The Issue Whether the Respondents committed the violations alleged in the Administrative Complaint dated February 19, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the government licensing and regulatory agency with the responsibility and duty to investigate and prosecute persons holding licenses and registrations as real estate brokers and real estate broker corporations. See § 475.021, Fla. Stat. The Florida Real Estate Commission has the authority to impose discipline on persons licensed pursuant to Chapter 475, Part I, Florida Statutes. See § 475.25, Fla. Stat. Mr. Kauderer is, and was at all times material to this proceeding, a licensed Florida real estate broker, having been issued license number 592835 in accordance with Chapter 475, Part I. The last license issued to Mr. Kauderer was as an active broker at New Riviera Realty, Inc., 500-15th Street #1, Miami Beach, Florida 33139. New Riviera Realty is, and was at all times material to this proceeding, a corporation registered as a Florida real estate broker, having been issued registration number 1011414 in accordance with Chapter 475. The last registration issued was at the address of 500-15th Street #1, Miami Beach, Florida 33139. From April 1 through December 12, 1999, Mr. Kauderer's real estate broker's license was involuntarily inactive due to non-renewal; from December 13, 1999, through July 9, 2000, upon the late renewal of his broker's license, Mr. Kauderer was an inactive broker. Since July 10, 2000, Mr. Kauderer's real estate broker's license has been active, and he has been designated as qualifying broker and officer of New Riviera Realty. From January 1, 1999, through March 31, 1999, New Riviera Realty was an active real estate broker corporation; from April 1, 1999, through April 1, 2000, New Riviera Realty's registration was involuntarily inactive due to non-renewal; on April 2, 2000, New Riviera Realty's registration was cancelled due to continued non-renewal and no qualified broker. New Riviera Realty has been an active real estate broker corporation since July 10, 2000, with Mr. Kauderer acting as the active corporate broker/officer. Mr. Kauderer's primary business is property development, and he owns and operates a number of businesses in addition to New Riviera Realty. Mr. Kauderer, as the qualifying broker, opened a corporate escrow account in the name of New Riviera Realty on or about February 1, 2000, with a deposit of $200.00. On April 30, 2001, John Esposito, an investigator for the Division, arrived unannounced at the offices of New Riviera Realty to investigate a complaint that is not the subject of this proceeding. Mr. Esposito also intended to conduct an audit of New Riviera Realty's escrow account at the April 30, 2001. After questioning Mr. Kauderer about matters unrelated to this proceeding, Mr. Esposito told Mr. Kauderer that he needed to look at all of the New Riviera Realty files in which money was being held for disbursement to third parties, including the contracts for the sale and purchase of property. Mr. Esposito also asked for bank statements, checks, deposit slips, and reconciliation statements for New Riviera Realty's escrow account for the previous six months. Mr. Kauderer did not provide Mr. Esposito with any documents, files, or records on April 30, 2001. Rather, Mr. Kauderer advised Mr. Esposito that all of New Riviera Realty's records were kept by Mr. Kauderer's accountant and that he would need to obtain the records for Mr. Esposito's review at a later time. During Mr. Esposito's April 30, 2001, visit to Mr. Kauderer's office, Mr. Kauderer told Mr. Esposito that he had closed the New Riviera Realty escrow account on April 17, 2001, because New Riviera Realty's real estate broker corporation registration was inactive, and he advised Mr. Esposito that he did not intend to re-open the escrow account. Mr. Kauderer also told Mr. Esposito on April 30, 2001, that he had not prepared reconciliation statements for the New Riviera Realty account.4 Mr. Esposito told Mr. Kauderer that Mr. Kauderer should obtain the records from his accountant and that he, Mr. Esposito, would return within 30 days "to address all issues." Mr. Esposito then questioned Mr. Kauderer about his other businesses. At some point after the April 30, 2001, visit, Mr. Kauderer asked for an extension of time to gather the relevant documents, and Mr. Esposito granted the request. Mr. Esposito and Mr. Kauderer spoke several times on the telephone subsequent to April 30, 2001, and Mr. Esposito reiterated during this time that he wanted Mr. Kauderer to produce all files in which New Riviera Realty, as a real estate broker corporation, was holding money in escrow for distribution to third parties; bank statements for the escrow account; deposit slips; and reconciliation statements. Mr. Esposito originally requested these materials for the six months prior to April 30, 2001, but he later told Mr. Kauderer to provide these documents for the 12 months prior to April 30, 2001. Mr. Kauderer obtained the documents that were in the possession of his accountant, and he sent documents to Mr. Esposito by facsimile transmittal on both August 10 and 13, 2001; Mr. Kauderer included in these documents bank statements for the escrow account for year 2000 and for the period extending from December 31, 2000, through April 17, 2001, as well as a debit memo dated April 17, 2001, showing the closing transaction on the New Riviera Realty escrow account. The transaction reflected on the debit memo was the deduction of $35.61 from the account, which was the balance of the account at the time it was closed. At or about the time he sent the documents to Mr. Esposito by facsimile transmittal, Mr. Kauderer notified Mr. Esposito that he had prepared an envelope for Mr. Esposito that Mr. Esposito could pick up at Mr. Kauderer's office. The envelope contained documents that Mr. Esposito had requested for the audit, including reconciled copies of the bank statements Mr. Kauderer had provided Mr. Esposito by facsimile transmittal. Mr. Kauderer left the envelope with a member of his office staff, with instructions to give the envelope to Mr. Esposito whenever he came by the office. Mr. Esposito showed up at Mr. Kauderer's office without an appointment at around 9:00 a.m. on September 11, 2001. When he arrived, Mr. Esposito learned for the first time of the attacks on the World Trade Center and the Pentagon. Mr. Kauderer had an appointment at 10:00 a.m. outside the office. Before leaving for his appointment, Mr. Kauderer spoke with Mr. Esposito and told Mr. Esposito that one of his staff had an envelope with the materials that Mr. Esposito had requested for the New Riviera Realty audit. Mr. Esposito spent approximately two hours at Mr. Kauderer's office on September 11, 2001. He recalls that, during the time he spent at Mr. Kauderer's office on September 11, 2001, he reviewed two real estate contracts and two cancelled $10,000.00 checks that Mr. Kauderer made available to him that day. One contract was a Contract for Sale and Purchase dated February 7, 2000, that represents an offer by Regents Park Property, Inc., to purchase real property from Carmen Contero for $200,000.00. Mr. Kauderer is the owner of Regents Park Property, Inc., and he prepared and signed the contract in his capacity as the president of the corporate buyer. The contract specifies an initial deposit of $20,000.00, which Mr. Kauderer included because he thought such a deposit would assure Ms. Contero that the offer was a bona fide offer to purchase the property. In addition to signing the contract as the President of Regents Park Property, Inc., Mr. Kauderer signed the contract as the "escrow agent" and included the name of New Riviera Realty under his signature. By signing as the "escrow agent," Mr. Kauderer affirmed that, on February 7, 2000, he received a deposit on the contract of $20,000.00, which was to be deposited in New Riviera Realty's escrow account. The bank account of Regents Park Property, Inc., was maintained at the Ocean Park Bank in Miami Beach, Florida. New Riviera Realty's escrow account was maintained at the same bank. On or about February 7, 2000, Mr. Kauderer caused $20,000.00 to be transferred from the account of Regents Park Property, Inc., to the escrow account of New Riviera Realty. Paragraphs 34 and 35 of the Contract for Sale and Purchase, which are headed "Brokerage Fee" and "Brokers," respectively, were crossed out. Neither Mr. Kauderer nor New Riviera Realty was to get a commission for the sale of the property to Regents Park Property, Inc. On the part of the form entitled Transaction Broker Notice, Mr. Kauderer disclosed on the Transaction Broker Notice attached to the contract that "The President of Regents Park Property, Inc., is a licensed real estate broker." The property that is the subject of the contract was the house that Mr. Kauderer was renting and in which he resided at the time. Mr. Kauderer prepared the contract because he had been told by Ms. Contero's daughter that Ms. Contero might want to sell the house and move in with her daughter. Mr. Kauderer spoke informally with Ms. Contero before he presented the contract to her, and she told him that her daughter was incorrect, that she did not want to sell the house. As a result, Mr. Kauderer did not present the contract to Ms. Contero. Because Mr. Kauderer did not present the contract to Ms. Contero, he returned the $20,000.00 deposit to Regents Park Property, Inc. Mr. Kauderer wrote two $10,000.00 checks, one dated March 18, 2000, and one dated March 23, 2000, drawn on the New Riviera Realty escrow account. The second contract that Mr. Esposito reviewed on September 11, 2001, was a Contract for Purchase and Sale dated February 28, 2000, that reflects an offer by Robert Gonzalez- Sanchez to purchase a condominium unit from 1606 Jefferson Associates, Inc., identified in the contract as the Seller/Developer. The contract provided for a $1,000.00 deposit to be held by the Royal Title & Escrow Company, Inc. The contract was signed by Mr. Gonzalez-Sanchez as Buyer and by Mr. Kauderer as the President of 1606 Jefferson Associates, Inc. A form Disclosure Notice to Purchaser Concerning Closing Costs and Employment of Sales Representative was attached to the contract, which was signed by Mr. Kauderer, as President of 1606 Jefferson Associates, Inc., and by Mr. Gonzalez-Sanchez and was dated March 3, 2000. Two other addenda were attached to the Purchase and Sale Agreement, both were signed by Mr. Gonzalez-Sanchez and by Mr. Kauderer, as President of 1606 Jefferson Associates, Inc., and were dated March 3, 2000. New Riviera Realty was not mentioned in the contract and had nothing to do with the transaction. Mr. Kauderer closed New Riviera Realty's escrow account on April 17, 2001, because the $200.00 with which he had opened the account had been exhausted by fees. The only activity that took place in the New Riviera Realty escrow account, with the exception of the assessment of monthly fees by the bank, was the transfer of $20,000.00 from the account of Regents Park Property, Inc., to the escrow account and the two checks Mr. Kauderer wrote on the account returning the $20,000.00 deposit to Regents Park Property, Inc. Summary The evidence presented by the Division is not sufficient to establish with the requisite degree of certainty that either Mr. Kauderer or New Riviera Realty operated as a broker without holding a current broker's license. The Division offered into evidence only two documents purporting to evidence real estate transactions in which Mr. Kauderer and New Riviera Realty operated as real estate brokers. One document was a partially executed form Contract for Sales and Purchase that was dated February 7, 2000; Mr. Kauderer signed the document in his capacity as president of the purported Buyer, not in his capacity as a real estate broker. This document was never presented to the Seller, and, even if it had been, it is clear on the face of the document that neither Mr. Kauderer nor New Riviera Realty was expecting a broker's fee or acting as a broker in the transaction. Mr. Kauderer was acting as the Buyer, and New Riviera Realty was acting solely as escrow agent for the $20,000.00 deposit. The document dated February 28, 2000, is a fully executed contract for the sale and purchase of a condominium apartment. Mr. Kauderer signed this document as the president of 1606 Jefferson Associates, Inc., the Seller/Developer. New Riviera Realty was not mentioned anywhere in the document, and Mr. Kauderer was not required to be licensed as a real estate broker or salesperson to act on behalf of the Seller/Developer as its president. The evidence presented by the Division is not sufficient to establish with the requisite degree of certainty that either Mr. Kauderer or New Riviera Realty obstructed or hindered Mr. Esposito in carrying out the audit of New Riviera Realty's escrow account. Although Mr. Kauderer did not have the documents Mr. Esposito required at his office on April 30, 2001, when Mr. Esposito arrived unannounced to conduct his audit, Mr. Kauderer agreed to obtain the documents from his accountant and provide them to Mr. Esposito, and Mr. Kauderer timely provided bank statements and deposit slips to Mr. Esposito for the New Riviera Realty escrow account for the years 2000 and 2001 in facsimile transmittals in August 2001. These documents were also made available for Mr. Esposito inspection on September 11, 2001, at Mr. Kauderer's office, together with two contracts and the two checks drawn on New Riviera Realty's escrow account. The evidence presented by the Division is not sufficient to establish with the requisite degree of certainty that either Mr. Kauderer or New Riviera Realty failed to preserve or make available to Mr. Esposito all of the records and documents relating to New Riviera Realty's escrow account. The activity in the escrow account was limited to the deposit and subsequent withdrawal of the $20,000.00 that Mr. Kauderer deposited in anticipation of presenting an offer to purchase Ms. Contero's property in his capacity as President of Regents Park Property, Inc. The signature card showing that the escrow account was opened on or about February 1, 2000, bank statements for 2000 and 2001, deposit slips, cancelled checks relating to the account, and the debit memo establishing that the escrow account was closed on April 17, 2001, were made available to Mr. Esposito. The evidence presented by the Division is sufficient to establish that Mr. Kauderer failed to keep monthly reconciliation statements for the New Riviera Realty escrow account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order: Dismissing Counts I, II, and IV of the Administrative Complaint against Mr. Kauderer; Dismissing Counts V, VI, VII, and VIII of the Administrative Complaint against New Riviera Realty; Imposing an administrative fine against Mr. Kauderer in the amount of $100.00; and Requiring Mr. Kauderer to complete the four-hour Instructional Program for Broker Management of Escrow Accounts within six months of the entry of the Commission's final order. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the two Respondents, one individual and one corporation, on the basis of alleged violations set forth in an eight-count1 Administrative Complaint. The Respondents are charged with violation of Section 475.25(1)(b), Florida Statutes, and with multiple violations of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with responsibilities and duties which include the prosecution of Administrative Complaints against licensees under Chapter 475, Florida Statutes. Respondent Hilda H. Bell is now, and was at all times material hereto, a licensed Florida real estate broker, having been issued license number 0349586 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker at Sharmic Realty, Inc., at the following address: 8701 Willes Road, Unit 16-308, Coral Springs, Florida 33067. Respondent Sharmic Realty, Inc., is now, and was at all times material hereto, a corporation registered as a Florida real estate broker, having been issued license number 0243150 in accordance with Chapter 475, Florida Statutes. The last license issued was at the following address: 8701 Willes Road, Unit 16- 308, Coral Springs, Florida 33067. At all times material hereto, Respondent Hilda H. Bell was licensed and operating as the qualifying broker of, and an officer of Respondent Sharmic Realty, Inc. On September 27, 1994, Petitioner's Investigator Margaret R. Hoskins audited Respondents' escrow accounts. The audit revealed that the Respondents maintained Property Management Escrow Account Number 00300066617 at Glendale Federal Bank, Fort Lauderdale, Florida. A total trust liability for the Respondents' Property Management Escrow Account could not be determined because the Respondents did not have complete and accurate records. On August 11, 1992, the Respondents deposited $20,000.00 into their Property Management Escrow Account for a person who did not have a checking account. On August 11, 1992, the Respondents issued escrow check number 0972 in the amount of $20,000.00. On August 18, 1992, the Respondents loaned Cecil Sailsman $500.00 from the Property Management Escrow Account. On January 12, 1993, the Respondents deposited $22,496.91 in personal funds into the Property Management Escrow Account. The Respondents subsequently disbursed $15,045.00 of the personal funds from the Property Management Escrow Account.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case to the following effect: Dismissing Counts III and IV of the Administrative Complaint; Concluding that the Respondents are guilty of the violations charged in Counts I, II, V, VI, VII, and VIII of the Administrative Complaint; and Imposing administrative penalties consisting of the following: An administrative fine against Respondent Hilda H. Bell in the amount of three thousand dollars ($3,000.00); A six month suspension of the real estate brokerage license of Respondent Hilda H. Bell; A one year period of probation for the Respondent Hilda H. Bell, to begin immediately following the period of suspension; A requirement that the Respondent Hilda H. Bell complete additional education in the form of a seven hour course in real estate brokerage escrow management during her period of probation; and A reprimand of Respondent Sharmic Realty, Inc. DONE AND ENTERED this 2nd day of April 1996 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April 1996.
The Issue Whether Respondent, a licensed real estate broker, committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. At all times pertinent to this proceeding, Respondent was a licensed real estate broker in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent, license number 0325134, was issued to him in care of Zorcorp Builders, Inc., 2208 Buena Vista Boulevard, Vero Beach, Florida 32960. Respondent is also a licensed general contractor. Both his real estate business and his contracting business are operated out of his residence. On August 13, 1998, Dawn Luchik, an investigator employed by Petitioner, conducted a routine inspection of Respondent's real estate offices. As part of her inspection, Ms. Luchik audited Respondent's escrow account. 1/ As of August 13, 1998, Respondent's escrow account contained the sum of $8,909.76. Ms. Luchik determined that the total trust liability was $8,140.00, which included a bank charge in the amount of $7.46. Deducting the total trust liability and the bank charge from the amount in the account revealed an overage in the escrow account in the amount of $769.76. Respondent testified that the overage represented earned commissions that he left in the escrow account in an effort to keep enough money in the account to avoid bank charges. Those earned commissions constituted Respondent's personal or brokerage business funds. Rule 61J2-14.010(2), Florida Administrative Code, provides as follows: A broker is authorized to place and maintain up to $200 of personal or brokerage business funds in the escrow account for the purpose of opening the account, keeping the account open, and/or paying for ordinary services. Respondent testified that he was unaware of Rule 61J2- 14.010(2), Florida Administrative Code, before Ms. Luchik's inspection. After he learned of that Rule, Respondent immediately withdrew the sum of $600 from his escrow account, leaving an overage of less than $200. There was a conflict in the evidence as to whether Respondent reconciled his escrow account on a regular basis. Ms. Luchik testified that she found no evidence that Respondent attempted to reconcile his escrow account on a monthly basis. Respondent testified that he used a very simple method to reconcile his escrow account each month, but he conceded that his method did not comply with the requirements imposed by Petitioner. 2/ Respondent's testimony established that he failed to properly reconcile his escrow account on a monthly basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint. It is further RECOMMENDED that an administrative fine in the amount of $250 be imposed for each Count (for a total fine of $500), and that Respondent's licensure be placed on probation for a period of six months for each violation, to run concurrently. It is further RECOMMENDED that as a condition of probation, Respondent be required to complete an appropriate continuing education course in escrow account management. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of June, 2000
Findings Of Fact In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27). The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS). As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero." Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one." The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one." The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero." The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one." Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.
Recommendation Accordingly, it is RECOMMENDED: That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department. DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227 Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Not a factual finding. Accepted. Accepted. See Preliminary Statement. Accepted. See Statement of the Issues. Accepted. Accepted. Rejected. See HO #19. Accepted Accept the first sentence. The second sentence is rejected as irrelevant. Accepted. Accepted. Accepted. Accepted. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary. Accepted. See HO #10. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute. Respondent's proposed findings of fact are addressed as follows: Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement. Accepted. See HO #19. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute. COPIES FURNISHED: Michael A. Rider, Esquire Post Office Box 608 Lake Placid, Florida 33852 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, P.E., Interim Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 =================================================================
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The City of Oakland Park and Its Roadways The City of Oakland Park is an incorporated municipality located in Broward County, Florida. It is situated in the geographic center of the County. A six-lane divided expressway, I-95, runs north/south through the middle of the City. Among the major east/west thoroughfares in the City is Oakland Park Boulevard. It is a six-lane divided roadway that is functionally classified by the Florida Department of Transportation as an urban principal arterial. The roadway is lined almost exclusively with commercial development. I-95 can be accessed at Oakland Park Boulevard. The Stroks' Property and Its Surroundings Mr. and Mrs. Strok own 20.709 acres of contiguous land in the City. The land is among the few remaining undeveloped properties in the City. The Stroks' property abuts Oakland Park Boulevard to the south. Its southernmost point is a relatively short distance to the west of the Oakland Park Boulevard/I-95 interchange. At present, Oakland Park Boulevard provides the only vehicular access to the Stroks' property. Commercial development lies immediately to the east and to the west of that portion of the Stroks' property fronting on Oakland Park Boulevard. Further north on the property's western boundary is a residential neighborhood of single family homes. Single family homes also lie to the east of the Stroks' property north of Oakland Park Boulevard, but they are separated from the property by a canal. Oakland Park Boulevard, in the vicinity of the Stroks' property (Segment 366), is heavily travelled. Currently, it is operating well over its capacity and therefore, according to standards utilized by the Florida Department of Transportation, is providing a Level of Service (LOS) of "F." There are no formal plans at the moment to expend public funds on capital improvements that would increase the capacity of Oakland Park Boulevard. Whether the Stroks' property is ultimately used primarily for commercial purposes or for single family residential purposes, the development of the property will increase the traffic volume on this segment of Oakland Park Boulevard, as well as other roadway segments in the County that are now operating over capacity, but are not programmed for any capital improvements. As a general rule, however, commercial development generates more traffic than single family residential development. The City's 1989 Comprehensive Plan Future Land Use Map The City adopted its 1989 comprehensive plan on April 5, 1989. Adopted as part of the plan was a Future Land Use Map (FLUM), which was based upon appropriate surveys, studies and data concerning the area. Over Petitioners' objections, all but a small portion of the Stroks' property was designated for commercial use on the FLUM. 1/ Under the City's two prior comprehensive plans, the Stroks' entire property was designated for commercial use. "Commercial uses" are defined in Chapter IV, Section 1.32 of the City's 1989 comprehensive plan as "activities within land areas which are predominantly connected with the sale, rental and distribution of products, or performance of services." Furthermore, Chapter IV, Section 3.02(C) of the plan provides as follows with respect to lands designated for commercial use on the FLUM: Each parcel of land within an area designated in a commercial land use category by the City's land Use Plan Map must be zoned in a zoning district which permits any one or more of the following uses, but no other uses: Retail uses. Office and business uses. Wholesale, storage, light fabricating and warehouses uses, if deemed appropriate by the City. Hotels, motels and similar lodging. Recreation and open space, cemeteries, and commercial recreation uses. Community facilities and utilities. a. Special Residential Facility Category (2) development . . . . b. Special Residential Facility Category (3) development . . . . Non-residential agriculture uses. Residential uses are permitted in the same structure as a commercial use provided that the local government entity applies flexibility and reserve units to the parcel and: The residential floor area does not exceed 50% of the total floor area of the building; or The first floor is totally confined to commercial uses. Recreational vehicle park sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the City land development regulations, or twenty (20) sites per gross acre if such permanent location is prohibited by the local land development regulations, subject to allocation by the City government entity of available flexibility or reserve units. Transportation and communication facilities. The decision to designate in the City's 1989 comprehensive plan almost all of the Stroks' property for commercial use was not made without consideration of the adverse impact commercial development would have on traffic in the vicinity of the Stroks' property. Although it was recognized that such development would add more traffic to the already congested roadways in the area than would single family residential development, the prevailing view was that the additional traffic that would be generated by commercial development, as compared to that which would be generated by single family residential development, would be relatively insignificant. The designation of the major portion of the Stroks' property for commercial use is not inherently incompatible with the designations assigned other parcels of property in the surrounding area. The Stroks' property was designated for commercial use under Broward County's 1989 comprehensive plan. The Broward County Charter mandates that the land use plans of the County's incorporated municipalities be in substantial conformity with the County's land use plan. Goals, Objectives and Policies The City's 1989 comprehensive plan also includes various goals, objectives and policies. Those of particular significance to the instant case provide in pertinent part as follows: Goal 1- Protect and enhance the single family residential, multiple-family residential, non-residential and natural resource areas of Oakland Park. Objective 1.1- By November 1989, or when required by legislative mandate, revise the development code to assure that all new development . . . avoids traffic problems now impacting the City . . . . Policy 1.1.5- By November 1989, or when required by legislative mandate, the development code shall be amended to specify that no development permit shall be issued unless assurance is given that the public facilities necessitated by the project (in order to meet level of service standards specified in the Traffic Circulation, Recreation and Infrastructure policies) will be in place concurrent with the impacts of the development. A concurrency management system shall be included that specifies the latest DCA and City criteria for what constitutes "assurance" in addition to budgeted projects or signed development agreements. Goal 2- To develop an overall transportation circulation system which will provide for the transportation needs of all sectors of the community in a safe, efficient, cost effective and aesthetically pleasing manner. Objective 2.1- Provide for a safe, convenient and efficient motorized and non-motorized transportation system. Policy 2.1.1- Monitor annual traffic accident frequencies by location. Policy 2.2.2- Improve selective enforcement at high accident locations. Policy 2.1.4- Within one year of Plan submission, or when required by legislative mandate, provide safe and convenient on-site traffic flow through development review procedures. Policy 2.1.7- Reduce the amount of through traffic on local streets and collectors through the implementation, within three years of plan adoption, of a Local Area Traffic Management Program (LATMP) . . . . Policy 2.1.11- Improve the efficiency of traffic flow on existing roadways by implementing the policies of Objective 2.1. Objective 2.2- After November 1989, or when required by legislative mandate, coordinate the traffic circulation system with existing and future land uses as shown on the Future Land Use Map. Policy 2.2.1- After November 1989, or when required by legislative mandate, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS "D" on all arterial and collector roadways where existing plus committed traffic allows, and maintain traffic conditions on all other roadways segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. Policy 2.2.2- Within 120 days of plan adoption, adopt a list of local roadway segments where traffic operations are at LOS "C" or better. This list may be based on the February 21,1989 run of the Broward County TRIPS model, which includes traffic generated by committed development or other sources as appropriate. Policy 2.2.3- After 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "C" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "C" are included in an enforceable development agreement. Policy 2.2.4- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are at LOS "D" or better. This list shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. Policy 2.2.5- After November 1989, or when required by legislative mandate, the City will issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.6- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is a scheduled improvement in the City 2010 Traffic Circulation Plan. Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Planned Improvement Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.7- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.3, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions and the scheduled 2010 improvement will be able to operate at LOS "D" once constructed. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.8- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is no scheduled improvement in the City 2010 Traffic Circulation Plan. 2/ Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Constrained Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.9- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.5, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. Policy 2.2.10- The City will annually update existing traffic counts and review updated Broward County Trips assignments. Based on the update the City may reclassify any roadway segment within the City. The City may also reclassify a roadway segment if development from outside the City has effected traffic conditions within the City. Policy 2.2.11- Subsequent to plan adoption, modify the land development regulations such that after 1989, or when required by legislative mandate, require trip generation studies from all proposed development within the City and traffic impact studies for developments generating more than 10% of adjacent roadway capacity and allow development contingent upon the provision of LOS Standards. Objective 2.4- Provide for the protection of existing and future rights of way from building encroachment. Policy 2.4.2- Modify land development regulations to ensure consistency with the Broward County Trafficways Plan right-of-way requirements during development review activities. Goal 9- To ensure the orderly and efficient provision of all public services and facilities necessary to serve existing and future local population needs. Objective 9.2- By November 1989, or when required by legislative mandate, provide that development or redevelopment proposals are approved consistent with existing service availability or coincident with the programmed provision of additional services at the adopted level of service standards and meets existing and future facility needs. Policy 9.2.1- Within one year of Plan submission, or when required by legislative mandate, revise development procedures to review development proposals cognizant of the City's adopted level of service standards, existing levels of service and where appropriate, the timeframe for implementation of additional facility improvements. Policy 9.2.2- After 1989, or when required by legislative mandate, condition the approval of proposed development or redevelopment projects on the basis of project related needs being concurrently available at the adopted level of service standards specified in Policy 9.2.4. Policy 9.2.3- After November 1989, or when required by legislative mandate, allow for phasing of development related infrastructure improvements concurrently with project impacts on public facilities. Policy 9.2.4- The Level of Service (LOS) for capital facilities shall be: * * * for Arterials and Collectors- LOS "D" or "Maintain" for Local Roadways- LOS "C" ADT, PSDT and PKHR Objective 9.3- By November 1989, or when required by legislative mandate, provide that private developers participate on a proportionate share basis in any facility improvement costs necessary to maintain LOS standards. Policy 9.3.2- Establish a preference for the actual construction of adjacent site road improvements in lieu of impact fee payments. Policy 9.3.3- By November 1989, or when required by legislative mandate, establish in the land development regulations a process for assessing new development on a pro rata share of the costs necessary to finance public facility improvements in order to maintain the adopted level of service standards specified in Policy 9.2.4. Development Review Requirements Chapter IV, Section 4 of the City's 1989 comprehensive plan prescribes development review requirements. It provides in pertinent part as follows: Following the effective date of the Land Use Plan, the City shall not grant a permit for a proposed development unless the City has determined that public facilities are adequate to serve the needs of the proposed development or unless the developer agrees in writing that no certificate of occupancy shall be issued for the proposed development until public facilities are adequate to serve its needs. Public facilities may be determined to be adequate to serve the needs of a proposed development when the following conditions are met. Traffic circulation . . . public facilities and services will be available to meet established level of service standards, consistent with Chapter 163.3203(g) Florida Statutes and the concurrence management policies included within this Plan. Local streets and roads will provide safe, adequate access between buildings within the proposed development and the trafficways identified on the Broward County Trafficways Plan prior to occupancy. Capital Improvements Implementation Chapter VII of the plan deals with the subject of capital improvements implementation. It contains a section which addresses the matter of level of service standards. This section provides in pertinent part as follows: The minimum criteria for Comprehensive Plans requires that Level of Service Standards for the City of Oakland Park be included for public facilities described in the plan. The Level of Service Standards for the City of Oakland Park are provided in the following Table 2. Subsequent to the adoption of this Comprehensive Plan, all future development approvals will be conditioned upon the provision of services at the local level of service standards. Table 2 sets forth the following level of service standards for roadways: Principal Arterials- LOS "D" or "Maintain" Minor Arterials- LOS "D" or "Maintain" Collectors- LOS "C"- AADT, 3/ PSDT 4/ PKHR 5/ Submission and Approval of the Stroks' Plat On June 6, 1989, the Stroks submitted to the County Commission for its approval a final plat of their property. The plat reflected the Stroks' plan to have 15 single family dwelling units, 180,000 square feet of office space and 36,000 square feet of commercial space constructed on the property. County staff analyzed the plat to ascertain the impact that the proposed development would have on traffic. In performing their analysis, they relied on the County's TRIPS computer model. Broward County assesses impact fees against a developer where it is projected that a development will add traffic to road segments in the County that are over-capacity, but are planned for improvement. The TRIPS computer model is used to determine the amount of the assessment. County staff did a TRIPS run on the Stroks' plat on September 13, 1989 and determined that the development proposed in the plat would generate a total of 6,879 trips on road segments throughout the County, including over-capacity road segments that were not planned for improvement, as well as over-capacity road segments that were planned for improvement. 6/ The County Commission approved the Stroks' plat on September 19, 1989. A short time earlier, the City Council had also approved the plat. Petitioners' Motives Petitioners are all residents of the City of Oakland Park. In filing their petitions challenging the City's 1989 comprehensive plan, they were motivated only by a desire to improve the quality of life in their city. They had no ulterior motive. They filed the petitions because they felt that it was in the best interest of the City that they do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order finding that the City of Oakland Park's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. DONE and ORDERED this 18th day of May, 1990, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of th Division of Administrative Hearings this 18th day of May, 1990.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Division of Real Estate, was the state agency responsible for the licensing and regulation of real estate professionals in Florida. Petitioner was a licensed real estate salesperson in Florida whose license was listed with Horizon Appraisal Service, Inc. in Ft. Myers. In October, 1989, Clyde H. Ward applied to Goldome Realty Credit Corporation for a $40,000.00 fixed rate mortgage on his property located in Ft. Myers. On October 5, 1989, Goldome sent Mr. Ward a commitment letter for a mortgage initially described as a 30 year fixed rate mortgage, but which was, five days later, amended to a 15 year fixed rate mortgage at 10%, conditioned upon, among other things, a satisfactory appraisal. Consistent therewith, Goldome thereafter contacted its regular appraiser in the area, Horizon Appraisal Service, Inc., and requested that an appraisal of the property be accomplished. Horizon assigned the Petitioner, Ms. Wilcox, to conduct the appraisal. The original first page of her report indicated the property was a manufactured house with a crawl space, not situated on a slab. In reality, however, as was noted on the amended first page of the report, as of October 9, 1989, the property was not a manufactured house and was situated on a concrete slab without a crawl space. Goldome denied a fixed rate mortgage to Mr. and Mrs. Ward but offered them a one year adjustable rate mortgage. The Wards accepted this change under protest. A formal denial of the fixed rate mortgage was sent to the Wards on December 18, 1989 by a form which indicated that their application for the fixed rate mortgage had been denied for (1) inadequate collateral, and (2) "we do not grant credit to any applicant on the terms and conditions you request." The "inadequate collateral" basis for denial noted, however, that a mortgage had been offered, accepted and closed with the Wards under an adjustable rate bank loan. On February 16, 1990, Mr. Ward wrote to Goldome expressing his concern over the denial of the fixed rate loan and the basis for denial. In response to Mr. Ward's letter, on March 7, 1990, Mr. Krohe, Goldome's vice president for residential lending, wrote to Mr. Ward and clearly stated that Goldome's denial of the fixed rate mortgage was based on several areas in the appraisal that caused concern. Mr. Krohe specifically pointed out that the fact that the property was described in the appraisal as being a "mobile home" was not the only reason for denial. In his testimony, Mr. Krohe cited several other reasons for denial. One was that the appraiser indicated that the predominant value of homes in the neighborhood was $35,000.00 and Mr. Ward's application was for a mortgage in excess of that. It is Goldome's policy typically to not make a loan in excess of the predominant value since there would be no way to sell the loan in the secondary market. In addition, comments on the appraisal indicated that homes in the area were a mixture of mobile homes and small CBS or frame houses located on paved and graveled roads, and the homes in the neighborhood reflected average maintenance. The zoning classification for the property was MH-3, which permits mobile home use on the property. Further, the room sizes and layout was indicated as "fair to average" and the appraiser pointed out an incurable functional problem with the room layout. This problem related to the fact that the only full bathroom in the house was located between the master bathroom and the second bedroom and could be reached only through one of those rooms. Further, the appraiser indicated there were no recent sales similar to the subject property in the neighborhood and those sales which were comparable were noted to have superior construction and functional utility. Mr. Krohe pointed out that not one of those concerns by itself necessarily would have caused the fixed rate mortgage applied for to be declined. He notes, however, that underwriting is not a science, and all of those reasons combined caused the underwriter to decline the loan. Notwithstanding his receipt of this letter, Mr. Ward filed a complaint with the Division of Real Estate which was referred to Investigator John Harris for inquiry in March, 1990. During the course of his investigation, Mr. Harris spoke only with the Petitioner, Ms. Wilcox, and with Mr. Ward. On or about March 22, 1990, he met with Petitioner at her place of business, Horizon Appraisal Service. During the course of that interview, Ms. Wilcox admitted she had made a mistake on the first page of the appraisal report whereon the property w as described as a manufactured home situated on a crawl space without a slab. She indicated she had corrected the form as soon as she found out about the mistake, occasioned not by a written description but by check marks to pre- printed descriptions which were to be marked if appropriate. The work was done by typewriter, not by pen. Mr. Harris also interviewed Mr. Ward, but did not interview anyone else during his entire investigation even though Ms. Wilcox pointed out that information she had from Ms. Selph and Mr. Krohe indicated that the declination of the loan was not primarily based on this erroneous information. In fact, Ms. Wilcox requested that Mr. Harris contact both Selph and Krohe to verify this but he chose not to do so, relying instead on the information provided to him by Mr. Ward and the March 7, 1990 letter from Krohe to Ward which he interpreted as indicating the denial was based on the description of the property as a "mobile home." That letter does not so indicate, however, and clearly shows that any such classification was not the sole basis for denial of the loan. Notwithstanding this, Mr. Harris considered the fact that Ms. Wilcox admitted to making the mistake as tantamount to an admission of culpable negligence and he recommended that action be taken against her. Thereafter, the matter was referred to a probable cause panel of the Real Estate Commission which, on May 15, 1990, considered the allegations against Ms. Wilcox and, after a review of the file and a presentation by a counsel to the Board, found probable cause. Review of the transcript of the probable cause panel as it relates to Ms. Wilcox reveals that even there, the case was inaccurately described to the panel by its counsel who claims that, "the loan was rejected on the basis of the appraisal which incorrectly described the structure as a manufactured house with a crawl space and no slab." Counsel completely omitted any mention of any of the other bases for denial which were described by Mr. Krohe in his deposition of which the Department was notified but declined to attend, and which could have been determined by an appropriate investigation into the matter. The discussion by the panel members, as documented in the transcript of its meeting, in no way related to the particulars of the alleged misconduct but instead concerned itself primarily with the status of the appraiser. In short, it is clear that the probable cause panel's finding of probable cause was based only on its review of the completely inadequate investigation by Mr. Harris and the slanted comments of the panel's counsel. Nonetheless, an Administrative Complaint was filed against the Petitioner which alleged culpable negligence, breach of trust and misrepresentation and concealment. Prior to the hearing, the Board dismissed the allegation of misrepresentation and concealment. A hearing was conducted on the remaining counts on October 11, 1990 in Ft. Myers before H.O. Parrish. In her Recommended Order dated December 12, 1990, Ms. Parrish concluded that the Department had failed to establish the Respondent committed any misconduct; that Ms. Wilcox had accurately described and evaluated the home within customary ranges; and that the lender verified the reasons for denial of the requested mortgage were not related to the typographical errors pertaining to the type of home, the crawl space, and the slab. Ms. Parrish thereafter recommended a Final Order be entered by the Commission dismissing the Administrative Complaint and such an Order was entered. By Motion dated March 4, 1991, Petitioner's counsel sought reimbursement for the Petitioner of attorney's fees and costs relating to her defense against the allegations made against her in the Administrative Complaint. Respondent has stipulated that the amount claimed for the original representation is reasonable as to both hours claimed and fee per hour. It claims, however, that fees and costs are not reimbursable here because, (1), Petitioner is not a small business entity, and (2), the Division had probable cause to initiate the Administrative Complaint. Petitioner has also submitted an additional affidavit, subsequent to the hearing, in which she claims 7.1 additional hours, at $110.00 per hour, for services rendered subsequent to the final hearing in the original action. Petitioner claims to be an independent contractor to Horizon Appraisal Service, Inc.. She works strictly on commission. She has a desk at the Horizon office and keeps almost all her business information there. She has no other office. She cannot do appraisals for other brokers because she can work for only one broker at a time. She claims to be licensed as an appraiser in Florida but the licensure information on file with the Department of Professional Regulation as of September 4, 1990, reflects she is licensed only as a real estate salesman. By affidavit dated December 6, 1985, and attached to the Independent Contractor Agreement of equal date, Petitioner outlines her working conditions with Horizon. She pays all her own license fees and dues; she is responsible for her own auto and transportation expenses; she pays all her client development costs without reimbursement; she is not required to maintain any set working hours; she takes vacations when she pleases; she is not required to meet any quotas; she receives no minimum salary, sick pay or other fringe benefits; she pays her own income and FICA taxes; and the association with the broker may be terminated by either party at any time. Under the terms of the Agreement referenced above, Petitioner is to get 45% of the fee charged by Horizon for the appraisal done by her. Any lawsuits for the collection of appraisal fees must be maintained only in the name of the Broker, however, since the appraiser is considered to be a subagent. Though the appraiser may conduct the actual appraisal, the Agreement requires that these completed appraisals be submitted to the broker for review, and Mr. Krohe, of Goldome, indicated that his institution would accept only appraisals signed by the broker, not the appraiser. The agreement also stipulates that all clients brought in by the appraiser will result in an additional 10% fee split, and will remain clients of the broker upon termination of the agreement. Notwithstanding the appraiser can take vacations when desired and work when she pleases, she must, however, notify the broker a minimum of two weeks in advance of vacation time and call in on days when she will not be available. The appraiser agrees to a five day turnaround on appraisals, may not solicit listings for the transfer of property other than owned by her, and, significantly, may perform her services only for this broker, Horizon Appraisal Services, Inc.,
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent Clifford Altemare (Mr. Altemare) was a licensed real estate broker, holding Florida license BK-3062479. At all times material to this case, Respondent Altema Consulting Co., LLC (ACC), was a licensed real estate brokerage, holding Florida license CQ-1024239. Clifford Altemare was the owner, qualifying broker, and officer for ACC. On August 21, 2006, Mr. Altemare signed an agreement to represent for sale hotel property owned by Sweet Hospitality, LLC. The agreement stated that Mr. Altemare would receive an unidentified commission based on the sales price. On December 12, 2006, Mr. Altemare received an escrow deposit of $25,000 from Rakesh Rathee, who signed an agreement to purchase the hotel. The $25,000 deposit was transferred by wire from Rakesh Rathee into a corporate operating account of ACC. Mr. Altemare failed to place the $25,000 escrow deposit into an ACC escrow account. Apparently, because the seller decided not to sell the property, the proposed sale did not close, and the buyer demanded the return of the $25,000 deposit. There is no credible evidence that the seller has made any claim upon the deposit. Mr. Altemare has refused to return the $25,000 deposit to Rakesh Rathee. At the hearing, Mr. Altemare asserted that the deposit has not been returned to the buyer because of uncertainty as to whom the deposit should be refunded. There was no credible evidence offered at the hearing to support the assertion that someone other than Rakesh Rathee should received a refund of the $25,000 deposit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order, stating that the Respondents violated Subsections 475.25(1)(b), (d), and (e), Florida Statutes (2006), and Florida Administrative Code Rule 61J2-14.010 and imposing a $15,000 administrative fine and a five-year suspension of licensure. DONE AND ENTERED this 12th day of May, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2010. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801 Clifford Altemare Altema Consulting Co., LLC 1047 Iroquois Street Clearwater, Florida 33755 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N802 Orlando, Florida 32801
Findings Of Fact At all times material to these proceedings, Respondent was a licensed real estate salesman licensed by the Division of Real Estate. On November 1, 1983, J.B. and N., Inc., a Florida Corporation, purchased a parcel of real estate located in Santa Rosa County, Florida, for the purpose of developing a residential subdivision. Robert J. Furse (Furse) and Respondent were officers, director, and owners of J.B. and N., Inc. At the time of the acquisition of the parcel of real property referenced above, Furse and the Respondent each owned 50 per cent of J.B. and N., Inc. The parcel of property purchased by J.B. and N., Inc., was roughly rectangular running north to south between US Highway 98 and the Gulf of Mexico/Santa Rosa Sound. Mr. Lewis Johnston, registered surveyor, was retained by J.B. and N., Inc., to survey the property and prepare a preliminary plat for subdividing the parcel. A drawing of this plat is attached to Petitioner's Exhibit 5. The parcel was divided east and west by a north-south road from U.S. 98 which stops short of the sound. Ten lots of equal size border the east and west boundaries of the road and three waterfront lots front on Santa Rosa Sound. The Respondent and Furse intended and attempted to provide the inland lot owners in the subdivision with a pedestrian access to the waterfront. This access can be seen along the western boundary of Lot 13 as depicted in the plat attached to Petitioner's Exhibit 5. The plat prepared by Johnston was never recorded in the official records of Santa Rosa County. The regulations for establishing a subdivision in Santa Rosa County did not require filing of a plat plan when this subdivision was developed. On November 2, 1983, Furse purchased Lot 13 which was adjacent to the access easement as surveyed and drawn but not recorded. At the time of the purchase, Furse received a survey indicating the location of the access way. Furse had a privacy fence constructed between the access way and his property as depicted on the attachment to Petitioner's Exhibit 5. Furse and the Respondent intended to create an easement for access to the water across the lot Furse purchased from J.B. and N., Inc. Closing on the sale from J.B. and N., Inc., to Furse was handled by Furse's attorney. The Respondent understood that the attorney was supposed to create the easement in the deed to Furse. Furse instructed his attorney to prepare a deed transferring the property to him to which he was to take title. Furse did not think that this included the access way. Subsequently, J.B. and N., Inc., listed for sale the other lots in the subdivision with Shore to Shore Realty, Inc. The listing agents were Brice and Hanks. To induce purchasers to purchase the lots, the lots were advertised as having water access as indicated by the MLS listing, the plat, and advertising signs. In October, 1984, Lot No. 6 was purchased by Lowell Ray. In November of 1984, Lot No. 3 was purchased by John Alvarez. In the summer of 1985, Lot No. 4 was purchased by Balfour and Linda Clark. All of these purchasers were told that they had access to the water. Access to the water was a major consideration in their decision to purchase. Furse had a house built, centered on the lot, allowing for the access way mentioned above. During the summer of 1984, Furse divorced his wife; and thereafter, they defaulted on payments on the mortgage on the property in question. The mortgagee foreclosed on the property in 1985 and thereafter sold it to Mr. Thomas Ferguson in August of 1987. During a title search, Mr. Ferguson's attorney found that the access way had been conveyed to Furse. After purchasing the property, Mr. Ferguson removed the privacy fence separating the access way from the remainder of the property and fenced off the access way to prevent further access across his property. The access way had never been deeded in the form of an easement. All of the property had been conveyed initially to Furse and thereafter to Ferguson. The Respondent did not know that the easement had not been created until after Ferguson took possession of the property and restricted access. Prior to that, the Respondent thought that the easement had been created at the time of Furse's acquisition of the lot. Prior to Ferguson's restriction of the access, Ray, Alvarez, and Balfour did have access to the water over the access way as prepared by Furse. Upon being notified that the access had been restricted by Ferguson, the Respondent attempted through negotiation to acquire an easement from Ferguson for the benefit of the property owners. However, Ferguson ultimately decided that he did not desire to grant such access except as a license to those property owners who had purchased the property prior to his purchase of the property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the charges against the Respondent be dismissed. DONE and ENTERED this 3 day of March, 1990, in Tallahassee, Florida. STEPHEN F. DEAN, 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 23rd day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5021 The parties submitted proposed findings of fact and conclusions of law which were read and considered. The following is a listing of the findings which were adopted and those which were rejected and why. Respondent's Proposed Findings of Fact 1-9. Adopted. Adopted, but rewritten. Adopted. Adopted, but rewritten. 13-19. Adopted. Rejected, as irrelevant. Adopted, but rewritten. Petitioner's Proposed Findings of Fact 1-2. Adopted. Rejected; corporation bought the land. Adopted. 5-6. Rejected, contrary to the evidence. Adopted, but rewritten. Rejected, contrary to the evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Stephen R. Moorhead, Esquire McDonald, Fleming, & Moorhead 700 South Palafox Street Pensacola, FL 32501 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
