The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, William D. Manser (Respondent) was licensed in Florida as a real estate broker, having been issued license number BK 0427410. Respondent was a broker/officer of United Equity Marketing, Inc., located at 6635 West Commercial Boulevard, Tamarac, Florida. Since October 1, 1995, his broker's license has not been on an active status due to non-renewal of the corporate registration. By warranty deed dated February 14, 1992, James and Angela Cunduff became owners of property located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. By Articles of Agreement for Deed dated February 25, 1992, James and Angela Cunduff agreed to convey the property to Respondent's corporation, United Capital Networks, Inc., if certain conditions were complied with. The conditions included Respondent's corporation making all the mortgage payments and paying the taxes on the property, and keeping the buildings on the property properly insured. In return, James and Angela Cunduff agreed, among other things, to execute a warranty deed to Respondent's corporation and to place the warranty deed in escrow. Respondent and the Cunduffs agreed that the Articles of Agreement for Deed would not be recorded. Respondent looked upon himself and conducted his actions as the owner of the property at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. On October 31, 1995, Mary J. Augustine signed a lease agreement for the rental of a portion of the home, the rear of the home, located at 6531 Southwest Seventh Place, Fort Lauderdale, Florida. The rear area of the home had its own entrance. The rental was for one year, beginning November 15, 1995, and ending October 30, 1996. Respondent used part of the home as a storage area. At the front of the home, there were two separate entrances. One of the separate entrances was for the storage area. The other separate entrance was for another area of the home. The lease agreement indicated United Equity Markets, Inc., as the managing agent of the property. The lease agreement required signatures of the "Tenant" and the "Lessor." Ms. Augustine signed the lease as "Tenant," and Respondent signed as "Lessor," adding the word "Agent" next to his signature. United Equity Markets, Inc., is Respondent's corporation. Prior to the signing of the lease, Respondent had met with Ms. Augustine at the house at least twice before she signed the lease agreement. Respondent represented himself as the manager of the property. The home was listed as a single-family residence. Ms. Augustine believed that the home would be occupied by Respondent, another tenant, and herself. The evidence is insufficient to show and make a finding that three families would live or had lived at the home. In accordance with the lease agreement, Ms. Augustine gave Respondent $1,290, as a security deposit. Ms. Augustine had also given Respondent, prior to the security deposit, $645 for the first month's rent. Ms. Augustine wanted to move into the rear portion of the home approximately two weeks prior to the beginning of the rental period. Respondent agreed that Ms. Augustine could have access to the home and clean the rear area where she was going to reside. Ms. Augustine had problems with, such things as, the refrigerator, oven, and swimming pool. She decided not to rent the home. Ms. Augustine demanded her deposit and first month's rent from Respondent. However, he refused to return the monies. The lease agreement contained a default provision, providing for the recovery of damages by the lessor if the tenant defaulted. The lease agreement also contained a security provision, providing for the non-refundable nature of the security deposit under certain conditions, including termination of the lease prior to its expiration. Ms. Augustine attempted but could not contact Respondent at his office because he had closed his office prior to October 1995. Ms. Augustine attempted also to contact Respondent at the telephone number that he had provided her, which was his home number. She was again unsuccessful due to Respondent having his telephone disconnected because he had gone to New York to care for his ill sister. Respondent did not provide Ms. Augustine with an accounting of the monies. Respondent was conducting his own personal real estate transaction with Ms. Augustine.
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 dismissing the Administrative Complaint against William D. Manser. DONE AND ENTERED this 24th day of February, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1999.
The Issue Whether or not the Respondent, State of Florida, Department of Revenue, is entitled to documentary stamp tax in accordance with Section 201.02, Florida Statutes, in the amount of $326.10 and penalty in the like amount of $326.10 in accordance with Section 201.17, Florida Statutes, for a transaction between Petitioners in an assignment of interest of Gallagher's of Miami, Inc., to the Petitioners.
Findings Of Fact The Petitioners were the stockholders of Gallagher's of Miami, Inc. Among the assets of Gallagher's of Miami, Inc., were the rights under a sublease undertaken between B.G.L. Corporation and Gallagher's of Miami, Inc. dated September 25, 1976 and recorded in Official Record Book 5663, at page 261 of the Public Records of Dade County, Florida. This sublease was an amendment to a sublease which was dated June 1, 1976, recorded in Official Record Book 4768, Page 176 of the Public Records of Dade County, Florida, between B.G.L. Corporation, a Florida corporation as lessor, and KSJ Corporation, a Florida corporation as lessee. One of the conditions of Gallagher's lease obligation was responsibility for the payment of a mortgage dated May 1, 1965, recorded in Official Record Book 4592, at Page 161, of the Public Records of Dade County, Florida, from KSJ Corporation, a Florida corporation to Joseph Z. Lipsky and Evalyn Lipsky, as amended by agreement dated August 30, 1965 between KSJ Corporation and Joseph Z. Lipsky and Evalyn Lipsky. Pursuant to a plan of liquidation of Gallagher's of Miami, Inc. that corporation executed and delivered to Petitioners an assignment of the lessee's interest in the aforementioned lease to which Gallagher's of Miami, Inc. was a party. The assignment of lease can be found as Exhibit A to the Petition filed by the Petitioners. The contents of such assignment are found to be fact. By letters of July 30, 1975 and March 10, 1975, the Respondent indicated its intention to assess tax in the amount of $326.10 upon the document representing the assignment between Gallagher's of Miami, Inc. and the Petitioners. The amount of documentary stamp tax was premised on the aforementioned mortgage which at the time of the proposed assessment was valued at $108,750. In addition the Respondent indicated its intention to impose a penalty in a like amount of $326.10. The assignment was in fact executed, pursuant to a plan of liquidation, which plan is shown as Petitioners' Exhibit C attached to the petition. The Petitioners' Exhibit C is established as fact. Petitioners in receiving the assignment in liquidation of Gallagher's of Miami, Inc. received such assignment in proportion to their stock holdings in that corporation. The assessments of $326.10 for documentary stamp tax and $326.10 in penalty on such assessment, and the challenge to the assessments are the subject matter in this cause. Subsequent to the assignment of leases and agreement between Gallagher's of Miami, Inc. and the Petitioners a further assignment was made between the Petitioners and Stan-Mil, Inc. of the same property which took place on December 16, 1974.
Recommendation It is recommended that the assessment of documentary stamp tax under 201.02 F.S. in the amount of $326.10 and the penalty in the amount of $326.10, as a penalty pursuant to 201.17 F.S. be set aside. DONE and ENTERED this 28th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1977. COPIES FURNISHED: Lewis M. Kanner, Esquire Williams, Salomon, Kanner & Damian 1003 DuPont Building 169 East Flagler Street Miami, Florida 33131 Caroline C. Mueller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 =================================================================
The Issue There are two issues presented in this case. The first issue is whether a statement by the Department of Banking and Finance (the "Department"), denying joinder of multiple unrelated abandoned property claims, in a Final Order directed to Petitioner is an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes. The second issue is whether the Department has a policy of delaying decisions on unclaimed property claims past the statutory 90th day, such that the policy constitutes an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department is the State agency responsible for administering the Florida Unclaimed Property Act, Chapter 717, Florida Statutes. As such, the Department is responsible for collecting and maintaining unclaimed property and processing claims for the return of the unclaimed property to its missing owners. The Department accomplishes this task through a staff composed of 12 full-time employees and 14 OPS employees. Individuals as well as private investigative agencies file claims for property held by the Department. Private investigative agencies account for appropriately 12 percent to 14 percent of the claims filed and approximately 38 percent to 42 percent of the property value returned to owners. The Department's Claims Process The Department has established internal procedures so that claims are processed timely, efficiently, and accurately. Claimants must submit claims in writing on a form supplied by the Department. The Department logs-in each claim on the day it is received. If the Department determines a claim is in compliance with Rules 3D-20.0021 and 3D-20.0022, Florida Administrative Code, and the proof submitted with the claim is sufficient to establish the claimant's ownership and entitlement to the funds, it is paid. If the Department determines that the claim is incomplete, within 5 to 15 days of its receipt of the claim, the Department sends the claimant a pre-screen letter advising the claimant of the additional information required to prove the claim. Rule 3D-20.0021(1), Florida Administrative Code. When the claimant resubmits the claim with the additional material that has been requested, the claim is re-logged into the computer and a 90th day is set. Rule 3D-20.0021(2), Florida Administrative Code. Claims supervisors receive a daily computer report alerting them of the claims which are 61 days old and aging. They receive high priority. Complex claims which are submitted with initial insufficient proof are referred to the legal department for review and resolution. During fiscal year 1999/2000 the Department processed and approved approximately 107,000 claims having an aggregate value of approximately $67 million. Throughout the review process, the Department assists claimants in developing the proof necessary to prove the claim in lieu of summarily denying the claim. In mid-1999, the Department's Unclaimed Property Program went on-line, which significantly increased the number of claims filed. From around July 1, 1999 through December 31, 2000, the Department processed claims for approximately 132,900 unclaimed property accounts. The statutory 90-day period for determination was exceeded for an estimated 5000 of those accounts: 1,146 claims were denied and 3,991 claims were approved. However, of those 3991 approved accounts, 1,254 accounts were from an extended project with the FDIC which took about a year to complete. In sum, excluding the 1,254 FDIC accounts, the Department exceeded the 90th day on approximately 3 percent of the claims filed during this period. The Petitioner Petitioner is a licensed private investigator who specializes in the recovery of unclaimed property held by the Comptroller's office. Petitioner maintains both an individual and an agency license to engage in the business of locating missing owners of unclaimed property. He has been licensed by the Florida Department of State as a private investigator since 1993. In the course of Petitioner's business, his clients sign a form agreement which authorizes Petitioner to represent the client in recovering the abandoned property held by the Comptroller's Office. Petitioner represents the client through the entire claims process until the claim is either paid to his trust account or denied. If the claim is paid, Petitioner deducts his fractional share and costs and forwards the net value of the claim to the client. If the claim is denied, Petitioner's agreement with his client authorizes him to file a request for hearing on the client's behalf. Petitioner's Agreement Form Petitioner's agreement states that Petitioner has located property which may belong to the client, and pending the requisite proof of ownership, that Petitioner will recover the property for the client. The agreement provides that for his services, the "Agent is assigned a fee of 30 percent" and further provides that the agreement is an "irrevocable limited power of attorney." Lastly, the agreement recites that in any dispute between Petitioner and his client, "proper venue is in Volusia County, Florida." Petitioner's Business Since 1998, Petitioner has filed claims for approximately 3,000 unclaimed property accounts. Of those 3,000 accounts, 152, roughly 5 percent of Petitioner's claims, have exceeded the 90-day determination period. Petitioner files claims for all types of unclaimed property, but primarily involving dissolved corporations. Because of the nature of his business niche, Petitioner's claims are often more complex because they involve older accounts, lost or destroyed corporate documents, and archived banking information. Moreover, a decision by a bankruptcy trustee about whether or not to reopen a bankruptcy estate may also be needed to establish entitlement to the property, if the company was liquidated through a bankruptcy proceeding. Claimants, including Petitioner, routinely request the Department's assistance in obtaining additional information from the reporting company in order to establish ownership and entitlement on behalf of their client. Prior to August 2000, Petitioner had not requested the Department provide a denial letter of any of his claims in which the 90th day had exhausted while additional information was gathered. The Controversy In August 2000, Petitioner had six claims, representing four separate clients, pending with the Department, all of which were over the 90 days. In each case the Department determined the evidence provided was insufficient to establish the client's ownership of the property. Over the months during which these claims were pending, Petitioner met with the Department on several occasions to address the proof issues. On August 9, 2000, the Department sent Petitioner a letter outlining the deficiencies in each of the four files and advising Petitioner that unless he could provide the evidence needed by August 25, 2000, the Department would deny each claim. Petitioner faxed a letter dated September 7, 2000, to the Department stating he would be out of the country during the month of September and requested that the denials for the files listed in the August 9, 2000, letter be held until after he returned home on September 26, 2000. Petitioner's letter also requested that the "DOAH hearing be held in Daytona Beach, Florida, when each of the hearings takes place." To accommodate Petitioner's request, the Department delayed issuing the Individual Notices of Intent to Deny each of the four claims until October 3, 2000. Petitioner timely responded to the four denials with a single Petition for Hearing, attempting to consolidate the four unrelated cases. On November 27, 2000, the Department entered an Order denying his Petition for failure to comply with the Florida Administrative Code and granted Petitioner 20 days in which to re-file a conforming petition. The Order also advised Petitioner that consolidating these unrelated cases was inappropriate. On December 1, 2000, Petitioner signed and mailed the instant Rule Challenge, which specifically identified these four files. It was received by DOAH on December 6, 2000. On December 1, 2000, the same day the Rule Challenge was mailed to DOAH, Petitioner and Respondent entered into a standstill agreement, tolling all matters related to these four files as well as several other files. The agreement was reduced to writing and signed on December 7 and 8, 2000. On December 13, 2000, Petitioner and his attorney again met with the Department to discuss the evidence required to prove the claims in these four files. The Challenged Statement Petitioner challenges the "joinder" statement in the Department's Order which advised him that "it is inappropriate to consolidate four unrelated cases in a single Petition for Hearing." Petitioner contends this statement is a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. He further contends that the statement as applied is contrary to Rule 1.110(g), Florida Rules of Civil Procedure. The Challenged Policy As a separate but related matter, Petitioner also asserts that the Department has a tacit policy of delaying determinations on claims past the 90th day. Petitioner argues that the effect of this policy is to deny the claimant a point of entry into administrative proceedings. He contends that this policy has the force of a rule which has not been adopted pursuant to Section 120.54, Florida Statutes. Sanctions The Department requested that attorneys' fees be assessed against Petitioner. The Department incorrectly asserts this matter is completely without merit and was brought for an improper purpose, namely, to harass.
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found: At all times pertinent to this case, Respondent Gustave A. Miller was a licensed real estate broker with license number 0060208, and Respondent Pamela Michaels was a licensed real estate salesman with license number 0059873. At all times pertinent to this case, Respondent Miller operated Gus Miller Real Estate, Inc., 5505 E. Colonial Drive, Orlando, Florida; and Respondent Michaels was a salesperson working for him at that office. On or about November 15, 1981, Respondent Michaels prepared a contract for the sale of property owned by Betty B. Stahl (1/2 interest) and Helen Vierbickas or Flora Belle Turner Van Trease (1/2 interest) in Orlando, Florida, to Timothy Karl Kunke and Shawna Jean Kunke. Purchase price was to be $64,000 with $1,000 paid as deposit. Buyer was to apply and qualify for a loan guaranteed by the Federal Housing Administration (FHA). Seller was to clean and paint the inside of the house, but did not enter into a contract with Respondents to accomplish this work. The contract contained the usual provision for the division of forfeited deposit in the event of buyer default. Due to a death in the buyer's family, he was not able to qualify for an FHA loan, and without any coordination with or approval of seller, Respondent Miller deducted $235 from the deposit held by him, as his fee for painting the property, and refunded $765 to the Kunkes. Thereafter, on or about December 4, 1982, Respondent Michaels presented a second contract for the sale of the same property to Mrs. Stahl, although the majority of her dealings were actually with Mr. Stahl, who was advising his wife. The buyer listed this time was Robert G. McRae, and the contract reflected a deposit in the amount of $4,000 paid by check to Gus Miller Real Estate, Inc. This contract, which was accepted by the sellers, also called for the buyer to apply for and qualify for an FHA loan, and seller agreed to pay the discount points on that loan, not to exceed 3 percent. Though the $4,000 was reflected as paid on the front of the contract, the provision reflecting the receipt of earnest money to be held in escrow on the bottom of the reverse side of the contract was not filled in or signed by either Respondent, even though Respondent Miller's firm name was stamped in. Nonetheless, when Mr. Stahl asked Respondent Michaels about the check at the time the contract was signed by Mrs. Stahl, Michaels assured him they had it in their possession and agreed to send him a photocopy of it, which she failed to do. In the prehearing stipulation, Respondents agreed that no deposit had been paid. At some point in time, Respondents admitted they did not have the deposit. Mrs. Vierbickas, a friend of Mrs. Stahl's sister, Mrs. Van Trease, was told by Respondent Michaels that they did not have the check, but she is unsure when she was told this. I find, nonetheless, that Respondents continued to represent to the Stahls that the deposit had been received and was being held by them until after the transfer was cancelled for other reasons. McRae signed the contract on December 4, 1981. That same day, he was taken by Respondent Michaels to the Orlando office of Countrywide Funding Corporation where, before an employee of that Company, Joyce Freed, he filled out an application for an FHA mortgage in the amount of $61,300. On that same visit, he signed a certificate that the property to be covered by the mortgage would serve as his primary home. He also acknowledged in writing that he understood FHA financing could not be utilized for any purpose other than owner- occupied properties. He subsequently signed additional documents in relation to the loan in which he affirmed that the property to be financed would be occupied by him, even after the mortgage commitment was received from the FHA. On January 11, 1982, McRae certified on a U.S. Department of Housing and Urban Development (BUD) form that he intended to occupy the property. Coincidentally, that same day, a lease was signed by a Barbara Sullivan, on behalf of herself and her husband, purporting to lease the home McRae was then occupying for one year at $650 per month with an advance deposit of $1,300 paid. McRae was not asked to sign this lease, which was witnessed by both Respondents and notarized by Respondent Miller. McRae did not receive any rent from this lease, which was not a bona fide conveyance of an interest in the property. It was not intended to convey the property, but was generated by Respondents for some purpose not related to a tenancy by the Sullivans. McRae testified that when Michaels took him to Countrywide's office, he did not intend to occupy the property to be purchased, but instead intended for his daughters to live there. However, when he saw from the forms he was signing that there was a requirement for the property to be owner-occupied, he, at that moment, changed his mind; and when he signed the documents, minutes thereafter, he intended to move in. I find this testimony to be unworthy of belief. During the period from the date of the sales contract with McRae to the date of the proposed closing, the interest rate went up higher than was called for in the contract, and McRae refused to close. Sometime later, in late February, 1982, a Larry Werts came to the property in question and discussed with Mr. Stahl the possible purchase of Mrs. Stahl's one-half interest in the property for $27,500 in cash. Werts was, however, unable to secure this much cash. Thereafter, he indicated he would make an offer on the entire parcel through Respondent Michaels; and subsequently, Respondents, together, brought a contract to Mrs. Stahl, signed by Werts, which reflected a purchase price of $50,000. The Stahls rejected this offer as being too low.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the license of each respondent be suspended for one year, that each respondent pay an administrative fine of $1,000, and that each respondent be reprimanded in writing, but that the execution of the suspension be deferred for one year with a provision for automatic recission. RECOMMENDED this 31st day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Tina Hipple, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert W. Olsen, Esquire 205 N. Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The facts here involved were not in dispute. Prior to February, 1973 Respondent, Michael L. Whitman, had a listing on the acreage here involved. On February 26, 1973 Gifford Realty Company procured a buyer for this property and an Option to Purchase was executed. (Exhibit1). This agreement provided that sellers would pay Whitman, for services rendered, a commission of 10 percent of the purchase price and Whitman was to divide the commission equally with Gifford. Thereafter on April 27, 1973 the sellers and buyers entered into an agreement (Exhibit 2) to transfer the property from seller to buyer upon terms and conditions similar to the option, which terms and conditions are contained in Exhibit 2. One condition of the agreement, not relevant to the issues here involved, was that the buyer would be able to have the property rezoned to RPF- 15, which would allow multi-family dwellings to be erected thereon. When application for rezoning request for multi-family dwellings. After general agreement between all parties the Agreement to Purchase the property was assigned to Pinellas County. On December 11, 1973 the original sellers and buyers executed an additional agreement (Exhibit 3) which modified Exhibit 2 respecting zoning, approved the assignment of the contract to the county, and provided for closing after August 1, 1974 but no later than August 7, 1974. In the Agreement (Exhibit 5) between the original buyers and the county, the purchase of the property was contingent upon the county acquiring federal funds. When it subsequently became evident that federal funds could not be obtained the county elected to purchase the property in accordance with the terms of the original agreement a modified by the time of closing as contained in Exhibit 3. During the period in 1974 prior to August, some question arose whether or not the county would purchase the property without the benefit of federal funds, and when the county representative proceeded to the scheduled closing on August 7, 1974, the sellers did not appear. After changes of breach of contract were exchanged between the sellers and the county the closing of the transaction occurred on September 4, 1974. The sale price of the property was $792,4000 and the commission due thereon was $79,240. Unbeknownst to Gifford, Whitman had agreed with the sellers to accept $20,000 case at closing and a promissory note for the remaining $59,240 of the commission payable over a five-year period. Following the closing Respondent Whitman forwarded to Gifford $10,000 and a copy of the promissory note payable to Whitman executed by the sellers. Gifford demanded payment of his full share of the commission ($39,620) forthwith. Alternatively he demanded that his share of the commission be paid in full fro the proceeds of the promissory note prior to Whitman receiving any commission. When these demands were rebuffed Gifford engaged an attorney who proposed litigation. When the first annual installment on the note was due and paid to Whitman, Gifford demanded his share (Exhibit 9). By this time Whitman, too, had engaged the services of an attorney who advised Whitman to withhold disbursement of the note payment received until Gifford agreed to settle the dispute other than by litigation.
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.25(1)(b), (e), and (k), Florida Statutes, 1/ by: committing fraud, deceit, dishonesty, or breach of trust in a business transaction; acting as a broker; and failing to place funds with her registered employer; and if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is licensed as a real estate sales person under license number 0555229. The last license issued to Respondent was issued as a sales person percentage A.A. Carnes, Inc., 1399 W. Highway 434, Longwood, Florida 32750. In August, 1993, Respondent operated as a licensed real estate sales person for Mannix Realty, Inc. Respondent managed rental property located at 3551 Malona Drive in Orlando, Florida. The rental property was owned by Ramesh and Harjit Zala who lived outside the state (the "Zalas" property). On November 1, 1993, Respondent solicited and negotiated a lease agreement with Scott and Winifred Houldin at the monthly rental of $2,100 (the "tenants"). The tenants paid two months rent to Respondent as a reservation deposit. Respondent appropriated the reservation deposit and rental income for her own personal use. She failed to disclose the rental agreement, reservation deposit, or rental income to Mr. Amos W. Harris, Respondent's broker. Respondent requested the owners and the tenants to direct all correspondence to Respondent's home address. The owners and tenants complied with Respondent's request. Respondent did not disclose the transaction to Mr. Harris. Respondent neither accounted for nor returned the rental funds to her broker or to the owners. In August 1993, Respondent managed rental property located at 1346 Stearman Court in Orlando and owned by Robert and Patricia Sheetz (the "Sheetz" property). The owners lived outside the state. After Respondent assumed responsibility for the Sheetz property, the rental income declined and expenses increased. Although the Sheetz property was rented, Respondent failed to deliver the rental income from the Sheetz property. In December, 1993, the owners discovered that the rental property was in fact occupied. They informed Mr. Harris, and demanded delivery of the rental income. Mr. Harris was unaware that the property was rented or that Respondent had failed to deliver the rental income from the property. On December 29, 1993, Mr. Harris confronted Respondent. Respondent paid $475 of the rental income to the owners of the rental property. Mr. Harris subsequently terminated Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 475.25(1)(b), (e), (k), and 475.42(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 27th day of March 1996.
The Issue Whether the proposed repeal of Florida Administrative Code Rule 69I-44.021 amounts to an invalid exercise of delegated legislative authority within the meaning of sections 120.52(8)(b) and/or (e), Florida Statutes, (2015).1/
Findings Of Fact Unclaimed Property The Department is responsible for administering and enforcing chapter 717, Florida Statutes. The aforementioned chapter is entitled as the “Florida Disposition of Unclaimed Property Act,” and it requires the Department to: (a) receive unclaimed property; (b) safeguard unclaimed property; and (c) process claims for the return of unclaimed property to its rightful owner. See generally ch. 717, Fla. Stat. Chapter 717 applies to property such as traveler’s checks, money orders, gift certificates, bank deposits, and proceeds from life insurance policies that have been outstanding, unredeemed, or inactive for a certain number of years. See §§ 717.104(1) & (2), .1045, .106, & .107, Fla. Stat. In return for a fee, licensed private investigators, certified public accountants, and attorneys research the Department’s unclaimed property records in order to assist their clients with making claims on unclaimed property. See §§ 717.124, .135 & .1400, Fla. Stat. Pursuant to sections 717.124 and 717.126, Florida Statutes, the Department is authorized to require proof of entitlement, personal identification, and (if applicable) proof of the filer’s authority to act as the claimant’s agent. See § 717.124, .126, Fla. Stat. Also, “the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.” § 717.126(1), Fla. Stat. Section 717.138, Florida Statutes, authorizes the Department to adopt rules to implement the provisions of chapter 717. The Department has utilized that authority to adopt Florida Administrative Code Rule 69I-20.0021, which sets forth the procedures for filing unclaimed property claims. Rule 69I-20.0021 has several provisions requiring claimants to demonstrate to the Department that they are entitled to the unclaimed property at issue. For instance, rule 69I-20.0021(1) provides that “[c]laims for unclaimed property in the custody of the Department shall be submitted to the Department on the form(s) prescribed and supplied by the Department, together with documentation proving entitlement to the unclaimed property.” (emphasis added). Rule 69I-20.0021(1)(b) mandates that “[a] complete paper format claim shall include the correct claim form identified in this rule, fully completed with all blanks filled in and manually signed and dated by all claimants or the Claimants’ Representative, proof of entitlement, and all supporting documentation as described and required by this rule, and Rule 69I-20.00022, F.A.C.” (emphasis added). Also, rule 69I-20.0021(2) provides that “[t]he Department will only review the merits of a claim that has been deemed complete as filed. The Department will determine whether the claimant has established ownership and entitlement to the unclaimed property.” (emphasis added). Rule 69I-20.0021 also incorporates by reference certain forms. For example, rule 69I-20.0021(4)(a) states that “[c]laims by apparent owners for unclaimed property shall be submitted on Form DFS-UP-106, entitled Claim Filed by Apparent Owner, which is hereby incorporated by reference, effective 1-3-05.” This form must be accompanied by “[p]roof demonstrating that the claimant is the owner and is entitled to the unclaimed property as required by Rule 69I-20.0022, F.A.C.” See Fla. Admin. Code R. 69I-20.0021(4)(c)2. (emphasis added). Also, rule 69I-20.0021(6) states that “[a]ll claims for unclaimed property filed by a Claimant’s Representative shall be submitted on Form DFS-UP-108, entitled Claim Filed by Claimant’s Representative on Behalf of the Claimant, which is hereby incorporated by reference, effective 1-3-05.” This form must be accompanied by “[p]roof demonstrating that the person(s) or entity being represented is entitled to the property being claimed consistent with Rule 69I-20.0022, F.A.C.” See Fla. Admin. Code R. 69I-20.0021(6)(b)4. (emphasis added). Escheated Property The Department also plays a role in administering (and returning to its rightful owner) other types of property governed by other chapters within the Florida Statutes. For instance, the Department is involved with: (a) property resulting from judgments deposited with a court pursuant to section 43.19, Florida Statutes; (b) escheated property gathered pursuant to section 732.107, Florida Statutes; (c) property held by a personal representative pursuant to section 733.816, Florida Statutes; and (d) funds held by a guardian following the death of a ward pursuant to section 744.534, Florida Statutes. When a person dies with an estate but has no known heirs, the decedent’s property escheats to the state. See § 732.107(1), Fla. Stat. That property is sold, and the proceeds (i.e., the “escheated funds”) are paid to the Department for deposit into the State School Fund pursuant to section 732.107(2), Florida Statutes. In 2009, the Department was receiving repeated inquiries from claimants regarding the proper claim forms for property governed by sections 43.19, 732.107, 733.816, and 744.534, Florida Statutes. The Department responded by adopting rule 69I-44.021 which establishes a hard copy claim form specifically for the aforementioned properties. Unlike rule 69I-20.0021 which requires a claimant to demonstrate to the Department that he or she is entitled to the unclaimed property in question, rule 69I-44.021(1) requires a potential claimant to simply prove his or her entitlement to a court. That is consistent with provisions within chapter 732 that require courts (rather than the Department) to determine whether a claimant is entitled to escheated property. See §§ 732.107(3) and (4), Fla. Stat. (requiring an action to re- open the administration of probate and prove entitlement to a probate judge, while allowing the Department of Legal Affairs the right of intervention to protect the state’s interests). For those claimants who successfully demonstrate to a court that they are entitled to particular funds, rule 69I- 44.021 incorporates by reference a form (Form #198) that those claimants are to file with the Department.3/ Unlike the situation with claimants using the forms incorporated by reference in rule 69I-20.0021, claimants using the form incorporated by reference in rule 69I-44.021 are not required to prove to the Department that they are entitled to the property in question. In 2013, the Florida Legislature amended section 717.124, to provide that the claims procedure for unclaimed property also applies to property governed by sections 43.19, 732.107, 733.816, and 744.534. See § 717.124(8), Fla. Stat. (providing that “[t]his section applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.”). As a result of an internal review of its rules, the Department determined that rule 69I-44.021 should be repealed given that section 717.124(8), effectively made the procedure set forth in rule 69I-20.0021 applicable to escheated property. Choice Plus Pursues Escheated Property for its Clients Choice Plus is a private investigative agency licensed pursuant to chapter 493 that files claims with the Department as a claimant’s representative (“locator”). In exchange for its services, Choice Plus receives a fee paid from approved property claims. In addition to seeking the recovery of unclaimed property pursuant to chapter 717, Choice Plus also assists in the recovery of funds that have escheated to the State of Florida pursuant to section 732.107. Choice Plus files several hundred claims in Florida for unclaimed property each year. It files five to 10 claims in Florida each year for escheated property. The President of Choice Plus testified during the final hearing that Choice Plus had filed 19 claims for escheated property with the Department using Form #198 and attaching the pertinent documentation. See Fla. Admin. Code R. 69I- 44.021(2)(a) (providing that “[t]he claim form must be accompanied by a certified copy of the final order or judgment awarding the funds to each claimant, supporting documentation establishing each claimant’s right to the funds, and a government-issued photographic identification issued to each claimant.”). According to the President of Choice Plus, the Department began to require Choice Plus to re-establish entitlement to escheated funds in 2013. In other words, the Department now allegedly conducts its own review of the evidence that a court already found to be sufficient for establishing entitlement. Choice Plus asserts that proving entitlement to escheated funds a second time causes it to spend additional time and money in making a claim. According to Choice Plus, this extra effort adds $5,000 to the cost of the average claim for escheated property. In fact, Choice Plus is currently appealing the Department’s denial of an escheated property claim. That appeal is proceeding under appellate case number 1D15-3184 before the First District Court of Appeal and involves the estate of a deceased Florida resident named Eleanor Rigley.4/ Because Ms. Rigley died intestate and without any known living heirs, the proceeds from the sale of her residence escheated to the State of Florida and were paid to the Department for deposit in the State School Fund. See § 732.107, Fla. Stat. Choice Plus learned of Ms. Rigley’s escheated property and hired a genealogist who found ten individuals related to Ms. Rigley. Choice Plus subsequently entered into contracts with each of the ten individual claimants authorizing Choice Plus to obtain the escheated funds on their behalf. In accord with section 732.107 and rule 69I-44.021, Choice Plus then petitioned the Pinellas County Circuit Court to reopen Ms. Rigley’s estate and declare that the ten Choice Plus clients were Ms. Rigley’s heirs. On June 12, 2013, the Pinellas County Circuit Court entered an Order reopening Ms. Rigley’s estate and declaring the ten Choice Plus clients to be Ms. Rigley’s heirs. The Circuit Court then directed the Department to distribute the funds from Ms. Rigley’s estate to the claimants. On July 12, 2013 and as required by rule 69I-44.021, Choice Plus filed with the Department Form #198, a certified copy of the Pinellas County Circuit Court’s Order awarding the escheated funds to the claimants, supporting documentation submitted to the Circuit Court, and a photocopy of each claimant’s government-issued photo identification. However, the Department issued a Notice of Intent to deny Choice Plus’s claim on January 23, 2014, and ultimately issued a Final Order on June 29, 2015, denying the claim. In that Final Order, the Department allegedly concluded that it has sole jurisdiction to determine the disposition of funds within its possession, including escheated funds held pursuant to section 732.107. Accordingly, the Department concluded that the Circuit Court’s ruling was not binding on it. The Department also allegedly concluded that the denial was justified because Choice Plus failed to submit “appropriate documentation” connecting the individual claimants to Ms. Rigley by a preponderance of the evidence. In the ensuing appeal, Choice Plus argued that the Department’s Final Order must be reversed because the Department does not have the authority to determine entitlement to escheated funds held by the Department pursuant to section 732.107. As for why the Department lacks the necessary authority, Choice Plus argued that section 717.124 is the only provision within chapter 717 that applies to escheated funds held by the Department. The 2013 amendment to section 717.124, which added subsection (8), merely stated that “[t]his section applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.” (emphasis added). In contrast, the amendment did not state that “[t]his chapter applies to all unclaimed property reported and remitted to the Chief Financial Officer, including, but not limited to, property reported pursuant to ss. 43.19, 45.032, 732.107, 733.816, and 744.534.” (emphasis added). Thus, Choice Plus argued that the Department cannot apply section 717.126 to escheated fund claims because the Florida Legislature only made section 717.124 applicable to such claims. As noted above, section 717.126 mandates that “the burden shall be upon the claimant to establish entitlement to the property by a preponderance of evidence.” In other words, Choice Plus argued that the Department cannot second-guess the Pinellas County Circuit Court, an argument that carries over into this proceeding. The Department responded in its Answer Brief by asserting that it has correctly determined that the chapter 717 claims process applies to all unclaimed property once it is transferred to the Department, including unclaimed estate proceeds that may eventually escheat to the State of Florida.5/
Findings Of Fact Respondent is licensed by the State of Florida as a real estate brokers and holds license No. 0002997. On May 7, 1979, Respondent acted in the capacity of a real estate broker in the transaction of the sale of a parcel of real property located in Polk County, Florida. The purchaser in that transaction was Margaret Rhoden, and the seller was June Davis, who was represented in the transaction by a relative, Henry Goodwin. On May 7, 1979, Margaret Rhoden entered into a Contract for Sale of Rea1 Estate for the purchase of a piece of property Frostproof, Florida, from June Davis. The full purchase price of the property was $3,500, which Ms. Rhoden paid to Respondent in cash on May 7, 1979, and obtained a receipt from Respondent for that amount. At the time the contract was entered into, Ms. Rhoden was advised that a deed should be forthcoming from the seller within two to four weeks. A date of June 20, 1979, was established to close the transaction, subject to a 120-day curative period should any cloud on the title be discovered. The contract between the parties provided that should any such cloud appear of record, the seller would have a period of 120 days after receipt of written notice prior to the date set for closing in which to attempt to cure the defect. The contract further provided that if title defects were not cleared within the l20-day period, the deposit would be returned to the buyer, or, at the buyer's option, the transaction should be closed in the same manner as if no defect had been found. A warranty deed purporting to transfer the property from the seller to the buyer was executed on June 7, 1979, and a title binder was issued on that same date. The title binder indicated an outstanding mortgage on a larger piece of property of which the parcel purchased by Ms. Rhoden was only a part. When efforts to clear this cloud on the title took longer than expected, Ms. Rhoden asked, and was granted, permission by the seller's agent to commence construction on the improvements on the property notwithstanding the fact that she knew that a cloud remained on the title to the lot, and the transaction had not been closed. Construction was not completed on the improvements because Ms. Rhoden ran out of cash during the course of construction. She moved into the dwelling while it was still in a partially completed condition and, on September 8, 1979, with the permission of the seller's agent, received a loan of $3,000 from the $3,500 deposit she had placed with Respondent, Ms. Rhoden executed a promissory note dated September 8, 1979, in which she agreed to repay the $3,000 loan when clear title to the property was issued. Ms. Rhoden used the proceeds of this loan to make additional improvements on the property. On October 26, 1979, Respondent received both the warranty deed dated June 7, 1979, and the title binder issued on that date from the attorney for the seller. When approached by Ms. Rhoden, Respondent agreed to lend her the deed and title binder to attempt to obtain additional financing to complete construction on her home. The clear inference from the record in this proceeding is that there was never any understanding between Respondent and Ms. Rhoden that this deed could be recorded at this or any other juncture in this transaction. In fact, the contract entered into between the buyer and seller clearly called for the payment of the full purchase price of the property at closing, and the note subsequently executed by Ms. Rhoden conditioned the issuance of a warranty deed to her on the payment of the $3,000 face value of the note. Ms. Rhoden was unsuccessful in obtaining additional financing to complete construction on her home, probably due to the fact that when she sought that financing the outstanding mortgage on the property had still not been satisfied. When Respondent advised the seller's attorney that he had loaned the warranty deed to Ms. Rhoden for the purposes outlined above, he was advised that there was nothing to keep Ms. Rhoden from recording the deed, at which point Respondent apparently determined that it would be prudent for him to retrieve the deed from Ms. Rhoden's possession. Ms. Rhoden had her mother return the deed to Respondent in February of 1980. According to the testimony of both Ms. Rhoden and her mother, they felt the purpose for the returning of the deed was to have it recorded. Respondent denies any such understanding. In resolving this conflict in testimony, the clear inference from the circumstances involved in this transaction, including the wording of the contract of sale and the note executed by Ms. Rhoden, supports a finding that all of the parties to this transaction either knew, or should have known, that the recording of the deed at this juncture in the transaction would have been improper. Although the outstanding mortgage had been satisfied in January of 1980, Ms. Rhoden had not Performed her obligation under the contract of sale by paying the full purchase price. When Respondent had recovered the deed from Ms. Rhoden, he was advised by the attorney for the seller not to record the deed until he had received payment from Ms. Rhoden in accordance with the contract and the promissory note. As indicated above, the outstanding mortgage on the property was satisfied in January of 1980. On February 6, 1980, Respondent Prepared a closing statement reflecting the purchase price of the property as $3,500. From this amount he deducted a total of $478 for state documentary stamps, title insurance, Preparing the deed, and amount of real estate commission leaving a the apparently forwarded the note from Ms. Rhoden for $3,000, together with the $22.00 cash balance remaining from her initial $3,500 deposit to the seller along with the deed which the seller had earlier executed. Ms. Rhoden apparently never made or tendered payment of the $3,000 note, the transaction never closed, and at the time of final hearing in this cause an eviction action was apparently pending between the seller and Ms. Rhoden. Paragraph seven of the contract of sale executed between the seller and Ms. Rhoden Provides as follows: If Buyer fails to perform this contract, the deposit this day paid by Buyer as aforesaid shall be retained by or for the account of Seller as consideration for the execution of this agreement and in full settlement of any claims for damages.
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 /
