Findings Of Fact The special condition in invitation to bid No. 69-360-240-F that petitioner challenges here provides: PUBLIC ENTITY CRIMES Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy(s) of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. Joint Exhibit No. 1. Under the heading "Bid Conditions," Rule 13A-1.008(2), Florida Administrative Code, incorporates form PUR 7068 by reference, and requires that invitations to bid on term contracts include the form. Challenge Untimely The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [Like the original invitation to bid, the revised invitation to bid contained the following language: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit No. 5.] "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition for Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled `Public Entity Crimes' on page four of the invitation to bid." No Future Effect Already superseded in subsequent invitations by a revised version (T.142, 171), any special condition like the one petitioner challenges will soon undergo further change. Effective October 1, 1990, Section 287.133(3)(a), Florida Statutes will be amended to read: * Prior to entering into a contract a person shall file a sworn statement with the contracting officer . . . <<for the calendar year. The department shall adopt by rule a standard sworn statement . . .. The form shall include>> [[on a form to be promulgated by the department by rule, including the following information:]] The name of the person. The business address . . . * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Chapter 90-33, Sections 1 and 3, Laws of Florida (1990) (language added or deleted by Chapter 90-33). "Only if the responding bidder does not have the [sworn statement on public entity crimes] . . . on file with [respondent's] . Division of Purchasing on or after October 1 this year" (T. 135) must a sworn statement accompany a bid. The amended statute "effective on October 1 allows . . . submission of the public entity crime form document on a calendar year basis. So, it does not have to be submitted with each and every bid." (T. 135.) Petitioner does not anticipate bidding in response to any other of respondent's invitations to bid any time before October 1, 1990. When asked, "Is it Jones' Floor Covering's intention after October 1st, to submit only one sworn statement a year to the Division of Purchasing," (T. 95) Rocky Wayne Jones, a vice- president in petitioner's employ, answered, "Whatever we need to do, that's what we will do to be able to bid on State work. If that's what the law is, then we will do what the law says to do." T. 95.
Findings Of Fact The parties stipulated to the following factual matters: The Respondent was, at all times alleged in the Administrative Complaint in this cause, a licensed real estate broker having been issued license number OliB294. From February 2, l9B4 to August 13, l9B4 Respondent was licensed and operating as the sole qualifying broker and officer of Commercial International Realty, Inc., a corporation licensed as a real estate broker, 219 Commercial Boulevard, Lauderdale- By-The-Sea, Florida. At all times alleged in the Administrative Complaint, Elaine Sherban was president, sole stock holder and owner of Commercial International Realty, Inc., 219 Commercial Boulevard, Lauderdale-By-The-Sea, Florida. Elaine Sherban is not now, nor was she ever, licensed or a holder of a valid and current license as a real estate salesman, broker-salesman or broker in the State of Florida. On or about December 29, l9B4, Respondent and Commercial International Realty, Inc., via Elaine Sherban, entered into an employment agreement whereby Respondent was employed as a real estate broker. The Respondent has not paid any sum whatsoever to Bobbi Jo Magee. Based upon the evidence received and the demeanor of the witnesses who testified, the following additional findings of fact are made: On or about March 7, 1984, Bobbi Jo Magee, as purchaser, executed a purchase agreement with Robert E. Moon, seller, for an establishment known as Cowboy's Lounge and Restaurant, Inc. The purchase agreement provided for a purchase price of $257,500 and a $10,000 non-refundable deposit. The date of closing was specified in the agreement to be June 7, 1984. In connection with this purchase agreement, Bobbi Jo Magee also executed a promissory note, dated March 7, 1984, in the amount of $35,000, payable to Elaine Sherban or her assigns. The promissory note was due and payable on March 12, 1984 and stated it was for "consulting fees and cash loan." Bobbi Jo Magee testified that she had no money of her own for the deposit called for in the promissory note, but that her mother, Mary Rose Turner, was financially backing her in this transaction. On March 30, 1984, Mary Rose Turner executed a wire transfer in the amount of $35,000 plus an additional $500 to Commercial International Business Brokers Corp., a business owned by Elaine Sherban. Commercial International Business Brokers was located in the same building as Sherban's other business, Commercial International Realty, Inc., but was a separate business with different telephone lines and financial accounts. Turner and Magee testified that this wire transfer was for the deposit on Cowboy's Lounge, and was for an amount greater than the $10,000 deposit called for in the purchase agreement because Sherban told them that Moon would not accept a deposit of only $10,000 on this transaction. Respondent did place several telephone calls to Turner, who was out of the state, on behalf of Sherban in which Sherban made requests for more money. Respondent's role was to make the phone call and leave a message that Sherban needed to talk to Turner or to turn the phone over to Sherban who then discussed the details with Turner. Respondent did not discuss the financial, or any other, details of the transaction with Turner in these calls, but simply placed the calls for Sherban and facilitated discussions between Sherban and Turner. Elaine Sherban was acting through Commercial International Business Brokers in this transaction with Magee, Turner and Moon. She had Magee execute the $35,000 promissory note to cover the $10,000 deposit and consulting fees she charged for her services. Respondent had no knowledge of the reason for this promissory note or what, if any, services Sherban had performed. Respondent did not participate in the execution of the promissory note and purchase agreement other than as-typist, notary and witness. She was not involved in any substantive discussions which caused Magee to sign either document, nor were any part of the funds that were wire transferred by Turner ever received or used by either Respondent, or Commercial International Realty, Inc., the real estate office in which she was employed. The funds which were transferred by Turner on behalf of Magee were received by Commercial International Business Brokers and were used thereafter by Elaine Sherban. The sale of Cowboy's lounge did not close on June 7, l9B4, due to concerns which Magee and Turner developed in late May regarding the business records of Cowboy's Lounge. Because they could not get information which they felt was satisfactory about the financial history of this business, they sought legal advice and notified Sherban and Moon that they would not close. Neither Magee nor Turner have ever received a refund on any part of the $35,500 which was transferred by wire on March 30, l9B4.~_ Between March 7, 1984, and late May Respondent met with Magee on several occasions and with Turner on one occasion at Cowboy's Lounge. Others were also present, including Sherban and Moon. Respondent's role in these meetings was purely social, making casual conversation She did not discuss any aspect of the transaction, or the financial condition of Cowboy 's. Despite the fact that Respondent did not intend to actively participate in the transaction involving Cowboy's Lounge, and in fact did not solicit, negotiate or otherwise intentionally assist with this sale, she did give the appearance of working with and assisting Sherban in this transaction. Magee and Turner made the reasonable assumption that Sherban and Respondent were partners for purposes of this sale. This appearance was given by tlle fact that Sherban said they were acting as partners, the very close proximity of the offices of Commercial International Business Brokers and Commercial International Realty, Inc., common ownership by Sherban of both businesses, Respondent's placing phone calls to Turner on behalf of Sherban, meeting with Turner and Magee at Cowboy's along with Sherban, and her functioning as typist, witness and notary for some of the documents involved in this transaction. No demand by either Turner or Magee has ever been made on Respondent for return of part or all of the $35,500. Through counsel, they did make demand for return of this sum upon Sherban and Moon. There is no evidence that Respondent ever employed Sherban. The evidence is that Respondent was employed by Commercial International Realty, Inc., which was owned by Sherban.
The Issue Whether Petitioner has settled this matter and the proceeding should therefore be dismissed.
Findings Of Fact Both parties to the action voluntarily submitted the case to mediation before Jonathan Kroner, a Florida Supreme Court Mediator certified pursuant to Rule 1.760 of the Florida Rules of Civil Procedure. The mediation began around 9:00 a.m. on December 18, 1991, at the office of the Petitioner's former attorney, Mr. Rick Kolodinsky. Both parties and their counsel were present at the mediation. Mr. Kolodinsky's paralegal was also present, as well as Ms. Weaver's daughter. Both parties received an explanation of the purpose of the mediation from the mediator and then gave a brief synopsis of their case. The parties were then placed in separate rooms and the mediator shuttled back and forth between the two rooms reporting and discussing the relative merits and weaknesses of each party's offer as it was made. The parties remained separated throughout the mediation except for a mutual viewing of a video tape which demonstrated that Ms. Weaver was not being completely honest about the extent of the injury to her arm. Additionally, the parties came together at the end of the mediation after settlement had been reached in order to sign the settlement agreement and work out some minor details. The mediation lasted until approximately 5:00 p.m. The first offer of settlement was made by Ms. Weaver and her attorney. The first offer was over $100,000.00. Thereafter, a series of offers and counteroffers were made throughout the day. There is no doubt that each offer made by Ms. Weaver was made with her consent. Eventually, one of the parties offered $35,000.00 dollars. Ms. Weaver agreed to the figure. There was no credible evidence that either the mediator, Southern Bell, Mr. Kolodinsky or his paralegal unduly influenced or coerced Ms. Weaver into agreeing to the $35,000.00 figure during the time of the offer and counteroffer phase of the mediation. After the figure of $35,000.00 was accepted by both parties, the mediator called all of the people present at the mediation into the same room so that the settlement could be reduced to writing utilizing a standard form settlement agreement. The form settlement agreement contained the style of the DOAH case as well as the DOAH case number. The agreement stated in relevant part: Defendant agrees to pay to Plaintiff as full and complete settlement of all matters arising in this cause of action the sum of $35,000. Plaintiff agrees to execute any Release form generally required to be executed in settlements of disputes of this nature. Each party shall bear their respective attorney fees and costs. The figure of $35,000.00 was handwritten in the blank provided in the form. Following the $35,000.00 figure the words "and see attached" were added. The attachment being referred to in the agreement consisted of a legal size paper containing three additional handwritten settlement terms. Page two of the Settlement Agreement states: Attachment to Weaver She will not reapply to S. Bell for employment. S. Bell & K. Weaver will not disclose the terms of this settlement to anyone including Social Security except as required by court order. This is a release/settlement of all claims arising out of any issue involved in case #89-1661 of any handicap/sex or other discrimination or tort claim of Weaver v. S. Bell or any S. Bell employee(s). The attachment was prepared by Mr. Kolodinsky while all parties were present in the same room. Some of the terms were added at the request of Southern Bell and some were added at the request of Ms. Weaver. Prior to signing either page of the settlement agreement, Ms. Weaver's daughter tried to get Ms. Weaver to leave the negotiations and not finalize the agreement being prepared. Ms. Weaver declined to leave and there is no doubt that she signed both pages of the two-page Settlement Agreement and agreed to settle this case. As with the other phases of the mediation, there was no credible evidence that either Southern Bell, the mediator, Mr. Kolodinsky or his paralegal unduly influenced or coerced Ms. Weaver into signing the settlement agreement or settling this case. After all the parties had signed the settlement agreement, Ms. Weaver left Mr. Kolodinsky's office. She indicated to her daughter that she regretted settling the case. Clearly, Ms. Weaver was aware and understood that she had settled her case. On December 20, 1991, two days after the mediation, Ms. Weaver wrote Mr. Kolodinsky, her attorney, and explained to him that she wanted to "repudiate" the agreement because she claimed that she was under "duress", thus providing at her own initiative a rationale for such repudiation. Ms. Weaver's letter stated: I signed those papers under pressure and duress and did not know what I was doing. I want to repudiate the agreement. I will not accept the agreement. One week later, on December 27, 1992, Ms. Weaver continued to demonstrate that she possessed intelligence capacity and, in particular, knowledge of the legal system when she wrote another letter to Mr. Kolodinsky threatening him with legal action: Please let Southern Bell know my intention immediately otherwise I will have no choice but to file a grievance with the Florida Bar Association. On January 6, 1992, Petitioner's attorney, Mr. Kolodinsky, informed the Respondent that the Petitioner had repudiated the Settlement Agreement and that a conflict existed between Petitioner and her attorney. In this case, Ms. Weaver clearly possessed the intelligence and mental capacity to settle her case. Over the years, prior to settlement, Ms. Weaver had hired attorney Edward Hurtz to represent her in a workers' compensation case against Southern Bell. Additionally, Ms. Weaver had represented herself at a fact finding proceeding in 1987 and, in 1988, she hired attorney Cristina Favis to represent her in this FCHR action. Moreover, in 1990, Ms. Weaver hired another attorney, Mr. Briggs, to file a petition for divorce against her husband. In that proceeding she signed an affidavit affirming that the divorce petition was true, and that Mr. Briggs was still representing. Ms. Weaver also testified that in January 1990, she signed a financial affidavit for her divorce and on September 4, 1991, she signed a settlement agreement for her divorce. Furthermore, in the Fall of 1990, Ms. Weaver instigated a lawsuit against William Brittain. The lawsuit involved an automobile accident in Volusia County. In order to pursue the lawsuit, Ms. Weaver hired another attorney, Paul Bernadini, to represent her. Finally, in April, 1991, the Petitioner hired attorney Michael B. Wingo to represent her in a workers' compensation matter. Indeed, as indicated in the pleadings, Ms. Weaver again demonstrated her capacity by employing her current attorney and by signing the Amended Memorandum on February 18, 1992. Such actions are simply inconsistent with the Petitioner's claim that she lacked capacity and did not knowingly sign or settle her case. In fact, the decisions made by Ms. Weaver before the mediation, on the day of the mediation, and after the mediation, are not the type of decisions and reasoning made by a person who is lacking in capacity, or is not sui juris. Moreover, Ms. Weaver clearly possessed sufficient mental capacity and intelligence particularly regarding legal issues. Unlike a person who is subject to undue influence, her mind had not deteriorated to the point where she was completely dependent on Mr. Kolodinsky or anybody else. Although the Petitioner's attorney claimed during the opening statement that Ms. Weaver was taking "psychotropic medications" on the day of the mediation, there was no evidence presented at the hearing that substantiated this claim. Indeed, the Petitioner failed to present at the hearing a scintilla of medical evidence supporting her claim that she lacked capacity. Thus, there was no evidence presented at the hearing showing that Ms. Weaver's mind was weak because of medication or that Mr. Kolodinsky knew she was on medication or even "under extreme duress" and used this knowledge to wrongfully coerce Ms. Weaver to sign the Settlement Agreement. Even Ms. Weaver's own testimony demonstrated that she is not the type of person who is easily subjected to the influences of others including her various attorneys. Ms. Weaver testified that she makes the major decisions in her life. These decisions included hiring numerous attorneys and obtaining a divorce from her husband. The fact that she acknowledged that she "[came] to a decision" is contrary to her allegation that Mr. Kolodinsky used duress to force her to sign against her will. Thus, it is clear, from Ms. Weaver's letter and her conversation with Mr. Kolodinsky, that she knew she was making a "decision" and acted intelligently, understandingly, and voluntarily. At the hearing, Ms. Weaver's reason for why she signed the Settlement Agreement was that at some point prior to time she decided to settle, Mr. Kolodinsky silently "mouthed" the words: "You will take it, or I will leave you." The reason given at the hearing was different than the reason given for repudiating the Settlement Agreement contained in Ms. Weaver's earlier letter. According to Mr. Kolodinsky, Ms. Weaver had a past reputation for authorizing settlement offers one day and repudiating the offers the next day. Mr. Kolodinsky's explanation for Ms. Weaver's action of signing the Settlement Agreement on December 18, 1991, and repudiating the agreement shortly thereafter is supported by the evidence and is the most believable reason for her actions. Such a motivation of regret or remorse by Ms. Weaver, however, is not a motivation caused by undue influence. Nor is it a reason for setting aside a settlement agreement. Furthermore, evidence that Ms. Weaver did not protest when signing the Settlement Agreement strongly supports the position that Ms. Weaver signed the agreement of her own volition and free will. It is clear that at the time Ms. Weaver signed the Settlement Agreement that she made no indication, verbal or non-verbal, that she was forced, coerced, "browbeaten" or under undue influence by Mr. Kolodinsky or anyone else. All the witnesses that attended the mediation testified that Ms. Weaver signed the Settlement Agreement without protest. Most persuasive was the testimony of the mediator, Mr. Jonathan Kroner, who testified that Ms. Weaver verbally agreed to Southern Bell's offer: Q [Mr. Keener] Did Ms. Weaver agree to that offer or demand? A [Mr. Kroner] Yes, she did. Q Did she do that verbally or nonverbally? A Verbally. Q What did she say? A We discussed it for a while, and we were back and forth and back and forth. We discussed it and she said yes. I don't recall her very exact words to say what it was, but it was a clear ascent. I do a lot of mediations where, either because of a language difficulty or capacity problem or something, it's important to be clear. I don't like mistakes happening. The mediator also testified that he saw Ms. Weaver execute the Settlement Agreement and that he had no reason to believe that she was coerced to sign the agreement: Q [Mr. Keener] Did you see her execute the agreement? A [Mr. Kroner] I am just trying to picture what she was wearing and everything that day. Yes, I did because I remember where we were sitting at the table and everything. Q Was she physically forced to sign the agreement? A No, absolutely not. Q Was she coerced to sign the agreement? A Absolutely not. Ms. Weaver's daughter had tried to get her to leave the mediation before signing the agreement. However, Ms. Weaver stayed and signed. Thus, the evidence presented at the hearing shows that Ms. Weaver signed the Settlement Agreement of her own volition and that Mr. Kolodinsky did not apply any undue influence thereby destroying Ms. Weaver's free agency. Rather, it simply appears that the day after signing the Settlement Agreement, Ms. Weaver regretted her decision to settle and came up with different reasons at different times in an attempt to blame Mr. Kolodinsky for allegedly causing her to sign the agreement. Likewise, the evidence presented during the hearing demonstrates that the free agency of Ms. Weaver was not destroyed on the day of the mediation and that the Settlement Agreement was executed of the Petitioner's own volition. Moreover, as noted above, at the hearing Ms. Weaver's story changed when she claimed that the reason she signed the Settlement Agreement was because Mr. Kolodinsky silently told her "You will take it." Such a statement is not sufficient to demonstrate that Ms. Weaver's free agency was destroyed and that she did not sign the Settlement Agreement on her "own volition." Regardless of whether Mr. Kolodinsky made such a statement, Ms. Weaver, in her own letter, admitted that she "[came] to a decision". She did not state in the letter that Mr. Kolodinsky forced or coerced her to enter into the Settlement Agreement. Moreover, even if the statement was made, testimony regarding Ms. Weaver's behavior and lack of protest during the time she was signing the Settlement Agreement provides firm evidence that she was not being forced or coerced into signing the Settlement Agreement. Finally, Ms. Weaver does not dispute that she signed page one of the Settlement Agreement and that all the terms and conditions were included on page one when she signed it. Page one of the Settlement Agreement provides: Defendant agrees to pay to Plaintiff as full and complete settlement of all matters arising in this cause of action the sum of $35,000 and see attached. Plaintiff agrees to execute any Release form generally required to be executed in settlements of disputes of this nature. The case number on page one of the settlement agreement is the Division of Administrative Hearings case number for this matter. Thus, it is clear that all the terms on page one were on the page when Ms. Weaver signed it. With regard to page two of the Settlement Agreement, Ms. Weaver alleges that it was not reduced to writing when she signed it. Contrary to Ms. Weaver's testimony, Southern Bell's EEO manager, Mr. Brown, testified that he signed the Settlement Agreement immediately after Ms. Weaver and that when he signed the Settlement Agreement all the terms and conditions set forth on the page two, as shown in Respondent's Exhibit No. 1, were contained in the document. Mr. Kolodinsky also testified that all the parties signed page two of the Settlement Agreement after the three paragraphs were added. Ms. Weaver's daughter confirmed Mr. Kolodinsky's testimony when she testified that Mr. Kolodinsky was "writing stuff down" on a yellow pad before her mother signed the document. The testimony of Mr. Brown and Mr. Kolodinsky that all three paragraphs on page two of the Settlement Agreement were reduced to writing when Ms. Weaver signed the Agreement and the conflicting statements provided by Ms. Weaver during her deposition and the hearing, prove that when Ms. Weaver signed page two of the Settlement Agreement all the terms and conditions were reduced to writing. Along the same line, during the hearing there was considerable testimony regarding whether the Settlement Agreement was read to Ms. Weaver or whether Ms. Weaver read the Settlement Agreement. In either event, Ms. Weaver had the opportunity to read the agreement or have it explained to her and just as with any other agreement or contract the contract is binding if it is signed. 11 Fla. Jur. Section 14, Merrill Lynch v. Benton, 467 So. 311, 313 (Fla. 5th DCA 1985) (contract held enforceable where customer claimed that although she signed the contract she could not read it because she did not know English) Therefore, Ms. Weaver signed the contract and should be bound by the terms and conditions regardless of whether she read or did not read the contract or whether or not the contract was read to her. Moreover, the evidence was clear that Ms. Weaver understood the terms of the settlement agreement and even suggested a clause which was incorporated in the agreement. In summary, regardless of whether the terms and conditions on page two of the Settlement Agreement were read to Ms. Weaver, whether she read them herself, or whether she just signed the document without reading the conditions, the terms and conditions of the Settlement Agreement are binding. 11 Fla. Jur. Section 14; Merrill, Lynch v. Benton, 467 So. 311, 313 (Fla. 5th DCA 1985).
Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact At all times pertinent to the allegations contained herein, the Florida Real Estate Commission was the state agency responsible for the licensing and regulation of real estate professionals in this state. Respondent was licensed by the Commission as a real estate broker under licenses Numbers 0117117 and 0257450-1. His licenses were effective at all times under consideration herein. On December 19, 1988, Richard and Charleen Mercier, owners of the Sherwood Lounge in Delray Beach, Florida, entered into a 6 month exclusive right to sell agreement with Richard Scott Realty for the sale of their property. At that time, Respondent was listed as the broker of record for Richard Scott Realty. The licensed sales person obtaining the listing was Walter P. Van Oostrum. The agreement called for the payment of a 10% commission upon sale. Thereafter, on April 4, 1989, the Merciers entered into another listing agreement with WMB Management, a different realty company with whom Respondent had become affiliated after his resignation from Richard Scott Realty on March 17, 1989. On April 18, 1989, Steven Yoo signed a contract to purchase the Sherwood Lounge for $60,000.00 Thereafter, the sale was closed and the closing statement reflects a brokerage commission of $7,500 to be paid from the proceeds of the sale. On May 2, 1989, Mrs. Mercier paid Respondent the additional sum of $2,500.00, by check number 219, drawn on the Carney Bank in Delray Beach, Florida. This check represented the balance due of the commission earned on the sale though there was no explanation as to how a commission of $10,000.00 could be earned on a $60,000.00 sale when the contract called for a commission of 10%. The check was cashed. Sometime thereafter, Respondent paid the sum of $500.00 to Mr. Van Oostrum in partial payment of his share of the commission on the sale of the Sherwood Lounge. According to their agreement, Mr. Van Oostrum was to receive 30% of the commission received by the brokerage on the sale. When Mr. Van Oostrum asked Respondent for the remaining $2,500.00 he was due, it was not paid. Thereafter, Mr. Van Oostrum filed suit in County Court in Broward County for the $2,500.00 due him. Respondent failed to appear or file a response and on December 29, 1989, the Court entered a Default and Final Judgement against Respondent in favor of Mr. Van Oostrum in the amount of $2,500.00 plus $80.00 costs. Though Mr. Van Oostrum thereafter made demand upon the Respondent for payment the judgement has not been satisfied. Respondent offered, in compromise and satisfaction, a payment of $100.00 plus a promise to pay an additional $100.00 "when he got it." This offer was not accepted by Mr. Van Oostrum. The balance due has not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered revoking all real estate licenses, as broker or salesman, held by the Respondent, Dominic Scacci. RECOMMENDED in Tallahassee, Florida this 24 day of August, 1992. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992. James H. Gillis, Esquire DPR - Division of Real Estate Suite N - 308, Hurston Building 400 W. Robinson Street Orlando, Florida 32801-1772 Dominic Scacci 1880 N. Congress Avenue, #405 West Palm Beach, Florida 33401 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 1, 1994, Petitioner purchased from Triangle Auto Center Inc., d/b/a Toyota of Hollywood (hereinafter referred to as the "Dealer"), a Broward County, Florida automobile dealer, a used 1994 Chevrolet Cavalier, which had been driven 7,726 miles. Petitioner had been told by the Dealer, before the purchase, that the vehicle had been used by its previous owner "to drive documents to the airport." At the time Petitioner purchased the vehicle, it was still under factory warranty. Thereafter, various problems developed with the vehicle, the worst and most persistent of which involved the vehicle's tires and brakes. These problems have yet to be completely remedied. Petitioner reported the problems she was experiencing with her vehicle to the Dealer. The Dealer told Petitioner that it was unable to help her. At the Dealer's suggestion, Petitioner telephoned and wrote letters of complaint to the manufacturer of the vehicle. The manufacturer advised Petitioner to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), an arbitration program in which the manufacturer participates. Petitioner followed the advice she was given and filed a complaint/arbitration request with the BBB program. On September 29, 1995, the BBB program sent Petitioner a letter notifying her that the arbitrator who had heard her case had determined that she was not entitled to any relief from the manufacturer. The letter further advised Petitioner of the following: The enclosed decision is not binding on the consumer. The consumer may reject this decision and, if eligible, may pursue arbitration with the Florida New Vehicle Arbitration Board administered by the Office of the Attorney General. To obtain information about eligibility for the state run program, the consumer should contact the Division of Consumer Services' Lemon Law hotline at 1-800-321-5366. Please be advised that Section 681.109(4), F.S., provides that the consumer must file the request for arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified dispute-settlement procedure, whichever occurs later. Petitioner rejected the arbitrator's decision. On October 23, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 9, 1995, the Department advised Petitioner that "a determination ha[d] been made in accordance with Section 681.109 Florida Statutes to reject [her request because her] vehicle was not purchased new in Florida."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1996. STUART M. LERNER, 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 3rd day of April, 1996.
The Issue The issue for determination is whether Proposed Rule 69O-204.101 is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, Office of Insurance Regulation (hereinafter referred to as "OIR"), is an agency of the State of Florida, created within the Financial Services Commission (hereinafter referred to as "Commission"). § 20.121(3)(a)1., Fla. Stat. (2007).2 Pursuant to Subsection 21.121(3)(a), the OIR is responsible for all activities concerning insurers and other risk-bearing entities, including licensing, rates, policy forms, market conduct, claims, issuance of certificates of authority, solvency, viatical settlements, premium financing, and administrative supervision, as provided under the Florida Insurance Code or Chapter 636. The Florida Insurance Code includes Chapters 624 through 632. The Commissioner of Insurance Regulation is the agency head of the OIR. However, the Commission is the agency head for purposes of rulemaking. § 20.121(3)(c). The matter at issue in this proceeding is Respondent's Proposed Rule 69O-204.101 entitled, "Disclosures to Viator of Disbursement" (the "Proposed Rule"). The Commission advertised the text of the Proposed Rule on November 30, 2007, in Volume 33, Number 48, of the Florida Administrative Weekly, and, subsequently, filed a Notice of Change to the Proposed Rule on February 15, 2008, and, again, on February 22, 2008. A final public hearing regarding the Proposed Rule was conducted by the Commission on March 25, 2008, at which time the Commission approved the Proposed Rule for final adoption. According to the published notice, the purpose and effect of Proposed Rule 69O-204.101 is "to establish disclosures to viators of reconciliation of funds." The text of the Proposed Rule, as noticed for final adoption, reads as follows: 69O-204.101 Disclosures to Viator of Disbursement. Prior to or concurrently with a viator's execution of a viatical settlement contract, the viatical settlement provider shall provide to the viator, in duplicate, a disclosure statement in legible written form disclosing: The name of each viatical settlement broker who receives or is to receive compensation and the amount of each broker's compensation related to that transaction. For the purpose of this rule, compensation includes anything of value paid or given by or at the direction of a viatical settlement provider or person acquiring an interest in one or more life insurance policies to a viatical settlement broker in connection with the viatical settlement contract; and A complete reconciliation of the gross offer or bid by the viatical settlement provider to the net amount of proceeds or value to be received by the viator related to that transaction. For the purpose of this rule, gross offer or bid shall mean the total amount or value offered by the viatical settlement provider for the purchase of an interest in one or more life insurance policies, inclusive of commissions, compensation, or other proceeds or value being deducted from the gross offer or bid. The disclosure statement shall be signed and dated by the viator prior to or concurrently with the viator's execution of a viatical settlement contract with the duplicate copy of the disclosure statement to be retained by the viator. If a viatical settlement contract has been entered into and the contract is subsequently amended or if there is any change in the viatical settlement provider's gross offer or bid amount or change in the net amount of proceeds or value to be received by the viator or change in the information provided in the disclosure statement to the viator the viatical settlement provider shall provide, in duplicate, an amended disclosure statement to the viator, containing the information in paragraphs (1)(a) and (b). The amended disclosure statement shall be signed and dated by the viator with the duplicate copy of the amended disclosure statement to be retained by the viator. The viatical settlement provider shall obtain the signed and dated amended disclosure statement. Prior to a viatical settlement provider's execution of a viatical settlement contract, the viatical settlement provider must have obtained the signed and dated disclosure statement and any amended disclosure statement required by this rule. In transactions where no broker is used the viatical settlement provider must have obtained the signed and dated disclosure statement from the viator. The documentation required in this rule shall be maintained by the viatical settlement provider pursuant to the provisions set forth in Subsection 626.9922(2), Florida Statutes, and shall be available to the office at any time for copying and inspection upon reasonable notice to the viatical settlement provider. The Proposed Rule cites Subsection 624.308(1) and Section 626.9925 as specific authority for the Proposed Rule. The Proposed Rule cites Sections 626.9923, 626.9924, and 626.9925 as the law implemented by the Proposed Rule. The Proposed Rule involves regulation of viatical settlement providers pursuant to Florida's Viatical Settlement Act, Part X, Chapter 626 (hereinafter referred to as the "Act"). The Act regulates both viatical settlements and life settlements. The Act does not define "viatical settlement" or "life settlement." However, both types of transactions involve the sale of the ownership interest in life insurance policies. A "viatical settlement" involves the sale of an ownership interest in a life insurance policy by a person who is expected to live for less than two years. A "life settlement" involves the sale of the ownership interest in a life insurance policy by a person who is expected to live longer than two years after the date of the sale. Viatical settlements and life settlements are regulated in essentially the same manner and each of the foregoing transactions are included in the definition of "viatical settlement contract" as defined in the Act. Therefore, references to "viatical settlements" under Florida law refer to both life settlements and viatical settlements. Subsection 626.9911(10) defines "viatical settlement contract" as follows: (10) "Viatical settlement contract" means a written agreement entered into between a viatical settlement provider, or its related provider trust, and a viator. The viatical settlement contract includes an agreement to transfer ownership or change the beneficiary designation of a life insurance policy at a later date, regardless of the date that compensation is paid to the viator. The agreement must establish the terms under which the viatical settlement provider will pay compensation or anything of value, which compensation or value is less than the expected death benefit of the insurance policy or certificate, in return for the viator's assignment, transfer, sale, devise, or bequest of the death benefit or ownership of all or a portion of the insurance policy or certificate of insurance to the viatical settlement provider. A viatical settlement contract also includes a contract for a loan or other financial transaction secured primarily by an individual or group life insurance policy, other than a loan by a life insurance company pursuant to the terms of the life insurance contract, or a loan secured by the cash value of a policy. In a viatical settlement transaction, the "viatical settlement provider" is the purchaser of the ownership interest in a life insurance policy, including the right to receive the policy proceeds upon the death of the insured. Also see § 626.9911(12).3 The "viator" is the owner of an insurance policy who sells the ownership interest in the policy. Also see § 626.9911(14).4 The term "viatical settlement broker" is defined in Subsection 626.9911(9), as follows: (9) "Viatical settlement broker" means a person who, on behalf of a viator and for a fee, commission, or other valuable consideration, offers or attempts to negotiate viatical settlement contracts between a viator resident in this state and one or more viatical settlement providers. Notwithstanding the manner in which the viatical settlement broker is compensated, a viatical settlement broker is deemed to represent only the viator and owes a fiduciary duty to the viator to act according to the viator's instructions and in the best interest of the viator. The term does not include an attorney, licensed Certified Public Accountant, or investment adviser lawfully registered under chapter 517, who is retained to represent the viator and whose compensation is paid directly by or at the direction and on behalf of the viator. Pursuant to Subsection 626.9911(9), the "viatical settlement broker" is an agent of the viator and, as such, owes a fiduciary duty to the viator to obtain the best price for the insurance policy. Thus, typically, the viatical settlement broker solicits bids from multiple viatical settlement providers on behalf of the viator. The Proposed Rule requires viatical settlement providers to furnish viators with a detailed accounting of all funds involved in viatical settlement transactions and to ensure that viators are aware of the accounting. The issues of disclosures required for viatical settlement contracts and transactions are addressed in two provisions of the Act, Sections 626.99181 and 626.9923. Section 626.99181, Florida Statutes, requires a viatical settlement broker to disclose its compensation and states, "[a] viatical settlement broker shall disclose to a prospective viator the amount and method of calculating the broker's compensation." That provision states the "compensation" includes "anything of value paid or given to a viatical settlement broker for the placement of a policy." Section 626.9923 addresses viatical settlement contracts and required disclosures to viators and states that: Viatical settlement contracts; required disclosures.--The viatical settlement broker, or the viatical settlement provider in transactions in which no broker is used, must inform the viator by the date of application for a viatical settlement contract: That there are possible alternatives to viatical settlement contracts for persons who have a catastrophic or life-threatening illness, including, but not limited to, accelerated benefits offered by the issuer of a life insurance policy. That proceeds of the viatical settlement could be taxable, and assistance should be sought from a personal tax advisor. That viatical settlement proceeds could be subject to the claims of creditors. That receipt of viatical settlement proceeds could adversely affect the recipient's eligibility for Medicaid or other government benefits or entitlements, and advice should be obtained from the appropriate agencies. That all viatical settlement contracts entered into in this state must contain an unconditional rescission provision which allows the viator to rescind the contract within 15 days after the viator receives the viatical settlement proceeds, conditioned on the return of such proceeds. The name, business address, and telephone number of the independent third- party escrow agent, and the fact that the viator may inspect or receive copies of the relevant escrow or trust agreements or documents. Petitioner is an established trade association in the life settlement industry and is comprised of over 175 member companies, some of which include Florida-licensed viatical settlement providers who would be subject to the Proposed Rule. Petitioner's members would be substantially affected by the Proposed Rule because it would require them to make disclosures to viators in addition to the disclosures required by the Act.
The Issue Whether Neuma, Inc. (Petitioner), should be granted licensure as a "viatical settlement provider" as defined by Section 626.9911(6), Florida Statutes.
Findings Of Fact Petitioner applied to Respondent for licensure as a viatical settlement provider on or about August 20, 2001. After denial of the first application, Petitioner submitted a second application on February 4, 2002, for licensure as a viatical settlement provider. On March 28, 2002, Respondent denied that application. At all times relevant to these proceedings, David Irwin Binter was the sole owner and President of Petitioner. Further, Binter was also the sole owner and President of AMG, Inc. (AMG), incorporated by Binter in the State of Delaware in December of 1996. In other states the direct affiliation of the two corporations has led to the acquisition by Petitioner of viatical settlements directly from insured individuals for Petitioner's own account with money raised by AMG from investors. Consequently, purchase of a viatical settlement from Petitioner by AMG cannot be considered an "arms length transaction" in view of the close relationship and common ownership of the two corporations. Petitioner not only has previously purchased interests in certain viators life insurance policies using investor monies solicited by AMG, but if licensed in Florida, Petitioner would raise investor money through AMG. Petitioner's representations in its "Viatical Settlement Disclosure Document," given to each AMG investor, and Petitioner's Florida application correspondence stating that if granted a Florida viatical settlement provider license, Petitioner intended to use AMG to solicit investors monies, also corroborate the finding that Petitioner would raise investor money through AMG, if licensed in Florida. In his initial application on behalf of Petitioner for licensure as a viatical settlement provider, Binter did not reveal his involvement with AMG. In response to Question 8 of the Biographical Statement and Affidavit portion of the application, requesting the listing of all current business activity, Binter responded with the notation "N/A." Binter did this although he was the owner of AMG, the entity otherwise represented in Petitioner's application correspondence as the affiliate through which Petitioner intends to sell to investors interests in life insurance policies purchased by Petitioner. Binter's answer to Question 8 of the Biographical Statement and Affidavit portion of the first application was false. Binter's answer to Question 20(b)9 of the Biographical Statement and Affidavit required that he reveal any entity with which he was associated, or had been associated within the previous 12 months, that had been enjoined temporarily or permanently by any judicial, administrative, regulatory or disciplinary action from violating any federal or state law regulating the business of insurance, securities, or banking. Binter answered "No" to the question despite the existence of such actions against AMG by the states of Kansas, Illinois, and Alabama within the stated time frame. Petitioner's website, open to the general public, made material misrepresentations relative to the existence of a contingency insurance program between AMG and Lloyd’s of London, stating that the program was in existence and would insure investors against the contingency of viators living past the death dates projected by physicians designated by Lloyds to render those projections. Those representations are untrue because Lloyds actually provided no such coverage at the time the website was open to the public, and has not actually provided any to this date. Petitioner's website contained terminology that was specifically prohibited by Florida law. An examination of the website shows that it uses the words, "A no-risk investment," and "insured safe shelter," both of which are prohibited by Section 626.99277(6), Florida Statutes, which specifically bans the use of the words "no-risk" and "safe" relative to investments in viatical settlement purchase agreements. Petitioner’s Admission 11 confirms the usage of those terms. Petitioner, at the time of its first application, had no viatical settlement provider application on file with the State of Connecticut, although Petitioner's application represented that it did. Petitioner's employee at the time, Denise Randall, testified that while she thought that she had filed such an application with Connecticut on behalf of Petitioner, she may have inadvertently mailed the Connecticut application to Mississippi and that when informed by Respondent's personnel that no Petitioner application was on file with Connecticut, she did not bother to check with Connecticut but merely sent Respondent's office a copy of the application she thought she had mailed to Connecticut and continued to represent that the same was on file with Connecticut. Petitioner/AMG made demands on their investors for monies in addition to the stated purchase price of their viatical interests in violation of express representations in the contracts between Petitioner/AMG and those investors that additional premiums, due to an underestimation of life span, would be paid out of the share of Petitioner/AMG. An examination of the contracts at issue fails to reveal any provision authorizing demands on investors. Despite Respondent's repeated requests for the same, Petitioner never produced a trust or escrow agreement between Petitioner and its purported trustee, Larry Silver. The presence and use of an independent third party trustee or escrow agent is expressly required for the completion of any viatical settlement transaction in the State of Florida. Section 626.9924(3), Florida Statutes. All that was done in response to Respondent's repeated requests was to re-submit the same unsigned, three-party contract form. No document establishing the actual existence of an independent third-party trustee or escrow agent required by Florida law for any viatical settlement transaction was ever produced by Petitioner. Randall exclusively prepared the first application submitted on Petitioner's behalf. Binter signed the application without reading any of it, even though his signature verified under oath and penalty of perjury that the had carefully examined each question in the biographical statement and affidavit and answered each truthfully. Randall’s prior employment was in office administration in banks and mortgage companies. She had never worked in the viatical industry before, had never worked for Binter before, and had no independent knowledge of his business affairs. Her primary job function with Petitioner was completing and filing viatical settlement provider applications with state regulators. Binter provided no advice, assistance, or guidance. All that Randall had for guidance was a 1996 biographical statement that she found among other office files. Binter did not provide her with any information updating that statement and he specifically did not tell her about the securities actions in Alabama, Kansas, and Illinois. Binter did not have the first application reviewed by his attorney, who had actual knowledge of the securities actions. The attorney, however, did review the second application submitted after the securities actions omissions were discovered and the first application withdrawn. Binter had actual knowledge of all three securities actions at the time of the first application. He did not share that knowledge with Randall nor did he seek his attorney's review of the application.
Recommendation In view of the foregoing, it is RECOMMENDED that a final order be entered by the Florida Department of Insurance denying Petitioner's application for licensure as a viatical settlement provider. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 13th day of November, 2002. COPIES FURNISHED: Michael H. Davidson, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Jeffrey L. Frehn, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. 106 East College Avenue, Suite 1200 Post Office Box 1877 Tallahassee, Florida 32302-1877 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether Respondents improperly charged a real estate client a fee for document preparation and storage and, if so, what penalty should be imposed.
Findings Of Fact Respondent CMT Holding, Ltd., trading as the Prudential Florida Realty (CMT), is a limited partnership registered as a real estate broker, holding license number 0266433. Respondent CMT Holdings, Ltd., is registered as a real estate broker, holding license number 0266412. Respondent Patricia A. Brotherton (Brotherton) is registered as a real estate broker, holding license number 0601688. At all material times, Brotherton was the Naples branch manager for CMT. At all material times, Judith Price was a real estate salesperson employed by CMT. On October 3, John Iraci, as buyer, and Donald J. and Beryl B. Cullette, as sellers, entered into a contract for the sale of a condominium for $210,000. The contract acknowledges that CMT is the selling broker and an unrelated broker is the listing broker. CMT also executed the contract as the escrow agent holding the $1000 deposit. The Cullettes signed the contract on October 3 and counteroffered $210,000, rejecting Iraci's offer of $200,000. Iraci accepted the counteroffer. Price and CMT entered into an agency agreement with Iraci the previous month. The Agency Disclosure form that they signed promised that Price and CMT would make full disclosure to Iraci. On October 2, Price presented Iraci with a Real Property Disclosure Statement. She reviewed with him the expenses to be paid by buyer, including an item identified as "Processing and document preparation fee." Although the form does not disclose actual expenses, except for the rate at which statutorily imposed charges are imposed, Price explained to Iraci that the processing and document preparation fee was $110 paid to CMT. Iraci expressed no objection to the charges, and Price prepared the October 3 sales contract. On January 3, 1996, Respondent sent the closing agent, attorney Louis X. Amato, a document entitled, "Fund Disbursement Instructions." The document instructed Amato to divide the $12,600 real estate commission equally between the two brokers and pay CMT an additional $110 for a processing and document preparation fee, which will be a buyer's expense on the closing statement. Amato refused to add the $110 fee to the closing statement or charge Iraci for this expense. On January 8, 1996, Amato sent a letter to Petitioner complaining of this practice. On the next day, the sale closed without payment of the $110 fee to CMT. At the closing, Iraci executed a first mortgage note and lien. Iraci visited Price on the day of the closing to discuss Amato's refusal to collect this fee. Price said that she would pay the fee, if Iraci did not. Iraci returned to Price's office on January 15 and paid the fee. Four months later, Price and CMT sold Iraci's former condominium. Iraci paid the $110 fee on this transaction. No litigation or complaint ensued. The purpose of the $110 fee is to compensate CMT for the costs of preparing and storing documents. There is no evidence that the fee is disproportionate to the preparation and storage expenses. On occasions where the $110 fee has been inadvertently omitted from the closing statement, Price has paid it herself. Petitioner filed the Administrative Complaint more than one year after the closing and payment of the fee by Iraci.
Recommendation It is RECOMMENDED: That the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondents and denying their request for attorney's fees. DONE AND ORDERED this 6th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1997. James H. Gillis, Esquire Gillis and Wilsen Suite B 1415 East Robinson Street Orlando, Florida 32801 Jeffrey D. Fridkin, Attorney Thomas G. Norsworthy, Attorney Grant Fridkin & Pearson, P.A. Pelican Bay Corporate Centre 5551 Ridgewood Drive, Suite 501 Naples, Florida 34108 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
