Findings Of Fact Petitioner is the state licensing regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes, and rules and regulations promulgated pursuant thereto. During times material, Respondent was a licensed real estate salesman in Florida, having been issued license number 0319604. The last license issued Respondent was as a salesman, c/o Referral Realty Center, Inc. (herein Referral) at 8974 Seminole Boulevard, Seminole, Florida. On December 1, 1988, Respondent entered into a management agreement with Madeira Beach Yacht Club Condominium Association, Inc. (herein Madeira) to serve as property manager. Respondent assumed the property manager position with Madeira in June of 1987, which was formalized by a written agreement in December 1988. While acting as property manager for Madeira, Respondent handled the rental transactions of individual units for owners. In return for her services, Respondent was compensated based on a commission of 10% to 20% of the monthly rental. On at least one occasion, Respondent rented an individual unit for owners for a term greater than one year. Respondent was aware that she was renting the one unit for a term in excess of one year. Respondent signed leases for units belonging to individual owners as the rental agent or representative. Respondent used the commissions that she received to defray operating expenses for her rental business such as cleaning fees for the units and for personal compensation. Respondent maintained a bank account at the First Federal of Largo Savings and Loan Association entitled "Dorothy K. Livingston Rental Account" for her rental business. Deposits to that account were rental monies received from tenants from which disbursements were made to unit owners and the remaining commissions went to Respondent as compensation. The rental account maintained by Respondent was neither an account with her employing real estate broker, nor was it an escrow account. Respondent placed security deposits that she received from tenants in the referenced rental account that she maintained. Respondent did not inform her employing broker of the receipt of security deposits nor did she discuss with her employing broker any of her activities involving rental of units for owners at Madeira. However, there is credible testimony evidencing that her broker was knowledgeable of Respondent's activities relative to her rental of units for owners. During May 1989, Respondent placed her real estate license with Referral Realty Center (Referral) as her employing broker. She did so in order to receive payment for referring prospects to Referral. On or about May 22, 1989, Respondent entered into an independent contractor agreement with Referral. That agreement provided in pertinent part that: Independent contractor agrees that Independent contractor will not list any real estate for sale, exchange, lease or rental... . Independent contractor agrees to refer all prospective clients, customers, buyers and sellers of which Independent contractor becomes aware to the Center... . Independent contractor agrees that so long as this Agreement is in force and effect the Independent contractor will not refer any prospective seller or buyer to another real estate broker... . 9. Independent contractor agrees to act, and to represent that he or she is acting solely as a referral associate of the Center... . While employed by Referral, Respondent also received commissions from individual unit owners at Madeira. During the time when Respondent had her license listed with Referral, she also received commissions from Referral for prospects she generated while renting units for owners and acting as property manager at Madeira. Respondent received a copy of a letter from attorney R. Michael Kennedy, addressed to J.L. Cleghorn of Building Managers International, Inc., dated September 5, 1989. In that letter, attorney Kennedy expressed his opinion that condominium or cooperative managers are exempted from the licensing provisions of Chapter 475, Florida Statutes, and that receipt of a percentage of rental proceeds would not be precluded even if the manager was salaried. The Kennedy letter erroneously states support for attorney Kennedy's opinion by Alexander M. Knight, Chief of the Bureau of Condominiums, and Knight so advised attorney Kennedy of that erroneous support by a subsequent letter to him. It is unclear to what extent Respondent apprised attorney Kennedy as to the specifics of her activities and to what extent she relied on his opinion prior to engaging in her property manager's rental and referral activities. (Petitioner's Exhibit 7.) Respondent did not seek advice from Petitioner as to whether her activities fell within the guidelines of Chapter 475, Florida Statutes. Respondent is familiar with the statutory definitions of a broker and salesman and what activities constitute brokerage and sales activities. During times material, Respondent's employing broker, David Hurd, was a licensed real estate broker in Florida, and the broker of record for Referral for procuring prospects and making referrals of real estate activities. Employment under an independent contractor agreement is considered employment under Chapter 475, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,500.00, issue a written reprimand to her, place her license on probation for a period of one (1) year with the further condition that she complete 60 hours of continuing education. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of May, 1991. COPIES FURNISHED: Janine B. Myrick, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jerry Gottlieb, Esquire GOTTLIEB & GOTTLIEB, P.A. 2753 State Road 580, Suite 204 Clearwater, Florida 34621 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent, German H. Rodriguez, committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and disciplining real estate licensees in the State of Florida. At all times material to the allegations of this case, Respondent has been licensed as a real estate broker, license number 0434907. On March 20, 1995, Respondent submitted a license renewal form to the Petitioner which resulted in the automatic issuance of a renewed license for two years, ending March 31, 1997. The license renewal form provided, in pertinent part: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or professional regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I further understand that failure to comply with such requirements is in violation of the rules and statutes governing my profession and subjects me to possible disciplinary action and, further, that any false statements herein is in violation of section 455.227 Florida Statutes, subjecting me to disciplinary action as well as those penalties provided below. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. When Respondent executed the renewal form he did not have documentation supporting his eligibility for license renewal. Specifically, Respondent did not have a course report documenting completion of the required 14 hour continuing education course. The course report that Respondent later received from an approved real estate school noted that Respondent had started the course June 1, 1995, and had finished it June 26, 1995. Respondent knew that the 14 hour continuing education course was required by the Department for license renewal. Further, Respondent knew that the course was to be completed before the renewal came due. Respondent maintains that he intended to complete the course before the renewal because he had, in fact, requested a correspondence course from an approved real estate school, had completed the course work, and had filled out the answer sheet. Unfortunately, according to Respondent, the envelope was misplaced and he failed to timely mail the answer form to the company for scoring. Therefore, Respondent did not get credit for the work until June, 1995, when he completed the work again. As chance would have it, Respondent was selected for audit in August, 1995. By this time he had completed the continuing education course work as required by the Department for license renewal but, as indicated above, did so after the renewal form had been submitted. In response to the audit, Respondent represented that he had completed the work prior to renewal but, through inadvertence, had not gotten the course credit until after the renewal period. Respondent did not successfully complete 14 hours of continuing education prior to submitting the renewal form. Respondent has been a licensed real estate broker for ten years during which time he has never been disciplined. At the time of the renewal, Respondent was not using his real estate license and was in an inactive status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent violated Section 475.25(1)(m), Florida Statutes, and imposing a reprimand with an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997. COPIES FURNISHED: Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Tallahassee, Florida 32802 Frederick H. Wilsen, Esquire Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 German H. Rodriguez 703 Southwest 89th Avenue Plantation, Florida 33324
The Issue Whether Respondent, Royal Arms Villas Condominium, Inc., discriminated against Petitioners, Eric and Nora Gross, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners are a married couple, living in a rental home at 209 Yorkshire Court, Naples, Florida (rental unit). Petitioners have two children and two grandchildren; however, none of these relatives live in Petitioners’ rental unit. Mr. Gross was diagnosed with stage four hodgkin’s lymphoma in 2002. Mr. Gross has been in remission since 2003. Mr. Gross was declared disabled by the Social Security Administration in 2003. Petitioners have lived in this rental unit since August 2006. A Florida residential lease agreement with the property owners, Joan and Charles Forton, was entered on August 8, 2006.3/ This lease was for a 12-month period, from September 1, 2006, through August 31, 2007. At the end of this period, the lease became a month-to-month lease and continued for years without anyone commenting on it. In 2012, Respondent inquired about a dog that was seen with Petitioners. After providing supporting documentation to Respondent, Petitioners were allowed to keep Mr. Gross’ service dog, Evie. Respondent is a Florida not-for-profit corporation. There are 62 units, and the owner of each unit owns a 1/62 individual share in the common elements. Since its inception, Respondent has, through its members (property owners), approved its articles of incorporation, bylaws, and related condominium powers, and amended its declaration of condominium in accordance with Florida law. Ms. Orrino is currently vice-president of Respondent’s Board of Directors (Board). Ms. Orrino has been on the Board since 2009 and has served in every executive position, including Board president. Ms. Orrino owns two condominiums within Respondent’s domain, but does not reside in either. In 2012 or 2013, Respondent experienced a severe financial crisis, and a new property management company was engaged. This company brought to the attention of Respondent’s Board that it had not been approving leases as required by its Declaration of Condominium.4/ As a result of this information, the Board became more pro-active in its responsibilities, and required all renters to submit a lease each year for the Board’s approval. Petitioners felt they were being singled out by Respondent to provide a new lease. The timing of Respondent’s request made it appear as if Respondent was unhappy about Petitioners keeping Evie. Petitioners then filed a grievance with HUD.5/ HUD enlisted the Commission to handle the grievance, and Mr. Burkes served as the Commission’s facilitator between Petitioners and Respondent. On October 24, 2013, Petitioners executed a Conciliation Agreement (Agreement) with Respondent and the Commission. The terms of the Agreement include: NOW, THEREFORE, it is mutually agreed between the parties as follows: Respondent agrees: To grant Complainants’ request for a reasonable accommodation to keep Eric Gross’s emotional support/service dog (known as “Evie”) in the condominium unit even though it exceeds the height and weight limits for dogs in the community. That their sole remedy for Complainants’ breach of the provisions contained in subparagraphs (a) through (g) below, in addition to the attorney’s fees and costs provision of paragraph 10 of this Agreement, shall be the removal of the Complainants’ dog. Complainants agree: That they will not permit the dog to be on common areas of the association property, except to transport the dog into or out of Complainants’ vehicle, to and from Complainants’ unit, and to take the dog through the backyard of the unit to walk it across the street off association property. That if the dog is outside of the condominium unit, they will at all times keep the dog on a leash and will at all times maintain control of the dog. That if their dog accidentally defecates on association property, they will immediately collect and dispose of the waste. That they are personally responsible and liable for any accidents or damages/injuries done by the dog and that they will indemnify and hold the Respondent harmless and defend Respondent for such claims that may or may not arise against Respondent. That they will not allow the dog to be a nuisance in the community or disrupt the peaceful enjoyment of other residents. A nuisance will specifically include, but is not limited to, loud barking and any show of aggressive behavior, including, but not limited to, aggressive barking, growling or showing of teeth regardless of whether the dog is inside or outside of the unit. That they will abide by all community rules and regulations of Respondent with which all residents are required to comply, including but not limited to submitting to the required pre-lease/lease renewal interview, and completing a lease renewal application and providing his updated information to Respondents and submitting to Respondent a newly executed lease compliant with Florida law and the Declaration of Condominium. The pre-lease/lease renewal interview will be conducted at Complainants’ unit at a time and date agreeable to the parties but not to exceed 30 days from the date of this agreement. If Complainants’ current dog “Evie” should die or otherwise cease to reside in the unit, Complainants agree to replace the dog, if at all, with a dog that is in full compliance with the association’s Declaration of Condominium or Rules and regulations in force at that time and will allow the dog to be inspected by Respondent for approval. Respondent agrees to ensure, to the best of their abilities, that their policies, performance and conduct shall continue to demonstrate a firm commitment to the Florida Civil Rights Act of 1992, as amended, Sections 760.20-37, Florida Statutes, (2012), and the Civil Rights Act of the United States (42 U.S.C. 1981 and 1982 and 3601 et.seq). [sic] Respondent agrees that it, its Board members, employees, agents and representatives shall continue to comply with Title VIII of the Civil Rights Act of 1968, as amended by The Fair Housing Act, which provides that Respondents shall not make, print or publish any notice, statement of advertisement with respect to the rental or sale of a dwelling that indicates any preference, limitation or discrimination based on race, color, religion, national origin, sex, disability or familial status. Respondent also agrees to continue to comply with Title VIII of the Civil Rights Act of 1968, as amended by The Fair Housing Act, which prohibits Respondents from maintaining, implementing and effectuating, directly or indirectly, any policy or practice, which causes any discrimination or restriction on the bases of race, color, religion, national origin, sex, disability or familial status. Respondents also agree to continue to comply with Section 504 of the 1973 Rehabilitation Act. It is understood that this Agreement does not constitute a judgment on the part of the Commission that Respondents did nor did not violate the Fair Housing Act of 1983, as amended, Section 760.20-37, Florida Statutes (2011). The Commission does not waive its rights to process any additional complaints against the Respondent, including a complaint filed by a member of the Commission. It is understood that this Agreement does not constitute an admission on the part of the Respondent that they violated the Fair Housing Act of 1983, as amended, or Section 504 of the 1973 Rehabilitation Act. Complainants agree to waive and release and do hereby waive and release Respondent from any and all claims, including claims for court costs and attorney fees, against Respondent, with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in this complaint under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained herein. The Commission agrees that it will cease processing the above-mentioned Complaint filed by Complainants and shall dismiss with prejudice said complaint based upon the terms of this Agreement. Respondent agrees to waive and release any and all claims, including claims for court costs and attorney fees, against Complainants with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Complainants’ performance of the premises and representations contained herein. The parties agree in any action to interpret or enforce this agreement the prevailing party is entitled to the recovery from the non-prevailing party its reasonable attorney’s fees and costs, including attorney’s fees and costs of any appeal. FURTHER, the Parties hereby agree that: This Agreement may be used as evidence in any judicial, administrative or other forum in which any of the parties allege a breach of this Agreement. Execution of this Agreement may be via facsimile, scanned copy (emailed), or copies reproduced and shall be treated as an original. This Conciliation Agreement may be executed in counterparts. IN WITNESS WHEREOF, the parties have caused this Conciliation Agreement to be duly executed on the last applicable date, the term of the agreement being from the last applicable date below for so long as any of the rights or obligations described here in continue to exist. Eric Gross and Nora Gross signed the Agreement on October 24, 2013. Ms. Orrino, as President of Respondent, signed the Agreement on September 9. The Commission’s facilitator, Mr. Burkes, signed the Agreement on October 24. The Commission’s housing manager, Regina Owens, signed the Agreement on October 30, and its executive director, Michelle Wilson, signed the Agreement on November 4. The effective date of the Agreement is November 4, the last day it was signed by a party, and the clock started running for compliance. Petitioners failed to abide by the Agreement in the following ways: Petitioners failed to submit an updated lease agreement that conformed to Respondent’s rules and regulations. Petitioners failed to submit to the required pre- lease/lease renewal interview within 30 days of signing the Agreement. Petitioners failed to complete a lease renewal application. Petitioners failed to provide updated information to Respondent. It is abundantly clear that Eric Gross and Ms. Orrino do not get along. However, that personal interaction does not excuse non-compliance with an Agreement that the parties voluntarily entered. Each party to the Agreement had obligations to perform. Respondent attempted to assist Petitioners with their compliance by extending the time in which to comply, and at one point, waving the interview requirement. Petitioners simply failed to comply with the Agreement. Petitioners failed to present any credible evidence that other residents in the community were treated differently. Mr. Gross insisted that the Agreement had sections that Petitioners did not agree to. Mr. Burkes was unable to shed any light on the Agreement or the alleged improprieties that Mr. Gross so adamantly insisted were present.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioners in its entirety. DONE AND ENTERED this 17th day of March, 2015, 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 17th day of March, 2015.
Findings Of Fact Petitioner is a dealer in heavy construction equipment and has been since its incorporation on August 1, 1946. Among petitioner's competitors are Dewind Machinery Company, Florida Equipment Company of Jacksonville, Florida- Georgia Tractor Company, Inc., Great Southern Equipment Company, Inc., Pilot Equipment Company, Inc., Ring Power Corporation and Joseph L. Rozier Machinery Company. Like its competitors, petitioner frequently leases equipment to its customers, giving them an option to purchase, rather than selling them the equipment outright. Petitioner's exhibit No. 1 reflects one such transaction. On April 19, 1973, petitioner quoted Houdaille Duval Wright Company (Houdaille) a purchase price of twenty-two thousand dollars ($22,000.00) plus sale's tax, and monthly rent of fourteen hundred dollars ($1,400.00) plus sales tax on a diesel powered, self-propelled vibratory roller. After negotiations between petitioner and Houdaille, the purchase price dropped to seventeen thousand dollars ($17,000.00), but the monthly rental remained unchanged. Houdaille agreed to lease the vibratory roller from petitioner on these terms. With respect to its option to purchase, Houdaille specified that: 100 percent of all rentals to apply towards purchase price of $17,000.00 less 10 percent discount on remaining outstanding balance at time of purchase. Interest to accrue at a rate 7 1/2 percent simple. Houdaille made lease payments for nine months, totaling twelve thousand six hundred dollars ($12,600.00), before electing to exercise its option to purchase. In calculating the amount of money Houdaille was to pay to close out the transaction, petitioner began by treating the payments Houdaille had made under the lease as if they had been payments made in repayment of a loan, outstanding for the period of the lease, in the amount of seventeen thousand dollars ($17,000.00), at 7 1/2 percent per annum. Petitioner allocated portions of each lease payment to principal and to interest, calculated on the declining principal balance, aggregating eleven thousand nine hundred ten dollars and fifty-four cents ($11,910.54) to principal, and six hundred eighty-nine dollars and fourty-six cents ($689.46) to interest. Petitioner then calculated the 10 percent discount by multiplying one tenth times the difference between the original price ($17,000.00) and the amount aggregated to principal ($11,910.54), which yielded five hundred eight dollars and ninety-five cents ($508.95). This figure was subtracted from the original contract price ($17,000.00) to ascertain the' discounted price ($16,491.05) against which the lease payments were credited in their entirety ($12,600.00), yielding the figure three thousand eight hundred ninety-one dollars and five cents ($3,891.05), on which petitioner calculated 4 percent sales tax. In addition, petitioner required Houdaille, in exercising its option to purchase, to pay six hundred eighty-nine dollars and forty-six cents ($689.46), the aggregate amount of lease payments petitioner had allocated to interest. In every respect pertinent to the dispute between petitioner and respondent, this transaction between petitioner and Houdaille is typical of the transactions on which contested portions of the tax assessments were based. The same is true of petitioner's lease and sale of a truck crane to Poston Bridge & Iron, Inc. (Poston), the transaction reflected in exhibit No. 2 (although petitioner's agreement with Poston did not involve a discount.) The terms of the lease purchase agreement, as stated on respondent's exhibit No. 2, were: Option Price $124,855.00 with 100 percent of paid rentals to apply to purchase price less interest at 8.5 percent simple. After making lease payments totalling twenty-six thousand dollars ($26,000.00), Poston exercised its option to purchase. At this point the lease payments were recast as installment sales payments, portions being allocated to principal and interest accordingly. Respondent collected sales tax on the amount of money Poston paid in exchange for title, after electing to purchase, less the aggregate amount of lease payments petitioner had allocated to interest. Petitioner has been entering into lease purchase agreements of this kind with various customers since 1946 or 1947, and, when customers exercised purchase options, petitioner ordinarily calculated sales tax in the manner it employed in connection with the sale of the vibratory roller to Houdaille, and the truck crane to Poston. In at least one instance, however, petitioner calculated sales tax as 4 percent of all the money a customer, Misener Marine Construction, Inc., paid when exercising its option to purchase a truck crane, including portions of lease payments petitioner had allocated to interest. On the lease payments themselves, petitioner regularly collected 4 percent sales tax which it regularly remitted to respondent. For federal income tax purposes, petitioner treated payments from customers under a lease purchase agreement as lease payments for every tax year in which the option to purchase was not exercised. For the tax year in which the option to purchase was exercised, the lease payments were treated as payments under an installment sale contract, for federal income tax purposes. When respondent audited petitioner's rentals for the period May 1, 1970, to April 30, 1973, and earlier when respondent performed a general audit of petitioner's books for the period July 1, 1959, to February 28, 1962, no mention was mace of petitioner's sales tax treatment of lease purchase agreements under which lessees had exercised purchase options. Before the audit which eventuated in the assessments now in controversy, however, the auditors were given a copy of a letter from L. N. Hansen to Thomas D. Aitken dated December 9, 1974. Mr. Hansen was formerly director of respondent's sales and use tax division. In the fall of 1974, he was one of a group or "board" of respondent's employees who considered questions arising under the tax laws and formulated policy for respondent. His letter to Mr. Aitken, which came in evidence as, petitioner's exhibit No. 5, was written on behalf of respondent after its substance was discussed at a meeting of respondent's policy group. It pertains to lease purchase agreements entered into by Joseph L. Rozier Machinery Co. (Rozier). Mr. Hansen's letter stated that Rozier was "not correct in reducing the taxable sales price by the rental payments and thereafter adding an interest charge which, if it was incurred at all, was incurred prior to the time of sale." Petitioner's exhibit No. 5, p. 1. The foregoing findings of fact should be read in conjunction with the statement required by Stucky's of Eastman, Georgia vs. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent abandon the uncollected portions of its deficiency assessments. DONE and ENTERED this 31st day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 APPENDIX Petitioner's proposed findings of fact Nos. 1, 4-8, and 10 have been adopted, in substance, insofar as relevant. Petitioner's proposed finding of fact No. 2 is irrelevant insofar as it differs from petitioner's proposed finding of fact No. 7, and for that reason has not been adopted where it differs from petitioner's proposed finding of fact No. 7. Petitioner's proposed finding of fact No. 3 has not been adopted because it is not relevant. Petitioner's proposed finding of fact No. 9 has not been adopted because what motivated respondent's employees is not relevant and because it was not proven what would have happened "[b]ut for the Hansen letter." Petitioner's proposed findings of fact Nos. 11 and 12 have not been adopted because they are irrelevant. Petitioner's proposed finding of fact No. 13 has not been adopted as such because it is actually a proposed conclusion of law. The first paragraph of respondent's proposed findings of fact has been adopted, in substance, except that exercise of the purchase option may be said to relate back to the beginning of the contract. Significantly, respondent proposes as a finding of fact that the "amount termed 'Interest' . . . is payable for the use of the money during the rental/lease period." Paragraphs two through seven, nine and ten of respondent's proposed findings of fact have been adopted, in substance, insofar as relevant. The eighth paragraph of respondent's proposed findings of fact has not been adopted; it is actually a proposed conclusion of law. COPIES FURNISHED: Mr. Daniel S. Dearing, Esquire Post Office Box 1118 424 North Calhoun Street Tallahassee, Florida 32302 Ms. Patricia S. Turner, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
Findings Of Fact The Respondent, Bertram Gould, is president and stockholder of Mohican Valley, Inc., d/b/a Indian Woods Subdivision. The Indian Woods Subdivision is located in Seminole County and consists of in excess of 150 subdivided lots. On May 20, 1982, Mohican Valley, Inc. purchased a mobile home park located in Seminole County, Florida, from Winter Springs Mobile Home Corporation. The park was formerly known as Mohawk Village, but is now known as the Indian Woods Subdivision. Bertram Gould and Mohican Valley, Inc. acquired their interest in the subdivision by virtue of a purchase and sale agreement, deed and assignment of lease indentures from Winter Springs Mobile Home Corporation. Individuals desiring to live in the mobile home park purchase their mobile home and contemporaneously sign a 99-year lease on the lots upon which the mobile homes are to be placed. The mobile homes purchased by prospective residents in the subdivision are typically purchased from Vaughn Motors, Inc., a corporation of which Mr. Gould is president. In 1981, Vaughn Motors, Inc. sold a mobile home to Alfred and Beverly Powers, which arrived at the park and was setup on November 30, 1981, or shortly thereafter. On March 1, 1982, Vaughn Motors, Inc. sold that mobile home to Warren E. and Sylvia Joyce Krummel, since the Powers had elected not to close the purchase. On the date of the sale to the Krummels, the mobile home was already setup on Lot 1, Block E, of the subdivision and ready for occupancy. On June 14, 1982, after the May 20 purchase of the subdivision by Mohican Valley, Inc, through its president, Bertram Gould, the Krummels executed an Indenture of Lease for Lot 1, Block E. There was thus a residential building on that property subject to the lease at the time the lease was entered into. On June 5, 1982, Dorothy Merritt signed a purchase agreement to buy a mobile home and the mobile home was delivered and setup on her lot on August 6, 1982. On that date she also signed a lease for the lot where the mobile home was placed. Thus, when the interest in that property was conveyed by lease, there was a residential building on the lot. Roy and Lydia Ardizzone initially leased a lot in the park from Winter Springs Mobile Home Corporation before the sale to Mohican Valley, Inc. and Bertram Gould. In August, 1982, after Mohican Valley, Inc. purchased the subdivision, the Ardizzones decided to place a mobile home on their lot, but since the Phase II portion of the subdivision in which their original lot was located was not completely developed, it was not feasible to place the home on the lot at that time. Accordingly, they asked Mr. Gould to substitute their lot for a lot in Phase I in order to facilitate placing a home on the lot and begin living in the park. Mr. Gould agreed and the substitution occurred on August 31, 1982, on which date the Ardizzones also signed a lease for the lot. They ordered a mobile home to be placed on that lot, which arrived some 10 days later, on September 9, 1982. It was immediately setup on the Ardizzone's lot. Thus, at the time the lease of August 31, 1982, was executed by the Ardizzones and Bertram Gould, the Ardizzones had already ordered the mobile home for immediate delivery, which was delivered and setup some 10 days later. Thus, there was an obligation on the part of the Respondent to provide a mobile home to them in less than two years and indeed within days. On or about September 4, 1982, Bertram Gould caused a mobile home to be placed on Lot 3, Block B of the subdivision and had it prepared for occupancy. On November 5, 1982, George W. and Alice H. Woodward signed a purchase agreement for the mobile home and ultimately executed a lease for the lot upon which that mobile home sat on January 10, 1983. They moved into their home on or about February 17, 1983. Thus, at the time the lease was executed by the Woodwards and Respondent, a residential building was present on the property subject to the lease. Mohican Valley, Inc.'s predecessor in title, Winter Springs Mobile Home Corporation, had, during the course of its development of the mobile home park, entered into approximately 156 ground leases for mobile home lots. In conjunction with the acquisition of title to the park by Mohican Valley, Inc., Mohican Valley Inc. was assigned all rights of Winter Springs Mobile Home Corporation in those 156 leases which had already been recorded by Winter Springs Mobile Home Corporation prior to the acceptance of assignment by Mohican Valley, Inc. It was not established that Mohican Valley, Inc. or Bertram Gould had participated in any offer or disposition of the property which was the subject of those leases prior to Mohican Valley, Inc.'s acceptance of their assignment. Prior to May 20, 1982, the Respondent had no ownership interest in either the mobile home park or in Winter Springs Mobile Home Corporation, which owned and managed the Park. He was not an officer, director, employee, salesman or any type of agent for the owner of the mobile home subdivision prior to May 20, 1982. The only nexus between the Respondent and the mobile home park prior to May 20, 1982, was his position as president of Vaughn Motors, Inc. which had sold mobile homes to some of the residents of the park who had executed leases which ultimately became assigned to Mohican Valley, Inc. The Respondent caused certain advertisements to be placed in the Orlando Sentinel newspaper. Although an advertisement was placed April 25, 1982, the Respondent was not involved in the publishing of that advertisement. It appeared in the newspaper approximately a month prior to purchase of the park by Mr. Gould's company. On June 4 and 5, 1982; September 19, 1982; October 10, 1982; and January 29, 1983, the Respondent admittedly placed advertisements in the Orlando Sentinel representing amounts of monthly lot rent, terms of available bank financing, the office address, the phone number and hours of operation, as well as representing the fact that mobile homes could be purchased at the park for a listed price, including certain optional features, as well as the representation that the mobile home park then owned by Mohican Valley, Inc. offered quarter-acre lots and double-wide homes with certain amenities. The price for lot rent was represented as never increasing. Bank financing was advertised as available variously at 14 and a quarter percent interest and 13 and a half percent interest. The representations contained in those advertisements were true, however, at the time Mohican Valley, Inc. took title to the mobile home park, a foreclosure action and lis pendens had been filed on that property by Florida Land Company, the mortgagee on a mortgage executed by Winter Springs Mobile Home Corporation, Mohican Valley, Inc.'s predecessor in title. That foreclosure had been filed on or before March 21, 1983, as evidenced by the Motion to Intervene (in evidence as Petitioner's Exhibit 4), which was filed in that foreclosure proceeding by Mohican Valley, Inc. No representation was made in these advertisements concerning the fact that the property which was the subject of the mobile home lot leases offered by Respondent was the subject of a mortgage encumbrance which was then in foreclosure, which foreclosure predated those advertisements. Bertram Gould, as president of Mohican Valley, Inc., as the movant in that Motion to Intervene, and as the successor in title to the mortgagor-in-foreclosure, knew of the existence of the facts surrounding that foreclosure as they related to the interest in the land he sought to convey and the effects such a foreclosure might have on the persons or residents of the park who executed those leases as lessee thereafter. Bertram Gould thus materially participated in the offer or disposition of the lots for lease in the subdivision and advertised those dispositions or offerings without representing that the real property to which they related was the subject of a pending foreclosure action. No reservation program has been approved by Petitioner for Bertram Gould, Mohican Valley, Inc. and/or Indian Woods, nor has any application for such been filed. No public offering statement for Bertram Gould, Mohican Valley, Inc. or Indian Woods, nor any application for such has, as of the time of the hearing, been filed and approved. The Indian Woods Subdivision has not been registered with the Petitioner by either Bertram Gould or Mohican Valley, Inc. Bertram Gould has engaged in the disposition of these subdivided lands directly as well as on behalf of Mohican Valley, Inc., of which corporation he is president and stockholder. Bertram Gould has offered, disposed of or participated in the offer or disposition of interests in the subdivided lands involved herein, which are located in Florida, by offering the subject land for leases to prospective mobile home purchasers and park residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That Bertram Gould be found guilty of violations of Sections 498.023(1) and (2), and Section 498.049(4) and Sections 498.051(1)(a), (b), and (d); that a penalty of $2,000 be imposed and that the Respondent be ordered to cease and desist the above described activities until the requirements delineated above involving registration of the subject subdivision, approval and promulgation of a current offering statement have been accomplished. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of January, 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ladd H. Fassett, Esquire Post Office Box 2747 Orlando, Florida 32802 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
