The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
The Issue The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Amended Administrative Complaint dated February 29, 2013, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of real estate licensees pursuant to chapter 475, Florida Statutes. At all times material to this case, Mardy was licensed as a Florida Real Estate Broker. Her license number is 3048239. No prior disciplinary action has been brought against Respondent. Mardy has been actively licensed as a broker in Florida since April 6, 2010. From April 8, 2010, to present, Mardy also served as the registered broker with Mardy’s Premier Properties, Inc., license number CQ1036525. The brokerage company was located at 12180 Southshore Boulevard Suite 101A, Wellington, Florida 33414. Approximately seven years ago, Mardy assisted Alix and Patricia Pasquet (“Pasquets”) with a rental transaction. In 2011, when the Pasquets decided that they wanted to lease a rental residence near their sons’ school, they decided to contact Mardy to assist them in obtaining the rental residence since they had been satisfied with her previous service. The Pasquets decided to lease the rental residence at 11188 Millpond Greens Drive, Boynton Beach, Florida 33473, (“Millpond”). The Pasquets made an offer to pay the rent a year in advance to benefit from the reduced rental amount with a full year’s payment. Mardy informed the Pasquets that the rental money needed to be in the U.S. instead of Haiti in order to execute the leasing agreement and then the Millpond owner would accept their offer to lease the property if they showed proof of funds in the U.S. prior to April 6, 2012. On or about April 5, 2012, the Pasquets wired Mardy the total rent for the year in the amount of $33,365.00 to Mardy’s Premier Properties, Inc.’s bank, PNC Bank, at Mardy’s request. Mardy received the monies in the corporation’s operating account ending in 6863. Mardy accepted the Pasquets’ rental funds with the direction to use the monies to secure Millpond as a rental residence for the Pasquets. On or about April 9, 2011, the Pasquets signed a lease addendum, which was predated to April 5, 2011. The addendum indicated the rent payment would be wired to the Millpond owner upon commencement of the lease or prior thereto. After the addendum was signed, Mrs. Pasquet tried to follow-up with Mardy to schedule the Millpond walk through that had been discussed at the previous meeting. She attempted to contact Respondent to no avail for about a week to schedule the Millpond walk through. When Mrs. Pasquet finally reached Mardy, Respondent informed her that her unavailability was because of a death in the family since her grandmother had passed. Around April 25, 2011, Mardy informed Mrs. Pasquet that she no longer had the Pasquets’ $33,365.00. Respondent provided several different reasons for use of the Pasquets’ monies. All explanations given were for both a personal and improper use, and without the Pasquets’ permission. Hence, the undersigned rejects any of Mardy’s excuses as valid or credible. Respondent never delivered the Pasquets’ rental monies to the Millpond owner nor closed the rental deal with the Millpond owner or his agent for the lease of Millpond. At hearing, Respondent admitted that she used the Pasquets’ $33,365.00 without their permission. On or about April 26, 2011, the Pasquets negotiated a lease directly with Millpond owner and leased Millpond for six months. They did the walk through on or about April 29, 2013, and moved into the Millpond property on or about May 8, 2013. After the Pasquets discovered that Mardy had taken their $33,365.00, they contacted an attorney to assist them with the matter to try to get the rental monies back. The police also became involved in the attempt of the Pasquets to get their rental monies back. When the police became involved, Respondent agreed to pay the money back to the Pasquets. On or about July 7, 2011, Respondent paid the Pasquets $10,000.00 with check number 75053315-2. On or about July 8, 2011, Respondent paid the Pasquets $3,365.00 with check number 75115202. On or about October 27, 2011, Respondent paid the Pasquets $5,000.00 with check number 0734873625. At the hearing, Mardy had not made a payment since October 2011. The Pasquets have spent thousands of dollars on legal fees trying to get their rental monies back from Respondent. Respondent owes them approximately $15,000.00. The Pasquets were forced to withdraw unbudgeted funds from their business in order to pay for the six-month lease for Millpond, which has been a financial hardship for the Pasquets. Jonathan Platt ("Investigator Platt") is employed by the Division as a Lead Investigator. Investigator Platt has worked for the Division for approximately 22 years. Investigator Platt was assigned the complaint regarding the Pasquets' missing rental funds. He interviewed Respondent and requested Respondent's corporation bank records as part of his investigation. Mardy failed to deliver the bank records to Investigator Platt. Respondent also failed to maintain an escrow account or accounting of rent deposited into the corporation’s bank account ending in 6863 with PNC Bank. Investigator Platt completed his investigation by obtaining Mardy's requested records directly from PNC Bank with an investigative subpoena duces tecum. Afterwards, the Division issued an Administrative Complaint against Mardy in which it charged violations of sections 475.25(1)(b), 475.42(1)(i), 475.25(1)(d)1, 475.25(1)(e), Florida Statutes (2010); and Florida Administrative Code Rules 61J2-14.012(1) and 61J2- 14.010(1). Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order: Finding Guirlande Mardy violated Counts 1, 3, 4, and 5 of the Amended Administrative Complaint; and Imposing revocation of Guirlande Mardy's license identified herein. DONE AND ENTERED this 30th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of April, 2013. COPIES FURNISHED: Christina Ann Arzillo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Guirlande Mardy 14541 Draft Horse Lane Wellington, Florida 33414 Juana Watkins, Director Division of Real Estate 400 W Robinson Street, N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 W Robinson Street, N801 Orlando, Florida 32801 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact From January 23, 1976, to March 31, 1976, Sherman was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings here advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Sherman. FREC introduced no evidence to show that Sherman represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Sherman either made the representations or knew them to be false. There was no evidence introduced to show that Sherman knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Sherman was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Sherman was guilty of a violation of a duty imposed by law.
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of May, 2017.
The Issue This case was presented on an administrative complaint filed by the Florida Real Estate Commission against Florida Vantage Properties, Inc. and Richard Stewart Grimes, alleging that the Respondents were guilty of violation of Section 475.42(1)(j), Florida Statutes, by having placed or caused to be placed upon the public records of Palm Beach County, a written document which purports to effect the title of, or encumber, real property; and the recording of which was not duly authorizod by the owner of the property and for the purpose of collecting or coercing the money to the Respondents. The Florida Real Estate Commission introduced evidence that the Respondent Grimes, in behalf of the Respondent Florida Vantage Properties, Inc., (hereafter Vantage) filed an affidavit with an attached letter of agreement, which was Introduced and received into evidence as Exhibit 2, in the public records of Palm Beach County. The Florida Real Estate Commission introduced other evidence that Grimes caused those documents to be placed upon public records of Palm Beach County without the authority of the owner of the property which was the subject of the documents and for the purpose of collecting or coercing the payment of money to the Respondents. The Respondents introduced evidence concerning the documents which had been placed on the public records of Palm Beach, County concerning their original execution, purpose, and circumstances surrounding their having been placed upon the public records. Based upon the evidence presented, the issue of fact presented in this case is whether the affidavit and letter of agreement (Exhibit 2) purports to effect the title of or encumber the subject real property?
Findings Of Fact Richard Stewart Grimes and Florida Vantage Properties, Inc. are registered real estate brokers holding registrations issued by the Florida Real Estate Commission. Grimes, together with his two co-owners, sold C.W. Collins Corporation, hereafter Collins Corp., the following real property pursuant to a deposit receipt contract executed on August 20, 1973 and identified and introduced into evidence as Exhibit 4. Lot 6, Block 2, & Lots 5, 9, & 11, Block 5, Carriage Hill, as recorded in Plat Book 30, Pages 67 & 68 of the Public Records of Palm Beach County. The deposit receipt contract (Exhibit 4) was the product of negotiations entered into between Collins Corp. and Grimes and his co-owners. These negotiations had resulted in the execution of a deposit receipt contract identified and received into evidence as Exhibit 6. This deposit receipt contract addressed the proposed purchase of six lots to include the four lots eventually sold pursuant to the deposit receipt contract (Exhibit 4). Also introduced and received into evidence was a letter of agreement covering the property described in the deposit receipt contract (Exhibit 6). This letter of agreement is the same in all respects as the latter of agreement in Exhibit 2 with the exception that it addressed the two additional lots which, were the subject of the deposit receipt contract (Exhibit 6). The evidence introduced, to include the exhibits referended above, show that a portion of the consideration for the sale of the property to Collins Corp. was the letter of agreement (Exhibit 2) which contained an exclusive right of sale for Vantage and a deferred payment agreement under which Collins Corp agreed to Pay Vantage $1,000 on each lot sold by Collins Corp. Both Grimes and Collins agreed that the exclusive right of sale had been terminated prior to the date Exhibit 2 was filed in the public records of Palm Beach County, November 6, 1975. However, Collins Corp. could not unilaterally terminate the deferred payment agreement expressed in the last sentence of the letter of agreement as follows: C. W. COLLINS CORP. may also sell the property themself (sic) and will then pay only a $1,000.00 fee to FLORIDA VANTAGE PROPERTIES, INC. on each lot or house and lot package at time of closing. Grimes, as chief officer of Vantage, consulted legal counsel when Collins Corp. failed to pay $1,000 to Vantage when the corporation sold the first lot. Grimes authorized counsel to take action to obtain payment of the monies due Vantage from Collins Corp. As a result, Grimes executed the affidavit of October 7, 1975 (Exhibit 2) and caused this to be placed on the public records of Palm Beach County by counsel for Vantage and Grimes. Neither the affidavit nor the letter of agreement assert any interest in the subject property and the filing in no way constituted a notice of lis pendens.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action on the complaint against Florida Vantage Properties, Inc. or Richard Stewart Crimes. DONE AND ORDERED this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX The Respondent timely filed Proposed Findings of Fact (PFF) in this cause, which were considered by the Hearing Officer as follows: Paragraphs 1 and 2 of PFF are incorporated in paragraph 1 of the Recommended Order (RD). Paragraphs 3 and 4 of PFF are incorporated in paragraph 2 of the RD. Paragraph 5 of PFF is incorporated in paragraph 3 of the RD. Paragraphs 6, 7, 8 & 10 of PFF are incorporated in paragraph 4 of the RD. Paragraphs 9, 11, 12,13 and 14 are not material to consideration of the issue presented. Paragraph 15 is consistent with the ultimate conclusion of law reached in the RD. COPIES FURNISHED: John Huskins, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Arthur C. Koske, Esquire Post Office Box 478 299 West Camino Gardens Blvd. Boca Raton, Florida 33432 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION CD 14999 Petitioner, PROGRESS DOCKET vs. NO. 3283 FLORIDA VANTAGE PROPERTIES, INC. and RICHARD STEWART GRIMES DOAH NO. 78-696 Respondents. PALM BEACH COUNTY /
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 The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority contracted with O.R. Colan Associates, Inc. to serve as its agent in acquiring the property needed for this project. Several public meetings were held by the Expressway Authority before the final route was accepted and a map or maps of reservations was or were filed. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter similar to Exhibit 2, which was sent to Petitioner dated January 17, 1991 advising him that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. Exhibit 2 further provided that: [I]n order to facilitate construction of the project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistant payments and other costs payable only during the settlement process. Several years earlier Petitioner had purchased property on which he intended to construct a new residence in which to live. Based upon the fact that Petitioner received a certificate of occupancy dated January 24, 1991 for this new residence, it is obvious that construction of this residence commenced before Petitioner received Exhibit 2. Petitioner visited the office of Colan in April 1991 and discussed some of the procedures to be followed in his property being acquired. No offer to purchase at an offering price was made to Petitioner at this time or by any of Colan's employees until January 7, 1992. On January 7, 1992 a personal contact was made with Petitioner by David A. Patrick, an agent for Colan, in which Petitioner was offered $108,725 for his property (Exhibit 7). A subsequent offer to purchase the property was made by David A. Patrick for $201,125 (Exhibit 9). Petitioner occupied the new residence shortly after receiving the certificate of occupancy and entered into a lease for the former residence on March 18, 1991. During Petitioner's visit to Colan's office in April 1991 he requested and was given a copy of a Relocation Brochure (Exhibit 1) prepared by Colan who had distributed copies to approximately 10 property owners of affected property before being advised by DOT not to distribute them to any other property owners. At the bottom of page 1 and top of page 2 of Exhibit 1 the following appears: Are there "Basic" payment eligibility requirements that are applicable to all relocatees? Yes - to be eligible for any relocation payment you must at least meet each of the following basic requirements: 1. You must - with the following noted exception - be in legal occupancy of the property being acquired by the Authority at the initiation of negotiations for that particular property - unless you have personally received a written notice from the Authority advising that it is the intent of the Authority to acquire the property. (Negotiations will be initiated on the date that the Authority representatives present a written offer for the subject property to the property owner or to his designated representative). EXCEPTION: The one and only exception to this specific occupancy requirement is that you can qualify for a moving cost payment - if you were not in occupance at the initiation of the negotiations and if you did not personally receive a written notice of intent to acquire PROVIDED THAT you were in legal occupancy at the time the property was actually acquired (paid for) by the Authority or at the time you received written notice from the Authority. You should never - whether you are a tenant or an owner - vacate or move from any property scheduled for acquisition by the authority prior to receiving a written vacancy notice from the Authority (even though you may have a written notice of the Authority's intent to acquire the property) without first checking with the Authority officials to see if you can do so without losing your eligibility for relocation payments which you would otherwise be entitled to receive. You will thereafter not jeopardize your eligibility if you move any time after your Acquisition payment is delivered to you. The property acquired from Petitioner consists of a duplex in which one unit (occupied by Petitioner) was comprised of 3 bedrooms, one bath, kitchen, etc., and the other unit had one bedroom, one bath, etc., which Petitioner held as rental property. There were also two sheds on the property in which Petitioner stored personal property. Petitioner's testimony that some of his personal property remained on the acquired premises for over a year after he vacated the dwelling was not contested.
Recommendation It is recommended that a final order be entered dismissing Ronald R. Swartz's application for relocation benefits associated with the taking of his property in the right-of-way of the Hillsborough County Northwest Expressway. ENTERED this 11th day of December, 1992, in Tallahassee, Florida. K. N. AYERS 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 11th day of December, 1992. APPENDIX Petitioner's proposed findings are accepted as noted below. Those neither noted below or included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. 9. Accepted as unrebutted testimony of Petitioner. However, it is noted that Petitioner received the "599 letter" subsequent to its date of January 17, 1991 and his certificate of occupancy for his new residence on January 24, 1991. 20. Accepted as unrebutted testimony of Petitioner, however, this brochure was received by Petitioner long after he had moved from the condemned property so his move could not have been made in reliance on this relocation brochure. 23. Accepted as testimony of Petitioner. However, reliance on Chapter 14- 66, Florida Administrative Code, would show his ineligibility for relocation benefits since he was not in occupancy at the time of initiation of negotiations as defined in the rule. Respondent's proposed findings are accepted. Those proposed findings not included in the Hearing Officer's finding were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Ronald R. Swartz 610 West Waters Avenue Suite J Tampa, Florida 33604 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
