The Issue Whether Respondent failed to maintain adequate current fiscal records relating to the financial operations of the facility, in violation of Section 400.419 (3)(c), Florida Statutes and Rules 10A-5.021(1) and 10A-5.024, Florida Administrative Code.
Findings Of Fact At all times relevant, Respondent, doing business as Oakbridge, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). During the inspection of the facility on July 19, 1990 and again on October 18, 1990, the date of the revisit of the facility, Respondent had no written accounting procedures. Therefore, they were not available for review and no expense records were maintained. Respondent resides on the premises and there were no residents of the ACLF on the date of the first inspection; one on the date of the second. Although Respondent acknowledged receipt of the HRS inspection report, she did not understand the need for preparing or maintaining the written accounting procedures or expense records until she had residents in the ACLF. A completed expense record was accepted by HRS in November, 1990, several months after the assigned date of compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 400.417(1) and 400.427, Florida Statutes and that a civil penalty be imposed in the amount of $100, pursuant to Section 400.419(3)(c), Florida Statutes. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of August, 1991. COPIES FURNISHED: Paula M. Kandel, Esq. Senior Attorney Department of Health and Rehabilitative Services Office of Licensure and Certification 7827 North Dale Mabry Hwy. Tampa, Florida Mildred H. Thompson Administrator, Oakbridge 5546 Ridge Road Seminole, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On January 18, 1982, the First National Bank in Palm Beach submitted a remittance report of unclaimed money items to the Office of the Comptroller. It listed, as item 10, an account which had been maintained by Alberta Stephens in the amount of $663.33. Alberta Stephens filed a claim to that money on March 20, 1989. In the interim the First National Bank had been acquired by Southeast Bank. In processing the claim, the Department requested the bank to provide it with a copy of the signature control card for the account. Southeast Bank could not do so, because under its retention schedule, all banking records were destroyed seven years after the account had been closed by sending the money to the Comptroller with the remittance report of unclaimed money items on January 18, 1982. Ms. Stephens is an elderly black woman. She was unable to produce copies of any deposit receipts or checks demonstrating ownership of the account. At the time the account was opened, depositors were not required to give their social security number to banks, so there is no way to trace the account to Ms. Stephens from documentary evidence. Ms. Stephens did produce the testimony of Preston L. Tillman, a real estate broker in Palm Beach County. Ms. Stephens had purchased income property from Mr. Tillman. He collected the rent on that property on Ms. Stephens behalf. He personally took Ms. Stephens to the First National Bank in Palm Beach County so that she could open an account in which to deposit the rents. He was present at the bank when the account was opened by Ms. Stephens. Ultimately, Ms. Stephens sold the rental property, and Mr. Tillman had no more contact with her. The evidence in this case is rather sparse, due to the passage of time. The evidence does demonstrate that Ms. Stephens had an account at the bank, and that there is no conflicting claim to that deposit. The testimony of Mr. Tillman, that he took Ms. Stephens to the bank so that she could open an account there, is accepted as adequate independent evidence of Ms. Stephens' ownership of the account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim of Alberta Stephens to the $663.33 in unclaimed money items be upheld, and that the Comptroller deliver that money to Alberta Stephens. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March, 1990. WILLIAM R. DORSEY, JR. 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 30th day of March, 1990. COPIES FURNISHED: John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33420 Eric Mendelsohn, Esquire Department of Banking & Finance 111 Georgia Avenue West Palm Beach, Florida 33401 Honorable Gerald Lewis, Comptroller Department of Banking & Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Petitioner proved that Respondent failed to obtain workers' compensation insurance that met the requirements of chapter 440, Florida Statutes, thus warranting issuance of a Stop-Work Order and Penalty Assessment against Respondent.
Findings Of Fact Petitioner is the state agency responsible for enforcing the Florida Workers' Compensation Law, chapter 440, Florida Statutes, including those provisions that employers shall be liable for, and shall secure and maintain payment of compensation for their employees who suffer work-related injuries. Respondent was, on September 12, 2011, an active Florida for-profit corporation. On September 12, 2011, Petitioner's investigator, Daniel G. Pfaff, conducted an inspection of a worksite at 333 Pablo Road, Ponte Vedra Beach, Florida. Mr. Pfaff did not testify at the hearing, and neither the Order nor the Request for Production provide a description of who Mr. Pfaff observed at the site or what they were doing, if anything. The record is silent as to the process by which Mr. Pfaff performed his investigation to determine Respondent’s status in the workers’ compensation system, or by which he received authorization to issue the Order and Request for Production. The Order required Respondent to cease all business operations statewide, and assessed a penalty equal to 1.5 times the amount the employer would have paid in premiums when applying the approved manual rates to the employer's payroll for the preceding three-year period, pursuant to section 440.107(7)(d). The Request for Production required Respondent to produce business records for the period from September 13, 2008, through September 12, 2011. At the hearing, Petitioner offered into evidence more than 1,200 pages of documents that were alleged to have been produced by Respondent in response to the Request for Production, consisting of, among other things, information provided by subcontractors and vendors, insurance certificates, tax forms, and bank records. The record contains no information regarding the date on which the documents were produced, the identity of the recipient of the documents, or the path the documents traveled before coming to rest on the desk of Mr. Mason two weeks prior to the final hearing. Although the pages are consecutively numbered, from page 0091 through page 1307, there was no indication of who numbered the pages, or when they were numbered.1/ The documents were used by Petitioner to prove the truth of the matters asserted therein, e.g., identity of employees, dates of employment, salaries, and workers’ compensation coverage. As will be discussed in the Conclusions of Law to follow, the documents are hearsay. The documents were received in evidence because they were reviewed by Mr. Mason in the performance of his duty as a penalty calculator. Mr. Mason, the only witness testifying, was not identified as Petitioner’s records custodian, and offered no testimony to suggest that he served in that capacity. The 1,200+ pages of documents were unaccompanied by any form of certification or declaration that might have substantiated their authenticity. Since Respondent did not appear at the final hearing, the documents were not authenticated, nor is there a foundation for determining that the records meet any exception to the hearsay rule. The undersigned has no doubt that Mr. Mason diligently performed his duty in reviewing the records that were provided to him and applying the various manuals and class codes that are routinely used by the Division in imputing income and calculating penalties for an employer’s failure to secure the payment of workers' compensation. However, given the lack of any contemporaneous or documented evidence as to the manner in which those documents were produced, or how they were stored, kept, and maintained by Petitioner, it is found that the documents introduced in evidence, without more, do not provide clear and convincing evidence that Respondent violated the Workers' Compensation Law during the period of September 13, 2008, through September 12, 2011, as alleged in the 3rd Amended Order. See Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570 (Fla. 1st DCA 2014); Mazine v. M&I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011); Scott v. Dep’t of Prof’l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992); Doran v. Dep’t of HRS, 558 So. 2d 87 (Fla. 1st DCA 1990); Juste v. Dep’t HRS, 520 So. 2d 69 (Fla. 1st DCA 1988). Finally, the records introduced by Petitioner include a document entitled “Answer,” which contains a number of hearsay statements that, if proven to be from Respondent, could be construed as an admission of liability for penalties in the amount of $7,324.98. However, the document does not bear a signature and, as with the other records described herein, has an insufficient evidentiary foundation upon which to base a finding that the document is authentic.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Stop-Work Order and 3rd Amended Order of Penalty Assessment against Respondent, The Ford Company Construction, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 23rd day of September, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of September, 2015.
The Issue The issue is whether respondent's license as a public adjuster should be revoked, suspended, or otherwise disciplined after his conviction for aiding in the preparation of a false tax return in violation of 26 U.S.C. Section 7206(2).
Recommendation It is RECOMMENDED that Mr. Lesser be found guilty of violation of Section 626.611(7), Florida Statutes (1987), and that his licensure as a public adjuster be suspended for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December, 1989. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-0502 Rulings on findings proposed by the Department: 1 and 2. Adopted in finding of fact 3. Adopted in finding of fact 4. Implicit in findings of fact 5 and 6. Adopted in finding of fact 6. Adopted in finding of fact 8. Adopted in finding of fact 8. Adopted in finding of fact 8. Implicit in finding of fact 11. Rulings on findings proposed by Mr. Lesser: 1-11. Inapplicable. Adopted in finding of fact 3. Adopted in finding of fact 3, to the extent necessary. Rejected as unnecessary. Adopted in finding of fact 5. Adopted in finding of fact 5. Adopted in finding of fact 5, though finding of fact 5 includes certain logical deductions or inferences. Made more specific in findings of fact 5 and 6. Adopted as modified in finding of fact 7. Rejected. Not only were the laundering transactions illegitimate because they allowed Benevento Maneri to mischaracterize the source of their income, they also created false expenses for Lesser and Company, Inc., which artificially lowered the income of Lesser and Company, Inc., by the amount of the expense. Adopted as modified in finding of fact 7. It is difficult to determine what Mr. Lesser actually thought the source of the money was, but he knew it was illicit. See, finding of fact 7. Adopted as modified in finding of fact 8. Adopted as modified in finding of fact 9. 25 and 26. Adopted as modified in finding of fact 9. Adopted as modified in finding of fact 10 The extent of Mr. Lesser's danger cannot be determined from this record, although he was in some danger. Covered in finding of fact 9 Adopted as modified in finding of fact 11. Rejected. See, finding of fact 8. The IRS first contacted Mr. Lesser. He then went to Mr. Weinstein to set matters straight. Adopted as modified in finding of fact 11. Adopted as modified in finding of fact 4. Adopted as modified in finding of fact 12. Adopted as modified in finding of fact 12. A light sentence implies the factors set out in finding of fact 35, were taken into consideration, but does not prove that they were all the reasons the U.S. District Judge took into consideration. To the extent necessary, mentioned in finding of fact 12. Rejected as procedural. 38-51. Covered in findings of fact 13 and 14. The proposed findings are subordinate to the findings made in findings of fact 13 and 14. COPIES FURNISHED: S. Marc Herskovitz, Esquire Robert V. Elias, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 William W. Corry, Esquire Jack M. Skelding, Jr., Esquire Patrick J. Phelan, Jr., Esquire Parker, Skelding, Labasky & Corry 318 North Monroe Street Post Office Box 669 Tallahassee Florida 32301 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times material here to, Respondent has been a licensed real estate broker under the laws of the State of Florida, having been issued license number 0044295. On or about June 4, 1981, Respondent, representing himself to Doris Colon as the duly appointed, qualified and acting broker for Alvin Katz if, and representing that Alvin Katzif was the owner of certain real property located at 636-638 Southwest Eighth Avenue, Miami, Florida, accepted from Colon a written offer to purchase said property. Colon's offer was accompanied by a deposit of $5,000, receipt of which was acknowledged by Respondent on or about June 6, 1981. That deposit was delivered to the Respondent, as broker, to be held by him in escrow under the terms of the Deposit Receipt. The vendor named in the Deposit Receipt Agreement Alvin Katzif, was unable to sell the property in accordance with the terms expressed in that Deposit Receipt Agreement. Therefore, the sale was never consummated. Approximately one month after signing the Deposit Receipt Agreement, Alvin Katzif advised Respondent that he did not hold title to the property and that there were numerous and diverse claims to the property. Respondent never placed Colon's $5,000 deposit in an escrow account but rather placed the deposit in a personal account. Colon, through counsel, made a demand for the $5,000 earnest money deposit. Respondent failed to provide Colon with an accounting or delivery of her deposit until such time as she obtained a civil judgment against him. At no time did Respondent request an escrow disbursement order or submit the matter to arbitration or seek interpleader. Respondent converted Colon's $5,000 earnest money deposit to his own use. On or about the same day that Colon gave Respondent her $5,000 deposit made payable to him, Respondent gave Colon a check for $10,000 made payable to her. The $10,000 paid to Colon was not a loan to her and had no relation to the Katzif/Colon transaction. Rather, the $10,000 was a deposit toward the purchase of a duplex owned by Colon in which Respondent was then living as a tenant and which he desired to purchase from Colon. That transaction was completed, and the closing took place on August 12, 1981. The closing statement reflects credit given to Respondent of $10,000 toward the purchase price of the duplex he bought from Colon. The duplex Colon sold to Respondent is located at 2931-41 Southwest Sixth Street, Miami, Florida. When Respondent gave Colon his $10,000 deposit toward the purchase price of the duplex which he bought from her, he took her to friends of his at Intercontinental Bank, where she opened an account. She then wrote the $5,000 check out of that account, which check was the deposit which accompanied her offer on the property she wished to purchase from Katzif. In other words, the only relationship between the $10,000 check given to Colon by Respondent and the $5,000 check given to Respondent by Colon is that the fact that Respondent gave Colon a $10,000 down payment on the duplex he was purchasing from her gave Colon the opportunity to make an offer on the Katzif property using $5,000 of the $10,000 as a deposit on the offer to Katzif.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint and revoking his real estate broker license number 0044295. DONE and RECOMMENDED this 10th day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin I. Carlin, Esquire 3000 Biscayne Boulevard, Suite 402 Miami, Florida 33137 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At present Tony's Fish Market of Ft. Lauderdale, Inc. t/a Tony's Fish Market Restaurant is the holder of license no. 16-1320-SRX, series 4-COP held with the State of Florida, Division of Beverage. Prior to September 1, 1974, Armand Cerami owned 50 shares of stock in Tony's Fish Market, Inc., which represented a 50 percent interest in that corporation. In addition, Armand Cerami held 50 shares of stock in Tony's Fish Market of Ft. Lauderdale, Inc., representing a 50 percent interest in that corporation and was the holder of 50 shares of Tony's Sweet Enterprises, Inc., which represented a 50 percent interest in that corporation. During the time period of September 1, 1974, Armand Cerami had been charged with violation of the Internal Revenue Laws of the United States, under a federal indictment no. 74-407-CR-JE, in the United States District Court for the Southern District of Florida. This charge was placed against Cerami for Internal Revenue Law Violations which allegedly took place on tax returns on the tax year ,1968. In contemplation of a plea of guilty which Cerami intended to enter in the above cited case, he entered into a contract for purchase and sale of the corporate securities in the aforementioned corporations. Petitioner's Exhibit 2, admitted into evidence is a copy of the contract for purchase and sale of corporate securities, which was entered into between Armand Cerami and Pamela Ann Cerami, his wife, on September 1, 1974. The terms of the contract were that Pamela Ann Cerami would pay Armand Cerami $20,000 cash and would give to Armand Cerami a promissory note payable in the amount of $200,000, in ten equal installments of principal and interest at 6-1/2 percent payable on the anniversary date of the contract. On September 20, 1974, the Board of Directors of the three subject corporations accepted the resignation of Armand Cerami as the Secretary-Treasurer of those corporations, and elected Pamela Cerami as Secretary-Treasurer in Armand Cerami's stead. Those Board of Directors were Tony Sweet, Frank Sweet and Armand Cerami. Armand Cerami returned to federal court on October 18, 1974, and entered a plea of guilty to counts one and five of the aforementioned, indictment, for which he was sentenced to three year on each count to run concurrently, but was given a split sentence of 6 months time in confinement, thereafter to be placed on a probationary period for 2-1/2 years. A copy of the judgement and commitment is Petitioner's Exhibit number 1, admitted into evidence. They are felony offenses. Subsequent to his release from prison, Armand Cerami served as a co- manager and host of the licensed premises, Tony's Fish Market, located at 1900 N. Bay Causeway, North Bay Village, Florida, license no. 23-1624-SRX, series 4- COP and in the same capacity at Tony's Fish Market of Ft. Lauderdale, located at 1819 S.E. 17th Street, Ft. Lauderdale, Florida, license no. 16-1320-SRX, series 4-COP. He remained in this capacity until September 30, 1976, when a change in 562.13(3)(a), F.S. prohibited convicted felons from being managers of the licensed premises, licensed by the State of Florida, Division of Beverage. The change in the law took effect on October 1, 1976. At that point two separate individuals were hired as managers of the subject licensed premises. Armand Cerami remained in the position as host of those licensed premises, up to and including the date of the hearing. Although this title and this position was held by Armand Cerami, on December 16, 1976, while conducting a routine visit, beverage officer, William Valentine was told by Frank Sweet, a Director in the subject corporations, that Frank Sweet was in charge of the kitchen of the Tony's Fish Market of Ft. Lauderdale and that Armand Cerami was the real manager, ran the restaurant and was responsible for hiring and firing of employees. Pamela Ann Cerami was not shown to have any active interest in the management of the licensed premises. Pamela Ann Cerami as the Secretary-Treasurer in the three corporations which she purchased shares in, does not draw a salary from the operation of the two restaurants. Her background and financial involvement in the licensed premises, can be traced to certain trusts in her name and a certain gift from her husband, Armand Cerami. The joint composite exhibit number 1, admitted into evidence in the hearing, shows that Pamela Ann Cerami, at one time Pamela Crumly, was a beneficiary of the estates of Gail Crumly and Mildred Crumly, her grandparents. Certain distributions of money were made to Pamela Ann Cerami from those estates. On April 3, 1970, she received $6,093.94; on July 3, 1970, she received $121.88; on October 5, 1970, she received $182.82; and on December 31, 1970, she received $925.65,, which represented a partial distribution of her 1/2 interest in the Gail Crumly estate. As of April 1, 1970, she had been given $5,292.59 as a portion of the 1/3 distribution of her share in the estate of Mildred Crumly. The total value of her share in that estate being $16,157.02, and the conditions of her rights to the estate being set forth in the will of Mildred Crumly which is found in the joint composite exhibit number 1. Pamela Ann Cerami had worked as an airline stewardess prior to her marriage to Armand Cerami and had certain funds from her employment in that capacity. Other funds of the marriage include a certificate of deposit in the Bank of Nova Scotia in Nassau, Bahamas in the amount of $18,000., at 8-1/4 percent interest, as deposited May 20, 1970 with a maturity of November 20, 1970. This certificate of deposit was in the name of Armand D. Cerami and/or Pamela Crumly now Pamela Ann Cerami. The interest received on that certificate of deposit was redeposited along with the principal and a second certificate of deposit was purchased on May 23, 1974 in the amount of $23,480.74, to become mature on November 25, 1974. This certificate was withdrawn on October 18, 1974 and the receipt of 10-1/4 percent interest was paid. The amount of interest thereby being $975.89. Copies of the above mentioned certificates of deposit may be found as part of the joint composite exhibit number 1 admitted into evidence. Continuing an examination of the financial circumstances of Pamela Cerami and Armand Cerami, there is found a warranty deed from Willard H. Keland to Pamela Ann Cerami for certain real estate in Dade County, Florida, for which Pamela Ann Cerami paid Willard H. Keland the amount of $158,000. This deed is found as Petitioner's exhibit number 4 admitted into evidence and was recorded on January 11, 1974. On that same date a closing was held on the property. Petitioner's Exhibit number 5, admitted into evidence is a copy of the closing statement. Conditions of the closing was a cash deposit in the amount of $15,800 and $69,251.64 to close. A first mortgage in the amount of $67,500 and interest of $1,028.75 was given to the Miami Beach First National Bank. The $158,000 paid for this estate corresponds to a gift which was given by Armand Cerami to Pamela Ann Cerami in the amount of $158,000 as shown in the gift tax return, a copy of which is Petitioner's exhibit number 6, admitted into evidence. The effective date of the gift is established in the gift tax return as February, 1974. The federal income tax return filed by Armand Cerami for the year 1974, shows the sale of the stock of the three corporations. That income tax return would further show the $20,000 installment sale payment, a portion of which was treated as income to Armand Cerami. Finally, that return shows $13,000 of interest which was treated as income to Armand Cerami. On October 1, 1975, Pamela Anne Cerami gave a first mortgage on the property that she had paid $158,000 for this mortgage being given to Bob Erra, as trustee. A copy of the mortgage deed is found as Petitioner's Exhibit number 9, admitted into evidence. The amount of the mortgage was $40,000 and the proceeds of the mortgage amount were distributed as $7,000 to Pamela Cerami and $33,000 to Armand Cerami. These distributions were placed as time certificates of deposit with the Pan American Bank of West Dade, copies of which are found as Petitioner's composite exhibit number 8. The amount of interest returnable on the time certificate of deposit held by Armand Cerami is shown in his 1975 federal income tax return. Tony's Fish Market of Ft. Lauderdale, Inc. t/a Tony's Fish Market Restaurant made application with the State of Florida, Division of Beverage, to change Armand Cerami as Secretary-Treasurer of Tony's Fish Market of Ft. Lauderdale, Inc. and substitute Pamela Cerami as Secretary-Treasurer of that corporation and to transfer the stock ownership in the licensee corporation from Armand Cerami to Pamela Cerami. This change of officer and transfer of stock ownership involves the license no. 16-1320-SRX, series 4-COP. This application was denied by letter of April 9, 1975, from the Director of the Division of Beverage. In fact, Armand Cerami had been convicted of a felony, and is interested in an indirect way in the licensed premises.
Recommendation It is recommended that the applications to change the officer and transfer the stock ownership in license no. 16-1320-SRX, series 4-COP, set forth in this hearing be denied DONE AND ENTERED this 24th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Tobias Simon, Esquire 1492 S. Miami Avenue Suite 208 Miami, Florida 33130 Sy Chadroff, Esquire Suite 2806 120 Biscayne Boulevard North Miami, Florida 33132
The Issue The issue in this case is whether Petitioner's application for a certificate of need was complete.
Findings Of Fact Petitioner and Intervenor each filed applications in the same batching cycle for certificates of need to establish Medicaid-certified home health agencies in Collier County, District 8. By letter dated October 6, 1994, Respondent advised Petitioner that its application omitted certain elements. The letter requests, among other things, an "audited financial statement," including a balance sheet and profit-and-loss statement for the previous two years' operation. Petitioner's application contained an unaudited financial statement for the part of the year that it had been operation. Incorporated in 1994, Petitioner had been receiving patients only since September or October 1994. Petitioner's agent contacted a representative of Respondent and discussed the omissions letter. A misunderstanding ensued in which Petitioner's agent thought that Respondent's representative said that Petitioner would not be required to submit an audited financial statement because Petitioner had not been in operation for a full fiscal year. In fact, Respondent's representative did not say that. Respondent's policy is to permit applicants to file audited financial statements for a partial year, if that is how long they have been in business. For example, Intervenor included with its application an audited financial statement covering the six-week period that it had been in existence. In this case, it would have been possible for Petitioner to obtain an audited financial statement for a period of time including at least its first month of operation.
Recommendation It is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing Petitioner's challenge to the administrative withdrawal of the subject application for a certificate of need. ENTERED on April 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 24, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: rejected as subordinate. 7-8: rejected as unsupported by the appropriate weight of the evidence. 9: adopted or adopted in substance. 10-11: rejected as not finding of fact. 12-14: rejected as recitation of evidence. 15: rejected as unsupported by the appropriate weight of the evidence. Rulings on Proposed Findings of Respondent and Intervenor All are adopted or adopted in substance. COPIES FURNISHED: Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Attorney Robert E. Senton P.O. Box 963 Tallahassee, FL 32302 Richard A. Patterson Assistant General Counsel Agency for Health Care Administration 325 John Knox Road Suite 301--The Atrium Tallahassee, FL 32303 Attorney Alfred W. Clark 117 South Gadsden Street Suite 201 Tallahassee, FL 32301
Findings Of Fact Respondent Lucille V. Payne has been registered as a real estate salesman with the Respondent since 1975. In October 1976, she was employed by Robert L. Richardson Real Estate, New Port Richey, Florida. Her registration expired on March 31, 1979, and no evidence was presented to indicate that she has renewed her license since that time. (Petitioner's Exhibit 1) On or about October 18, 1976, George and Marie Theodorakos of Hopkinsville, Kentucky were in New Port Richey, Florida looking for a house to purchase. They viewed one house as the result of an advertisement, but decided that they did not like it. The lady at that residence told them that another house nearby was going to be put on the market. This was a home located at 1435 Mill Creek Lane which was owned by a Louisiana Corporation, W. H. Payne, Inc. Respondent was secretary/treasurer of the corporation and her husband, William H. Payne, was president. At the time, Respondent was residing in the house and her husband was employed in Wisconsin. The Paynes had not listed or advertised the house for sale, but contemplated doing so in the future. Mr. and Mrs. Theodorakos decided to purchase the house, and Respondent called her husband that evening and secured his approval for the sale. The next day a contract was executed by the Theodorakoses and Respondent. A standard form deposit receipt contract was used that contained various references to and a signature block for an "agent" who normally would have been the real estate broker or salesman handling the transaction. These references were left blank in the contract. The agreement provided that W. H. Payne, Inc. would sell the property for the sum of $42,000 payable with a $500 deposit and an additional $4,500 by November 4, 1976, with $15,000 cash payable at closing and the balance of $22,000 to be secured by mortgage. Closing of the transaction was to be on or before January 4, 1977. Paragraph 8 of the contract stated as follows: 8. This instrument shall become effective as a contract when signed by the Agent, Buyer, and Seller. If not signed by all parties on or before October 29, 1976, any monies deposited shall be refunded and this instrument shall be void. The prospective purchasers gave Respondent $500 as a deposit and she told them that it would be placed in an escrow account. She also informed them that she would send the contract to her husband in Wisconsin for his signature under the corporate seal. Respondent told Mr. and Mrs. Theodorakos that she was a real estate salesman employed by Richardson Realty, but that she was handling the sale of the house herself without commission. (Testimony of M. Theodorakos, Brooks, Petitioner's Exhibit 2) Respondent mailed the contract to her husband in Wisconsin on October 19 and he received it several days later. He signed and sealed it and placed it in the return mail to Respondent. She received it on an undetermined date prior to October 29, and placed it in the regular mail immediately to Mr. and Mrs. Theodorakos in Hopkinsville, Kentucky. Respondent's return address was on the envelope. Respondent also delivered a copy of the agreement to the Ellis National Bank in New Port Richey which held an existing mortgage on the property to be assumed by the purchasers. Respondent had previously notified the bank to send application forms to the purchasers for assumption of the mortgage. Respondent had also placed the $500 deposit in a bank account of W. H. Payne, Inc. (Testimony of Respondent, W. Payne) The Theodorakoses did not receive the contract mailed by Respondent. On Saturday, October 30, Respondent called Mrs. Theodorakos and told her that she was leaving for Wisconsin and that she could mail the remaining down payment of $4,500 to her. Mrs. Theodorakos told her that the executed contract had not been received and Respondent said that it was in the mail and would arrive probably the following Monday or Wednesday. When subsequent telephone conversations indicated that the contract probably had been lost in the mail, Respondent mailed another copy to the purchasers which they received on November 19, 1976. Also, the mother of Mrs. Theodorakos, Hylo H. Brooks, who had witnessed the agreement and lived in New Port Richey, communicated with Robert L. Richardson, Respondent's broker, concerning the matter, and he obtained a copy of the executed agreement from the bank for her sometime in early November. (Testimony of M. Theodorakos, Brooks, Respondent, Petitioner's Exhibits 2-3, Respondent's Exhibit 1) Subsequent conversations between the parties concerning disposition of the deposit and payment of the remaining portion of the down payment resulted in Mr. Theodorakos informing Mr. Payne, in early December, that he was no longer interested in the house and wanted his deposit returned. Payne informed him that he would not return the deposit since they were in default by not paying the remaining amount for the down payment. Payne informed Theodorakos, however, that they could still have the property if they would send the down payment. Shortly prior to this last conversation, Payne listed the property with a local New Port Richey broker, but inserted a special provision in the listing agreement protecting the prior rights of Mr. and Mrs. Theodorakos to purchase the property. (Testimony of M. Theodorakos, Respondent, W. Payne) Robert L. Richardson had an informal policy in his real estate office that salesmen who sold their own properties must process the transaction through his office, whether or not a commission was involved. Although Richardson testified that he had informed all of his salesmen concerning this policy, Respondent denied being aware of it. After learning of the Theodorakos contract, Richardson terminated Respondent's employment with his office and informed Petitioner in this regard on November 5, 1976. On December 1, 1977, Richardson paid the $500 deposit amount to Mr. and Mrs. Theodorakos because he felt to do otherwise would reflect upon his reputation. (Testimony of Richardson, Petitioner's Exhibits 4-5)
Recommendation That the complaint against Respondent Lucille V. Payne be dismissed. DONE and ENTERED this 16th day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harold E. Scherr Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Harvey V. Delzer Delzer, Edwards, Coulter and Parker Post Office Box 279 Port Richey, Florida 33568
Findings Of Fact At all times material to this proceeding, Respondent Favret held public accounting license number 0001424 with the State of Florida. Respondent's license to practice public accounting reverted to inactive status by operation of law on January 1, 1980, due to his failure to demonstrate to the Department of Professional Regulation and the Board of Accountancy compliance with the continuing education requirements imposed on licensed public accountants pursuant to Section 473.312, Florida Statutes, and Chapter 21A-33, Florida Administrative Code. The Respondent was aware that his license reverted to inactive status on January 1, 1980, due to his failure to meet professional continuing education requirements. Respondent chose not to comply with the continuing education requirements because he did not wish to maintain an active license and did not feel that formal continuing education was of benefit to him. Between January 1, 1980, and August, 1981, Respondent continued to perform tax advisory services for approximately twenty-five (25 ) clients. His services included the preparation of personal federal income tax returns and all necessary supporting tax schedules. Respondent explained the tax services he provided as including the accumulation of raw data brought in by a client in categories, summarizing the information and then preparing the necessary tax forms. Although the Respondent signed all the tax forms as the preparer, he ceased using the professional designation, "C.P.A." when he received formal notice of the inactive status of his license. To prepare the income tax returns for his clients, knowledge of the present tax laws and regulations, tax accounting and arithmetic were utilized by the Respondent in the tax advisory and preparation services for which he received compensation. The preparation of personal income tax returns involves the use of accounting skills which includes the ability to make a determination of what items need to be recognized and included7 the reasonableness of the items, the proper categorization of the items and whether to apply certain accounting functions such as allocation to the items. 1/
The Issue The Petitioner in this action has accused the Respondent of violating Sections 473.04 and 473.251, Florida Statutes (1977); Pules 21A-4.01 and 21A- 7.01, Florida Administrative Code, as succeeded by Subsection 473.315(2) and Section 473.323, Florida Statutes (1979) and Rule 21A-22.01, Florida Administrative Code. Specifically, the Respondent is accused of undertaking an engagement in the practice of public accounting which he could not reasonably expect to complete with professional competence and that the Respondent committed acts discreditable to the profession with respect to accounting services provided to Mr. and Mrs. John E. Cholette.
Findings Of Fact The Respondent, Frank Berman, is a certified public accountant and is so licensed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Accountancy. He held this license at all times pertinent to the case in inquiry. This is an action by the Petitioner brought against the Respondent in the way of an Administrative Complaint charging the Respondent with these violations alluded to in the issues statement of this Recommended Order. The Despondent requested that a formal hearing be conducted to consider this matter and the case was referred to the Division of Administrative Hearings and the hearing conducted on March 13, 1980. The facts reveal that the Respondent began to provide services for a client, Inn on the Park, Inc., beginning in March of 1976. These services were provided while the Respondent was associated with Donald F. Powell, Certified Public Accountant, and the arrangement for the services was made by correspondence of Mr. Powell indicating that the Respondent would substitute for Powell in servicing the account of the aforementioned corporation. The Respondent continued in his association with Powell in the year 1970 and in his involvement with the service of the account of that corporate client. His primary contact with the Corporation was with Nadine Cholette, who together with her husband, John Cholette, was the co-principal in this closely- laid Florida corporation. By 1977 Frank Berman was no longer associated with accountant Powell but he continued to do accounting work for the Corporation, Inn on the Park, Inc. The services provided in the year 1977 were in keeping with the arrangement which the Cholettes had with Mr. Powell and are as reflected in the Petitioner's Composite Exhibits 1 and 2 and the Respondent's Composite Exhibits 1 and 2, admitted into evidence. On February 6, 1978, the Respondent wrote Mrs. Cholette setting forth certain services he was prepared to provide her Corporation in that calendar year. This included provision for semiannual financial reports; filing intangible and tangible personal property tax returns for the Cholettes; preparing the annual corporate report for 1978 and preparation of individual United States income tax returns for the Cholettes, all for a fee of $400.00. This correspondence may be found in the Petitioner's Composite Exhibit 1. The $400.00 fee was paid by the Cholettes, with the last installment of that amount being paid by check dated November 13, 1978, in the amount of $200.00. In the year 1978, the Cholettes determined to sell the principal asset of their corporation, which was a motel owned by the Corporation. In contemplation of this sale of the asset, the Cholettes attempted to contact Berman to discuss the implications of this sale from an accounting point of view. These attempted contacts were in the form of telephone communications initially and when the Cholettes were unsuccessful in reaching the Respondent in that way, Mr. Cholette eventually went to Berman's office to determine if Berman would be available to attend the closing of the real estate. At that time a conference was held between Cholette and Berman. This conference was held subsequent to the time the Cholettes received a deposit from the purchaser, with that deposit being made on September 7, 1978. Berman responded to the request by stating that he would be available to attend the closing on several days' notice. There was no formal letter of request for Berman's attendance at the real estate closing and no payment was made to Berman to secure his attendance at the closing. The attorney for the Cholettes representing then at the real estate closing subsequently contacted the Respondent about being present at the closing, and the Respondent returned the call of the attorney and indicated to the attorney's secretary that he could not make the closing and did not understand why the Cholettes wanted him at the closing. The closing took place on October 13, 1978. Mrs. Cholette wrote Berman on October 16, 1978, and in the course of that correspondence advised Berman that the "establishment" had been sold on October 13, 1978, which was the closing date. The letter went on to say that Mrs. Cholette would be in touch with the Respondent reference the closing of the "account" as soon as the October, 1978, month-end bank statement was received. On October 18, 1978, Mrs. Cholette again wrote to Respondent and requested at that time to be advised in writing about the necessary steps to be taken if the Cholettes decided to close the Corporation, Inn on the Park, Inc., and specifically, what the fees would be to keep the Corporation active or inactive. Following the October 18, 1978, correspondence, the Cholettes asked the Respondent to prepare their payroll tax returns for the Corporation in the third quarter of 1978 for filing. This was prepared on October 30, 1978, and a billing of $75.00 was made, which was paid by the Cholettes. The Cholettes met with Berman on November 6, 1978, and in the course of that meeting the tax implications of the sale of the corporate asset, i.e., realty, were discussed with Berman with a view in the mind of the Cholettes toward the future investment of the net proceeds of this sale. At the time of the meeting, Berman had already responded to the inquiry of Mrs. Cholette in reference applicable fees for maintaining the Corporation in an active or inactive state and did so by his correspondence of October 30, 1978, suggesting the fee schedule both that of the State of Florida and of Berman in his individual charges. There was further discussion at the conference on the subject of liquidation of the Corporation and Berman agreed to assist in those necessary steps to facilitate this end. To close out the Corporation, it was necessary to have available the bank records of the Corporation including all outstanding disbursements by the Corporation, and on November 8, 1978, the Cholettes brought part of those records to the Respondent. This did net constitute all outstanding disbursements because checks were still being written by the Corporation after that date in November. Some of the aforementioned checks are listed in the correspondence of Mrs. Cholette directed to the Respondent on November 23, 1978. This correspondence also again reminds the Respondent that the Cholettes are anxious to knew about the tax implications of the sale of the corporate asset in order to plan for future investments. The Cholettes not having heard from the Respondent for a period of time, wrote him by registered letter on December 8, 1978, and following a series of telephone calls which the Respondent had not returned. The correspondence of December 8, 1978, asked when the Cholettes might pick up those papers related to the closing of their company's books. It was followed by another letter of January 9, 1979, from Mrs. Cholette to Herman asking when the "papers" would be ready and attaching a list of checks and deposits made by the Corporation after October, 1978, including checks drawn in January, 1979. Another letter was written on January 13, 1979, from John E. Cholette to the Respondent recounting the matters of prior correspondence and advising the Respondent that the Cholettes intended to complain to the "Board of Accountancy" for Berman's delays. The Cholettes did complain about the Respondent's service by a letter dated January 13, 1979. Following that complaint the Respondent and the Cholettes met to try to reconcile their differences and to clear up pending matters. This meeting was at the instigation of the Respondent. The meeting took place on February 7, 1979, and out of the meeting an arrangement was entered into in which $175.00 was paid to the Respondent in additional fees, $100.00 being for preparation of the payroll tax returns for the fourth quarter ending December 31, 1978, and $75.00 for setting up corporate books for the period August 1, 1978, through October 31, 1978. At the time of the meeting, Berman assured the Cholettes that the corporate books could be closed within one week and not later than February 16, 1979. February 16, 1979, came and the Respondent called Mrs. Cholette and informed her that unless the Cholettes sent a letter of apology to the State Beard of Accountancy which retracted the grievances against him, the Respondent would not finish their work. The following day, Mr. Cholette contacted the Respondent and reminded the Respondent of the discussions of February 7, 1979, between the Respondent and the Cholettes and also stated that by prior agreement (the agreement of February 6, 1978), the Cholettes had paid the Respondent to prepare the Cholettes' individual income tax returns and for the preparation of a mid-year financial statement for the year 1978, neither of which had been delivered. In fact, the individual income tax forms for the tax year 1978 and the mid-year corporate financial statement for the year 1977-78 had not been completed by the Respondent, notwithstanding the payment for these services. Nonetheless, the Respondent returned the papers and materials to the Cholettes on February 17, 1978, and terminated his arrangement to provide accounting services to the Cholettes. Subsequent to the parting of the ways, the Cholettes employed the accounting firm of Marine, Andrews and Fisher, who in addition to other work, completed the individual income tax forms for the Cholettes at an additional cost to the Cholettes ever and above the amount of money that they had paid the Respondent to do this work.
Recommendation Upon consideration of the facts found herein and the legal conclusions reached, it is RECOMMENDED that the Respondent, Frank Berman, have his Certified Public Accountant's license held with the State of Florida, Department of Professional Regulation, Board of Accountancy, suspended for a period of six (6) months. 1/ DONE AND ENTERED this 29th day of August, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1980.
