Findings Of Fact Based upon the parties' factual stipulations, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On August 28, 1992, Petitioner submitted to the Department its application for licensure as a mortgage lender. 1/ On October 28, 1992, the Department sent Petitioner a letter announcing its intent to deny Petitioner's application for licensure as a mortgage lender. The text of the letter read as follows: This is to inform you that your Application for Licensure as a Mortgage Lender for Citifirst Mortgage Corp. is hereby denied. The denial is based on Section 494.0072(2)(k), Florida Statutes. Section 494.0072(2), Florida Statutes, "Each of the following acts constitutes a ground for which the disciplinary actions specified in subsection may be taken: . . . (k) Acting as a mortgage lender or correspondent mortgage lender without a current active license issued under ss. 494.006-494.0077." The Department's investigation revealed Citifirst Mortgage Corp. has acted as a mortgage lender without a current, active license. Please be advised that you may request a hearing concerning this denial to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. Requests for such a hearing must comply with the provisions of Rule 3-7.002, Florida Administrative Code (attached hereto) and must be filed in duplicate with: Clerk Division of Finance Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 (904) 487-2583 within twenty-one (21) days after receipt of this notice. Failure to respond within twenty-one days of receipt of this notice shall be deemed to be a waiver of all rights to a hearing. Should you request such a hearing, you are further advised that at such a hearing, you will have the right to be represented by counsel or other qualified representative; to offer testimony, either oral or written; to call and cross examine witnesses; and to have subpoenas and subpoenas duces tecum issued on your behalf. Petitioner timely requested a formal hearing on the proposed denial of its application. The matter was referred to the Division of Administrative Hearings, where it is still pending.
Recommendation In light of the foregoing, it is hereby RECOMMENDED that the Department issue a final order dismissing Petitioner’s amended petition on the grounds that Petitioner lacks standing to administratively challenge the Department’s decision not to disapprove Hensler’s proposed appointment to Sunniland’s board of directors and that the Department, having failed to act within the time frame prescribed by Rule 3C-100.0385, Florida Administrative Code, does not have the authority to reconsider its decision and issue a letter of disapproval, as requested by Petitioner.16 DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. STUART M. LERNER 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 11th day of April 1997
Findings Of Fact Upon consideration of the pleadings and the evidence adduced at the hearings in this cause, the following pertinent facts are found: On November 25, 1974, H. M. Harmes, then Director of the School Service Center, notified respondent by letter of his appointment to teach ED 598, "Crucial Issues in Education", during Quarter II, 1975. The letter of appointment explained respondent's salary and the materials and consultants available to him. The letter further stated: "This is a credit bearing contract short course; therefore all college and university regulations pertaining to credit courses must be observed. In addition, you should read the enclosed description of instructor's procedures and follow them carefully." The letter noted that it had an enclosure. It was the practice of the Division of Continuing education to include a copy of a document entitled "Credit Institute Instructor's Procedures" with each letter of appointment. Respondent accepted the appointment on November 26, 1974, by signing the letter and returning it to the Division of Continuing Education. The course in question was a continuing education offering for teachers and administrators. The course was to begin on February 7, 1975 and meet for ten hours (three hours on Friday evening and seven hours on Saturday) on each of five weekends, the student earning five quarter credit hours upon successful completion. The "Credit Institute Instructor's Procedures" contains several provisions regarding the registration of students. It provides that: "For programs which will meet fewer than ten times, this (registration) must be done at the first meeting. If the program will have ten or more meetings, registration may continue to the second meeting, but no later." Other provisions are "under no circumstances are you to accept or handle money from students. . . for payment of fees . . ." and "students may register only during the open registration period. Therefore, all students will appear on the first class roll. None will be added." A flyer prepared by respondent to advertise the course provided for preregistration and stated that checks were to be made payable to Florida Atlantic University. On or before the date the class first met on February 7, 1975, twenty students were properly registered. On the third class meeting (Friday, February 14, 1976), three additional students appeared and inquired of respondent if they could register at that time. These three persons had wives or friends already registered in the class, and it was convenient for them to travel to and from class with those already registered. Respondent allowed these three persons to register and instructed them to date their application February 7, 1975; and to make their checks payable to respondent. Respondent informed them that he would register them for the course if possible. If not, he would register them for the same course to be offered by respondent the following quarter. This arrangement was agreeable to the three students. At that time, respondent had not been appointed to teach the course for the following quarter. He was subsequently appointed to teach the same course for Quarters III and IV. On February 14, 1975, the three late students filled out the application forms, dated them February 7th, and wrote checks payable to respondent. On February 18, 1975, respondent deposited the three checks in his personal checking account. He did not feel that the administration would permit the late applicants to register and therefore, without making inquiry, he did not register the three students for the winter quarter and the students did not receive credit for completing the course. Respondent misplaced somewhere in his office the application forms completed by the three students in question. Although requests were received by respondent from each of the three students as to their receipt of credit for the course, respondent took no steps to register these students during the following two quarters in which he taught the course. Sometime during the summer of 1975, respondent found the applications in his office. However, it was not until the University intervened on behalf of one of the three students - in September of 1975 - that respondent turned in the applications and paid the University $300.00 for their registration fees. The three students were then given credit and grades for the course. By a complaint dated October 2, 1975, petitioner charged respondent with misconduct and sought to terminate his employment contract for cause. Respondent requested a hearing on the compliant and petitioner's President requested the Division of Administrative Hearings to conduct the hearing. The undersigned was assigned as the Hearing Officer.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's contract of employment be immediately terminated for cause. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of March, 1976. DIANE D. TREMOR 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 10th day of March, 1976. COPIES FURNISHED: Mr. Glenwood L. Creech President Florida Atlantic University Boca Raton, Florida 33432 Leonard H. Klatt, Esquire University Attorney Florida Atlantic University Boca Raton, Florida 33432 Frank A. Kriedler, Esquire Attorney for Respondent 141 S.E. Avenue C P. O. Box 881 Belle Glade, Florida 33430
The Issue Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Section 120.595(2), Florida Statutes.
Findings Of Fact The Florida Department of Insurance is responsible for regulation of insurance transactions in the State of Florida. Beginning in January 1997, the Department of Insurance began the process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners successfully challenged parts or all of the proposed rules. As set forth in the Final Order entered June 29, 1998, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Pursuant to Section 120.595(2), Florida Statutes, the Petitioners are entitled to award of attorneys' fees and costs. The evidence fails to establish that the Department of Insurance was substantially justified in promulgating the proposed rules. The evidence offered during the rule challenge proceeding failed to establish the existence of a reasonable basis in law and fact at the time the proposed rules were drafted and published. There are no special circumstances which make an award of fees and costs unjust. Petitioner Florida Bankers Association identified attorneys' fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. Petitioner Florida Bankers Association is entitled to an award of attorneys' fees in the amount of $15,000. Petitioner Florida Bankers Association seeks an award of costs of $40,537.53, including $36,590.00 paid to Dr. Michael White, the Petitioner's expert witness during the rule challenge proceeding. The Department asserts that the payment to Dr. White is unreasonable. There is no credible evidence that the costs related to Dr. White's participation in the case are not reasonable. The fact that the Department paid less for its expert than did the Florida Bankers Association does not establish that payments to Dr. White were unreasonable. Petitioner Florida Bankers Association is entitled to an award of costs in the amount of $40,537.53. Petitioner Community Bankers Association identified attorneys' fees totaling $10,290.00, and costs of $806.23. Petitioner Community Bankers Association is entitled to an award of attorneys' fees in the amount of $10,290.00 and costs in the amount of $806.23. Petitioner Specialty Agents, Inc., did not obtain legal counsel for the rule challenge proceeding, and relied on a qualified representative to challenge the proposed rules. The qualified representative calculates that 160.1 hours were expended and suggests a valuation of $100 per hour for his time, for a total of $16,010. Petitioner Specialty Agents, Inc., seeks an award of attorneys' fees in the amount of the $15,000.00 statutory limit. The evidence fails to establish that a Petitioner's non-attorney representative is entitled to an award of attorneys' fees. Petitioner Specialty Agents, Inc., seeks an award of costs in the amount of the $249.07. Section 120.595(2), Florida Statutes, differentiates between "reasonable costs and reasonable attorney's fees", suggesting that a party may be entitled to an award of reasonable costs even if representation is provided by a non-lawyer. Without objection, Petitioner Specialty Agents, Inc., is entitled to an award of costs in the amount of the $249.07. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Findings Of Fact The Petitioner, Nimali Sondel, is of Asian origin and is a Sri Lankan national. She was employed as a teller trainee from January 3, 1989 until January 13, 1989 at the Respondent's main office in Tallahassee, Florida. The Respondent is a commercial bank duly chartered by the State of Florida. It is a subsidiary of a larger banking corporation or holding company owning a number of banks in Florida and other states. The Petitioner applied for employment with the Respondent in late November of 1988, and after a series of interviews, was hired on approximately December 26, 1988 as a teller trainee. The Petitioner entered the bank's formal training program for tellers on January 3, 1989, along with four other individuals who participated in that program with her. Two of these individuals were white females, one was a black female and one was a white male. All participated in the same formal training program of instruction designed to train bank tellers. Respondent has a two-week training program to train new tellers in teller transactions and other proper banking procedures. This formal training was developed in response to experience in the past with large overages and shortages by tellers as a result of mistakenly-conducted transactions, as experienced by the bank. Thus, the teller-training program was initiated to provide education in areas that a teller would need to know on a day-to-day basis in handling typical bank teller- customer transactions. The course includes video presentations, lectures, hands-on classroom instruction, homework, quizzes and a final examination. Throughout the two-week training program the Respondent's training specialist, Barbara Pounders, repeatedly reminded the trainees, including the Petitioner, that they must pass the transaction examination or test at the end of the training program in order to continue their employment with the bank. On the second day of the Petitioner's employment, however, Ms. Pounders noticed that she was having a difficult time understanding and using the automated teller equipment. Ms. Pounders became concerned with her inability to grasp some of the simpler transactions and consulted Ms. Tefft, the Vice- President of Human Resources at the bank, about how to help her. Ms. Tefft suggested that Ms. Pounders give her extra assistance to enhance the Petitioner's training level. Accordingly, Ms. Pounders asked the Petitioner to come in one hour before normal class time each morning for additional training on the teller equipment and transactions. Throughout the two-week training program, the Petitioner continued to have difficulty, which was noticed by her co-employees in the training program. She had difficulty performing the teller transactions required and in understanding the teller equipment and its use. Other teller trainees offered their assistance to her on occasion. At the end of the training program, the teller trainee must pass a skills assessment test ("transaction test") in order to continue employment as a teller. The transaction test evaluates the teller's ability to perform sixteen basic teller transactions, such as check cashing, depositing savings deposits and withdrawals, transfers, split deposits and the like. The teller trainees in the Petitioner's class, including the Petitioner, were given the transaction test on January 11, 1989. All of the teller trainees passed the test, except the Petitioner. On January 13, 1989, the Petitioner was terminated because of her inability to pass the transaction test and, therefore, qualify as a bank teller, which is the employment position she sought and was employed in by the Respondent. The Petitioner was the only teller trainee to ever fail that transaction test. At least two other ethnic Asian persons have passed the transaction test since the Petitioner's termination. The Petitioner offered no direct testimony or evidence to show any discrimination, intentional or otherwise on account of her race, national origin or sex (Asian, Sri Lankan, female). The Petitioner also offered no statistical evidence regarding the racial composition of the Respondent's work force or the qualified applicant pool for the teller positions in question. The Petitioner offered no evidence which would lead to an inference that the teller-training program conducted by the Respondent or the transaction test administered at the end of the training program, passage of which was necessary for continued employment as a teller, had any adverse impact on Asians or Sri Lankans. The Respondent is subject to Federal Executive Order Number 11246 and at all material times in the conduct of its operations, has not underutilized minorities in its work force. In fact, in 1989, the Respondent received national recognition from the United States Department of Labor for its efforts in the area of voluntary affirmative action in its employment and personnel activities. The Petitioner offered no evidence to support any claim for "class relief" and no evidence regarding damages alleged to have been suffered.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and the arguments of the parties it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of July, 1990 APPENDIX Respondent's Proposed Findings of Fact 1 through 16 are accepted. (The Petitioner filed no proposed findings of fact) COPIES FURNISHED: Rebecca S. Conlan, Esquire P.O. Box 391 Tallahassee, FL 32302 Mrs. Nimali Sondel Box 210, CJC Marianna, FL 32446 Mrs. Nimali Sondel 2302 Merrigan Place Tallahassee, FL 32308 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed. findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
Findings Of Fact Petitioner holds promissory notes secured by mortgages from Roho, Inc., Dr. and Mrs. Spoont, and Mr. and Mrs. Frank Cole. The note executed by Roho, Inc., is in the principal amount of $300,000 with interest at 9.25 percent payable in equal monthly payments of $3,800.33 for ten years and provides the maker has the right to repay all or any part of the loan at any time without penalty. By this note the makers promise to pay $460,539.60 in 120 equal monthly installments of $3,800.33 commencing September 10, 1975. The note provides the amount of the note includes the proceeds of $300,000 resulting in an amount financed of $300,000 plus a finance charge of $160,539.60 including interest of $156,039.60 at an Annual Percentage Rate of 9.25 percent. The note further provides for date of commencement of payments, charges for late payments, costs of collection, acceleration of note at option of holder if principal installment not paid when due, and describes the security for the note. All of this information is on the same page and over the signature of the maker who acknowledges a copy of same. Similar provisions are contained in the promissory notes executed by the Spoonts and the Coles. In the Spoonts' note the makers promise to pay $78,837.60, payable in 240 equal monthly payments of $322.24 each and every month commencing February 10, 1974. The amount of the note includes the proceeds of $40,000 resulting in an amount financed of $40,000 plus a finance charge of $38,837.60, including interest of $38,837.60 resulting in an Annual Percentage Rate of 7.5 percent. In the Coles' note the makers promise to pay $100,593.70 payable in 240 equal monthly payments of $407.88 commencing February 10, 1975. The amount of the note includes the proceeds of $47,000 resulting in an amount financed of $47,000, plus a finance charge of $53,593.70 including interest of $52,888.70 resulting in an Annual Percentage Rate of 8.75 percent. Petitioner contends that documentary stamps required on the notes should be based upon the amount financed (or loaned) while the Respondent contends that the tax required on the notes are based upon the sum following the promise to pay which includes principal, cost of financing, if any, and unearned interest for the stated term of the note. The issue for resolution is what is the amount of the indebtedness evidenced by said instruments. Stated somewhat differently, does the indebtedness include unearned interest for the purpose of determing [sic] the required amount of documentary tax stamps to be placed on the note.
