The Issue Whether the Respondent violated Subsection 475.25(1)(b), Florida Statutes, by failing to reconcile his accounts, having monies stolen from him by an employee, and withdrawing money from his escrow account as commissions. Whether the Respondent violated Subsection 475.25(1)(k), Florida Statutes, by failing to maintain funds paid to him as deposits for rentals, sales taxes, and security deposits in his escrow account until after the date of the rental.
Findings Of Fact The Respondent is a licensed real estate broker and was so licensed at all times relevant to the events which are a part of the Administrative Complaint. The Respondent holds license number 0177110 issued as a broker, t/a Sunspot Realty, 16428 West Highway 98A, Panama City, Florida 32407. On February 10, 1989, Elaine Brantley, an investigator for the Department of Professional Regulation, visited the Respondent's office for the purpose of conducting a financial audit of the records of the business. The Respondent was not present; and Teresa Tuno, the Respondent's secretary and wife, stated she would prefer that Brantley not review the records in her husband's absence. On February 14, 1989, Brantley telephoned the Respondent and made arrangements to audit Respondent's books on February 15, 1989. A review of the records by Brantley on February 15, 1989 revealed that the records were in a state of disarray and the ledgers were not posted. At that time, Brantley advised the Respondent that the records had to be put in order, the ledgers posted, and accounts reconciled by February 17, 1989, when she would reinspect the records. Brantley reinspected the records on February 17, 1989, and all the ledgers had been posted and the accounts had been reconciled through January. The audit revealed that Tuno had received $47,961.45 in security deposits, sales taxes, and rental deposits which were not refundable under the lease agreement. The audit revealed that the balance of the Respondent's escrow account was $33,321.45. The difference between the balance of the escrow account and the money received by the Respondent includes $8,000 which the Respondent paid to himself with checks drawn on the account for "commissions", and $6,540 which had been stolen by an employee of the Respondent. The monies stolen included cash deposits paid by rental customers to the employee and one check on the escrow account endorsed in blank and given to the employee to pay for items purchased for one of the rental units which the employee cashed and converted to his own use. The theft was reported to the local police and their investigation revealed that the employee had disappeared under suspicious circumstances, indicating foul play. The lease agreement states that a deposit of 50% of the rental rate was required to reserve a property and the deposit was refundable only if another tenant could be found for the same period. The Respondent's agreement with the owner of the property called for a commission of 30% of the rental receipts. However, there was no mention of when the commission was earned and under what circumstances it would be paid in the original rental agreement. Upon being criticized for this practice by Brantley, the Respondent repaid the total amount of the draws. Subsequently, he had a new agreement drawn purporting to authorize early payment of management fees. The new agreement states in pertinent part: Owner agrees to compensate Agent a commission of 30% of rental receipts with the exception of long term winter rentals which will be at a rate of 20%. Agent is authorized to draw management fees upon receipt of tenant's non-refundable reservation deposit. The balance of the escrow account was sufficient to meet any potential demands against it. Had the property been leased to another renter for the same period of time, the second renter's deposit would have been deposited to the account making up the funds refunded to the first renter. The audit also revealed that the Respondent had paid monies from the escrow account to a maintenance company operated by the Respondent for work performed on various of the properties. However, the Respondent had not debited the individual property accounts at the time the check was drawn. Each of the properties had a sufficient individual balance to pay for work charged against the property. The appropriate entries were made eventually in the ledgers for the property by the Respondent. The Respondent has amended his agreement with property owners to permit him to bill for repairs on their property on a cost-plus-10% basis to eliminate this problem. None of the actions by the Respondent resulted in financial loss to any of his clients, and the Respondent was cooperative and candid with the auditor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent: Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing commissions to himself; Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing payments to a maintenance company which he owned without debiting individual property accounts; and Be required to enroll and satisfactorily complete a course on maintenance of escrow funds and accounts. DONE AND ORDERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 89-2681 The Respondent filed a letter in place of proposed findings which contained legal argument which was read and considered. It did not contain any findings. The Petitioner filed proposed findings which were read and considered as follows: Paragraphs 1-3 Adopted Paragraph 4, 1st sentence Adopted Paragraph 4, 2nd sentence Rejected as irrelevant Paragraphs 5-7 Adopted Paragraphs 8-10 Rejected. The terms of the contracts do not address when Tuno was entitled to his commission. Under the terms of the contracts the renters were not entitled to a refund of their advance deposit after a reservation was made unless a new renter could be found for the same time, in which case that renter would have to make a deposit. When Tuno was entitled to his commission was not addressed in the contracts. While findings that Tuno violated the provisions of statute relating to maintenance of funds in his escrow account; this failure was based upon the lack of clarity in the contracts and the high standard of conduct in maintaining escrow accounts which is required of licensees. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. 0. Box 1900 Orlando, Florida 32802 Mr. Robert P. Tuno 16428 West Highway 98A Panama City, Florida 32407
Findings Of Fact The Respondent, Gaspar Nagymihaly, who does business as Bay Air Apartments, is the holder of license No. 23-12970H-3234, held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The location of the Bay Air Apartments is 665 N.E. 83rd Terrace, Miami, Florida. At all times pertinent to the notice to show cause, the Respondent has held such license for doing business as Bay Air Apartments. Bonnie Joyner, formerly known as Bonnie Pestcoe, rented an apartment from the Respondent beginning February 11, 1977. The contact that Mrs. Joyner had with the Respondent was through the intermediary M. Infante. Mr. Infante was the manager and agent for the Respondent in the apartment business known as Bay Air Apartments. There was a discussion between Mrs. Joyner and Infante to the effect that the tenant intended to stay in the aforementioned apartment for a period of one year; however, there was no written or verbal agreement which bound the parties to a lease which would last for a period of one year. In effect, the rent was paid on a monthly basis, thereby creating a tenancy of month to month. The amount of monthly rent was $190 and the parties had agreed to a security deposit of $190. Mrs. Joyner lived in the apartment for two months and paid the rent for that two-month period. Evidence of the rent payments for the two months and the security deposit may be found as Petitioner's Exhibits 2, 3, and 4 admitted into evidence. Two weeks before April 11, 1977, Mrs. Joyner contacted Mr. Infante to apprise him of the fact that she intended to vacate the premises. This contact was by an oral communication only. At that time, Infante advised Mrs. Joyner that he could not return the deposit and that he would not tell her who the owner of the apartment was. Mrs. Joyner then vacated the apartment on April 11, 1977, and sent a request to Mr. Nagymihaly for return of her security deposit. She learned of Mr. Nagymihaly's identity through a search of the tax records. The written request for the return of the security deposit is dated April 11, 1977 and is Respondent's Exhibit No. 1 admitted into evidence. Mr. Nagymihaly responded to the request by forwarding a $90.00 check to Mrs. Joyner, dated April 12, 1977. This check indicated that the basis of the return of that portion of the security deposit was premised upon the fact that Mrs. Joyner had a nice personality. A copy of the check may be found as Petitioner's Exhibit No. 5 admitted into evidence. Subsequent to the payment of the $90.00, Nagymihaly wrote a letter of April 14, 1977, addressed to, the then Mrs. Pestcoe in which he stated that the reason for returning only a portion of the security deposit, was due to the failure of Ms. Pestcoe to stay for a year and the necessary cost for preparing the apartment for reinspection, etc. A copy of the letter of April 14, 1977, is Petitioner's Exhibit No. 7 admitted into evidence. In response to a complaint which Mrs. Pestcoe made with the Petitioner, Mr. Nagymihaly wrote a letter of May 3, 1977, reiterating his comments about the necessity for Ms. Pestcoe, now Mrs. Joyner, to live in the apartment for a year and explaining why no certified letter had been sent to Ms. Pestcoe when the Respondent intended to keep the security deposit. The letter of May 3, 1977, may be found as Petitioner's Exhibit No. 7 admitted into evidence. It should be noted that in Petitioner's Exhibit 6, which is the April 14, 1977, letter to Mrs. Pestcoe, the monies are referred to as advance rent and not a security deposit. This is in contrast to the terminology used in the May 3, 1977, letter which referred to the money in controversy as being a security deposit. Moreover, the facts in the case demonstrated that the manger for the Respondent had inappropriately kept the security deposit which Mrs. Joyner had paid. The facts in this case are to be looked at in accordance with the provisions of Section 83.49(3)(a). This provision reads as follows: 83.49(3)(a) Upon the vacating of the premises for termination of the lease, the landlord shall have 15 days to return said security deposit to- gether with interest or in which to give the tenant written notice by certified mail to the tenant's last known mailing address of his in- tention to impose a claim thereon. The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). . . If the landlord fails to give the required notice within the 15-day period, he forfeits his right to impose a claim upon the security deposit. If this section were read without reference to any other provision within Chapter 83, Florida Statutes, it would appear that the Respondent, Mr. Nagymihaly has illegally retained a portion of Mrs. Joyner's security deposit. However, to truly understand the Respondent's obligation in this instance, it is necessary to look to the language of Section 83.49(5), Florida Statutes, which reads as follows: (5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or aban- dons the premises prior to the expiration of the terms specified in the written lease, or any tenant who vacates or abandons premises which are subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days' notice by certified mail to the landlord prior to vacating or abandoning the the premises. Failure to give such notice shall relieve the landlord of the notice requirement of subsection (3)(a). The facts establish that Mrs. Joyner, then Mrs. Pestcoe, failed to make seven days' written notice by certified mail of her vacation and abandonment of the premises, thereby relieving Mr. Nagymihaly of any responsibility to give a written notice of the intent to claim damages against the security deposit and written notice of the rights of the tenant to object in writing to the deduction of the security deposit within 15 days of the receipt of the notice. Notwithstanding the lack of requirement on the part of the Respondent to notify Mrs. Joyner of his intent to claim against the security deposit, he did make such a notification by his comments to her in person on April 11 and by his letter of April 14 to Mrs. Joyner. She in turn made her objection known to the Petitioner. This action taken by Mrs. Joyner and the Respondent to protect their interests has set the stage for possible court action by either of the individuals in a civil proceeding. The sequence of events has not shown that there has been any violation of Section 83.49(3)(a), Florida Statutes, because the Respondent is contesting the return of the security deposit as he is entitled to do and he has been relieved of any necessity for written notice of his intention as required by that provision of the law, because Mrs. Joyner's failure to give 7 days notice by certified mail of her vacation or abandonment of the premises as required by Section 83.49(5), Florida Statutes, removed any obligation of Respondent to give such written notice. Therefore, there is no violation of Section 83.49, Florida Statutes, and there can be no penalties imposed under Section 509.261, Florida Statutes.
Recommendation It is recommended that the action taken under the notice to show cause against the Respondent, Gaspar Nagymihaly, be dismissed. DONE and ENTERED this 11th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Theresa N. Walsh-Hubbart, Esquire 3115 Brickell Avenue Miami, Florida 33129
The Issue Whether the Petitioner, Edward J. Miller, is entitled to be licensed as a resident life and variable annuity insurance agent.
Findings Of Fact The Petitioner, Edward J. Miller, is employed at Washington Mutual Bank. His supervisor is Tracy Tarach. It was Ms. Tarach's desire that Mr. Miller become licensed as a resident life and variable annuity insurance agent. To that end, she and Mr. Miller filed the necessary papers with Washington Mutual Bank to approve the application process as well as the course to become licensed. The process of having the bank issue the check to cover the licensing procedure was timely. Additionally, the Petitioner could only be scheduled for the licensure class and completion of the licensing process when the bank took favorable action on the request. Accordingly, for this Petitioner the licensing process was dragged out over the course of several months. In January 2003 the Petitioner completed the state application for licensure but did not transmit it to the state. He submitted the request to the bank for course approval and planned to submit the paperwork when it was successfully completed. At that time, the Petitioner did not have any criminal charges pending against him and the answers noted on the application were all correct and truthful. In February 2003 the Petitioner was stopped for DUI. The next workday the Petitioner went to his supervisor and fully disclosed the arrest as well as the charge. The Petitioner made no effort to hide the arrest from his employer and the employer considers the Petitioner a valuable employee, despite the incident. In March 2003 the Petitioner was formally charged with DUI, a misdemeanor. Meanwhile, the bank approved the Petitioner's request to take the course for licensure. The forty-hour course in another work location required the Petitioner to travel to the school site and reside in a hotel for a week while the course work was completed. Obviously the Petitioner's supervisor was willing to invest the costs of licensure school and accommodations for the Petitioner with full knowledge of the Petitioner's pending criminal matter. After successfully completing the licensure course in April 2003 the Petitioner submitted the license application to the state. He failed to double-check the forms. He failed to correct an answer that was now incorrect. That is, he failed to fully disclose the arrest. Subsequently, the criminal case went to hearing, and the Petitioner entered a plea and was placed on probation. The resolution of the DUI charges was completed after the application was submitted. Section 3 of the license application asks several screening questions of applicants for licensure. Applicants are required to answer "yes" or "no", depending on the information sought. In this case, it is undisputed that the Petitioner failed to correct his answers to the questions posed in Section 3. More specifically, the Petitioner failed to truthfully disclose that he had been arrested for DUI. This failure was an oversight on the Petitioner's part, and not intended to deceive the Department. The answers should have been corrected when the Petitioner amended the application form to include the information regarding his completion of the Gold Coast School of Insurance class on April 11, 2003. He did not do so. When the Department reviewed the Petitioner's application and discovered the false answer, it took action to deny the licensure request. That denial was entered on January 22, 2004. A notice of the denial was provided to the Petitioner and he timely challenged the proposed action. On October 31, 2003, the Petitioner completed all of the terms of his court-ordered probation and the entire DUI incident was put to rest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order granting the Petitioner's application for licensure. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Edward J. Miller 6205 Northwest West Deville Circle Port St. Lucie, Florida 34986
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(b), Florida Statutes (1999), by committing a breach of trust in a business transaction. (All Chapter and Section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0349967. Petitioner issued the last license to Respondent in care of 100% Real Estate, Inc., 1810 Lee Road, Orlando, Florida 32810. On August 6, 1998, Dr. and Mrs. Richard M. Cowins (the "Cowins") entered into a Contract for Sale and Purchase (the "Contract") of their residence located at 9151 Cypress Point Drive. The Contract listed Respondent as the agent for J.C. Services Ltd., or Assigns ( the "Buyer"). The Contract established the date of closing as September 8, 1998. On August 7, 1998, Respondent executed an Addendum to the Contract for Sale and Purchase. The Addendum, in relevant part, stated that Respondent was the agent for the Buyer, required a home inspection, and gave the Buyer the right to cancel the contract and obtain a refund of the $5,000 escrow deposit if the home inspection report was not satisfactory to the Buyer. On August 7, 1998, Respondent executed a single agency disclosure form stating that Respondent was the agent for the Cowins as sellers. Respondent delivered the single agent disclosure form to the Cowins on August 7, 1998. The record does not disclose why Respondent executed a single agency disclosure form for the Cowins and signed the Contract and Addendum as the agent for the Buyer. The Cowins entered into a contract for the purchase of a replacement residence. The Cowins placed $10,000 in escrow for the purchase of the replacement residence. Two inspection reports were completed for the Cowins' residence. Both inspection reports required repairs to windows and the roof. The Cowins made the repairs. Respondent requested an extension of the closing on behalf of the Buyer but did not give the Cowins a reason for the requested extension. The Cowins refused to extend the closing without a reason and demanded the funds in escrow. Respondent attempted to place the escrow funds into an interpleader proceeding but was unable to do so because Respondent refused to disclose the identity of the Buyer. Respondent refunded the escrow of $5,000 to the Buyer. The Cowins forfeited the $10,000 they had placed in escrow on the replacement residence because they were unable to close without the sale proceeds for the sale of their residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(b), imposing a fine of $1,000, and suspending Respondent's license for one year. DONE AND ENTERED this 1st day of November, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 1st day of November, 2000. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ghunise L. Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Jean Prol 4630 South Kirkman Road Orlando, Florida 32811
The Issue The issue is whether, pursuant to section 717.126, Florida Statutes,1 Petitioner2 has proved that it is entitled to proceeds in the amount of $128,788.36 from an unclaimed cashier's check.
Findings Of Fact On April 15, 2011, Bank of America remitted to the state of Florida, as unclaimed property, $128,788.36 in proceeds from one or more cashier's checks. Neither the original check nor a copy of the original check is available. A synopsis of Bank of America records identifies the amount of the check or checks, the form of the property as "cashiers checks," an issue date of October 12, 2005, and the existence of "multi[ple] owners." If there were multiple cashier's checks, the total amount of the checks was $128,788.36. For ease of reference, the cashier's check or cashier's checks will be referred to in the singular. The synopsis lists the "title" as "Claudy Joseph Erlande Merceron Jean Aristide." There are three variants of the same form--one for each individual named in the preceding sentence. In each, the first name listed is Claudy Joseph. For the two other variants, this name is preceded by "1st Payee." It thus appears that these three persons were named as payees on the cashier's check. In a cryptic reference, each variant of the synopsis states: "RELATIONSHIP CD: OR." The placement of this fragment of information follows the description of each payee. Although this fragment of information immediately precedes the above-quoted "title" information that names the three payees, it is on the extreme right-hand side of the page, and the "title" information starts on the extreme left-hand side of the page. The meaning of this fragment of information is obscure. The variant of the synopsis for Claudy Joseph states that this page is a "Primary Record" as to this "Multiple Owner." For the other multiple owners, their variants state that this page is a "Secondary Record." For the address of each of the three owners, the variants list only "El Portal, Florida 33138." There is no information concerning the purchaser of the cashier's check, who will be referred to as the remitter. The above-described references to the "owner" refer to the payee, not to the person who, by law, owns the proceeds of the cashier's check. In 2018, Mr. Aristide banked with Bank of America and lived in El Portal, Florida, although in zip code 33150. On December 19, 2005, Mr. Aristide completed an application form to open a banking account with a Bank of America in "Sky Lake," and the bank associate's phone number is the area code for Miami. Mr. Aristide's date of birth is November 30, 1970, so he is old enough to have engaged in a transaction in 2006 and young enough that he reasonably may be expected to recall the transaction and something about Mr. Joseph and Mr. Merceron. In response to interrogatories, Mr. Aristide stated that the other two persons "very well could have been roommates at that time." Without addressing them in particular, Mr. Aristide added: "Claimant was a silent partner in real estate transactions together with other silent partners who invested in a third party who purchased real estate. The money was part of that investment transaction or transactions." Mr. Aristide acknowledged that he never received the cashier's check, but "believes but is not sure that [the cashier's check] was part of a structured purchase of real estate by a third party." Mr. Aristide explained that he "was an investor with other investors and it is not uncommon to include each investor in cashiers checks." Mr. Aristide did not testify in this case and has failed to provide the type of detail that would be expected, if he were a rightful owner of the cashier's check, specifically, the circumstances surrounding the bank's issuance of the check and the remitter's delivery of the check. Petitioner thus has failed to prove entitlement to the property or any part of it. Referred to as "Petitioner" in this recommended order, Global Discoveries, Ltd., LLC, is a registered claimant's representative, within the meaning of section 717.1400. Petitioner was retained by Mr. Aristide to pursue his claim to the proceeds of the cashier's check. On July 3, 2018, Petitioner duly filed a claim for the proceeds of the cashier's check, and Respondent denied the claim by the NOI.
Recommendation It is RECOMMENDED that Respondent shall issue a final order denying Petitioner's claim. DONE AND ENTERED this 6th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of October, 2020. COPIES FURNISHED: Michael A. Alao, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 (eServed) Michael J. Farrar, Esquire Michael J. Farrar, P.A. 18851 Northeast 29th Avenue, Suite 700 Aventura, Florida 33180 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the claim of International Equities Group, Inc. on behalf of Theodore Andrews, the personal representative of the estate of Shirley Andrews, for abandoned property in the custody of the Respondent, in the amount of $16,515.62, should be granted.
Findings Of Fact On or about December 19, 1991, International Equities Group, Inc. (International) filed a claim on behalf of Theodore Andrews, the personal representative for the estate of Shirley Andrews, for the amount of $16,515.62 in abandoned property. This sum was originally in the form of a bank deposit under account no. 1197-1988-00184, originally deposited in Barnett Bank of Palm Beach County, N.A. (the Bank), which was the original "holder" of the property and account in question. There is no dispute that the property constitutes abandoned property having been in possession of the Bank for the required period of seven years without any activity whatever. Consequently, after the Bank attempted to contact the named owner of the account, Arthur G. Cullen, at the last known address and was unable to make such contact because the address proved to be invalid, the account was treated by the Bank and the Department as abandoned. The bank account in question was a savings account with Arthur G. Cullen listed on the signature card as the owner of the account. After determining that no activity had occurred with regard to the account for a period of at least seven years, the Bank attempted to contact Mr. Cullen at the address it had of record, which was 413 Rider Drive, Boynton Beach, Florida 33425. The Bank learned that that address was apparently invalid and consequently, was unable to make any contact with Mr. Cullen. On July 15, 1991, Mr. Schwartz, representing the personal representative of the estate of Shirley Andrews, with power of attorney, contacted Ms. Pam Klettner of the Bank and explained that the social security number listed on the account in question, 118-34-5232, was the social security number of the late Ms. Shirley Andrews. Mr. Schwartz testified that he explained to Ms. Klettner that that listed social security number belonged to the late Ms. Shirley Andrews, as evidenced by social security records and her death certificate. He explained to Ms. Klettner that the Petitioner was the illegitimate father of at least one of Ms. Shirley Andrews' children. He then inquired of Ms. Klettner as to whom the account would be paid to, Ms. Andrews' estate, as her social security number was a match with the social security number entered on the account, or to Mr. Cullen (if he could be found, as the listed address had proved to be invalid according to the post office). Ms. Klettner responded, according to Mr. Schwartz, that she would seek a ruling for that situation from the Bank's legal department and would inform him as to the proper ownership of the account. Mr. Schwartz was later contacted by personnel of the Bank and informed that the owner of the social security number, in the Bank's view, would be the owner of the account and the funds deposited therein and that once the necessary probate documents were generated, Ms. Klettner would draft a letter to the State of Florida Unclaimed Property Department stating that the proper disbursement of the account would be to the Andrews' estate. As a consequence of this communication, Mr. Schwartz contacted Ms. Pam McMahon in the State of New York to begin probate of the Shirley Andrews' estate, informing her of the decision of the Bank regarding required documentation for payment of the account to Mr. Schwartz and International, on behalf of the personal representative, Theodore Andrews. Letters of Administration were apparently issued by the probate court in New York and the above-named claimant, Mr. Schwartz, submitted the proper forms and documents to the State of Florida Unclaimed Property Section, seeking possession of the funds in question. This was because, in the meantime, the Bank had elected to deem the property abandoned and pay the funds over to the custody of the Department. Mr. Schwartz contacted Ms. Klettner and requested that she draft the required letter to the Department to accompany the claim, as she had offered to do earlier. Ms. Klettner apparently informed Mr. Schwartz that she no longer worked in that department and was unable to keep her earlier commitment in this regard. Thereafter, a decree was entered by the Surrogate Court of the State of New York, County of Niagara, purportedly stating that the funds in question should be released to the estate of Shirley Andrews within ten days. According to Mr. Schwartz, the decree was issued to both the State of Florida and to the Bank. The purported court decree was not acted upon in the required ten days and ultimately, this claim was denied by the Department by its denial letter of November 4, 1992. The death certificate of Ms. Shirley Andrews purportedly contains the above-referenced social security number, which is the same social security number as appears on the bank account which is listed under the name of Arthur Cullen. Apparently, personnel of the Department checked that social security number through the State of Florida drivers license indexing system and the number appeared in that system with the name of Arthur G. Cullen attached. However, a credit check using that social security number through a credit reporting agency record revealed that the number matched the name of Ms. Shirley Andrews and not Arthur G. Cullen. The death certificate of Shirley Andrews has not been submitted into evidence and, according to testimony, apparently is not a certified death certificate, although it is inferred from the totality of the testimony that the death certificate was presented to the Department at some point in the claim process. The purported decree of the probate court for the County of Niagara, State of New York, Surrogates Court, has not been presented in evidence either. According to the evidence of record, Arthur G. Cullen, the purported owner of the account, under the Department's theory that the listed name on the account is tantamount to ownership, has never been located. Even if his whereabouts were known, the evidence shows that both the address on the account and the social security number on the account are not apparently those of Arthur G. Cullen. Other than the testimony of Mr. Schwartz, however, no definitive proof in the form of a certified copy of the death certificate bearing the social security number of Shirley Andrews, so that it could be matched to that appearing on the original bank account record, nor a certified copy of the New York probate court's judgement or decree, which might indicate findings of fact or conclusions of law establishing a basis for payment of the funds over to the estate of Shirley Andrews, has been placed in evidence. Consequently, it is determined that adequate proof by a preponderance of the evidence has not been established so as to justify award of the funds in question to the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the claim of International Equities Group, Inc. on behalf of Theodore Andrews, as personal representative of the estate of Shirley Andrews, for the abandoned property in the amount of $16,515.62, with regard to account number 1197-1988-00184, without prejudice to perfection of such claim by submission of appropriate proof and explanation of entitlement to the Department at a later time, subject to any time limits and other requirements contained in Chapter 717, Florida Statutes, and Chapter 3D, Florida Administrative Code. DONE AND ENTERED this 7th day of December, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2591 Respondent's Proposed Findings of Fact Accepted. Accepted in the sense that the non-certified death certificate may have been presented to the Department by way of explanation of entitlement with regard to the claim in question but such death certificate was not presented in evidence to the Hearing Officer. Accepted in the sense that it demonstrates the basis for the Department's initial denial of the claim. Rejected, as it does not state the entirety of the proof presented to the Hearing Officer in this Section 120.57(1), Florida Statutes, proceeding. Accepted to the extent that it constitutes the Department's basis for denial of the claim. Accepted. COPIES FURNISHED: Mr. Stephen Schwartz International Equities Group, Inc. 1532 Camden Avenue Los Angeles, California 90025 Leslie A. Meek, Esquire Assistant General Counsel Office of the Comptroller 401 North West 2nd Avenue, Suite N-708 Miami, Florida 33128 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact A notice to show cause why the Petitioner should not have a civil penalty assessed against it or the license be suspended or revoked, together with a notice of right to hearing was sent to Petitioner by certified mail. A formal administrative hearing was requested by Petitioner. Respondent contends that petitioner violated Section 83.49, Florida Statutes, by failure to give notice to a tenant of the disposition of her security deposit and later of the claim against it within 15 days. Petitioner contends it received no security deposit and therefore no notice was necessary. On or about August 18, 1977, Hizi Malka, president of the Petitioner corporation, entered into an oral agreement with Denise Lombardo to rent to Lombardo an apartment owned by Petitioner corporation. There had been discussions about the rental of an apartment between Mr. Malka and Lombardo prior to the date of August 18, and Lombardo had moved some of her possessions into the apartment. Mr. Malka presented an unexecuted lease agreement to Lombardo at the time of the oral agreement to rent with a request that it be executed. Lombardo paid a sum of $200 by check for which she was presented a receipt reflecting a billing of $300 and a payment of $200. She was then given a key to the apartment and took the unexecuted lease with her. Lombardo moved into an apartment of Petitioner and resided there until sometime in December of 1977. Received into evidence was a receipt dated 8/18 reflecting a billing of $300, $200 paid and $100 due; a receipt dated 9/2/77 denoting $150 paid; a receipt dated 10/4/77 denoting $150 paid; a receipt dated 10/30/77 reflecting a billing of $150, $100 paid and a balance due of $50. Also received into evidence was a letter from Petitioner's attorney to Denise Lombardo dated January 11, 1978. Also entered into evidence was the unexecuted lease agreement in which the proposed terms were that the monthly rental for the subject apartment would be $150 a month, payable in advance the first of each month with an advance rental payment of $150 and a security payment of $150. The proposed lease was dated September 1, 1977, to September 30, 1977 for the advance rental payment, but the lease itself was to have run for a term of 12 months beginning on the 18th of August, 1977 and ending on the 17th day of August, 1978. It is uncertain from the testimony at the hearing the exact date when Lombardo vacated the premises although she informed the Petitioner that she intended to vacate the premises at the end of November, 1977. Lombardo surrendered the keys to the premises sometime during the month of December, 1977. Lombardo was unable to state exactly when she surrendered the keys to Mr. Melka, but he stated that she delivered the keys on December 31, 1977. The Petitioner, through an attorney, Myron B. Berman, by letter dated January 11, 1977, made a demand upon Lombardo to pay an additional sum of money in the amount of seventy five ($75) dollars for rent of the premises rented from the Petitioner corporation and stated that a security deposit in the amount of $150 was applied to the arrearages. There had been no mention of a security deposit on any of the billing statements given to Lombardo. Lombardo paid the total sum of $600 to the Petitioner from August, 1977 to the time the premises were vacated in December, 1977. There was no substantiating evidence of any other payments made although Lombardo said she made additional payments in cash and the Respondent denied receiving any such payments. The premises were used by Lombardo for storage purposes during the first part of August before she moved into the premises and paid the original $200 payment. The Hearing Officer further finds: the receipts presented show that monies were paid but there is no showing that a security deposit was demanded or paid. All the monies paid by the witness to the Petitioner were assigned to the payment of rent, which at the rate of $150 per month would be the amount of the agreed rental payments for the period from the first of August to the end of November or the middle of August to the middle of December. The premises were not used for living by the witness until August 18, 1977, but the premises were not vacated and the keys returned to the Petitioner until sometime in December, 1977. The proposed lease agreement was not executed and therefore the findings of fact relative to the renting of the premises by the witness from the Petitioner is largely dependent upon the evidence and testimony received at the hearing. The letter from the Petitioner's attorney erroneously concluded that the witness had paid a security deposit which could be applied to arrearages in rent. The proposed recommended orders of the parties were considered in the findings and conclusions of law in this order.
Recommendation Dismiss the complaint. DONE AND ENTERED this 25th day of August, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Myron B. Berman, Esquire Post Office Box 1113 North Miami Beach, Florida 33160
Findings Of Fact 1. On October 15, 2009, the Department issued a Notice of Intent to enter a final order denying claim number C2782114 on the grounds that Mr. Merkle failed to submit the recovery agreements with the claim, and that he was not a registered claimants' representative. See Exhibit A. The Notice of Intent was served on Mr. Merkle by Certified Mail™ Service on October 21, 2009. See Exhibit B. 2. On December 22, 2009, Mr. Merkle requested a hearing. See Exhibit C. On January 4, 2010, the Department referred the matter to the Division of Administrative Hearings for formal proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes. See Exhibit D. The Division of Administrative Hearings ("DOAH") assigned the case number 10-0005. 3. On February 26, 2010, the Department moved the administrative law judge to relinquish jurisdiction to the agency based on a lack of material facts in dispute. See Exhibit E. 4. On March 4, 2010, the administrative law judge entered an order relinquishing jurisdiction to the agency for final agency action. See Exhibit F. No exceptions to the recommended order were filed. 5. The factual allegations contained in the Notice of Intent, incorporated herein by reference, are adopted as findings of fact in this case.
Conclusions On October 15, 2009, the Department of Financial Services ("Department") issued a Notice of Intent to enter a final order denying claim number C2782114 filed by LeRoy H. Merkle, Jr., ("Mr. Merkle"), for funds held in the state treasury in the name of Anne (a/k/a Anna) Marie Clegg (the "Reported Owner"), pursuant to Chapter 717, Florida Statutes (the "Disposition of Unclaimed Property Act" or the "Act"). In order to take final agency action concerning the - claim, the Chief Financial Officer has considered the record in this matter, and makes the following Findings of Fact and Conclusions of Law:
Appeal For This Case Any person adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.110. Review proceedings must be instituted by filing a notice of appeal with DFS Agency Clerk Julie Jones, CP, FRP, Florida Department of Financial Services, 200 E. Gaines Street, Tallahassee, FL 32399-0390, Telephone (850) 413-4177, Julie. Jones@MyFloridaCFO.com, and a copy of the same accompanied by the required filing fee with the appropriate District Court of Appeal within thirty 30) days of rendition of this Order. DONE and ORDERED this__/p/h___ day of hyo ct , 2010. TAMMY TESTON Chief of Staff Case No. 107119-09-CI Page 3 of 4 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished by Certified Mail™ Service and facsimile as indicated, this lo AL day of Aga A f ; 2010, to: LeRoy H. Merkle, Jr., Esquire 800 West Platt Street, Suite 4 Tamanna Plasidn 22406 41 7108 2133 3935 23134 0410 (article number) and facsimile: 813-251-3377 Mark W. Brunner 2950 South Holly Avenue Amelia, Ohio 45102 91 7108 2133 3935 23238 0627 (article number) Michael Lee Brunner 1408 Wilson Dunham Hill New Richmond, Ohio 45157 91 7108 21335 3935 2318 0834 - {article number) L_ LORI L. JOBE Fla. Bar No. 16650 Assistant General Counsel Florida Department of Financial Services 200 East Gaines Street Tallahassee, FL 32399-4247 copies to: Walter T. Graham, Chief Unclaimed Property Bureau Fletcher Building, Room 352 M Tallahassee, Florida 32399-0358 Lori L. Jobe, Esquire Division of Legal Services Fletcher Building, Room 464 Tallahassee, Florida 32399-4247 Case No. 107119-09-CI Page 4 of 4
Findings Of Fact Petitioner was organized because its principals perceived a need for a cold storage facility convenient to docks in Tampa where refrigerated cargoes were loaded on and off ships. Negotiations between petitioner and the Tampa Port Authority (TPA) resulted in EPA's leasing petitioner land suitable for such a facility for a term of 25 years, with options to renew the lease. After entering into a contract with a construction firm for erection of a cold storage facility on the land leased from TPA, petitioner sought to borrow money with which to pay for construction of the facility; but lenders petitioner approached objected that a loan could not be secured by a mortgage in the customary fashion, because petitioner did not own the land on which it proposed to build. Mortgage bankers in New York suggested an arrangement to meet this objection and petitioner adopted the suggestion. A new corporation, Edward Stephen of Tampa, INC. (EST), was formed. The lease between petitioner and TPA was vacated; TPA leased the same land on the same terms to EST. Petitioner assigned all its rights under the construction contract to EST. EST borrowed the money for construction from a bank. When construction was completed, EST borrowed money from John Hancock Mutual Life Insurance Company (John Hancock) with which it repaid the bank loan. Petitioner guaranteed repayment of John Hancock`s loan to EST. As an additional inducement to John Hancock, petitioner undertook certain obligations for the life of the loan, with respect to maintenance of a minimum ratio of current assets, minimum working capital, and minimum net worth; petitioner made further undertakings which were similarly designed to increase the likelihood of petitioner's being able to repay John Hancock, in the event of EST's default. Once the cold storage facility was ready for use, EST subleased the property to petitioner. EST used petitioner's payments under the sublease to repay John Hancock, and continues to do so. If petitioner should fail to make the agreed payments under the sublease, EST would he unable to make repayments under its loan agreement with John Hancock, but EST could take possession of the cold storage facility in accordance with Section 30 of the sublease, in much the same way any lessor can dispossess his lessee for a material failure to abide by the terms of the lease. The sublease by EST to petitioner was entered into in conjunction with an option to purchase, a separate document which was subsequently amended. By virtue of the amended option to purchase, petitioner gained the right to acquire title to the cold storage facility, free of all claims except TPA's title to the fee, by paying EST at specified times an amount equivalent to what EST would have to pay John Hancock as full repayment of the loan, plus incidental sums to make EST whole. In this respect, the transaction resembles a loan by John Hancock to petitioner, with provision for prepayment. Petitioner carries the cold storage facility on its books as a capital asset against which depreciation is charged. Petitioner treats its payments to EST under the sublease as though they were repayments of the loan from John Hancock, allocating appropriate portions to principal and interest. On advice of counsel, the transaction is treated in the same fashion for federal income tax purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner pay respondent 4 percent of all sums paid by petitioner to Edward Stephen of Tampa, Inc., under the agreement embodied in Joint Exhibit No. 2, together with interest calculated in accordance with the rule laid down in Lewis v. Creative Developers, Ltd., 350 So.2d 828 (Fla. 1st DCA 1977) DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Edna Wilson, Esquire Dixon, Shear, Brown, Lima & Moffitt 620 Twiggs Street Tampa, Florida 33602 Mr. Harold F.X. Purnell, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
