The Issue The issue in the case is whether Affordable Restaurant Equipments, Inc. (Petitioner), is entitled to receive $209,720 from the Department of Transportation (DOT) as additional reimbursement for property storage expenses.
Findings Of Fact At all times material to this case, the Petitioner operated a large restaurant equipment and supply business located in Orlando, Florida. At all times material to this case, Thomas Sheen was the owner and operator of the Petitioner. The Petitioner was represented by legal counsel during the property acquisition phase of the eminent domain proceeding. The Petitioner was represented by separate legal counsel during the acquisition of the relocation property. The Petitioner was also represented by Jan Rybak- Matalon, a consultant on eminent domain relocations, who was hired to handle contacts between the Petitioner and DOT related to the relocation of the business. Claudia Calzaretta, a DOT employee, was assigned to represent DOT through the eminent domain proceeding and the relocation process. Mr. Sheen had limited contact with DOT and was generally non-responsive to communications with DOT or Ms. Calzaretta. In December 2005, the Petitioner vacated the original business location, and Mr. Sheen received compensation for the taking of the property which is not at issue in the instant case. DOT also paid property storage expenses for a 12-month period commencing on January 15, 2006, through January 14, 2007. Due to the nature of the Petitioner's business operations, location of a similar and suitable facility in the same region of Florida was difficult, particularly as to the square footage and public retail accessibility Mr. Sheen had enjoyed at the original location. The Petitioner asserted that there were no suitable and available replacement locations within Florida. He employed a realtor to assist in the search. Mr. Sheen testified that he also spent a substantial amount of personal time looking for a relocation site. He identified and pursued alternative locations that were apparently for sale, only to learn that the properties were committed to other buyers or that alternative uses for the properties had been determined. DOT asserted that alternative properties within Florida were available and offered evidence (essentially real estate advertisements from the internet) in support of the assertion. The evidence lacked sufficient specificity to establish that the identified properties were, in fact, available. There was no competent functional analysis offered to establish that the properties met the requirements of the Petitioner's business. At some point prior to June 2006, the Petitioner located suitable property (the "Tuxedo" property) in Atlanta, Georgia. The greater weight of the evidence establishes that the Petitioner was unable to locate an acceptable facility within Florida. Mr. Sheen's testimony regarding the search for an alternative location within Florida was reasonable and has been credited. Additionally, the fact that DOT agreed to fund the Petitioner's move to Atlanta suggests that DOT conceded the issue to the Petitioner. The Tuxedo property had been used as an automobile dealer sales location. The Petitioner wanted to acquire the property through a lease-purchase transaction. The Petitioner apparently initiated discussions with the seller of the property in late May or early June 2006. According to emails (admitted as exhibits for the Petitioner), the Petitioner, through his attorney, made numerous demands of the sellers. The sellers apparently acceded to some demands and not to others. The negotiations between the Petitioner and the seller were protracted and difficult. On more than one occasion, the Petitioner threatened to walk away from the negotiations if the Petitioner's demands were not met. In an email to the seller's attorney dated June 16, 2006, the Petitioner's attorney wrote in part as follows: If your client is not willing to make these changes, then perhaps your client isn't interested in making the sale and lease. If this is the case, maybe I need to let my client know that they should consider continuing to look for other properties for their intended purpose. Approximately three weeks after the Petitioner threatened to abandon the negotiations with the Tuxedo seller, Ms. Rybak-Matalon, in an August 8, 2006, letter to DOT Administrator Paul Horn, advised that the "deal has been made to purchase" the Tuxedo property, that the site was "currently undergoing improvements to make it more suitable" for the Petitioner's business, and that the Petitioner would begin moving property from storage to the new location in "(approximately) mid-September." The letter requested release of funding for the move of the Petitioner's stored property to the new location. A copy of the letter was provided to Ms. Calzaretta. In response to the August 8, 2006, letter, DOT released $200,000 to provide funds for the Petitioner to move the stored property to the Atlanta location. At the time Ms. Rybak-Matalon advised DOT that the "deal has been made," the parties had not entered into any agreement on the Tuxedo property, and there is no evidence that any alterations to the property were being made. In fact, the parties continued to exchange threats to abandon the negotiations. In an email to the Petitioner's attorney dated August 22, 2006, the seller's lawyer wrote in part as follows: The attached documents contain all adjustments and concessions that Tuxedo is prepared to make in connection with the proposed transaction. . . . Accordingly, we hereby request confirmation [of approval] on or before Friday, August 25. If we do not receive confirmation on or before that date . . . Tuxedo will pursue other options with the property. In an email to the seller's attorney dated August 23, 2006, the Petitioner's lawyer wrote in part as follows: If your client is unwilling to relent on this issue, then we are at an apparent impasse and my clients will pursue other properties for their purpose. In fact, they are so disturbed at your client's inflexibility on this issue . . . that frankly if your client relented, I am not sure they would be willing to buy at this point. * * * Other than verify that the language is still within the contracts, I have not read the latest drafts, and won't do so, unless and until you remove the language and provide me new drafts to review. On August 31, 2006, the seller's attorney responded in part as follows: . . . [t]hose documents contain all the concessions/adjustments our client is prepared to make in connection with the proposed transaction. As also indicated in my message to you on August 22, our client will now pursue other options with respect to the property. . . . So, our client considers the negotiations with your client at an end and, correspondingly, our client will proceed immediately with other parties to negotiate disposition of the subject sale. After DOT released the $200,000 moving funds to the Petitioner in response to Ms. Rybak-Matalon's letter, Ms. Calzaretta, attempting over a period of six to seven weeks to ascertain the status of the move, made frequent calls to Ms. Rybak-Matalon. Ms. Rybak-Matalon was unable to provide any information on the status of the move to Ms. Calzaretta, presumably because not only had the move not commenced, but the Petitioner had not acquired the location. In fact, the Petitioner was continuing to negotiate the terms of the transaction with the Tuxedo sellers as late as October 8, 2006, two months after Ms. Rybak-Matalon had assured DOT that the "deal has been made." In October 2006, after Ms. Calzaretta was unsuccessful at obtaining information regarding the move and the disposition of the $200,000, she contacted a counterpart at the Georgia Department of Transportation (Georgia DOT) and asked for assistance. In response, Ms. Calzaretta received photographs of the Tuxedo location from a Georgia DOT agent. The photographs showed no indication of activity at the site and a "For Sale" sign was still present on the property. Ms. Calzaretta called the number on the "For Sale" sign and spoke with the real estate broker who advised that the sale of the property had not occurred and that negotiations were continuing. Shortly thereafter, the dialogue between the Petitioner and the seller stopped when the seller withdrew from the negotiations. Mr. Sheen was very angry that the Tuxedo acquisition had fallen through. The Petitioner asserted that Ms. Calzaretta made statements to the broker that caused the seller to withdraw from the negotiations with the Petitioner and resulted in the Petitioner incurring storage charges for property beyond the previously-approved 12-month period. The assertion is unsupported by credible evidence. Ms. Calzaretta's recollection of statements allegedly made by the broker is uncorroborated hearsay. Neither the broker nor the owner/seller of the Tuxedo property testified at the hearing. Ms. Calzaretta is unable to recall any specific statement she made to the broker other than asking whether a deal was complete and whether alterations to the property were underway. Given Ms. Rybak-Matalon's misrepresentations to DOT on behalf of the Petitioner, Ms. Calzaretta's questions to the broker were not unreasonable. The evidence fails to establish that the conversation between the broker and Ms. Calzaretta was the primary cause for the termination of the negotiations between the Petitioner and the seller. Despite the exchange of continuing threats to abandon the Tuxedo negotiations, Mr. Sheen apparently presumed that he would prevail in the Tuxedo negotiations and acquire the property. Review of the evidence related to the Tuxedo property dialogue fails to indicate that the Petitioner's acquisition of the Tuxedo property was an inevitable conclusion of the negotiations at any point in time. After the Tuxedo negotiations ended, the Petitioner renewed the search. There is no credible evidence that Mr. Sheen continued to seek alternative locations after deciding he wanted to locate the business to the Tuxedo property. The Petitioner eventually acquired another Atlanta property and completed relocating into the new property by August 15, 2007. The evidence fails to establish that there were no other suitable relocation properties available in the Atlanta area during the protracted Tuxedo negotiations. The evidence establishes that the extended storage fees were the result of the Petitioner's failure to identify alternatives during the protracted Tuxedo negotiations, apparently assuming that the Tuxedo acquisition would occur. The evidence fails to establish that the extended storage fees for the period from January 15, 2007, to August 15, 2007, were necessary or were the result of an inability to locate a suitable relocation alternative.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's request for extended storage fees in the amount of $209,720. DONE AND ENTERED this 25th day of July, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 25th day of July, 2008. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Lawrence M. Kosto, Esquire Kosto & Rotella, P.A. 619 East Washington Street Post Office Box 113 Orlando, Florida 32802 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Wayne Sullivan in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from November 8, 1994, through December 10, 1994, by Wayne Sullivan to be handled by Fancy Farms as agent for Wayne Sullivan on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Wayne Sullivan was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. From November 8, 1994, through December 10, 1994 Wayne Sullivan delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Wayne Sullivan on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Wayne Sullivan to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Wayne Sullivan during the above period of time. Upon delivering the zukes to Fancy Farms, Sullivan was given a prenumbered delivery receipt ticket (delivery ticket) showing Wayne Sullivan as Grower number 116 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-116-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2127 dated November 8, 1994, lot nos. 2127-116-37 and 2127-116-38; (b) 22145 dated November 10, 1994, lot nos. 2145-116-37 and 2145-116-38; (c) 2181 dated November 15, 1994, lot nos. 2181-116-37 and 2181-116-38; (d) 2242 dated November 29, 1994, lot nos. 2242- 116-37 and 2242-116-38; (e) 2254 dated December 1, 1994, lot nos. 2254-116-37 and 2254-116-38; (f) 2289 dated December 7, 1994, lot nos. 2289-116-37 and 2289- 116-38 and; (g) 2313 dated December 10, 1994, lot nos. 2313-116-37 and 2313-116- 38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Sullivan was never made aware of these price adjustments. In accounting for the zukes delivered by Sullivan, Fancy Farms prepared a Grower Statement which included the delivery ticket number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Wayne Sullivan from these statements by Fancy Farms. Sometimes payment may be for only one delivery ticket while at other times payment would be for several delivery tickets for different dates. A portion of Petitioner's composite exhibit 1 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 19, 21, 23, 31, 33, 37 and 40, dated October 28, 31, 1994, November 8, 10, 15, 29, 1994, and December 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume (units) sold and prices paid per unit for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. On November 8, 10, 15, 1994, Sullivan delivered a combined total of 130 units of fancy zukes and a combined total 206 units of medium zukes represented by delivery receipt ticket nos. 2127, 2145 and 218l, for a combined total of fancy and medium zukes of 336 units for which Fancy Farms paid Sullivan the sum of $1,171.00 as evidenced by the Grower Statement dated November 25, 1994. Forty eight units of fancy zukes represented by lot no. 2127-116-37 was billed out by Fancy Farms to P. H. Lucks, Inc. for $5.00 per unit. Without an explanation, Fancy Farms reduced the price to $2.50 per unit. However, Fancy Farms paid Sullivan $5.00 per unit for the 48 units of fancy zukes. Five units of medium zukes represented by lot no. 2145-116-38 were not accounted for by invoice. Thirty two units of fancy zukes represented by lot no. 2181-116-37 were not accounted for by invoice. Nineteen units of medium zukes represented by lot no. 2242-116-38 were not accounted for by invoice. Where there is no invoice the price quoted in the Market Report is used to calculate the amount due Sullivan. The amount due Sullivan from the Grower Statement dated November 25, 1994, is: Lot No. 2127-116-37: $5.00 per unit x 48 units (Invoice 3814) = $ 240.00 Lot No. 2127-116-38: $3.50 per unit x 45 units (Market Report) = $ 157.50 $3.50 per unit x 35 units (Invoice 3783) = $ 122.50 Lot No. 2145-116-37: $5.00 per unit x 12 units (Invoice 3818) = $ 60.00 $5.00 per unit x 38 units (Invoice 3822) = $ 190.00 Lot No. 2145-116-38: $3.00 per unit x 13 units (Invoice 3820) = $ 39.00 $3.00 per unit x 22 units (Invoice 3822) = $ 66.00 $3.00 per unit x 5 units (Market Report) = $ 15.00 Lot No. 2l81-116-37: $8.00 per unit x 32 units (Market Report) = $ 256.00 Lot No. 2181-116-38: $3.50 per unit x 86 units (Invoice 3778) = $ 301.00 Total owed to Sullivan = $1,447.00 Less: Amount paid Sullivan = $1,171.00 Ten per cent commission = 144.70 Net due Sullivan = 131.30 On November 29, 1994, Sullivan delivered 53 units of fancy zukes and 69 units of medium zukes as represented by delivery ticket no. 2242 for a combined total of 112 units for which Sullivan was paid $472.00 by Fancy Farms as represented by the Grower Statement dated December 7, 1994. The prices of $3.25 and $3.00 as indicated by invoice nos. 3941 and 3947, respectively are not indicative of the market for fancy zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $8.00 per unit for fancy zukes. Likewise, the price of $3.00 per unit for medium zukes as indicated by invoice no. 3927 is not indicative of the market for medium zukes as established by the Market Report for December 1, 1994. The Market Report established an average price of $6.00 per unit for medium zukes. The amount due Sullivan from the Grower Statement dated December 7, 1994, is: Lot no. 2242-116-37: $8.00 per unit x 53 units (Market Report) = $ 424.00 Lot no. 2242-116-38: $6.00 per unit x 69 units (Market Report) = $ 414.00 Total owed Sullivan = $ 838.00 Less: Amount paid Sullivan = $ 472.00 Ten Percent Commission = $ 83.80 Net due Sullivan = $ 282.20 On December 1, 7, 1994, Sullivan delivered a combined total of 51 units of fancy zukes and a combined total of 87 units of medium zukes for a combined total of 138 units of fancy and medium zukes represented by delivery ticket nos. 2254 and 2289 and was paid $516.00 for these zukes by Fancy Farms as represented by the Grower Statement dated December 15, 1994. There was no invoice for lot nos. 2254-116-37 or 2254-116-38. The Market Report established a market price of $8.00 and $6.00 per unit for fancy and medium zukes, respectively. The amount due Sullivan from the Growers Statement dated December 15, 1994, is: Lot No. 2254-116-37: $8.00 per unit x 39 units (Market Report) = $ 312.00 Lot No. 2254-116-38: $6.00 per unit x 20 units (Market Report) = $ 120.00 Lot No. 2289-116-37: $6.00 per unit x 12 units (Invoice 4049) = $ 72.00 Lot No. 2289-116-38: $3.50 per unit x 67 units (Invoice 3946) = $ 234.50 Total owed Sullivan = $ 738.50 Less: Amount paid Sullivan = $ 516.00 Ten Percent Commission = $ 73.85 Net due Sullivan = $ 148.65 On December 10, 1994, Sullivan delivered 27 units of fancy zukes and 18 units of medium zukes for a combined total of 45 units as represented by delivery ticket no. 2313 and was paid $211.50 for those zukes by Fancy Farms as represented by Growers Statement dated December 23, 1994. The 18 units of medium zukes represented by lot no. 2313-116-38 are not covered by an invoice. The Market Report established a unit price of $6.00 for the fancy zukes. Invoice no. 4075 billed the fancy zukes at zero without any explanation. Fancy Farms paid Sullivan $5.50 per unit for the fancy zukes. The Market Report established a per unit price of $8.00 for the fancy zukes which is more in line with the market than is the $5.50 per unit paid by Fancy Farms. The amount due Sullivan from the Grower Statement dated December 23, 1994, is: Lot No. 2313-116-38: $6.00 per unit x 18 units (Market Report) = $ 108.00 Lot No. 2313-116-37: $8.00 per unit x 27 units (Market Report) = $ 216.00 Total owed Sullivan = $ 324.00 Less: Ten percent commission = $ 32.40 Amount received by Sullivan = $ 211.50 Net due Sullivan = $ 80.10 The net amount owed to Sullivan by Fancy Farms: From Grower Statements dated: November 25, 1994 $ 131.30 December 7, 1994 $ 282.20 December 15, 1994 $ 148.65 December 23, 1994 $ 80.10 Total owed to Sullivan $ 642.25
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Wayne Sullivan the sum of $642.25. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3015A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Wayne Sullivan 49 Myrtle Bush Lane Venus, Florida 33960 James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED this 5th day of April, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of April, 1982.
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints related to the real estate profession pursuant to the laws of the State of Florida. Respondent Valyne Batchelor is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0311190 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Batchelor was in care of Adventure Properties, Inc., 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. Respondent Adventure Properties, Inc. was at all times pertinent to this proceeding a corporation registered as a real estate broker in the State of Florida having been issued license number 0238654 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Adventure Properties, Inc., was at the address of 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. At all times pertinent hereto, Respondent Batchelor was licensed and operating as a qualifying broker and officer of Respondent Adventure Properties, Inc. At all times pertinent hereto, Respondent Batchelor was a one-half owner of Dream Home Builders of Royal Palm Beach, Inc. (Dream Home). Joel B. Wingate was in the land clearing business and had done work prior to September 1988 for Dream Home and Dream Home's subsidiary, Redi Concrete. On September 18, 1988, Dream Home, the owner of a house located at 5510 Royal Palm Beach Boulevard, Royal Palm Beach, Florida, entered into a contract to sell that house to Joel B. Wingate, his wife, Eva C. Wingate, and his mother, Sarah F. Wingate. The contract reflected that the purchase price of the property was $87,400. The contract reflected that the sum of $4,400 was received by Adventure Properties as a deposit. The balance of the purchase price was to be paid by a first mortgage in the amount of $69,900 to be obtained by the Buyers from a lending institution and by a second mortgage in favor of Seller in the amount of $13,100 that was to be amortized over a period of 30 years with a balloon payment at the end of 5 years. Respondent Batchelor executed the contract on behalf of Adventure Properties and on behalf of Dream Home. In addition, Respondent Batchelor signed a statement on the face of the contract which acknowledged receipt of the deposit that was to have been held in escrow. The sum of $4,400 was not paid over to Respondent Adventure Properties or to Respondent Batchelor by the Wingates at the time the contract was executed and there never was a deposit made into the escrow account of Adventure Properties. Instead, Mr. Wingate agreed to pay the sum of $4,400.00 prior to the closing from sums he would earn from work he was performing for Redi Concrete. All parties pertinent to this transaction, including the bank that financed the first mortgage, knew that the Wingates had not paid that sum. The Wingates applied for financing with Security First Federal for financing of the first mortgage. The application for the loan was in the name of Sarah F. Wingate because of Joel Wingate's poor credit. On September 17, 1988, a "Good Faith Estimate of Settlement Charges" was prepared by Security First Federal which estimated that the settlement charges that would be due from the Wingates at closing would equal $4,328.30. On September 19, 1988, the Wingates, as buyer, and Dream Home, as seller, executed an addendum to the contract which provided that the Seller would pay up to $4,400 in closing costs and that the amount of the second mortgage would be increased from the sum of $13,100 to the sum of $17,500. The addendum provided, in pertinent part, as follows: Seller to pay up to $4,400 in closing costs. Buyer agrees to give seller a second mortgage in the amount of $17,500. Said Mortgage to be for a term of one year from date of contract and is to be paid as follows: Buyer agrees to do work for Redi Concrete, Inc. consisting of clearing, digging of necessary fill, building and compact ion of house pads according to Palm Beach County Building Codes, all grading and trash removal at contract price of $2,450 per lot. Of this amount $1,250 is to be applied to second mortgage until mortgage is paid in full. Additionally, any unused portion of the $4,400 allowance for closing costs not used for that purpose is to be applied to the second mortgage of $17,500. If any portion of this agreement is not kept, Redi Concrete, Inc. reserves the option to impose interest at the rate of 10% per annum against any unpaid amount of second mortgage. The fact that the amount of closing costs Dream Homes agreed to pay on behalf of the Wingates ($4,400) was identical to the amount that the Wingates were supposed to pay as a deposit ($4,400) was coincidence. Respondent Batchelor executed the addendum to the contract in her capacity as an officer of Dream Home. There was no attempt on the part of Respondents to deceive the Wingates, who had agreed to this method of financing the purchase. On October 24, 1990, the transaction closed. The buyers executed the first mortgage in favor of Security First Federal Savings and Loan Association in the principal amount of $69,900, and a second purchase money mortgage in favor of Dream Home in the principal amount of $13,100. (There was no explanation as to why the second mortgage that was executed at the closing was for $13,100 instead of for $17,500. Dream Home's letter of October 27, 1988, to the Wingates, signed by Ms. Batchelor, refers to a revised second mortgage that should be executed by the Wingates and recorded. There was no evidence that the revised second mortgage was, in fact, delivered to the Wingates or executed by them.) The second mortgage note required monthly payments commencing November 24, 1988, with a balloon payment of $12,965.22 due on October 24, 1991. The Wingates were aware of the manner in which their purchase of this property was financed. There was insufficient evidence to establish that Respondents dealt with the Wingates in anything other than an honest, straightforward manner. The unusual owner financing involved in this transaction was an attempt to accommodate the buyers. There was no intent by Respondents to deceive the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings. There was insufficient evidence to establish that the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings was, in fact, deceived or tricked by any act of Respondents. The Wingates moved into the premises prior to the closing of the transaction. Ms. Batchelor did not give the Wingates permission to move into the house prior to closing and she did not personally inform the Wingates that they would have to pay rent if they moved in prior to closing. Ms. Batchelor had been told by her business associate, Mr. Vander Meer, that the Wingates would pay a per diem rental fee until the closing. On October 27, 1990, Ms. Batchelor, on behalf of Dream Home, advised the Wingates that they were being charged a rental fee of $27.54 per day that they had occupancy prior to the closing. For the 36 days the Wingates were in the house prior to closing, the total rental claimed came to $920.52. The Wingates disputed the amount claimed for rent and had not, as of the date of the formal hearing, paid that amount. There was no evidence that Respondents were attempting to deceive, trick, or defraud the Wingates in any manner by claiming rent for the period between the time the Wingates moved in to the house and the time of the closing. By letter dated September 20, 1989, Ms. Batchelor, on behalf of Dream Home, notified the Wingates that the second mortgage balloon payment was $12,795.52 and that, according to her records, would become due on May 1, 1990. Although this statement of the due date is inconsistent with the instrument executed by the Wingates, there was no evidence that this statement was anything other than a mistake. The Wingates have defaulted on the first and the second mortgages. When Petitioner's investigator, Sharon Thayer, conducted an office inspection and escrow audit of Respondents' offices on March 13, 1990, Respondents did not have an enclosed room within which negotiations and closings of real estate transactions could be conducted and carried on with privacy. The negotiations between the buyers and sellers in the Wingate transaction were, however, conducted in private. Buyers were prompted to file a complaint against Respondents approximately one year after the closing when an unidentified bank officer told them they may have committed a fraud. Without knowledge or complicity of Respondents, Sarah F. Wingate falsified her loan application with Security First Federal Savings and Loan Association. Respondents received no commission in regard to the Wingate transaction. Respondents moved their offices and have corrected the deficiency related to the absence of an enclosed, private area.
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 which finds that Respondent violated the provisions of Rule 21V-10.002, Florida Administrative Code, and consequently, Section 475.25(1)(e), Florida Statutes, which finds that Respondents violated the provisions of Section 475.25(1)(b), Florida Statutes, and which provides for the issuance of a letter of reprimand to said Respondents for such violations and the assessment of an administrative fine against Respondents in the amount of $500.00. DONE AND ENTERED this 3rd day of December, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3587 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-15 and 19-22 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 16 are rejected as being unsubstantiated by the evidence. The entry on line 501 of the copy of the closing statement introduced as Petitioner's Exhibit 8 is too faint to read. However, the copy of the closing statement included as part of Joint Exhibit 1 reflects that the entry on line 501 is the figure $4,400 and not the figure of $4,100 reflected in Petitioner's proposed finding. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are rejected as being contrary to the greater weight of the evidence. Although the proposed findings correctly reflect Ms. Batchelor's statement to Petitioner's investigator, that statement was made several months after the transaction and before Ms. Batchelor had had the opportunity to review her files. Other evidence regarding the addendum is found to be more credible as reflected by the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-21 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 Lawrence Maxwell Fuchs, Esquire Fuchs and Jones, P.A. 590 Royal Palm Beach Boulevard Royal Palm Beach, Florida 33411 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards. The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment. The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB. The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized. The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received. At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were: Blountstown - September 18, 1981 Jefferson County - October 2, 1981 F.A.M.U. - October 9, 1981 Rickards - October 23, 1981 Port St. Joe - November 13, 1981 There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season. During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted. During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors. There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom. Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs. A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit. In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit. In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further, RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 13th day of August, 1982.
Findings Of Fact Ben L. Musick is a registered real estate broker, t/a Ben Musick holding License No. 0062987. In September or October of 1975, Ben Musick was contacted by Barbara Hawkins who requested Musick to represent her in the sale of her home located at 3802 East Esther Street, Orlando, Florida. At that time, Hawkins advised Musick that she had had a recurrence of cancer, was behind on the second mortgage to her house, and desired to sell her home. Musick advised Hawkins that he could assist her in selling the home but that if he undertook to list the house in a direct capacity, that by virtue of his membership in the Orlando/Winter Park Multiple Listing Service that he would have to charge her seven percent commission on the sale. Hawkins advised Musick that she did not desire to have the house so listed and did not desire to place a sign on the property. Hawkins was desirous of paying off the money owned on the house, and obtaining as much money as possible on the sale. Musick was unable to give her an approximation of the money she could hope to realize on the sale of the home because Hawkins was unable to tell him the amount she was in arrears on the second mortgage. Musick undertook to represent Hawkins and advised her that he would check into the status of the second mortgage and would contact her. Upon checking with the second mortgagor and with the courthouse, Musick determined that there was a lien against the property for a deficiency judgment from a small loan company. He also determined the amount of money which she was in arrears on the second mortgage. With this information, Musick met with Hawkins on the 12th or 13th of October, 1975 and discussed with Hawkins the fact that the judgment lien of the small loan company would have to be satisfied together with the amounts due and owing on the second mortgage. A firm purchase price was not reached, but it was their understanding that he would attempt to get the very best price for the home and bring any offers to her and see if she would approve. Musick, having been limited in the manner in which he could advertise Hawkins' property, contacted several friends of his wife and as a result of these contacts showed the home to two couples during the months of October and November. Mrs. Hawkins entered the hospital at the Naval Station in Orlando around November 10, 1975. After her initial examination, it was determined that she would have to be evacuated by air to a cancer treatment center and arrangements were made to do this. She was to be transferred on November 20 or 21, 1975. Ben Musick had shown the Hawkins' home to Bobby and Jerry Hill who on November 19 communicated their decision to Musick that they would offer to pay all outstanding obligations on the Hawkins' home and assume the first mortgage on the home. By this time it had come to light that there was due and owing four months payments on the first mortgage and that both mortgage companies were considering foreclosure. Ben Musick communicated the offer made by the Hills to Hawkins on November 19, 1975 by telephone speaking with her at the Naval Hospital. Based upon her acceptance of the offer and having been advised by Hawkins that her husband was present, Musick prepared the contract for sale based upon the estimates of the cost which the Hills would have to pay and the amount of the first mortgage which they would have to assume. Then Musick presented the contract for purchase and sale and the deed to the property to Barbara Hawkins and her husband at the Naval Hospital on November 20. At that time Musick advised Hawkins that upon signing the contract and deed that the property would be effectively transferred although there would be a formal closing at which he would appear and represent her. Hawkins concurred in this and signed the contract for sale and the deed conveying the property from herself and her husband to Bobby and Jerry Hill. She was told prior to signing that she would receive no cash proceeds from the sale pursuant to the offer of the Hills to pay all debts owing on the home and assume the first mortgage. On November 21, 1975, Barbara Hawkins was transferred from the Naval Hospital in Orlando to Keesler Air Force Base Hospital in Biloxi, Mississippi. The Hills had determined to obtain title insurance on the subject property; and, therefore, Musick turned to Lawyers Title Insurance Company to handle the closing in this transaction because they offered to do so for free thereby saving the Hills money in closing the sale of the property. The final closing statement for the sale of the property was prepared by Jody Sellers of Lawyers Title Insurance Company. She prepared the closing statement based upon information obtained by her from the mortgage companies involved. The information provided her was slightly different from the information provided to Ben Musick and the estimates which he had been required to make regarding the cost of title insurance and other closing costs as stated in the contract for sale. However, the offer was premised upon a payment of debts and assumption of mortgage with the understanding that Hawkins would receive no cash proceeds. Because of the difference in Sellers and Musick's figures there was a slight difference ($250) between the purchase price figures arrived at by Sellers and that arrived at by Musick as expressed in the contract for sale. On November 28, 1975, Ben Musick called Barbara Hawkins at the Air Force Hospital at Keesler Air Force Base, Biloxi, Mississippi, where he advised her that the closing had been approved and was imminent and that she would receive $55 cash from the proceeds of the sale. He further advised her that he would be at the closing and represent her picking up her papers and check. She acknowledged his representation of her at the closing. At closing Jody Sellers requested that Ben Musick execute an affidavit stating that the subject property was free and clear of any mechanics liens, which Ben Musick signed as follows: "Ben Musick, Realtor for Barbara M. Hawkins" Ben Musick signed the closing statement indicating the receipt of $55.31 in behalf of Barbara M. Hawkins in the same manner. Upon her return from Biloxi, Mississippi, around December 10, 1975, Ben Musick delivered the closing papers and the check for $55.31 to Barbara Hawkins.
Recommendation The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends that the Florida Real Estate Commission take no action against the license of Bennett L. Musick, t/a Ben Musick, as a registered real estate broker. DONE and ORDERED this 28th day of December, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Randy J. Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Thomas F. Lang, Esquire Post Office Box 633 Orlando, Florida 32802 Charles T. Wells, Esquire Post Office Box 3109 Orlando, Florida 32802
