Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issue in this case is whether the Respondent, Department of Revenue (Respondent or Department), may levy on the Petitioner’s bank account in order to satisfy a tax liability owed to the Respondent. The Respondent asserts the Petitioner, Business Depot-Accounting and Tax Center, Inc. (Petitioner), owes the Department for delinquent sales tax, interest, and penalties.
Findings Of Fact The Respondent is the state agency charged with the responsibility of collecting sales and use tax owed to the State of Florida. See § 213.05, Fla. Stat. (2006). At all times material to the allegations of this case, the Petitioner was responsible for collecting and remitting to the Department sales and use tax. The return forms itemizing information for these payments require the taxpayer, Petitioner, to represent gross sales, exempt sales, as well as other data that the Department uses to compute the amount that must be remitted to the state. In this case, after extensive communications with the Petitioner, the Department determined that $10,524.20 was owed for taxes, penalties, and interest. This amount was calculated based on estimates of the delinquency. A Notice of Final Assessment dated August 28, 2006, was issued by the Department to the Petitioner that outlined the amounts claimed to be owed. On or about September 27, 2006, the Petitioner responded to the notice and, under oath, represented that the tax returns were filed. The Department took the Petitioner’s representations into consideration and re-calculated the tax liability owed by the Petitioner. Currently, the Department asserts that the Petitioner’s delinquent amount is $278.46. Accordingly, when that amount remained unpaid, the Department sought a tax warrant, gave notice of its intent to levy on the assets of the Petitioner, and provided notice that it intended to collect monies against the Petitioner’s bank account at Regent Bank. The Department issued a Notice of Freeze to the Regent Bank that instructed it not to transfer, dispose of, or return assets belonging to the Petitioner. The Department also gave notice to the Petitioner of its intent to levy on the bank account with a formal Notice of Intent to Levy. The Petitioner challenged the notice by seeking an administrative hearing. The Petitioner did not appear at the hearing and did not offer any evidence in support of its challenge. The Petitioner’s letter dated September 28, 2006, was not submitted within twenty days of the issuance of the Notice of Final Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order sustaining the Notice of Intent to Levy against the Petitioner’s assets in the amount of $278.46 to satisfy the liability owed by the Petitioner to the Department. DONE AND ENTERED this 2nd day of May, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2007. COPIES FURNISHED: S. G. Ross Business Depot-Accounting & Tax Center, Inc. 4611 South University Drive, Suite 455 Davie, Florida 33328 John Mika, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bruce Hoffmann, General Counsel Department of Revenue 501 South Calhoun Street The Carlton Building, Room 204 Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 501 South Calhoun Street The Carlton Building, Room 104 Tallahassee, Florida 32399-0100
Findings Of Fact Respondent is the state agency authorized to administer and enforce provisions of Chapter 520, Florida Statutes, regulating the granting or denial of applications for Home Improvement Contractor Licenses. On November 30, 1988, Petitioner submitted an application on behalf of a corporation known as "The Durocoat Company" (Durocoat) to Respondent for licensure as a home improvement contractor. On that application, Petitioner disclosed the identity of the two principals of the corporation and the position held by those two individuals. Petitioner listed himself as the president of the corporation and another individual, Russell W. Black, as the corporation's vice-president. Each principal owns 50 percent of the corporation. Following the section of the application providing for the disclosure of the identities and addresses of business principals, a number of questions are listed and the person executing the form is required to provide an "X" in a block to indicate a "yes" or "no" answer to each of those questions. Question number four reads as follows: Are there unpaid judgments against the applicant or any of the persons listed above? If "yes" attach a copy of the complaint and judgment(s). Petitioner placed an "X" in the space allotted for a "yes" answer to the inquiry regarding unpaid judgments against the persons listed as business principals, namely himself and Mr. Black. Petitioner then attached a copy of a document entitled "Notice of Levy" issued by the Internal Revenue Service (IRS) of the United States Department of the Treasury. In sum, the notice certifies the existence of a tax lien against Mr. Black, Durocoat's vice-president, in the amount of $27,546.25. It is undisputed by the parties that creditors held unpaid judgments against Petitioner at the time he submitted the application on November 30, 1988, and that he failed to attach copies of those judgments to the application. Further, Petitioner acknowledged at the final hearing that he was aware at the time of submittal of the application of the existence of one of these judgments. That judgement, entered in favor of The American Express Company (American Express) for $7,602, has existed since September of 1987. In mitigation of his failure to disclose the American Express judgement, Petitioner testified at hearing that he didn't have a copy of the judgement at the time he filed the application and was unaware of the requirement that he should attach a copy. In view of his action in attaching a copy of the existing tax lien against Mr. Black to the application, Petitioner's testimony that he was unaware that he should attach copies of unpaid judgments is not credited. A copy of Petitioner's credit report, introduced at final hearing by Petitioner, discloses that a business known as "Speeler Marine" obtained a judgement against him in the amount of $250 in March of 1986. Petitioner testified at hearing that he was unaware of the existence of this judgement. No settlement discussions have been initiated by him with the creditor. Petitioner's credit report further discloses that an outstanding loan to Petitioner in 1985 in the amount of $36,000 by a financial institution identified as "Sun Bank" is classified as a "bad debt, placed for collection." Petitioner testified that this debt represents loan funds obtained in a previous business venture and is the subject of settlement negotiations and that he has repaid $4,000 of the amount at the present time. Petitioner's testimony also establishes that the credit report's disclosure of a 1987 foreclosure certificate of title to real estate represented real property located in Gainesville, Florida, which Petitioner had taken in trade for money owed to him. In view of the distance to that city, Petitioner testified that he simply chose not to pay off the existing mortgage on the property or oppose foreclosure action by the mortgage holder. A representative of Nationwide Chemical Coating Company (Nationwide) testified at the final hearing regarding that company's business relationship with Petitioner's corporation. Since February of 1988, Nationwide has sold supplies valued at $250,000 to Durocoat. The company has always paid charges within the 30 day required time limit and is considered to be a "class A" customer. In regard to the federal tax lien which Petitioner attached to the application, Russell W. Black testified that the lien resulted from the disallowance by IRS of a tax shelter investment of $34,000 made by Black in 1977 or 1978. Black was notified by IRS in 1981 that the tax shelter was not considered to be a valid deduction for tax purposes. The amount owed by Black to IRS in 1981 was $20,630.64. The amount is now $27,546.25 and, according to Black, is still unpaid because he doesn't have the money. On advice of counsel, he has not contacted IRS to schedule payments on the debt. Respondent denied Petitioner's application by letter dated January 13, 1989, stating that Petitioner's failure to attach copies of the unpaid judgments against himself constituted a material misstatement of fact sufficient to authorize the denial. The letter further stated that the unpaid judgments, along with the federal tax lien against Mr. Black, demonstrated a lack of financial responsibility by both individuals and constituted an additional ground for denial of the application.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 24th day of August, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 10 unnumbered paragraphs which have been numbered 1-10 and are treated as follows: 1-8. Addressed in part, remainder rejected as unnecessary. Rejected, unsupported by direct admissible evidence. Rejected, unnecessary to result reached. Respondent's Proposed Findings. 1-2. Addressed. 3-4. Rejected, unnecessary. 5-11. Addressed in substance. COPIES FURNISHED: John L. Riley, Esq. 2325 Fifth Avenue North St. Petersburg, FL 33713 William W. Byrd, Esq. Assistant General Counsel Office Of The Comptroller 1313 Tampa Street, Suite 615 Tampa, FL 33602-3394 Hon. Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, FL 32399-0350 Charles Stutts, Esq. General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, FL 32399-0350
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, including the admissions made by Respondent in the Joint Response to Pre-Hearing Order, the following findings of fact are made: At all times material to the instant case, Respondent was a Florida-licensed real estate salesperson. Since June of 2002, Respondent has been a Florida- licensed real estate broker. Respondent is a convicted felon as a result of a single felony conviction. 3/ In 2000, Respondent was involved in a real estate transaction in which he was the buyer. The property that was the subject of the transaction was located at 119 Hammocks Drive in West Palm Beach, Florida. The transaction was closed through a title company, Cypress Title Company (Cypress). The closing took place on May 15, 2000. Cypress was represented at the May 15, 2000, closing by Susan Anderson, a marketing representative with Cypress who conducted closings (approximately five or six a month) as part of her job responsibilities. Ms. Anderson had two years experience conducting closings at the time of the May 15, 2000, closing. At each closing at which she represented Cypress, Ms. Anderson was responsible for, among other things, collecting the funds necessary to effectuate the closing and making the appropriate disbursements. It was Ms. Anderson's routine practice, before turning a closing file over to Cypress' "post closer" following a closing, to "make sure [that] everything [that needed to be in the file was] there." Prior to the May 15, 2000, closing, Respondent was contacted by "someone from Cypress" and instructed to bring to the closing a cashier's check in the amount of $3,684.64 made payable to himself. Respondent was advised that the $3,684.64 represented an "estimate" of the amount he needed to pay from his own funds to close the transaction. On May 15, 2000, prior to the time of the closing, Respondent went to Bank United, where he had an account, and purchased a cashier's check in the amount of $3,684.64 made payable to himself, as he had been instructed to do. Respondent brought the cashier's check to the closing. At the closing, Respondent endorsed the check with his signature, underneath which he wrote, in accordance with his routine practice when endorsing checks, the number of his account at Bank United. He then handed the cashier's check to Ms. Anderson. The actual amount due from Respondent was $3,670.04, $14.64 less than the amount of the cashier's check. Accordingly, Ms. Anderson gave Respondent a check for $14.64. Following the closing, Ms. Anderson examined the closing file (in accordance with her routine practice). In doing so, it did not "come to [her] attention that the [cashier's] check [that Respondent had brought to the closing] was not there." After conducting such an examination, she gave the closing file to the "post-closer." The cashier's check that Respondent had given to Ms. Anderson at the May 15, 2000, closing was cashed at Bank United on May 17, 2000, by someone other than Respondent or Ms. Anderson. Pursuant to Bank United policy, "[o]nly the payee can cash [a cashier's] check." Bank United tellers are supposed to ask for a "picture ID" when a cashier's check is presented for cashing. There have been tellers at the bank, however, who have not followed this policy and, as a result, have been counseled or disciplined. 4/ Approximately, two months after the May 15, 2000, closing, Cypress' owner approached Ms. Anderson and told her that there was no proceeds check from Respondent in the closing file. Ms. Anderson was asked to contact Respondent to inquire about the matter, which she did. Respondent was initially "very cooperative." He gave Ms. Anderson his "account number [at Bank United] and [the name of a person] to call at the bank." Using the information Respondent had provided, Ms. Anderson was able to obtain a copy of the cashier's check that Respondent had given to Ms. Anderson at the closing and that subsequently had been cashed at Bank United. Kevin Wilkinson, an attorney acting on behalf of Cypress, also contacted Respondent. Mr. Wilkinson's tone, in Respondent's view, was accusatory and threatening. Respondent's response to Mr. Wilkinson's "aggressive[ness]" was to stop cooperating with Cypress.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 28th day of January, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2003.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment of the documentary stamp surtax in the amount of $2,436.50 and the penalty in a like amount, for a total assessment of $4,873.00, be upheld. Respectfully submitted and entered this 17th day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1976. COPIES FURNISHED: Mr. Gerald J. Biondo PAUL, LANDY, BAILEY & YACOS 200 Southeast First Street Miami, Florida 33131 Mr. Edwin J. Stacker Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, Florida 32304
