Findings Of Fact The Respondent Thomas P. Hoolihan is a licensed real estate broker. His last known address is 3440 N.W. Marinatown Lane, North Fort Myers, Florida 33903. Hoolihan is also president of Seago Group, Inc., a publicly held land development and rental corporation, of which Marinatown Realty, Inc., is a wholly owned subsidiary. In late 1977, Hoolihan met L. E. Hutchinson, the complainant in this case, through another broker for whom Hutchinson at the time was employed. In December 1977, Hoolihan and Hutchinson discussed the marketing of two condominium projects being developed by Hoolihan and reached an oral agreement whereby Hutchinson would be paid $18,000 in salary with a 1.5 percent commission on all sales. when the condominium units were completed and mostly sold, the parties' employment agreement was revised in late December 1979. Under the new agreement, Hutchinson was to receive $30,000 a year salary, commission on the remaining condominium units that had not yet closed and any commissions on outside property listings neither owned nor controlled by Seago. In return for the $30,000 guarantee, Hutchinson was to forego commissions on future properties owned or controlled by Seago Group, Inc. During the period from 1977-1978 when Hutchinson was receiving $18,000 plus a 1.5 percent commission, sales were handled through Lee Hutchinson Realty, Inc., which held license number 0182945. In early 1979, Marinatown Realty was incorporated to market Seago's real estate inventory, to identify and list outside properties and to act as a management agent for purposes of renting condominium units previously sold in recent projects. When Marinatown Realty was formed, the complainant became its active broker. While employed as the broker for Marinatown and receiving $30,000 a year as a salaried employee, Hutchinson held two other broker's licenses, one as L. E. Hutchinson Realty, Inc., and another as L. E. Hutchinson. In January 1980, Hoolihan agreed to pay a $15,000 bonus to Hutchinson in lieu of a salary increase. Since at that time sales were minimal, Hoolihan decided to pay the bonus in installments as sales occurred. Because Hutchinson left in May 1980, he received only $10,000 of the bonus which represented monies previously paid. On April 23, 1980, Hutchinson and Chuck Bundschu, a licensed real estate broker, negotiated and obtained a sales contract between Hancock Harbor Properties, Ltd., a wholly owned subsidiary of Seago Group, Inc., seller, and Frank Hoffer, buyer and licensed real estate broker, in which Hoffer offered to purchase approximately 3.16 acres of unimproved acreage for $500,000. Thomas P. Hoolihan, general partner of Hancock Harbor, executed the contract on behalf of the partnership. Prior to presenting the contract to Hoolihan, Bundschu, Hoffer and Hutchins on decided on a 30 percent, 40 percent, 30 percent, respective co- brokerage split on the $50,000 commission due on the sale of the Hancock Harbor Property. The co-brokerage fee split was typed on the bottom of the contract submitted to Hoolihan and was signed by the three brokers. The commission due to Hutchinson was made payable to L. E. Hutchinson Realty, Inc. On April 25, 1980, the contract with the original co-brokerage split was presented to Hoolihan who refused to agree to its co-brokerage split provision. In the presence of Hutchinson, Hoolihan informed Bundschu and Hoffer that he would not pay a commission to Hutchinson because he was a salaried employee of the Seago Group and not entitled to a commission on the sale of this property. Accordingly, the co-brokerage fee provision of the executed contract was never signed by the seller, Thomas P. Hoolihan. Instead, on April 25, 1980, Bundschu, Hoffer and Hoolihan agreed to a split of $20,000 to Hoffer and $15,000 to Bundschu in lieu of the split specified in the original contract. At the closing on July 18, 1980, which was held at Coastland Title Company, a closing statement was prepared which shows that real estate commissions were disbursed to Chuck Bundschu Realty, Inc. ($15,000), Marinatown Realty, Inc., ($15,000) and Hoffer's firm, Landco, Inc., ($20,000). The checks were written and disbursed following a conversation between an official of Coastland Title Company and Hoolihan in which Hoolihan informed the official that Hutchinson was a Seago employee and he would not agree to pay a $15,000 commission to him under such circumstances. On July 18, 1980, a check for $15,000 was issued by Coastland Title Company to Marinatown Realty, Inc. The $15,000 represented Hutchinson's share of the co-brokerage agreement. when received on July 18, 1980, by Billie Robinette, the broker for Marinatown Realty, the check was signed over by her to Seago Group, Inc., since in her opinion it did not represent commissions earned by Marinatown Realty. The oral agreement between Hutchinson and Hoolihan was to terminate at the end of April 1980, or approximately five days after the Hoffer contract was presented. Hoolihan offered to renew the contract without a provision for a guaranteed salary because Marinatown Realty had been consistently losing money since its incorporation. On May 6, 1980, Hoolihan received a letter of resignation from Hutchinson and concluded that his offer had been rejected In early May 1980, Hoolihan received a call from Ms. Robinette, who had been employed as Hutchinson's secretary, regarding filling the open brokerage position at Marinatown Realty, Inc. Hoolihan discovered from Ms. Robinette that Hutchinson had paid himself 50 percent of the commissions due Marinatown Realty, Inc., for the management of condominium rentals. After examining the check stubs from Marinatown's bank account, Hoolihan took personal possession of all the books and records of the company and had the office locks changed. When he examined the books and records of the realty company, Hoolihan realized that his assumption that Hutchinson Realty, Inc., became inactive when Marinatown Realty, Inc. was formed in January 1979, was erroneous and that Hutchinson had operated his own realty company, L. E. Hutchinson Realty, Inc., while employed by Marinatown Realty, Inc. The Administrative Complaint in this case was filed on July 22, 1981. The preliminary investigative report compiled by Robert Corno, DPR Investigator, was filed on September 24, 1981 and the final investigative report was filed on September 30, 1981. The following is a synopsis of the investigator's findings and recommendation: That the COMPLAINANT [Hutchinson] worked for the SUBJECT [Hoolihan] and their contractual agreement was verbal. COMPLAINANT was paid on a salary/commission basis by companies of which SUBJECT is Chief Officer. That the COMPLAINANT filed civil action suit against SUBJECT in this case and it was dismissed with prejudice. That prior investigation by the DPR recommended that no action be taken against the SUBJECT in this case. That two weeks after this investiga- tion was undertaken, an Administrative Complaint was being filed by the DPR against the SUBJECT. That the existing BROKER for MARINATOWN REALTY, INC, was not involved in this case, and that since the time of the above referenced transaction, the SUB- JECT has acquired his BROKER'S license number 020462 which had no effect in this case. That conflicting statements by inter- viewers, namely former and present employees and other agents involved in this case revealed that there is a reasonable doubt for probable cause against the SUBJECT. (Respondent's Exhibit 1) As noted by Investigator Corno, this was the second time Marinatown Realty had been investigated in relation to this case. In both instances, a recommendation that no action be taken was apparently made. At the final hearing on December 1, 1981, counsel for the Department saw the complete investigative report, including the investigator's recommendation of a lack of probable cause, for the first time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Thomas P. Hoolihan be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 30th day of December, 1982. COPIES FURNISHED: Xavier J. Fernandez, Esquire NUCKOLLS JOHNSON & FERNANDEZ Suite 10, 2710 Cleveland Avenue Fort Myers, Florida 33901 James A. Neel, Esquire 1315 Chalon Lane, S.W. Fort Myers, Florida 33903 William M. Furlow, Esquire Department of Professional Regulation - Legal Section 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are: whether proposed amendments to Florida Administrative Code1 Rules 9K-9.003(6) and 9K-9.006(2) are invalid exercises of delegated legislative authority under Section 120.52(8)(b), (c), and (e), Florida Statutes2; and, if so, whether costs and attorney's fees should be assessed against Respondent and paid to Petitioner under Section 120.595(2), Florida Statutes.
Findings Of Fact The FCT has the power "to undertake, coordinate, or fund activities and projects which will . . . serve to conserve natural resources and resolve land use conflicts, including . . . [w]orking waterfronts." § 380.507(2)(g), Fla. Stat. The FCT also is specifically authorized to "award grants and make loans to local governments and nonprofit organizations for" that purpose. Id. at ¶ (6). In 2008, the Florida Legislature enacted the Stan Mayfield Working Waterfront grant program. Codified as Section 380.5105, Florida Statutes, paragraph (2) of the statute authorizes the FCT to promulgate "rules specifically establishing an application process and a process for the evaluation, scoring and ranking of working waterfront acquisition projects. . . . Such rules shall establish a system of weighted criteria to give increased priority to projects: Within a municipality with a population less than 30,000; Within a municipality or area under intense growth and development pressures, as evidenced by a number of factors, including a determination that the municipality's growth rate exceeds the average growth rate for the state; Within the boundary of a community redevelopment agency established pursuant to s. 163.356; Adjacent to state-owned submerged lands designated as an aquatic preserve identified in s. 258.39; or That provide a demonstrable benefit to the local economy." The purpose of the grant program is to preserve working waterfronts, which have been under pressure to convert to other uses. Some driving forces behind the conversion of working waterfront to other uses include: high coastal property values; high and unpredictable property taxes; increased regulation of commercial fishing to protect reduced fishery stocks; confusing and time-consuming regulatory processes for expanding or creating new working waterfronts; increased cheaper imported seafood; and rising fuel costs. The Stan Mayfield Working Waterfront grant program is administered by the FCT. In 2008, the FCT adopted rules governing the program, including Rule Chapter 9K-9 on Grant Application Procedures. In the first cycle of grant applications, evaluations, and awards, Monroe County applied for a grant to purchase and preserve Intervenor's property on Stock Island in Key West. Monroe County's Stock Island application was not granted. The FCT announced its intention to amend the rules based on the experience of the first grant cycle under the existing rules and input from "stakeholders" (mostly local governments and private not-for-profit entities interested in applying for grants) throughout the State. Workshops were conducted, and stakeholders (including Monroe County) participated. Proposed amendments were drafted, and stakeholders were invited to comment on the draft proposed amendments. The draft proposed amendments and comments were considered by the governing board of the FCT at its meeting in May 2009. The Board made some revisions to the draft proposed amendments and initiated rulemaking. Petitioner and Intervenor challenge proposed amendments to Rules 9K-9.003(6) and 9K-9.006(2). The proposed amendment to Rule 9K-9.003(6) caps awards at five million dollars or the amount appropriated by the Legislature, if less than five million dollars (sometimes referred to as "the cap"). The proposed amendment to Rule 9K-9.006(2) adds paragraph (d) and awards evaluation points based on the amount of grant money requested in an application, as follows: 8 points for a request not exceeding $1.5 million; 4 points for a request not exceeding $2.5 million; and 2 points for a request not exceeding $3.5 million.3 This proposed rule amendment is sometimes referred to as "the sliding scale." It is common for grant programs to adopt a "cap" on awards. The FCT's proposed "cap" took into account recent and expected future legislative appropriations, as well as the grant amounts requested in the first grant application cycle and expected in the immediate future, with the understanding that the "cap" could be adjusted by rule amendment in the future if that became necessary. The purpose of the proposed "cap" was to ensure that at least two applicants would receive grant money in each grant cycle. The proposed "sliding scale" was suggested by a representative of Dixie County at a noticed public FCT meeting. It was designed promote the use of non-State matching funds and to help local governments with less resources to compete in the grant application process. The proposed "sliding scale" was thoroughly discussed in-house by FCT staff and was discussed by the FCT governing board before it was approved unanimously. The challenged proposed rules cite Sections 380.507 and 380.5105(2), Florida Statutes, as their statutory authority. They cite Sections 259.105 and 380.501-380.515, Florida Statutes, as the specific laws they implement. Section 259.105, Florida Statutes, is the Florida Forever Act. Some of the funds in the Florida Forever Trust Fund are designated for distribution "to the Department of Community Affairs for the acquisition of land and capital project expenditures necessary to implement the Stan Mayfield Working Waterfronts Program within the Florida communities trust pursuant to s. 380.5105." § 259.105(3)(j), Fla. Stat. Sections 380.501-380.515, Florida Statutes, are the Florida Communities Trust Act, which includes the Stan Mayfield Working Waterfronts grant program. Petitioner and Intervenor contend that the proposed rule amendments are not authorized by statute and enlarge, modify, or contravene the law implemented because they add to the evaluation criteria in Section 380.5105(2), Florida Statutes. But it is clear that, besides the two proposed rule amendments under challenge in this case, the "system of weighted criteria" adopted in Rule Chapter 9K-9 includes several unchallenged criteria, in addition to the ones required by the statute to be given "increased priority." In addition, the evidence was that evaluation criteria in addition to those to be given "increased priority" are essential for the "system of weighted criteria" to function properly to differentiate and rank the most worthy grant applications. Without additional criteria, it is likely that many if not all grant applications would get the same score in the evaluation process. Petitioner and Intervenor also contend that the proposed "cap" and "sliding scale" result in "increased priority" not being given to the criteria specified in Section 380.5105(2), Florida Statutes. Actually, "increased priority" still is given to the criteria listed in Section 380.5105(2), Florida Statutes. Rule 9K-9.006(1)(c) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(a), Florida Statutes. Rule 9K-9.006(2)(b) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(b), Florida Statutes. Rule 9K-9.006(1)(a) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(c), Florida Statutes. Rule 9K-9.006(1)(b) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(d), Florida Statutes. Rule 9K-9.006(2)(a) gives "increased priority" (ten points) for the criterion listed in Section 380.5105(2)(e), Florida Statutes. Petitioner and Intervenor also contend that the challenged proposed amendments discriminate against grants to higher-priced properties. They contend that higher prices indicate higher pressure to convert, larger size, and greater benefit to the local economy from preservation. They contend that all of these indicators exist in the case of Intervenor's Stock Island property--indeed, the Stock Island property is under relatively high pressure to convert, is relatively large in size, and would stand to continue to greatly benefit the local economy if preserved. They contend that discriminating against higher- priced properties like Intervenor's Stock Island property is not authorized by statute, contravenes the statutes, and is arbitrary and capricious. Actually, the challenged proposed rules do not necessarily discriminate against higher-priced properties. An applicant can use non-State matching funds to bring a more costly proposal under the "cap" of the proposed amendment to Rule 9K- 9.003(6), and unchallenged existing Rule 9K-9.006(4)(a) provides that grant proposals with non-State matching funds score significant points--far more than would be lost under the "sliding scale" of paragraph (d) of the proposed amendment to Rule 9K-9.006(2). In addition, higher-priced projects are favored by other criteria in parts of the rule and proposed rule amendments that are not under challenge. For example, points are awarded for docking facilities, seafood houses, storage areas for traps, nets, and other gear, and boat ramps. These are more likely to be attributes of a larger, more expensive property. A proposed amendment to Rule 6K-9.006(3) significantly increased the amount of points available for docking facilities, especially existing usable docking facilities, which are more likely to exist on larger properties. A grant proposal with these kinds of amenities and attributes will "blow away in point-scoring" an application for a smaller grant for a proposal without these features. In support of their contentions, Petitioner and Intervenor hypothesize two grant proposals for projects (whether in the same locale or in different parts of the state) with identical attributes except for property cost. However, the evidence was that such a scenario is unlikely. If that unlikely scenario were to occur, it is possible that the higher-cost proposal would exceed the "cap" of the proposed amendment to Rule 9K-9.003(6), and the lower-cost proposal would score more points as a result of the proposed addition of paragraph (d) to Rule 9K- 9.006(2). However, the former scenario would create the desired incentive to secure enough non-State matching funds to get under the "cap"; and under the latter scenario, it would make sense to favor the grant proposal requesting less State money. Petitioner and Intervenor also contend that the proposed amendments fail to include a provision suggested by Monroe County to adopt a "sliding scale" for the "benefit to the local economy" and add other quantifiable criteria on a "sliding scale" (e.g., a "sliding scale" to give credit for the capacity of docking facilities and storage areas) that would give a greater competitive advantage to a large project like Monroe County's Stock Island proposal. The evidence was that these kinds of criteria would be difficult to devise and implement to achieve the desire result. For example, a large project might appear to benefit the local economy greatly but actually just consolidate several different areas of economic activity into one location. As a result, it was logical for the FCT not to adopt rules attempting to quantify and score these criteria on a "sliding scale." The challenged proposed amendments are supported by logic and the necessary facts, and were adopted with thought and reason and are rational. The contention that the FCT thoughtlessly adopted a suggestion by a representative of Dixie County and ignored suggestions by Monroe County is rejected.
The Issue Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining the geographical boundaries for the competitive procurement of Lease No. 540:1071.
Findings Of Fact Approximately nine years ago, Respondent, Department of Labor and Employment Security (Department), entered into a lease with Petitioner, Intercontinental Properties, Inc. (Intercontinental), for a Jobs and Benefits Office at 701 S.W. 27th Avenue, Miami, Florida (Office No. 6574). The lease expires May 31, 1996. Office No. 6574 serves a large area: Flagler on the north side; south to Sunset, 72nd Avenue; east to Biscayne Bay; and west to the Everglades. The current office is located in the northeast corner of the service area. The Department currently maintains another Jobs and Benefits Office in the State-owned Rhode Building, which is approximately 3.1 miles from the subject office. Applicants for the Department's services may apply at either location. In May, 1995, the Department began the process of issuing a Request for Proposals (RFP) for leased space for the Jobs and Benefits Office at issue. Dennis Fernandez, the office manager of the Jobs and Benefits Office, sent a memorandum to Nathaniel Bruce with the Department's leasing office in Tallahassee, requesting that the proposed boundaries for the RFP be Flager Street to the north; Bird Road (S.W. 40th Street) to the south; Red Road (S.W. 57th Avenue) to the east; and S.W. 107th Avenue to the west. Part of his job responsibilities was to determine the boundaries. Mr. Fernandez recommended that the office be moved from the present location for the following reasons: Close proximity to another full-service office. We are currently 3.1 miles from the Miami Downtown Jobs [and] Benefits Center. Being located in Little Havana, this office is primarily serving non-English speaking applicants. We need to increase our applicant base and move further South and West in order to better serve the community we represent in accordance with our administrative area. Current location has this office split in two different floors, which has proven to be very difficult to staff, manage, and operate on a day-to-day basis. Also, with the advent of "migration," it has been difficult to adhere to a true "No Wrong Door" policy, to the detriment of our customers. An office on one level only would eliminate a lot of the problems we have faced during the last eight years. Mr. Fernandez based his recommendation to move the office further south and west on his eight years of experience as the office manager. The office's marketing report showed that the marketing team was going more to the west and south than the east in order to reach employers. A lot of the employers are located on Bird Road and on Coral Way west of the Palmetto. Based on his experience, review of applications, and discussions with his employees, he felt that more applicants were located west of the present location than east. At the time that Mr. Fernandez wrote his May 15 memorandum, there had been no statistical data run to support his recommendations. In September, 1995, the Department issued a RFP for leased space for Office No. 6574 with the following geographical boundaries: Beginning at a point where SW 107th Avenue intersects with SW 40th Street; Proceed East on SW 40th Street to the corner of SW 57th Avenue; Proceed North on SW 57th Avenue to the corner of West Flagler Street; Proceed West on West Flagler Street to the corner of SW 107th Avenue; Proceed South on SW 107th Avenue to the corner of SW 40th Street, the point of Beginning. Intercontinental filed a Notice of Intent to Protest and a Formal Written Protest, contesting the boundaries of the September, 1995 RFP. The Department received one bid in response to the RFP, which the bidder later withdrew. Kim Jacobs, the Leasing Manager for the Department, began her employment in September, 1995. When she became aware of the Formal Written Protest, she requested further justification for the boundaries contained in the RFP. On October 5, 1995, Kenneth Holmes, the Director of the Division of Unemployment Compensation, forwarded a memorandum to Lynn Mobley, who was Ms. Jacob's supervisor, setting forth the number of unemployment compensation claimants served from January 1, 1994, through October 1, 1995, for the zip codes located in the service area for Office No. 6574. Based on the information in Mr. Holmes' memorandum, there were 7,661 claims east of 57th Avenue and 11,170 claims west of 57th Avenue. There were 12,867 claims west of the current location as opposed to 5,964 claims eastward. Sometime between the time the protest was filed and November 17, 1995, Mr. Fernandez discussed the location of the boundaries with his boss, Dr. Willie Robinson, who indicated that perhaps they should include the present location of the office within the boundaries. Dr. Robinson did not share his rationale for such a suggestion with Mr. Fernandez, and no statistical data was gathered to support moving the boundary to include S.W. 27th Avenue. Mr. Fernandez was still of the opinion that the boundary should be moved as stated in the September, 1995 RFP. On November 17, 1995, Mr. Fernandez transmitted two facsimiles to Mr. Bruce setting forth the changes suggested by Dr. Robinson. On November 21, 1995, Mr. Bruce sent a computer message to Dr. Robinson's assistant, requesting written justification and demographics for the proposed change to the boundaries set forth in Mr. Fernandez's facsimiles of November 17, 1995; however, no additional justification or demographic information was supplied to Mr. Bruce. The Department decided to extend the boundaries further to the west and to the south in an effort to obtain more responses. Mr.Fernandez had ridden in the extended area to see if there were possible locations there. In December, 1995, the Department issued another RFP, with the following boundaries: Beginning at a point where SW 117th Avenue intersects with SW 56th Street; Proceed East on SW 56th Street to the corner of SW 57th Avenue; Proceed North on SW 57th Avenue to the corner of West Flagler Street; Proceed West on West Flagler Street to the corner of SW 117th Avenue to the corner of SW 56th Street, the Point of Beginning. The current location of Office No. 6574, is not within the geographical boundaries set forth in the December, 1995, RFP. On December 22, 1995, Intercontinental filed a Notice of Intent to Protest the boundaries in the December RFP, but did not file a formal protest or bid protest bond thereafter. The Department received one bid, which was nonresponsive. On February 22, 1996, the Department issued another RFP with the same boundaries contained in the December, 1995 RFP. On February 28, 1996, the Department received Intercontinental's Notice of Intent to Protest. On March 5, 1996, Intercontinental filed its Formal Written Protest and Bid Protest Bond with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Intercontinental Properties, Inc.'s formal notice of protest. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1311BID To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-6: Accepted. Paragraph 7: The first and last sentences are rejected as unnecessary. The remainder is accepted in substance. Paragraphs 8-9: Accepted in substance. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as subordinate to the facts found. Paragraph 11: The first two sentences are accepted. The third sentence is rejected as subordinate to the facts found. Paragraph 12: The last sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 13: Accepted in substance. Paragraph 14: Rejected as subordinate to the facts found. Mr. Fernandez was considering the client base when he made his recommendation in May. Paragraph 15: Accepted in substance to the extent that Mr. Fernandez was sending his boss' recommendation not Mr. Fernandez's recommendation. Paragraph 16: Rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 19: Accepted in substance. Paragraphs 20-21: Rejected as subordinate to the facts found. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first and last sentences are rejected as unnecessary. The remainder is accepted in substance. Paragraph 24: The first two sentences are rejeced as subordinate to the facts found. The remainder is accepted in substance. Paragraph 25: The third and fifth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 26: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 27: Accepted in substance. Paragraph 28: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraph 32: Rejected as subordinate to the facts found. Paragraph 33: The first three sentences are rejected as subordinate to the facts found. The fourth sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 34: Rejected as constituting argument. Paragraph 35: Rejected as subordinate to the facts found. Paragraph 36: The first, fourth, and sixth sentences are rejected as unnecessary. The remainder is accepted in substance. Paragraph 37: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 38: The first sentence is accepted in substance to the extent that there was no statistical data but rejected to the extent that it implies there was no basis for the changing of the boundary. The second and third sentences are rejected as subordinate to the facts found. The fourth sentence is accepted to the extent that no further demographics were done, but Ms. Jacobs did know that Mr. Fernandez had ridden in the southern and western areas to determine if there were possible space available. The remainder is accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-8: Accepted in substance. Paragraphs 9-11: Accepted. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker and Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 Edward A. Dion, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
The Issue Whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact At all times relevant hereto, Allen Darrell Probus, Respondent, was licensed as a real estate salesman and was employed by Florida Westbay Corporation (Westbay). Prior to becoming licensed as a real estate salesman in Florida, Respondent was employed by Westbay to search out and purchase real property for Westbay. James Parker Waddle was the owner of Westbay and served as active broker for Westbay. When Probus became licensed, he was given the designation of sales manager for Westbay, authorized to sign documents on behalf of Westbay and directed to sign those documents as Vice President of Westbay. At no time was Probus officially made an officer in Westbay or a director of the corporation. Donald Miller deeded property located at 7235 Heath Drive, Port Richey, Florida, to Westbay Corporation on which Westbay took out a first mortgage and Miller accepted a second mortgage on the property. The mortgage note on this property was signed by Waddle. A Westbay salesman negotiated the contract to purchase from Miller and a contract to sell this Heath Drive property to Brian Goldbaum on a contract for deed. Respondent signed this latter contract on behalf of Westbay. Neither Goldbaum or Miller had any other contact with Respondent. In carrying out his part of the agreement, Goldbaum made monthly payments to Westbay; however, Westbay failed to make first mortgage payments or second mortgage payments. When Miller learned the bank was getting ready to foreclose on the first mortgage, he went to Goldbaum and advised him that he, Miller, was the owner and that if Goldbaum wanted to stay in the house he would have to make arrangements to pay Miller. When Goldbaum declined the offer, Miller, through his attorney, sent an eviction notice to Goldbaum. Miller subsequently obtained a default judgment against Westbay and Waddle (Exhibit 16) for damages for civil fraud. Respondent also signed a contract to sell Westbay property to Dorothy James and James Bradford (Exhibit 9). This document, too, was signed on behalf of Westbay by Probus, V.P. Probus also signed an agreement for deed as Westbay, V.P., agreeing to transfer property to Jones and Bradford after certain conditions were met. Respondent was licensed as a real estate broker in Kentucky from 1973 to 1988 with no record of disciplinary actions (Exhibit 11). James P. Waddle's affidavit (Exhibit 15) corroborates Respondent's testimony that Respondent was hired to hire, train and manage sales people and sign contracts as agent for Waddle. Further, this affidavit corroborates Respondent's testimony that he was not an officer or director of Westbay, and the title given him as Vice President was in name only to give Respondent more "clout".
Recommendation It is recommended that a Final Order be entered finding Allen Darrell Probus not guilty of all charges and dismissing the Administrative Complaint. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Florida. K. N. AYERS 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 13th day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Darlene F. Keller Division Director Post Office Box 1900 Orlando, FL 32801 Jack McRay General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399 Allen Darrell Probus 6701 Leeword Isle Way Tampa, FL 33615 Anthony Elgin, Qualified Rep. The Elgin Company 2155 NE Coachman Road Clearwater, FL 34625
