The Issue Whether Respondent, Gregory John Owen, committed the violations alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner is a state government licensing and regulating agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is, and was at all times material hereto, a licensed Florida real estate sales broker, issued License No. 3018133, in accordance with Chapter 475, Florida Statutes. From September 20, 2005, until January 9, 2007, Respondent was a registered member/manager for FCH Realty, LLC (FCH Realty). On October 13, 2005, Respondent filled out a DBPR RE-2050 Form, Request for Change of Status, which, had it been filed with Petitioner, would have changed Respondent's status to "broker/owner employer" for FCH Realty. Form 2050 was never filed, although Respondent thought it had been. At the request of Geoffrey Sinker, the qualifying broker of FCH Realty, Respondent became a signatory on the FCH Realty escrow account. On May 17, 2006, Respondent deposited $25,000.00 in the FCH Realty escrow account on behalf of Sadiq Ali, as a deposit for real property Ali was purchasing. On May 19, 2006, $25,000.00 was transferred from the FCH Realty escrow account to the FCH Realty operating account. Bank records indicate that the transfer was made by someone who personally presented himself to a cashier at a branch bank. Respondent denies making this transfer. On May 1, 2006, and May 16, 2006, there were online transfers of $29,690.00 and $5,000.00 from the FCH Realty escrow account to the FCH Realty operating account. No evidence was presented regarding who made these online transfers or whether Respondent had online access to the FCH Realty escrow account. There was no evidence presented that Respondent had access to the FCH Realty operating account in May 2005. On May 29, 2006, Respondent deposited a check from Ali in the amount of $67,580.00 into the FCH Realty operating account. Pursuant to the terms of his contract, Ali's deposit was not required to be held in an escrow account. The contract specifically stated, "Purchaser hereby waives its rights to have deposits placed in escrow, and all deposits which are collected from Purchaser be paid directly to Seller without limitations. Seller may withdraw all or a portion of the deposits to be used for construction and development of the Home, for sales and marketing, or for such other purposes as determined at Seller's sole discretion." Respondent had been directed to place Ali's $67,580.00 deposit in the FCH Realty operating account. On July 27, 2006, $32,069.00 was transferred online from the FCH Realty escrow account to the FCH Realty operating account. There were three other online transfers in July from the FCH Realty escrow account to the FCH Realty operating account in the amounts of $34,970.00 on July 14, 2006; $32.069.00 on July 18, 2006; and $800.00 on July 28, 2006. No evidence was presented that Respondent had online access to the FCH Realty escrow account or that Respondent transferred these funds. On July 28, 2006, Respondent did transfer $32,890.00 from the FCH Realty operating account to the FCH Realty construction account. The $32,890.00 was a deposit from a buyer at Millbrook Manor. After transferring the $32,890.00, Respondent had the bank issue a cashier's check to Platinum Properties for $32,890.00 as the buyer's deposit on the Millbrook Manor property. Respondent was not responsible for reconciling the FCH Realty escrow account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding that Respondent, Gregory John Owen, is not guilty of the allegations of impropriety stated in the Amended Administrative Complaint. DONE AND ENTERED this 17th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of November, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Jennifer Leigh Blakeman, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-801 Orlando, Florida 32801 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
The Issue The issues in this case are stated in two counts set forth in the Administrative Complaint: Count I--whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in a business transaction in violation of Subsection 475.624(2), Florida Statutes (2006); and Count II-- whether Respondent is guilty of failing to exercise reasonable diligence in developing an appraisal report in violation of Subsection 475.624(15), Florida Statutes (2006). Counts III through IX of the Administrative Complaint were dismissed on the day of the final hearing held in this matter.
Findings Of Fact The Division is responsible for monitoring all licensed and certified real estate appraisers in the state. It is the Division's duty to ensure that all appraisers comply with the standards set forth in relevant statutes and rules. Respondent is a certified residential real estate appraiser. He has been an appraiser since 1998 and has been certified since 2002. There have been no prior actions taken against his professional license or certification. Respondent moved to Orange County, Florida, in 1980 and his entire appraiser practice has been in the greater Orlando area. On or about May 25, 2006, Respondent issued a real estate appraisal report (the "Appraisal") on a property located at 2119 Blossom Lane, Winter Park, Florida ("the Subject Property"). Several different approaches can be utilized by appraisers when assessing a property's value. Using the sales comparison approach for appraising residential properties, Respondent assigned a value of $750,000 to the Subject Property. When Respondent applied the cost approach to the property, it resulted in a value of $765,000. The income approach was not used in the Appraisal. The Division received an anonymous complaint about the Appraisal some time after it was completed.1 After conducting its investigation pursuant to the complaint, the Division asserts that in preparing and issuing the Appraisal, Respondent engaged in fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust. The Division also alleges that Respondent is guilty of having failed to exercise reasonable diligence in developing the Appraisal. The Subject Property The Subject Property is a one-story, single-family residence located on .42 acres in Winter Park, Florida. The Subject Property is located one block away from Lee Road, a heavily traveled four-lane road. The rear of the Subject Property is located on a finger of water identified as a canal that connects the property to Lake Killarney. Lake Killarney is a large lake suitable for motorboats and skiing. There is a dock on the rear of the Subject Property which can be used to secure a boat. There are 2,551 gross square feet of living area in the Subject Property. The house has a two-car garage, two screened porches, and a fireplace. The home is 15 years old, with an "effective" age of three years. An effective age indicates how well a home has been maintained, upgraded and taken care of during its existence. While the Subject Property is located in a nice, upscale neighborhood, the value of its location is somewhat diminished by the view across the canal. The far side of the canal houses a two-story, red brick office building with an asphalt parking lot. The view is not completely consistent with a typical neighborhood environment. At the time of the Appraisal, however (according to uncontroverted testimony by Respondent), the view across the canal was obscured by foliage and trees located on the bank of the canal near the boat dock. Ownership and Sale History of the Subject Property At the time Respondent prepared the Appraisal on behalf of his client, American Heritage, the Seller's Disclosure and Latent Defects Statement indicated the owners were a couple by the name of Huong Thu Do and Nguyen Do. The Sales Contract itself listed the seller as the Thu/Nguyen Trust. No buyer is listed on the Sales Contract. Mr. and Mrs. Do had not signed the contract. It is not unusual for Respondent to have an unsigned contract; his client is normally the lender,2 rather than the buyers or sellers. The contract price on the Thu/Nguyen contract was $699,000. There were also other sales contracts associated with the Subject Property at about the same time. An "As Is Contract for Sale and Purchase" listed Do Huong Thu and Do Nguyen (presumably the same persons named in the unsigned contract mentioned above) and Beth Schuldiner/SPI, Inc., and/or Assigns as the Seller. This contract, signed by someone as Attorney in Fact for the Sellers, had a contract price of $575,000. There is then an Assignment of the Contract to Beth Schuldiner/SPI, Inc., on April 29, 2006. At the time of the Appraisal, the Subject Property was listed in the MLS report as having sold for $575,000 in March 2006. The Appraisal mentioned the MLS report and the sale date, but did not indicate the sale price. It was an oversight by Respondent not to put the sale price in the Appraisal. The $575,000 sale of the Subject Property, however, was never recorded in the public records of Orange County, Florida. The Closing Settlement Statement for the sale transaction listed Huong Thu Do and Nguyen Do as Seller and Aracely McFarland (yet another person involved in the transaction) as Buyer. The settlement statement indicates a contract sales price of $699,000 and states that $123,079.50 is due to Seller as an "Assignment Fee to Steele Property Investments" (which the Division opines is the SPI, Inc., mentioned in conjunction with Beth Schuldiner in the sales contracts). Taking away the assignment fee, the price would be approximately $575,000. Ultimately, a general warranty deed was recorded which listed Huong Thu Do and Nguyen Do as Sellers, and Aracely McFarland as the Buyer. The warranty deed was recorded in the Orange County public records on June 27, 2006. By way of a Quit Claim Deed recorded August 8, 2006, McFarland deeded the property to Beth Schuldiner as trustee of McFarland Trust. The confusing and somewhat contradictory sales contracts and deeds may suggest some degree of shenanigans surrounding the sale of the Subject Property. It is clear Respondent knew of and had done work for Schuldiner previously. He said that Schuldiner sometimes gave him a bonus of up to $100 to expedite his appraisal work. (Interestingly, Respondent made only about $350 for the Appraisal at issue.) There is no evidence that Respondent was involved in or aware of the various transactions mentioned. Respondent was hired by a lender to appraise the Subject Property. It is unsubstantiated conjecture to suggest that some collusion between Respondent and anyone else related to the sale was going on in this transaction. There is, in fact, no proof whatsoever that the allegedly shady deal was actually improper at all. The Appraisal Respondent, in his cost approach valuation of the Subject Property, listed the site value at $250,000. A general appraiser who viewed the Subject Property to review Respondent's findings determined the site value to be $160,000. The general appraiser's finding was based on the amount appearing in the county property appraiser's records. Such records, while they are some indication of the value of a property, are not meant to be a final word or completely reliable source. Respondent, conversely, took the property appraiser's value and compared it to other properties in the area, e.g., the site at 115 Killarney was valued at $229,000; the one at 139 Killarney was $224,000; a Rippling Avenue site was $292,000; and an Interlachen site was listed at $301,000. Based on those property values, plus the phenomenon of great growth in land values at that time, Respondent made a good faith estimate of the site value for the Subject Property. His approach is reasonable. Respondent's sales comparison approach to the appraisal used five comparable properties (or Comps) for comparison purposes. It is typical to use at least three comparables, but in special cases an appraiser would use more. Respondent considered this a special case. Comp 1 was a much smaller, older home3 located directly across from, but not directly on, Lake Killarney. There is no commercial property nearby. That being the case, Respondent discounted the location value for Comp 1 by $35,000 in an effort to make its overall value similar to the Subject Property. Respondent explains this discount as a necessary adjustment based on location and difference in land values. Other positive and negative adjustments were made, but the net adjustment for the property (vis-à-vis the Subject Property) was $10,000. Comp 2 was a somewhat smaller home than the Subject Property but with actual lake frontage, as opposed to a canal connecting to the lake, on Lake Killarney. This property is located some two miles from the Subject Property in a different neighborhood. Adjustments were made to this property totaling $27,400, although no adjustment was made for the site, even though Comp 2 is directly on the lake, rather than on a canal. Comp 3 was a somewhat larger home located less than half-a-mile from the Subject Property. An $85,700 adjustment was made to make this Comp more comparable to the Subject Property. Comp 4 is considerably larger than the Subject Property and is not located directly on the water. This property has access to Lake Catherine, but that lake is a much smaller and less usable body of water than Lake Killarney. An adjustment was made by Respondent to account for the larger size of this Comp, but such adjustments are a judgment call made by the appraiser. Comp 5 is a similarly sized, though older, two-story home located a little over two miles from the Subject Property. This property is located in a much nicer neighborhood, on a much larger lot than the Subject Property. Again, an adjustment was made to make the property more comparable to the Subject Property. Respondent did not use a very similar property located on the same street as the Subject Property, because he was concerned as to whether the sale of that home had been an arm's length transaction. His refusal to use this property as a Comp is reasonable. Respondent's cost approach method of appraising the property involved an estimation of the cost of the site on which the home was located; the cost of the house itself, minus depreciation; and the addition of any improvements. A site value can be derived using any one of various methods. If a vacant comparable site exists in the area, it can be used to estimate value of the site being appraised. However appraisers are seldom lucky enough to find such a vacant lot. The abstraction method is another approach, using a comparable site and subtracting the contributory value of improvements. Also, a county tax assessor's estimate on the tax rolls could be used. The tax rolls at that time listed a value of $160,000 for the Subject Property. Respondent assigned a value of $250,000 for the site, based on his review of various properties listed in the Microbase (a tool used by appraisers to ascertain site values of properties). The Microbase property values should generally be consistent with county records, but that is not always the case. The figure decided upon by Respondent was an extrapolation of existing site values using recent trends. There were no specific references made in the Appraisal as to the use of those existing sites, however. A sales comparison approach to appraise the Subject Property was later done by a certified general appraiser (in 2009). Respondent is a certified residential appraiser. The general appraiser used one of Respondent's comparative sales (Comp 1) and four other homes for comparison purposes. While opining that appraisals are a judgment call and not an exact science, the general appraiser felt like the comparable sales he used were more closely alike the Subject Property than the comparative sales used by Respondent. The general appraiser's comparative properties, while certainly having merit as more similar to the Subject Property, were not contemporaneously reviewed with the Subject Property in 2006 (when Respondent did his Appraisal). While showing that the Appraisal could have been done differently, and, arguably, better, the general appraiser's report does not invalidate Respondent's work. The general appraiser opined that Respondent made three primary errors in the Appraisal: 1) Not disclosing the commercial property located near the Subject Property; 2) Identifying the Subject Property as "lake front" when it was actually on the canal connecting the lake; and 3) Not appropriately adjusting the values in the comparative properties used to appraise the Subject Property. As to the commercial property, Respondent testified that at the time of the Appraisal, the commercial building was hidden by the trees along the back of the Subject Property. The pictures in the Appraisal do not show a view of the canal, so there is no way to confirm what foliage existed at that time. As to the identification of the property as lake front, the MLS listing used by real estate agents lists the property as "waterfront," with the waterfront type as "canal-fresh lake." As far as water is concerned, the description is a matter of opinion by the appraiser or real estate agent. There is no definitive guideline as to what constitutes waterfront. As to the adjustments made by Respondent to the comparable sales properties, it is clear the general appraiser made significantly larger adjustments than those made by Respondent. However, the reasons set forth for the general appraiser's adjustments are not convincing. Respondent's adjustments are equally valid to those made by the general appraiser. There is no evidence of collusion by Respondent with anyone associated with the sale of the Subject Property. There is no evidence that Respondent's client, the seller or the buyer believed the Appraisal was improper or incorrect. There is no evidence that the amount determined by Respondent for valuation of the Subject Property was wrong.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the Administrative Complaint against Respondent, Peter Joseph Esposito. DONE AND ENTERED this 28th day of May, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 28th day of May, 2010.
The Issue The issue for determination is whether Petitioner should be awarded attorney's fees and costs, pursuant to Section 57.111, Florida Statutes (2005), and, if so, in what amount.
Findings Of Fact By Final Order filed November 18, 2005, in Department of Business and Professional Regulation, Division of Real Estate vs. Hilda Bell and Sharmic Realty Properties, Inc., Case Nos. 2001-80091 and 2001-80092, DOAH Case No. 04-4470, the Florida Real Estate Commission, hereinafter Commission, approved and adopted the recommended findings of fact and conclusions of law issued by the undersigned as its own and ordered that the ruling of the undersigned was accepted as the ruling of the Commission.3 By Recommended Order issued August 9, 2005, the undersigned recommended to the Commission that a final order be entered finding that Ms. Bell and Sharmic Realty did not commit the violations alleged in the Administrative Complaint and dismissing the Administrative Complaint.4 Hence, the ruling of the Commission was the dismissal of the Administrative Complaint filed against Ms. Bell and Sharmic Realty. No dispute exists that the Division of Real Estate was the state agency that initiated the administrative action against Ms. Bell and Sharmic Realty conducted in a Chapter 120, Florida Statutes, proceeding. The administrative action against Ms. Bell and Sharmic Realty was initiated by the Division of Real Estate for alleged violations of Section 475.25, Florida Statutes (2000).5 No dispute exists that the Division of Real Estate was not a nominal party in the administrative action. No dispute exists that Ms. Bell and Sharmic Realty were prevailing parties in the administrative action. Sharmic Realty is incorporated in the State of Florida. Ms. Bell is the sole officer and director of Sharmic Realty. The domicile of Ms. Bell is the State of Florida. The principal office of Sharmic Realty is in the State of Florida, being located in Lauderhill, Florida. At the initiation of the administrative action, the evidence demonstrates that Sharmic Realty employed three agents, which included Ms. Bell. However, the evidence was insufficient to demonstrate the total number of employees of Sharmic Realty at the time of the initiation of the administrative action. No evidence was presented to demonstrate the net worth of Sharmic Realty at the time of the initiation of the administrative action. The attorney, who represented Ms. Bell and Sharmic Realty in the administrative action, filed an affidavit of attorney's fees and costs incurred, with an itemized account of such attorney's fees and costs. The attorney's fees incurred total $30,961.53, and the costs incurred total $617.07. At no time did the Division of Real Estate contest or dispute the attorney's fees or costs incurred by Ms. Bell and Sharmic Realty or the reasonableness thereof. Prior to filing an administrative complaint against Ms. Bell and Sharmic Realty, an investigation was performed by the Division of Real Estate, which was reduced to writing.6 Among other things, the investigative file contained the following: (a) documents from the file of Sharmic Realty, showing deposit monies paid by the Buyer of realty for whom Sharmic Realty was the agent; (b) copies of letters, provided by the Complainants, from the agent of the Sellers of the realty to Sharmic Realty making a demand for the deposit monies on the ground that the Buyer failed to comply with the terms of the contract for the sell of the realty; (c) a letter from the Complainants that indicated that the Seller’s agent provided the letters in (b) above to them; (d) a summary statement from the investigator that Ms. Bell admitted to him, during his interview of her, that she had not notified the Division of Real Estate of conflicting demands on the deposit monies and a good faith doubt as to who should receive the deposit monies; and (e) a document showing, and a confirmation from Ms. Bell, that Sharmic Realty had returned the Buyer's deposit to him. The investigative file was submitted to a Probable Cause Panel of the Division of Real Estate. The Probable Cause Panel reviewed the “complete file” in the matter involving Ms. Bell and Sharmic Realty and heard from counsel of the Division of Real Estate.7 The investigative file supported a commission of the alleged violations by Ms. Bell and Sharmic Realty. The Probable Cause Panel found that probable cause existed to file an administrative complaint against Ms. Bell and Sharmic Realty. The evidence demonstrates and a finding is made that the decision made by the Probable Cause Panel was reasonably based on fact and law and that, therefore, the Division of Real Estate had a reasonable basis in law and fact to proceed with an administrative action against Ms. Bell and Shamric Realty.
The Issue Whether the Respondent, Miami-Dade Community College, has adopted a statement of agency policy in violation of Florida law.
Findings Of Fact Prior to August 2, 2002, the Respondent employed the Petitioner, Lonny Ohlfest. At the time of his termination, the Petitioner filed a request for a due process hearing with the Respondent to challenge his termination from employment. The Petitioner challenged the basis for his termination as he wanted to clear his name regarding some unflattering allegations but, equally important, he wanted to keep his job with MDC. The Respondent denied the Petitioner's request for an administrative hearing and found that the Petitioner was not entitled to a hearing. More specifically, the Respondent concluded that since the Petitioner did not have a contract of employment he was not entitled to an administrative hearing. The Petitioner disputed the Respondent's claim and argued that he did have a contract, that he had a reasonable expectation that his employment would continue, and that the Respondent unlawfully refused to afford him regress through the administrative process. When the Petitioner's appeal of his request for an administrative hearing failed, he filed the instant case to challenge the Respondent's policy of not referring administrative cases for formal hearing. The delays in the appeal process explain and support the Petitioner's delay in filing the instant challenge to the agency's alleged rule. To understand the historical perspective of this case, the following findings are made pertinent to the Petitioner's employment with the Respondent: The Petitioner began employment with the MDC on or about April 4, 2001. He was hired as a part-time, hourly worker within the school of allied health technologies. The position he assumed was funded and operated within the "Health Careers Opportunities Program" or HCOP. The HCOP was funded by a federal grant. The monies coming from the grant were renewable each year and ran concurrent with the school's fiscal year (July 1-June 30). All employees paid through the HCOP grant were considered "temporary" as the grant monies were necessary to assure continued employment. In January 2002 the Petitioner was given a full-time position within the HCOP. He was designated "Program Leader/Student Services" for the upcoming summer bridge program. At all times material to this case, all parties knew that absent federal funding the HCOP would not continue to operate. Moreover, the Petitioner knew, or should have known, that his employment with the Respondent would run only until June 30, 2002. Thereafter, it was expected that if and when the federal funding came through, the HCOP employees (including the Petitioner) would continue to work within the scope of the program. At the end of the summer program in 2001, the HCOP employees took leave until the school year started and the funding of the program was assured. Accordingly, after the summer bridge program was completed, the Petitioner expected to be on leave during the summer of 2002 until called back to work. Instead, the Respondent terminated the Petitioner from employment. The 2002 summer bridge program had not finished well for the Petitioner. Amid allegations of sexual harassment (unsubstantiated and not at issue in this proceeding) the Petitioner's working relationship within the HCOP floundered. The Petitioner was aghast that unsubstantiated claims had been reported, he wanted the accusations resolved, he wanted his name cleared, and he was disappointed by the process that failed to timely and fully resolve the issues. When the Petitioner left the campus for what he believed would be the break (similar to the one they had taken the prior year), he was uncertain as to his employment status. In fact, when he left the campus he cleaned out his desk and returned his keys. Nevertheless, on July 26, 2002, Dr. Miller directed the Petitioner to present for work on July 29, 2002. He did not do so. On July 29, 2002, the Petitioner's immediate supervisor directed him to appear for work on July 30, 2002. He did not do so. In fact, the Petitioner did not return to the office until July 31, 2002. The Petitioner did not understand that his attendance was mandatory for the two days that he did not appear for work. When the Petitioner did check in with the HCOP office on the 31st he came to understand the gravity of the situation. As a result of the absences, the Respondent cited the Petitioner with insubordination and terminated his employment with MDC. The Petitioner timely challenged the termination but the Respondent ruled he was not entitled to an administrative review of the decision. The Petitioner filed for, and received, unemployment compensation. The termination was not justified by the standards applicable to that forum. The rules governing unemployment compensation do not, however, govern the administrative process regarding whether or not one's employment constitutes a property interest that is protected by law. Upon receipt of the Petitioner's petition seeking an administrative review, the Respondent declined to afford the Petitioner with a hearing. The Respondent does not forward petitions filed by non- contract employees when such individuals seek to challenge their termination of employment. The Respondent maintains that, as a matter of law, they are not required to forward such petitions for formal review. The Respondent does not have a written rule or policy stating that non-contract employees are not entitled to administrative review when their employment is terminated. Conversely, the Respondent does not have a written rule or policy stating that non-contract employees are entitled to an administrative review when their employment is terminated. The Petitioner was not a full-time, contract employee of the Respondent. The Respondent's policy affords full-time contractual personnel a right to an administrative hearing pursuant to Chapter 120, Florida Statutes.
The Issue The central issue presented in this case concerns whether the Department of Banking and Finance’s application of Section 717.124(5), Florida Statutes, as amended effective October 1, 2001, to claims filed prior to October 1, 2001, but paid after October 1, 2001, is an unpromulgated rule in violation of Section 120.56(4), Florida Statutes.
Findings Of Fact Computer Mart Claim 1.(A) On or about September 4, 2001, Petitioner filed a claim on behalf of Computer Mart, Inc., for unclaimed property account number 3563-1994-44 in the amount of $1,854.85 and reported in the name of Computer Mart (“the Computer Mart Claim”). Prior to the filing of the Computer Mart Claim, Computer Mart, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Florida Central Realty, formerly known as Computer Mart. On or about October 12, 2001, the Department approved the Computer Mart Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $556.45. The remaining seventy percent of the accounts claimed equaled $1,298.40. On or about October 19, 2001, the Department issued a warrant in the amount of $556.45 to Petitioner. On or about October 19, 2001, the Department issued a warrant in the amount of $1,298.40 to Computer Mart, Inc. Diversified Claim 2.(A) On or about September 4, 2001, Petitioner filed a claim on behalf of Diversified Hospitality Group, Inc., for unclaimed property account numbers 6467-96-31364, 1165-92- 2634, 1165-92-2241, 1165-92-24712, and 1165-92-1871 in the aggregate amount of $4,165.60 and reported in the name of Diversified Hospitality or Diversified Hospitality Group (“the Diversified Claim”). Prior to the filing of the Diversified Claim, Diversified Hospitality Group, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Diversified Hospitality Group, Inc. On or about October 8, 2001, the Department approved the Diversified Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $1,249.68. The remaining seventy percent of the accounts claimed equaled $2,915.92. On or about October 19, 2001, the Department issued a warrant in the aggregate amount of $1,249.68 to Petitioner. On or about October 19, 2001, the Department issued a warrant in the aggregate amount of $2,915.92 to Diversified Hospitality Group, Inc. Charde Claim 3.(A) On or about November 13, 2001, Petitioner filed a claim on behalf of Charde, Inc., for unclaimed property account number 4432-00-2 in the amount of $1,641.47 and reported in the name of Charde, Inc. (“the Charde Claim”). Prior to the filing of the Charde Claim, Charde, Inc., executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for Charde, Inc. On or about November 13, 2001, the Department approved the Charde Claim. The Agreement authorized the payment of fees in the amount of $125.00. After the deduction of fees, the remaining amount equals $1,516.47. On or about November 20, 2001, the Department issued a warrant in the amount of $125.00 to Petitioner. On or about November 20, 2001, the Department issued a warrant in the amount of $1,516.47 to Charde, Inc. MTS Claim 4.(A) On or about July 11, 2001, Petitioner filed a claim on behalf of MTS Roofing and Installation Corporation, for unclaimed property account number 1495-96-83 in the amount of $1,000.00 and reported in the name of MTS Roofing Corporation (“the MTS Claim”). Prior to the filing of the MTS Claim, MTS Roofing and Installation Corporation, executed an Agreement authorizing Petitioner to file the claim on its behalf. Petitioner obtained a bankruptcy search for MTS Roofing and Installation Corporation On or about November 7, 2001, the Department approved the MTS Claim. The Agreement authorized the payment of fees of thirty percent of the accounts claimed, which equaled $300.00. The remaining seventy percent of the accounts claimed equaled $700.00. On or about November 14, 2001, the Department issued a warrant in the amount of $300.00 to Petitioner. On or about November 14, 2001, the Department issued a warrant in the amount of $700.00 to MTS Roofing & Installation Corp.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was licensed as a real estate sales associate, holding Florida license number 3035990. In late spring of 2005, the Respondent was contacted by Arnold Macabugao, a California resident who was interested in acquiring a home in Orlando, Florida, for himself and his wife. The Respondent was aware of a house for sale at 14213 Sports Club Way, Orlando, Florida 32837, which she apparently thought would be suitable for the Macabugaos' purchase. The owner of the house was Jack Girton. Mr. Girton did not reside in the property at any time material to this dispute. The Girton house was inhabited by a woman identified as Kim Capiello. Ms. Capiello was an acquaintance of Mr. Girton's. Ms. Capiello had no ownership interest in the property. All documents related to the purchase of the property by the Macabugaos identified Mr. Girton as the owner. During negotiations on the property, the Respondent provided all documents to Ms. Capiello. It is reasonable to conclude that Ms. Capiello transmitted the documents to Mr. Girton. There is no evidence that the Respondent dealt directly with Mr. Girton at any time during the sales process. The weight of the evidence establishes that the Respondent negotiated the Macabugaos' purchase of the Girton property through Ms. Capiello. At some point in the negotiations, the Respondent received a document titled "SIDE AGREEMENT TO PURCHASE CONTRACT" from Ms. Capiello. The document, which required payment of $10,000 directly to Ms. Capiello by the Macabugaos, in relevant part, provided as follows: This side agreement is between Buyers named above and Kim Capiello wherein the buyers agree to give $10,000 to Kim Capiello for services rendered in the search and purchase of the above named property. This agreement is contingent upon the buyers securing a loan, its lender determining a firm closing date and last but not the least, actual closing and funding of the above named property. The amount will be paid as follows: $5,000 to be paid at the time the Purchase contract is signed by all parties for the above property and contingent upon the buyers securing a loan and its lender determining a firm closing date. $5,000 to be paid the day after the closing under the condition being that the above property has been vacated and in move in condition. Kim Capiello further agrees that this side agreement is between her and the buyers only and has nothing to do with the actual purchase agreement entered into by the buyers and Jack Girton. (Emphasis in original) The Respondent facilitated the payment of the $10,000 by the Macabugaos to Ms. Capiello pursuant to the side agreement. The Respondent transmitted the document to the Macabugaos, who signed it. A signature purportedly of Ms. Capiello is also on the document. The Respondent instructed the Macabugaos on how to make the payments. She collected the funds from them. The Respondent used her personal checking account as a transfer mechanism for one of the $5,000 payments. The side agreement does not identify the date of execution, but Mr. Macabugao testified that he signed the side agreement after the sales contract had been signed. The executed sales contract between the Macabugaos and Mr. Girton was dated June 7, 2005. Mr. Macabugao testified that he had no communication with Ms. Capiello. The evidence fails to establish the Macabugaos' rationale for agreeing to make the payments to Ms. Capiello, other than the fact that the Respondent transmitted the document to the Macabugaos and instructed them on how to make the payments. None of the sales documents suggested that Ms. Capiello held licensure in Florida as a real estate professional. Based upon a review of the Petitioner's licensure files, the Petitioner's investigator testified that Ms. Capiello was not licensed in Florida as a real estate professional in any capacity. There was no credible evidence to the contrary, and the investigator's testimony has been credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding Eleanor Borling Dioneda guilty of violating Subsection 455.227(1)(j), Florida Statutes (2005); imposing a two-year license suspension followed by a two-year probationary period; imposing a fine of $5,000; and requiring completion of a remedial professional education course to be determined by the Petitioner. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008. COPIES FURNISHED: Jason W. Holtz, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Eric W. Ludwig, Esquire 250 North Orange Avenue, Suite 1250 Orlando, Florida 32801 Ned Luczynski, 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 802N Orlando, Florida 32801
The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
