August 25, 2000, the Department would deny each claim. Petitioner faxed a letter dated September 7, 2000, to the Department stating he would be out of the country during the month of September and requested that the denials for the files listed in the August 9, 2000, letter be held until after he returned home on September 26, 2000. Petitioner's letter also requested that the "DOAH hearing be held in Daytona Beach, Florida, when each of the hearings takes place." To accommodate Petitioner's request, the Department delayed issuing the Individual Notices of Intent to Deny each of the four claims until October 3, 2000. Petitioner timely responded to the four denials with a single Petition for Hearing, attempting to consolidate the four unrelated cases. On November 27, 2000, the Department entered an Order denying his Petition for failure to comply with the Florida Administrative Code and granted Petitioner 20 days in which to re-file a conforming petition. The Order also advised Petitioner that consolidating these unrelated cases was inappropriate. On December 1, 2000, Petitioner signed and mailed the instant Rule Challenge, which specifically identified these four files. It was received by DOAH on December 6, 2000. On December 1, 2000, the same day the Rule Challenge was mailed to DOAH, Petitioner and Respondent entered into a standstill agreement, tolling all matters related to these four files as well as several other files. The agreement was reduced to writing and signed on December 7 and 8, 2000. On December 13, 2000, Petitioner and his attorney again met with the Department to discuss the evidence required to prove the claims in these four files. The Challenged Statement Petitioner challenges the "joinder" statement in the Department's Order which advised him that "it is inappropriate to consolidate four unrelated cases in a single Petition for Hearing." Petitioner contends this statement is a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. He further contends that the statement as applied is contrary to Rule 1.110(g), Florida Rules of Civil Procedure. The Challenged Policy As a separate but related matter, Petitioner also asserts that the Department has a tacit policy of delaying determinations on claims past the 90th day. Petitioner argues that the effect of this policy is to deny the claimant a point of entry into administrative proceedings. He contends that this policy has the force of a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. Sanctions The Department requested that attorneys' fees be assessed against Petitioner. The Department incorrectly asserts this matter is completely without merit and was brought for an improper purpose, namely, to harass.
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
The Issue The issue is whether Petitioner's request for nonconforming status on his property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts filed by the parties, the following findings of fact are determined: Mr. Mayhew resides in Hawthorne, which is located in the southeastern portion of Alachua County (County). (Some papers filed in this case identify his residence as being in Cross Creek, rather than Hawthorne, but with the same street address.) Since November 1998, he has owned property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida. More specifically, the property is in an older, single-family residential neighborhood known as Florida Park which is located several blocks west of U.S. Highway 441, which runs in a north-south direction through the City, and approximately one-quarter mile north of Northwest 8th Avenue. In broader geographical terms, the property is located around one mile north of the University of Florida campus. There are two structures (or units) on Petitioner's property. One is a three-bedroom, two-bath dwelling constructed by the original owner (Mr. Gainous) in 1949, who occupied that dwelling with his wife. That unit's address is listed on the County Property Appraiser's records as 1607 Northwest 12th Road. The second structure, a two-bedroom, one-bath dwelling (also referred to as a "cottage"), was built by Mr. Gainous in 1957, and was apparently used primarily as rental property by the owner. The address of the second unit on the Property Appraiser's records is 1607 1/2 Northwest 12th Road. Separate gas meters and a single water line and electric meter serve the two units. (Although the two units are given separate street addresses by the Property Appraiser, only one tax bill is issued by the County Tax Collector.) When these structures were built, the County did not issue building permits. The property was in the unincorporated area of the County until 1961, when the City annexed the property. In 1964, the City adopted its first zoning plan and placed the property in what was then known as the Single-Family Residential (R-1a) zoning district. This category was used since the property was "closely consistent" with that zoning classification. A few years later, the property was rezoned to the Residential Single-Family zoning district (RSF-1), which apparently replaced the R-1a zoning district, and it still remains in that zoning classification. Under current zoning regulations, unless a property has "legal" nonconforming status, two family dwellings are not permitted in the RSF-1 zoning district. However, if a structure and use of land was in existence before the City annexed the property and adopted its zoning code, and was not otherwise shown to have lost that status, the nonconforming use is grandfathered and allowed "to continue until [it is] removed" or otherwise conflicts with conditions pertaining to nonconforming lots, uses, or structures. See § 30-346, Code of Ordinances. (Nonconforming status allows the owner to rent each unit on the parcel to no more than three unrelated persons. Thus, six unrelated persons could legally occupy Mr. Mayhew's two units. However, Mr. Mayhew has always rented to smaller numbers of tenants, and then only to graduate students or "professionals.") One way a property can lose its status is for the owner to not use the property in a nonconforming status for nine consecutive months. In the case of a rental property, this means that the owner has not rented the property for at least nine consecutive months. If this occurs, the owner is presumed to have abandoned the nonconforming status. See § 30-346(5)(d), Code of Ordinances. The precise date on which the City began using the nine-month time period is unknown. According to Mr. Calderon, this time period has been in the Code of Ordinances for "awhile," it was in the Code of Ordinances when "Citywide zoning" was first used in 1982, and he implied that it was in the first zoning code adopted in the 1960s. The City has no formal process by which it monitors properties to ensure that they continue to meet the requirements for legal nonconforming status. Generally, the issue arises after a complaint is filed by a third party or an inspection is made by City officials, who then require that the owner confirm (or prove) that the property still qualifies for that status. In this case, in October 2006, the tenant who occupied the cottage filed a complaint with the City concerning the installation of a new gas stove and other possible code violations. Prior to that time, no other complaints had been lodged against Mr. Mayhew's property. In response to that complaint, a code enforcement officer, Michael Wohl, inspected the property. During the course of that inspection, Mr. Wohl noticed that there were two rental units on one parcel of land. As a routine part of the inspection process, Mr. Wohl made an inquiry to determine if Mr. Mayhew had a landlord permit for each unit. Under the Code of Ordinances, a landlord permit is required for each rental unit. (The specific provision in the Code of Ordinances which imposes this requirement was not given.) According to Mr. Calderon, this requirement has been in the Code of Ordinances since 1989. Mr. Wohl learned that Mr. Mayhew had purchased one landlord permit for the parcel in the year 2000 (and had renewed that permit each year) but did not have a second permit. (When he purchased the property in late 1998, Mr. Mayhew did not know that such permits were even required. He obtained one as soon as this was brought to his attention.) After Mr. Mayhew advised Mr. Wohl that he was unaware that a permit was needed for each unit on his property, Mr. Wohl spoke with Mr. Calderon, who instructed Mr. Wohl to verify if the property was a legal nonconforming use (and therefore could qualify for two landlord permits) since it was located in a single-family zoning classification. Shortly thereafter, a citation was issued to Petitioner. The specific nature of the citation was not disclosed. In any event, by letter dated September 25, 2006, Mr. Calderon requested that Mr. Mayhew provide documentation to support the nonconforming use of the cottage at 1607 1/2 NW 12th Road as an accessory dwelling unit. In response to Mr. Calderon's request, on October 2, 2006, Mr. Mayhew submitted a lengthy letter with supporting documentation, including photographs of the units; copies of rental agreements of tenants who had rented the cottage since he had purchased the property in November 1998; information regarding the date of construction of the two units; and Property Appraiser records showing two units on the parcel. On December 7, 2006, the Department advised Mr. Mayhew by letter that "[b]ased on the physical evidence, property appraiser records and documents provided by you, the property is therefore classified as an existing non-conforming two-family development and is subject to regulations governing non-conforming uses." However, because the City apparently has a policy of notifying residents who live within 300 feet of the subject property of this type of decision, the City also issued on the same date a Notice of Decision to Issue Non-Conforming Status to Petitioner's Property (Notice)." (The record is unclear whether this notice was given pursuant to a policy or a specific Code provision. Other provisions within the Code of Ordinances provide for such notice when the Board conducts hearings on variances, appeals alleging error by an administrative official, and requests for special zoning exceptions. See § 30-354(h)(6)(i)-(k), Code of Ordinances.) In response to the Notice, affidavits were filed by a number of residents who lived adjacent to, or near, the subject property. After reviewing those affidavits, on December 20, 2006, the Department advised Petitioner by letter that based on "new information . . . submitted by affected persons within 300 feet of your property . . . [the] staff [is going to] reconsider the nonconforming status of your property." On January 25, 2007, Mr. Calderon issued a letter denying Mr. Mayhew's request for the following reasons: I have reviewed the information you submitted and those submitted by surrounding property owners. Based on the information and affidavits, there appears to be no consensus or conclusive data establishing emphatically that the subject property has been used consistently as a two-family development since annexation into the city. Evidence from the property owner would suggest that since 1998, the subject property has been used as a two- family dwelling and that no nine-month period has elapsed where the property was not used as a two-family dwelling. However, due to uncertainty for the period around and prior to 1998, staff cannot make a determination about the status of the development around and prior to 1998. Staff cannot determine whether the subject property was illegal, legal non-conforming or lost its non-conforming status at the time of ownership change in 1998. Since the current zoning of the subject property is RSF-1 (Single-family residential, 3.5 dwelling units per acre), the current use as a two-family dwelling is not permitted. Staff is therefore denying the request on the basis that available information cannot demonstrate continued use of the property as a two-family development, since annexation into the [C]ity of Gainesville. On February 8, 2007, Mr. Mayhew filed his appeal of that decision. Because Mr. Mayhew alleged that there were disputed issues of material fact, the appeal was forwarded to DOAH, rather than the Board. In his appeal, Mr. Mayhew alleged that the City had improperly relied on affidavits from neighbors to reconsider its decision, that there was no new evidence submitted to support a change in the City's initial decision, and that he could not get a fair hearing from the Board because several members of the Board live in the affected neighborhood or are members of a neighborhood association that includes the Florida Park area. Section 30-346(5)(d), Code of Ordinances, as amended in November 2006, provides the following restrictions on nonconforming uses: Whenever a nonconforming use of land or a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer be permitted. Any subsequent use of such building or structure or land shall be in conformity with the provisions of this chapter. Although this section was amended in November 2006, the amendment did not affect (or otherwise change) the nine- month time period for losing a nonconforming use. Prior to the amendment, the section provided that if a nonconforming use was lost due to abandonment or discontinuation, the reestablishment of the use could be authorized by the Board, after hearing, if the Board found the design, construction, and character of the building not suitable for the uses in the district in which the nonconforming use is situated. Under the new amendment, that option no longer exists. The history note to this provision indicates that the original ordinance (No. 3777) was adopted on June 10, 1992, and was later amended on July 25, 1994.1 (However, Mr. Calderon indicated that the nine-month period dates back many years before the adoption of this particular Ordinance. See Finding of Fact 5, supra.) When an owner is required to demonstrate that his rental property has continuously retained its nonconforming status, he must show that the property has been continuously rented (with no nine-month breaks) not only for the period of time that he has owned the property, but also for the entire time the property has enjoyed nonconforming status, or in this case since the property was annexed by the City. Thus, Mr. Mayhew was obligated to show that the original owners (Mr. and Mrs. Gainous) rented the property continuously from the time the property was annexed in 1961 until it was sold to Mr. Mayhew in late 1998. The City's practice is to determine nonconforming status on a case by case basis but the burden is on the owner to prove that status through records such as building permits, landlord permits, zoning compliance permits, and occupational licenses, and "records from reputable sources." The parties agree that both units were continuously rented by Mr. Mayhew since the time he purchased the property in November 1998. The dispute here is whether the nonconforming use was abandoned for any nine-month period prior to Mr. Mayhew's purchase of the property. The City contends that Mr. Mayhew has presented no evidence to show that the cottage was rented by the prior owner from 1996 until the property was sold in late 1998. Although Mr. Mayhew clearly established (and the City agrees) that the property has been continuously rented since he purchased the parcel in late 1998, he conceded that the cottage was vacant when he purchased the property, that he had made no inquiry to the seller as to how long the cottage had been vacant, and that he had no personal knowledge regarding the rental history of the property during the three years preceding the purchase. He contended, however, that there are always periods of time when a unit remains vacant while the owner is actively seeking a new tenant or when necessary renovations must be made. While this is true, there is no evidence that this occurred during the years 1996, 1997, or 1998. (It is unknown where Mrs. Gainous presently resides, or even if she is still alive. When the property was sold in late 1998, Mrs. Gainous was described as being elderly and in poor health.) Significantly, City records show that Mrs. Gainous had secured landlord permits to rent the cottage from 1989 (when permits were first required) through 1995, but she had failed to obtain any permits for the years 1996, 1997, or 1998, at which time she sold the property to Mr. Mayhew. This raises a logical inference, not overcome by Mr. Mayhew, that she did not rent the cottage during those years. In addition, Dr. Kosch, who has lived across the street from the subject property for the last twenty years, testified that he personally observed several periods of time before the property was sold to Mr. Mayhew when there were no tenants in the cottage. Although Dr. Kosch could not specifically identify the exact time periods when this occurred (due to the passage of time), his testimony adds further support to a finding that there is insufficient evidence that the cottage was rented continuously (without any nine-month breaks) during the years 1996-1998. Mr. Mayhew purchased the property with the understanding that he could legally rent both units. While it may seem unfair for him to now have to prove that the property has been continuously rented (with no breaks exceeding nine consecutive months) since the 1960s, this interpretation of the Code of Ordinances has always been followed by the City without exception. According to Mr. Wohl, this situation has occurred at least 8 or 9 times in the last few years alone, and in each case, the property owner was required to prove a continued nonconforming use since the property was annexed by the City or placed in a more restrictive zoning classification.
Findings Of Fact At all times here relevant, Respondents Arthur C. Enger and William L. Baldwin were registered real estate salesmen and T. Maurice Rouede and Rouede Realty, Inc. were registered real estate brokers. In 1969 the cities of Eau Gallie and Melbourne were merged into the City of Melbourne. A comprehensive zoning plan for the new City of Melbourne was embarked upon and by Melbourne Ordinance No. 72-4, a comprehensive zoning plan was adopted. Because of the large area affected by the plan individual property owners were not advised of any changes in zoning of adjacent property. Southgate sub-division was sub-divided into lots and platted in 1964 by Disc Corporation, the owners of this property. Between this date and 1972 several of these lots had been sold to individuals who had erected houses on these lots. In 1972 some 38 lots in this sub-division remaining in the ownership of Disc Corporation were purchased by Rouede Builders, Inc. for the purpose of erecting homes thereon for sale. A model home was erected and used as the on-site sales office while the remainder of the property was sold. Since numerous lots in Southgate had already been sold by Disc when the remaining lots were bought by Rouede, a map showing the two platted units in Southgate were obtained from Disc by Rouede and placed on the wall in the on- site sales office with those lots already sold so indicated in red. Although there was some discrepancy in the testimony regarding which particular map was exhibited on the wall of the on-site sales office, each of these maps (which were introduced into evidence as Exhibits 11, 13, and 15) contained the entire plat of the Southgate lots and showed 11 lots number 7 - 17 adjacent to and immediately south of the lots which Rouede was offering for sale. Since all of these maps showed lots 7 - 17 south of the Rouede property and they differed only in the manner in which previously sold lots were indicated, it is immaterial to the issues herein which map was actually exhibited on the wall of the sales office. While the testimony on how the Rouede lots were sold was not clear, it appears that these lots were sold only to individuals who also contracted with Rouede for the construction of a residence, or were sold only with the residence. The property immediately south of the Rouede property was zoned R-1 prior to 1972, and it appears that lots 7 - 17 were shown on the map used by the Tax Assessor prior to 1975. The Comprehensive Zoning Plan enacted in 1972 zoned this property R-3 for multiple family dwellings. The current parcel map (Exhibit 10) indicates that in May, 1975 the parcel map was corrected by the addition of Village Green. Village Green occupies the same geographical area as lots 7 - 17 shown on Exhibits 11, 13, and 15 without any lot lines separation. On May 29, 1973 Rouede Builders, Inc. entered into a contract, (Exhibit 12) with William E. and Irene Cook to erect a residence thereon and deed lot number 27 in Southgate Section 2, Unit 1 to the Cooks. The construction was delayed for several weeks to obtain a variance for the purchasers. The construction was completed, and by warranty deed dated January 28, 1974 (Exhibit 8) Rouede Builders, Inc. conveyed the property to the Cooks. Following the occupancy of the residence by the Cooks the owners of the property immediately south of the Cook's property, designated as Village Green on Exhibit 10, commenced the construction of townhouses. These are two story units with each unit comprising a ground floor and second floor, and with walls common to an adjacent unit on either side. These units are constructed 25 feet from the property line as required by the setback restrictions, and by virtue of the two-foot variance obtained for the Cook's residence they are located 48 feet from the Cook's house. Mrs. Cook testified that prior to entering into a contract for the purchase of Lot 27, the salesman with whom she was dealing, Arthur C. Enger, in response to her question, advised her that the property immediately south of Southgate (lots 7 - 17 on the wall plat) was zoned for single family residences the same as lot 27. Subsequent to the commencement of the construction of her house she testified that William C. Baldwin, in a telephone conversation also indicated that the property immediately south of Lot 27 was zoned R-1. She talked to Mr. Rouede once or twice by phone regarding construction of her home, but never discussed zoning with him. Other witnesses who contracted for the erection of a home in Southgate from Rouede recalled no discussion with any salesman regarding the zoning of the area to the south. One of these witnesses took it upon himself to ascertain this fact prior to having his house built and learned from the zoning authorities that the property was zoned R-3. All Respondents denied that they ever knew what the zoning of the area immediately south of the Rouede property was while they were building and selling houses in Southgate or that they ever discussed such zoning with prospective purchasers or among themselves. None of the Respondents knew who the owners of the property were at the time Rouede was building homes in Southgate; only that it was not included in their sales package. At the initial sales meeting, where the salesmen were advised how the lots would be sold as well as at subsequent monthly sales meetings, no mention was ever made regarding the zoning of the property later known as Village Green. At this time the property was undeveloped and what is shown as Berkley Avenue on Exhibits 11, 13, and 15, was not in existence. The map on the wall was reproduced to an 8 1/2 x 14 size (Exhibit 14) and copies of this smaller map were given to all salesmen. These maps were used only as visual sales tools and to keep the salesmen current on which lots were available for sale.
Findings Of Fact Mini-Warehouses at Kendall, Ltd. d/b/a A+ Mini-Storage (KENDALL) is a Florida partnership maintaining its principal place of business at 12345 S.W. 117th Court, Miami, Florida. DOT is a decentralized state agency. It has established several districts of which District 6, Dade County, is one. DOT's central office is located in Tallahassee, Florida. At all times material hereto, KENDALL held title to all privately owned real property, hereinafter abutting parcel, located adjacent to real property owned by the Florida Department of Transportation (DOT), hereinafter surplus property, situated in Dade County, Florida. Surplus properties are oddly-shaped strips of land left over from parcels acquired by the State of Florida. The subject surplus property is of no use to the State and can only be used for a few economic purposes. It has utility value for the abutting property. KENDALL's abutting parcel is fully developed with buildings divided into mini-storage units being rented to the public and is zoned IU-C, Industrial/Conditional - Manufacturing. The east side of KENDALL's property abuts the surplus property. The surplus property and the abutting property are located in DOT's District 6. DOT identifies the surplus property as parcel no. 0739 which is a long, narrow right-of-way, consisting of .927 acres. It is 29 to 67 feet wide and approximately 950 feet long. The surplus property is zoned EU-M, Residential. On June 28, 1985, DOT and KENDALL entered into a written surplus property lease (original lease) for the subject surplus property. The original lease was automatically renewable and could be cancelled by either party with 30 days prior notice. Leasing the surplus property allowed KENDALL to reduce the amount of damage that the state's storm water runoff would otherwise cause to its abutting property. KENDALL was required by the original lease to pay DOT $2,400 annually, plus sales tax, for the use of the surplus property. KENDALL made the payments from 1985 to 1991. By letter dated May 3, 1991, DOT's District 6 office informed KENDALL that: (a) the original lease was unilaterally terminated; (b) KENDALL would be required to execute a renewal lease for 5 years with an option to renew for 5 more years, at an annual rate to be determined; (c) KENDALL might want to hire an independent appraiser from DOT's approved list of independent fee appraisers; and (d) KENDALL would have to negotiate a fee with the appraiser. Wanting to continue to lease the surplus property, KENDALL chose an appraiser from DOT's approved list of independent fee appraisers and hired him to appraise the surplus property. Per DOT's instructions, the independent appraiser contacted District 6's chief review appraiser for further instructions regarding the appraisal. The appraiser hired by KENDALL had a long working relationship with DOT. Throughout the 1980's to 1991, DOT and District 6 had accepted surplus property appraisals, without exception, from the appraiser that: (a) used only the contributory value method as a starting point in the appraisal process for fair market rent; (b) determined the fair market value that the surplus property would bring in a sale open to the public; and (c) made necessary market-based adjustments to arrive at a final figure, which was somewhere between the figure obtained in (a) and the figure obtained in (b), which represented the fair market rent for the surplus property. However, involving the surplus property at KENDALL, District 6's chief review appraiser informed the independent appraiser that only the unmodified across the fence or contributory value method would be acceptable when estimating rent that DOT should seek for the surplus property. Moreover, the chief review appraiser informed him that any other method would result in his appraisal being rejected. The chief review appraiser informed the independent appraiser that the factors to be used and considered were: (a) the surplus property's contributing value to KENDALL, as if the abutting property was vacant; and (b) a market rate of return based on the contributing value to KENDALL for fee simple ownership in perpetuity even though the renewal lease only conveyed surface rights, subject to a 30-day cancellation clause. In other words, District 6's chief review appraiser was instructing KENDALL's appraiser to use the across the fence appraisal method. This appraisal technique involves the following actions: Estimate the market value of the surplus property and the abutting property, as assembled. Estimate the market value of the abutting property, as it exists (without the surplus property added). Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties. The difference between the two value estimates should yield a supportable indication of market value for the surplus property. KENDALL's independent appraiser followed the instructions of the chief review appraiser for DOT's District 6. Because of the very limited market data for surplus property leases, KENDALL's appraiser requested DOT's surplus property lease data for Dade County from the chief review appraiser; however, he received no response to his request. Without the requested data, KENDALL's appraiser was unable to use a lease data comparison. In his appraisal, he relied upon market data of the sales of commercial land, exclusively, and determined that the surplus property's highest and best use is to serve as a storage yard for parking trailers and boats, assuming the surplus property could be rezoned or a variance obtained to permit that use. Based upon the assumption of vacant or undeveloped commercial property and rezoned or variance surplus property for commercial use as a storage yard, the independent appraiser determined that the market value of the surplus property in fee simple was $128,000. He further ascertained that an investor would be satisfied with a 10 percent yield and determined that the across the fence value is an annual rent of $12,800 for a 50 to 100 year lease term, which is the prevailing market rent for the surplus property. The appraisal was accepted by DOT. Not agreeing with the across the fence method, KENDALL obtained approval from DOT for the submission of a second appraisal for the surplus property. DOT agreed but on the condition that the second appraisal had to be submitted by December 31, 1991. For the second appraisal, KENDALL'S independent appraiser used the method which he used previously and which was historically accepted by DOT. Again, he determined that the highest and best use of the surplus property was a storage yard, assuming that it could be rezoned or a variance obtained to permit such use. He then determined, as before, that the contributory value (across the fence) value of the surplus property in fee simple was $128,000. Subsequently, the appraiser determined that the fair market value of the surplus property was $32,000 if rezoned and sold in fee simple to the public, including KENDALL. Finally, contrary to the first appraisal, the appraiser determined that the fair market rent for the surplus property was $3,000 a year if the entire parcel could be used as a storage yard and that the surplus property would only produce a nominal rent of $100 a year if leased to the general public. The second appraisal was submitted by DOT's imposed deadline. By letter dated October 9, 1991, the chief review appraiser for DOT's District 6 notified all approved appraisers on its list, including KENDALL's independent appraiser, of the surplus property appraisal policy that would be used. It states in pertinent part: SUBJECT: A STATEMENT OF DISTRICT APPRAISAL POLICY SURPLUS PROPERTY APPRAISALS - THE VALUATION PROCEDURE [I]t is inequitable to examine surplus properties without some evaluation of the abutting property. To be consistent in the appraisals for acquisition and those for sale by the Florida Department of Transportation, subjects should be estimated at their "ATF" or "Across The Fence" value. The surplus property appraisals should be addressed in the same way a "before and after" appraisal is conducted. The current Right of Way Appraisal Standards would be applicable in this assignment. The recommended appraisal procedure for surplus properties will be: Estimate the market value of the surplus property and the abutting property, as assembled. Estimate the market value of the abutting property, as it exists (without the surplus property added). Subtract the estimated market value of the abutting property, as it exists, from the estimated market value of the assembled abutting and surplus properties. The difference between the two value estimates should yield a supportable indication of market value for the surplus property. This process is logical and it appears to be reflective of the market. The appraisal problem is complicated by this procedure, but the result should be a more accurate and consistent estimate of market value of surplus property. In late 1991 or early 1992, KENDALL started the process to obtain a variance from Dade County. In accordance with DOT's requirement, KENDALL absorbed the costs associated with obtaining the variance. As of the date of hearing, KENDALL had expended between $10,000 and $15,000. Generally, the landowner is responsible for obtaining the variance or rezoning necessary for a lessee to use a leased parcel for its highest and best use. However, if the landowner is not obtaining the variance or rezoning, generally, the lessee receives a reduced rental rate. In July 1992, the chief review appraiser for DOT's District 6 notified KENDALL that the second appraisal was rejected. He rejected the appraisal without reviewing it. Based on the accepted appraisal, DOT determined that the prevailing market rent for the surplus property was $12,800, plus tax, annually and assessed KENDALL accordingly. Wanting to continue to use the surplus property, KENDALL paid DOT $2,544 as partial payment of the annual rent, plus tax, for the initial year of renewal beginning June 28, 1991 and paid $24,617 for outstanding rent, plus tax, for the period June 28, 1991 through June 27, 1993. KENDALL has continuously paid the annual rent required by DOT. In May 1994, Dade County issued KENDALL a conditional variance. Assuming KENDALL satisfies numerous local concurrency and planning requirements, the final variance will permit it to use no more than 60 percent of the surplus property for storage purposes. Until rezoning or a variance is obtained, the market rent of the surplus property is $100 to $500 annually according to KENDALL's appraisers. A real property appraisal is expected to use an appraisal technique which reveals the maximum market value at a given time for the property being appraised. Several appraisal techniques are recognized and accepted by the appraisal profession, including across the fence method or technique. The appraiser initially determines the highest and best use of the parcel being appraised. Then, the sale value of the parcel is determined. The appraised market value is the base for establishing a market rental value for the property. The appraisal technique or method for surplus property can vary from parcel to parcel. Appraisal methods or techniques other than the across the fence method have been used by other DOT approved appraisers when appraising the fair market value for surplus property and have been accepted by DOT. Usually, surplus properties have a higher value when a contributing value appraisal technique (across the fence technique) is used because such properties are generally small in size and irregular in shape. The prospective buyer for surplus property is generally limited to the abutting parcel user or its competitors. District 6's chief review appraiser erroneously refused to consider any other appraisal value method, other than the across the fence method, to value the surplus property. DOT admits that its chief review appraiser in District 6 should not have required KENDALL's independent appraiser to use only the across the fence method to determine fair market rent for the surplus property. For the subject surplus property the market data for leases of DOT's surplus properties in Dade County would have been appropriate data to use in the appraisal. Even though DOT failed to provide KENDALL's appraiser with the market data, DOT did have such data for four leases executed between October 1989 and January 1991. These leases, as is KENDALL's lease, were only for surface use, subject to a 30-day cancellation clause. The data showed that the cancellation clause significantly reduced the market rental rate when leasing surplus property and that the market rental rate of return was between 1.89 percent and 2.62 percent per year to the respective owners. The data from DOT's surplus property leases would have been used by KENDALL's appraiser if it had been provided to him. Based upon the data of the surplus property leases, KENDALL's appraiser determined that the owner of the surplus property would receive annual rent equalling between 1.89 percent and 2.62 percent of the amount that the surplus property would produce if it was fully developed as commercial property and sold in fee simple. In February 1994, KENDALL obtained the services of another appraiser from DOT's approved list of independent appraisers to perform an independent appraisal for the fair market value of the surplus property for the period beginning July 1, 1991. Prior to obtaining his services, KENDALL did not request DOT to accept another appraisal. First, the appraiser determined that comparably-sized commercial property in Dade County, providing maximum utility, had a fair market value of $140,000 in a fee simple sale. Next, he determined that the highest and best use of the surplus property was for storage purposes, which reduced the value of the surplus property in fee simple by 57 percent. Even though the appraiser determined that KENDALL was the logical purchaser of the surplus property, he also determined that, due to KENDALL having fully developed its abutting property and not being able to economically build on the surplus property, the surplus property would not provide a maximum utility to KENDALL's abutting property. Based upon such market factors, the appraiser determined that the surplus property had a fair market value of $35,000 if sold in fee simple for storage purposes. Therefore, assuming a variance or rezoning could be obtained by KENDALL to use the surplus property for storage purposes, the appraiser determined that the fair market rent for the surplus property was $3,500 as of July 1, 1991. DOT never performed an appraisal of the surplus property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DOT enter a final order that the market rental value assessed to the surplus property leased to and paid by KENDALL is invalid, as exceeding prevailing market rent, that the prevailing market rent for the surplus property is $3,000 annually and that DOT refund to KENDALL the difference between a market rent of $12,800 annually and $3,000 annually, beginning in November 1993. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1995. ERROL H. POWELL 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 2nd day of March 1995
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 24th day of February, 1999.
The Issue Whether Choice Plus, LLC is entitled to Unclaimed Property Account Number 103851316.
Findings Of Fact On January 25, 1999, Donald C. Rogers died. On August 19, 1999, the Estate of Donald C. Rogers, (“decedent”) was submitted for probate. The Department received the following described unclaimed property: Account Number: 103851316 Reported Amount: $28,007.01 Reported Name: Rogers, Donald C. Sr. Reported Address: Hillsborough SSN#: None Holder: Clerk of Court Property Type: Cash On March 22, 2005, the probate court entered an Order Granting Petitioner to Distribute Funds and to Distribute Surplus Funds into Registry of Court. The Personal Representative for the Estate had been unable to locate Sean Henry Casner (“Casner”), the decedent’s grandson. Casner’s share of the Estate was $23,689.95. The Order for Discharge was rendered June 24, 2005. On November 3, 2012, Casner executed a Limited Power of Attorney (“LPOA”) authorizing Choice Plus to act on his behalf as Claimant’s Representative. The LPOA disclosed that Choice Plus’ fee was 25 percent of the funds recovered. The 25 percent equaled $5,922.49; the net amount to Casner was $17,767.46. On April 29, 2013, the Department received a completed claim form filed by Choice Plus on behalf of Casner. On August 12, 2013, Choice Plus withdrew its claim on behalf of Casner by email. On August 17, 2013, Casner sold his interest in the property related to the above-referenced account (“account”) to Choice Plus by means of a purchase agreement. On or about August 19, 2013, Casner cashed the $13,029.47 check from Choice Plus for the purchase agreement. On September 3, 2013, the Department received a claim from Choice Plus on behalf of Casner, as the purchaser of the account. The Purchase Agreement disclosed the following: $23,689.95=Approximate Dollar Value of the Property $23,689.95=Amount to be Paid to Buyer $13,029.47=Net Amount to be Paid to Seller Property Account Number(s): 103851316 The Department issued a Notice of Intent to enter a final order denying the claim filed by Choice Plus as the purchaser for the unclaimed property relating to Account Number 103851316. The Department determined Choice Plus failed to comply with section 717.1351, Florida Statutes, by deleting the percentage line in the Purchase Agreement without a flat fee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is REOMMENDED that a final order be entered granting Choice Plus claim to the unclaimed property Account Number 103851316. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 24th day of June, 2014. COPIES FURNISHED: Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 Josephine Schultz, Esquire Department of Financial Services Legal Services, Room 601 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
