The Issue Whether the Department of Financial Services (the “Department”) correctly denied the unclaimed property claim submitted by Choice Plus, LLC (“Choice Plus” or “Petitioner”), on behalf of Louis Nardi as attorney-in-fact for Felicia Leggiero (“Leggiero”).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of relevant and material fact: Choice Plus is registered with the Department as a “claimant’s representative” pursuant to section 717.1400, Florida Statutes (2020). In Florida, a claimant’s representative may file claims with the Department on behalf of owners of unclaimed property for a fee. See Joint Ex. 1, Bates Nos. 0001-17. The Department is the state agency charged with the responsibility of administering and processing claims, pursuant to the provisions of chapter 717, the Florida Disposition of Unclaimed Property Act (“Act”). See Joint Ex. 4, Bates No. 0045. Between 2005 and 2018, the Department received unclaimed stock shares and dividends reported in the names of John R. Leggiero and Felicia R. Leggiero, from various holders. The Department currently maintains the funds, totaling $116,322.10, in 24 unclaimed property accounts. See Joint Ex. 1, Bates Nos. 0001-3. The Claim by Choice Plus On or about May 26, 2020, Choice Plus filed a written claim, No. C8610372, on behalf of Louis Nardi, as attorney-in-fact for Felicia R. Leggiero, for 24 unclaimed property accounts. In support of the claim, Choice Plus provided the Department a copy of a Limited Power of Attorney (“LPOA”) and full disclosure statement, pursuant to section 717.135, executed by Louis Nardi; a copy of Louis Nardi’s driver’s license; a copy of Leggiero’s driver’s license; a Florida Certificate of Death for John R. Leggiero, indicating that he predeceased Felicia R. Leggiero; a copy of a durable power of attorney where Leggiero designated her brother, Louis Nardi, as her attorney-in-fact; and the results of a TLO.com search.1 See Joint Ex. 1, Bates Nos. 0001-17. The LPOA and full disclosure statement, executed on May 4, 2020, authorized Choice Plus to file a claim on behalf of Louis Nardi as attorney-in- fact for Felicia R. Leggiero, for a fee of $11,632.21. § 717.135, Fla. Stat. The LPOA included the following language: CP offers to advance its expertise and financial resources, including legal expenses, on Claimant’s behalf, to prove entitlement and secure release of property from any person or entity in possession of property. In exchange for CP’s resources Claimant irrevocably assigns Claimant’s right, title and interest in property up to the amount and/or percentage reference above as Compensation. If CP 1 A people and business location system that searches public and proprietary databases. fails to document Claimant’s entitlement, nothing will be owed to CP. See Joint Ex. 1, Bates Nos. 0004-5. As a part of the Department’s statutorily mandated review of the claim submitted by Choice Plus, it conducted a Driver and Vehicle Information Database (“DAVID”) search for Leggiero on June 17, 2020. The search indicated that she died on May 27, 2020. See Joint Ex. 4, ¶ 3; and Joint Ex. 5, Bates No. 0042. In part, because of her death, the Department issued a Request for Information (“RFI”) on June 18, 2020, to Choice Plus. The RFI noted that Felicia R. Leggiero was deceased, and requested probate documentation for her estate. See Joint Ex. 2, Bates No. 0018. As it turns out, this is a common request when the Department has questions or concerns about a claim that is filed, or needs additional documentation as it sorts through and evaluates the merits of a claim. On July 13, 2020, the Department received Choice Plus’s response to the RFI. The response consisted of a four-page memorandum which extensively outlined the law and the position of Choice Plus on the claim. In the memorandum, Choice Plus took the position that the claim was complete when filed, and that the claim determination was retroactive to the date of filing the claim. See Joint Ex. 3. Choice Plus further argued that the Department should not consider subsequent events, i.e., the death of the claimant, when determining entitlement to the unclaimed property. Interestingly, however, it took the position that the Department must pay the claim to the “estate” of the deceased claimant. Id. However, and of particular note, Choice Plus provided no documentation to show that (1) Felicia R. Leggiero’s estate had been submitted to probate court for administration; (2) that Choice Plus represented Felicia Leggiero’s estate; or (3) represented the personal representative of her estate. See Joint Ex. 3, Bates Nos. 0019-24. After its review of the claim file and the memorandum submitted by Choice Plus, the Department issued a Notice of Intent (“NOI”) on October 20, 2020, stating that it would enter a final order denying the claim filed by Choice Plus on behalf of Louis Nardi as attorney-in-fact for Felicia R. Leggiero. The Department took the position, essentially, that at the time it began its review of the claim, Leggiero had already died and that, therefore, as a matter of law, Leggiero no longer had any legal or beneficial entitlement to the unclaimed funds, as entitlement had already vested in her estate. See Joint Ex. 4, Bates Nos. 0045-49, ¶¶ 11-13. Director Graham also testified that the Department’s treatment of this particular claim was consistent with the Department’s treatment of similarly situated claims where the claimant or person entitled to the property dies after submitting a claim to the Department, but before the Department has the opportunity to review and evaluate the claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order affirming the denial of Petitioner’s claim. However, it is recommended that the Department should accept and consider the submission of a supplemental claim by any lawful beneficiaries or heirs of Felicia Leggiero to determine entitlement pursuant to the provisions of chapter 717 and other provisions of law. DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael A. Alao, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Services Room 612.14, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. Michael J. Farrar, Esquire Michael J. Farrar, P.A. 18851 Northeast 29th Avenue, Suite 700 Aventura, Florida 33180
Findings Of Fact Petitioner was organized because its principals perceived a need for a cold storage facility convenient to docks in Tampa where refrigerated cargoes were loaded on and off ships. Negotiations between petitioner and the Tampa Port Authority (TPA) resulted in EPA's leasing petitioner land suitable for such a facility for a term of 25 years, with options to renew the lease. After entering into a contract with a construction firm for erection of a cold storage facility on the land leased from TPA, petitioner sought to borrow money with which to pay for construction of the facility; but lenders petitioner approached objected that a loan could not be secured by a mortgage in the customary fashion, because petitioner did not own the land on which it proposed to build. Mortgage bankers in New York suggested an arrangement to meet this objection and petitioner adopted the suggestion. A new corporation, Edward Stephen of Tampa, INC. (EST), was formed. The lease between petitioner and TPA was vacated; TPA leased the same land on the same terms to EST. Petitioner assigned all its rights under the construction contract to EST. EST borrowed the money for construction from a bank. When construction was completed, EST borrowed money from John Hancock Mutual Life Insurance Company (John Hancock) with which it repaid the bank loan. Petitioner guaranteed repayment of John Hancock`s loan to EST. As an additional inducement to John Hancock, petitioner undertook certain obligations for the life of the loan, with respect to maintenance of a minimum ratio of current assets, minimum working capital, and minimum net worth; petitioner made further undertakings which were similarly designed to increase the likelihood of petitioner's being able to repay John Hancock, in the event of EST's default. Once the cold storage facility was ready for use, EST subleased the property to petitioner. EST used petitioner's payments under the sublease to repay John Hancock, and continues to do so. If petitioner should fail to make the agreed payments under the sublease, EST would he unable to make repayments under its loan agreement with John Hancock, but EST could take possession of the cold storage facility in accordance with Section 30 of the sublease, in much the same way any lessor can dispossess his lessee for a material failure to abide by the terms of the lease. The sublease by EST to petitioner was entered into in conjunction with an option to purchase, a separate document which was subsequently amended. By virtue of the amended option to purchase, petitioner gained the right to acquire title to the cold storage facility, free of all claims except TPA's title to the fee, by paying EST at specified times an amount equivalent to what EST would have to pay John Hancock as full repayment of the loan, plus incidental sums to make EST whole. In this respect, the transaction resembles a loan by John Hancock to petitioner, with provision for prepayment. Petitioner carries the cold storage facility on its books as a capital asset against which depreciation is charged. Petitioner treats its payments to EST under the sublease as though they were repayments of the loan from John Hancock, allocating appropriate portions to principal and interest. On advice of counsel, the transaction is treated in the same fashion for federal income tax purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner pay respondent 4 percent of all sums paid by petitioner to Edward Stephen of Tampa, Inc., under the agreement embodied in Joint Exhibit No. 2, together with interest calculated in accordance with the rule laid down in Lewis v. Creative Developers, Ltd., 350 So.2d 828 (Fla. 1st DCA 1977) DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Edna Wilson, Esquire Dixon, Shear, Brown, Lima & Moffitt 620 Twiggs Street Tampa, Florida 33602 Mr. Harold F.X. Purnell, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32304
The Issue Whether either Petitioner is entitled to Unclaimed Property Account Number 108502717.
Findings Of Fact The Department receives unclaimed property and disburses that property from the State of Florida Treasury to the rightful owners. During the last fiscal year, the Department's Bureau of Unclaimed Property received in excess of $300,000,000 of unclaimed property, and paid claims in excess of $212,000,000. The Department has the duty to evaluate the merits of each claim for unclaimed property and to pay only those claimants who can establish, by a preponderance of the evidence, that they are the rightful owners of the unclaimed property. Anja Sova was born in 1921 in Finland, but resided in Lake Worth, Florida. Her husband's brother was married to Iina Sova, who resided in Finland. Anja Sova opened several accounts with different banks during her lifetime; two of those accounts were opened at Washington Mutual Bank, and she designated Iina Sova, her sister-in-law, and Silja Lappalainen, her grand-niece and Iina's granddaughter, as joint pay-on-death beneficiaries. In January 2001, at the age of 79, Anja Sova opened a Certificate of Deposit (CD) account with Sterling Bank, depositing $95,000.00 in the account. The CD designated the pay- on-death beneficiary as Silja Sova. Anja Sova signed the signature card for this CD three times, once right next to the name of the designated beneficiary, Silja Sova. The bank had no other information as to the beneficiary. Anja Sova died in a car accident in 2002. The accounts with Washington Mutual were paid to the designated beneficiaries, her sister-in-law, and her grand-niece. Unclaimed Property Account Number 108502717 consists of the matured Sterling Bank CD, worth $127,031.97, and designates Silja Sova as the pay-on-death beneficiary. It had been held by Sterling Bank until its remittance to the Department as unclaimed property. American Research is a corporate claimant representative, and represents the residual heirs of Anja Sova's estate. Choice Plus is also a corporate claimant representative, and represents Silja Lappalainen, Anja Sova's grand-niece. American Research ran searches through various private, social, and governmental databases in the United States, and found no person named Silja Sova. In 2013, American Research also requested and received an Extract from the Population Information System in Finland. This database was created in 1969. The Extract revealed one person named Silja Sova; that person is a child born in 2009, who lives in Finland. No credible evidence was presented on whether the Extract includes only living persons, or if it also includes deceased persons (persons who were born between 1969 and 2001 and died before November 2013, when the search was done through the Extract). American Research argued that Silja Sova simply does not exist. It is unknown, however, whether Anja Sova's husband had more brothers with the surname Sova, or whether Anja Sova's father-in-law had brothers. The undersigned cannot find, given the scant evidence presented, that Silja Sova does not exist, and never existed, in Finland. American Research also proposed the theory that Anja Sova purposely created a fictitious name when designating Silja Sova as the beneficiary. There was no credible evidence presented to support this theory, either; it was mere speculation. An Order for Subsequent Administration was entered by a probate court in Palm Beach County, Florida, on April 11, 2013. It establishes the residual beneficiaries of Anja Sova's estate, but it does not include Silja Lappalainen, Anja Sova's surviving grand-niece. Choice Plus was also unable to locate a person named Silja Sova, and argued that the CD mistakenly designated the pay-on-death beneficiary as Silja Sova when it should have read Silja Lappalainen, Anja's grand-niece who had also been a beneficiary on the Washington Mutual accounts. Curiously, Choice Plus represents Silja Lappalainen, but did not offer testimony from her at the hearing.1/ Instead, Choice Plus offered into evidence an affidavit from Iina Sova, the deceased's sister-in-law, disclaiming any interest in the account. The affidavit is not found credible or reliable; it is written in a language that the affiant did not speak, there is no indication that a certified translator was present while the statement was being made, and the affidavit is replete with hearsay. Unfortunately, there was no credible evidence presented to support Choice Plus's argument that the designation of Silja Sova as the pay-on-death beneficiary was indeed a mistake that a then 79-year-old great-aunt made. The record is void of any credible evidence which meets the preponderance of the evidence standard, entitling either Petitioner to Unclaimed Property Account Number 108502717.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that American Research and Investigations, Inc.'s claim for Unclaimed Property Account Number 108502717 be DENIED. It is also RECOMMENDED that Choice Plus, LLC's claim for Unclaimed Property Account Number 108502717 be DENIED. DONE AND ENTERED this 18th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 18th day of April, 2014.
The Issue The issue is whether Respondent, Agency for Persons with Disabilities (Agency), had a reasonable basis in law and fact to initially deny Petitioner's application for a license to operate a group home, or whether other circumstances were present that would make an award of attorney's fees and costs unjust within the meaning of section 57.111(1)(e), Florida Statutes (2015).
Findings Of Fact Respondent is the state agency that licenses group homes pursuant to section 393.067. On June 13, 2014, Petitioner's corporate agent, Lavonda Hargrove, filed with the Agency an application for licensure to operate a group home facility in Wesley Chapel, Florida. Relevant to this dispute is a requirement by the Agency that if the applicant does not own the property on which the facility will be located, it must submit a copy of a fully-executed landlord/tenant lease agreement with the application packet. Petitioner did not own the property on which the facility would be operated and was required to comply with this requirement. The initial application packet filed with the Agency was missing a number of required items and some questions on the application were left blank. However, as found by Judge Crapps, a copy of an undated and partially signed residential lease agreement was submitted with the application. As noted below, its whereabouts are unknown. On July 29, 2014, or more than 30 days after the application was filed,1/ Myra Leitold, a Residential Program Supervisor in Tampa who reviewed the application, emailed Hargrove and informed her that the application had "to be completed in its entirety" and described areas of the application that required additional information. Leitold also attached to the email a generic checklist of 36 required documents for an initial license application, one of which was a "Landlord Agreement/Lease." While she identified some, but not all, of the items on the checklist that were missing, she did not specifically mention that a landlord agreement/lease had not been filed. In response to the email, on September 12, 2014, Hargrove submitted a second application with the supplemental information requested in Leitold's email. Because a lease agreement had already been submitted with the first application, and no mention of one was made in Leitold's email, it is reasonable to assume that this was the reason why Hargrove did not submit another copy with her second application. To make sure that her application was complete, on September 17, 2014, Hargrove emailed Leitold and stated the following: This is a follow up email to confirm your receipt of requested items for licensure of the Wesley Chapel home at 31733 Baymont Loop. Please advise if additional information is needed. Also, do you have any idea when you will be available to inspect the home? In response to Hargrove's email, Leitold promptly sent an email stating as follows: I did receive the documents forwarded last week however, have not had an opportunity to review them. I should be able to get to them in the next week or two. After her review of the second application was completed, Leitold believed it was still incomplete because there was no lease agreement in the packet. At the underlying hearing, Leitold acknowledged that it was possible the lease agreement had been filed with the initial application on June 13, 2014, but thought it unlikely the Agency had lost the document. As found by Judge Crapps, however, an agreement was filed but its whereabouts are unknown. In any event, Leitold did not advise Hargrove that her application was still incomplete. Instead, she forwarded the second application, without a lease agreement, to the Central Office in Tallahassee for final disposition. Applications are sent to Tallahassee only if they are incomplete or involve pending violations by the applicant; otherwise, action on the application is made at the local level. Incomplete applications are always denied, and Leitold knew that when the application was forwarded to Tallahassee, this would be the final disposition of the matter. After the application packet was reviewed by the Central Office in Tallahassee, with no executed lease agreement, on October 6, 2014, the Agency issued its Notice of License Application Denial for Group Home (Notice) based upon the ground that it did not include a lease agreement. (Presumably, the application satisfied all other licensing requirements.) Two Agency employees in Tallahassee who reviewed the application, Kim Walsh and Tom Rice, testified without dispute that a lease agreement is an essential part of an application, and without the document, they had no choice under the law except to deny the application. Neither Walsh nor Rice had knowledge that a partially executed and unsigned lease agreement had been submitted with the first application but was apparently lost or misplaced, or that Lietold had failed to notify Hargrove that this specific item was missing before the packet was sent to Tallahassee. On October 23, 2014, Hargrove requested a hearing to contest the decision. Although she was knew why the application was denied, in her request for a hearing, Hargrove did not indicate any specific material facts in the Notice that were in dispute. Moreover, she never indicated that a lease agreement had been filed with her initial application. According to Mr. Rice, the Agency's Program Administrator, had Hargrove disclosed this fact in her request for a hearing or brought it to the attention of Agency personnel in a timely manner, the matter could have been resolved without a hearing. A formal hearing was conducted by Judge Crapps on February 24, 2015. Just prior to the hearing, a lease agreement was provided to the Agency in the form of a proposed exhibit. Because it was not fully executed, the case was not settled, and an evidentiary hearing was conducted. At the hearing, Hargrove testified that the fully executed lease agreement was at her home. In his Recommended Order, Judge Crapps accepted Hargrove's testimony that a lease agreement had been filed with the initial application but made no finding as to what happened to the document. Even if the agreement was lost by the Tampa office, or was not fully executed, he observed that the Agency did not notify Hargrove within 30 days after the application was filed of any apparent errors or omissions, as required by section 120.60(1). For this reason, he deemed the application complete by operation of law. He also criticized the Agency for failing to specifically identify the missing lease agreement in its email sent on July 29, 2014. He recommended that the Agency reconsider the application and make a decision to approve or deny. The Agency's Final Order adopted the Recommended Order without change and approved the application.
The Issue Whether the Department exceeded its grant of rule making authority in its proposed rule 3D-20.0023 or, alternatively, whether the proposed rule is arbitrary and capricious.
Findings Of Fact Martin Young Private Investigative Agency, Inc. (Martin-Young) is a private investigative agency actively participating in recovering unclaimed property for apparent owners who have assigned their claims to Martin-Young on a contingency basis. Interstate Asset Locators, Inc. (Interstate) is a competing private investigative agency engaged in the same business as the Petitioner, Martin- Young. The Department of Banking and Finance, Division of Finance (Department) is charged by Chapter 717, Florida Statutes, to receive unclaimed intangible property, to include monies, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, unused airline tickets, unidentified remittances, amounts due and payable under the terms of insurance policies, and amounts distributable from trusts or custodial funds. On December 31, 1992, the Department gave notice of proposed rule making in the Florida Administrative Weekly, Volume 18, No. 53, proposing a rule governing competing claims between creditors and apparent owners of unclaimed property. This rule was adopted pursuant to Section 717.138, Florida Statutes, and cites Sections 717.101(11), 717.124, and 717.126, Florida Statutes, as implementing sections of law. The proposed rule was the Department's response to a claim by Martin- Young for unclaimed property under an assignment from a named beneficiary of a life insurance policy, the proceeds of which have been delivered to the Department. Subsequent to the approval of Martin-Young's claim, Interstate filed a claim asserting competing claims of alleged judgment creditors to the same unclaimed property. The competing claims were referred to Paul C. Stadler, Jr., Assistant General Counsel of the Department, who suggested the need for a rule concerning competing claims of creditors to Randall Holland, the Director of the Division of Finance. Mr. Holland instructed Mr. Stadler to research Chapter 717, Florida Statutes, and to draft a rule. The draft rule was reviewed by Rex Pearce, Chief of the Bureau of Financial Staff Programs of the Division of Finance. Mr. Pearce reviewed the rule and made minor changes to its form, as presented by Mr. Stadler. Mr. Stadler drafted and promulgated a statement of facts and circumstances to support promulgation of the rule referencing Chapter 717, Florida Statutes, and case law.
The Issue The issue is whether Petitioner is entitled to the previously unclaimed property held by Respondent in the form of cash realized from the sale of 24 shares of AT&T.
Findings Of Fact Originally residents of New Hampshire, the now-deceased Flora and William Keniston vacationed annually in Tampa. During their visits, they became good friends with Herman Ortmann. At some point, Mr. Ortmann suggested to Mr. and Mrs. Keniston that they share his home with him--rent-free--during their annual September-to-April stay in Florida. The Kenistons accepted his suggestion and, for five or six winters, occupied Mr. Ortmann's home, which is located at 3102 Paul Avenue. Mr. Ortmann died on March 8, 1966. In his will, Mr. Ortmann left five dollars to his son and the residue of his estate to Petitioner, who was his cousin. On December 19, 1966, Petitioner, as executrix of Mr. Ortmann's estate, conveyed all interest in the Paul Avenue property to Mr. Keniston for $5500. On the same date, Mr. Keniston conveyed the fee simple interest in the Paul Avenue property, subject to a life estate in himself, to Petitioner and her husband. After the sale of the Paul Avenue property, Petitioner helped the Kenistons, who did not have a car, with many chores, such as taking them to buy groceries, attend church, and get hair cuts. On November 15, 1975, Mr. Keniston died. Following Mr. Keniston's death, Petitioner helped Mrs. Keniston, who no longer had a legal interest in the Paul Avenue property, find a new residence in a home shared by several unrelated adults of similar age. Petitioner testified that Mrs. Keniston lived several years in this home; however, her death certificate states that she died on October 4, 1976-- less than one year after the death of her husband. By operation of law, Petitioner and her husband acquired the fee simple interest in the Paul Avenue residence upon Mr. Keniston's death, and Petitioner remains in the house today. When Mrs. Keniston moved from the Paul Avenue property, she handed Petitioner two certificates evidencing ownership of 12 shares, each, in American Telephone and Telegraph Company (ATT). Mrs. Keniston instructed Petitioner to use these stock certificates to pay for Mrs. Keniston's funeral and "keep the rest." However, Mrs. Keniston, who was the sole registered owner of both certificates, never executed any instrument transferring an interest in these certificates to Petitioner. After delivering the certificates to Petitioner, Mrs. Keniston continued to receive and cash her monthly dividend checks of approximately $28. After Mrs. Keniston's death, Petitioner bought her a casket and paid for the funeral, at a total cost of about $3000. Petitioner retained the original stock certificates, but, after obtaining legal advice, determined that the she could not sell the certificates due to the absence of an assignment. Petitioner did not file a claim against the estate of Mrs. Keniston for reimbursement of the $3000, and Petitioner has not otherwise been reimbursed for these expenses. Petitioner has retained the original stock certificates. At some point, ATT transferred either the stock-- presumably by replacement stock certificates--or its cash equivalent to Respondent as unclaimed property; the value of the property at the time of the transfer was $1154.70. If ATT transferred the stock to Respondent, Respondent has since sold it. Either way, Respondent maintains the cash derived from the sale of the ATT stock in a noninterest-bearing account. Due to periodic payments received since its transfer to Respondent-- probably dividend payments earned prior to Respondent's sale of the stock--the current value of the account is $3081.04 (Account). Mrs. Keniston died intestate. By Order of Summary Administration entered May 24, 2000, the Hillsborough County Circuit Court, Probate Division, ordered an immediate distribution among four persons of Mrs. Keniston's assets, which consist of the Account. The order states that all interested persons were served with notice of the hearing or waived notice of the hearing, even though neither Petitioner nor Respondent seems to have received notice of the hearing. The order acknowledges that Respondent holds the Account and authorizes persons holding any property of the decedent to transfer it, pursuant to the order. On June 16, 2000, the representative of the four heirs named in the probate order filed with Respondent a claim of ownership of the Account. On June 1, 2000, Petitioner filed with Respondent a claim of ownership of the Account. Determining that Mrs. Keniston was the actual owner of the Account, Respondent concluded that her four heirs were entitled to the Account. On May 8, 2001, Respondent filed with the probate court a Motion to Vacate Order and Reopen Summary Administration. The probate court had not taken any additional action by the time of the final hearing in this case.
Recommendation RECOMMENDED that the Department of Banking and Finance enter a final order awarding the Account to Petitioner. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 14th day of June, 2001. COPIES FURNISHED: Honorable Robert F. Milligan Office of the Comptroller Department of Banking and Finance The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Denise Douglas Qualified Representative 2616 Jetton Avenue Tampa, Florida 33629 Staci A. Bienvenu Assistant General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Linda Dunphy, Esquire Post Office Box 16008 West Palm Beach, Florida 33416
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/
The Issue Whether the Respondent violated Subsection 475.25(1)(b), Florida Statutes, by failing to reconcile his accounts, having monies stolen from him by an employee, and withdrawing money from his escrow account as commissions. Whether the Respondent violated Subsection 475.25(1)(k), Florida Statutes, by failing to maintain funds paid to him as deposits for rentals, sales taxes, and security deposits in his escrow account until after the date of the rental.
Findings Of Fact The Respondent is a licensed real estate broker and was so licensed at all times relevant to the events which are a part of the Administrative Complaint. The Respondent holds license number 0177110 issued as a broker, t/a Sunspot Realty, 16428 West Highway 98A, Panama City, Florida 32407. On February 10, 1989, Elaine Brantley, an investigator for the Department of Professional Regulation, visited the Respondent's office for the purpose of conducting a financial audit of the records of the business. The Respondent was not present; and Teresa Tuno, the Respondent's secretary and wife, stated she would prefer that Brantley not review the records in her husband's absence. On February 14, 1989, Brantley telephoned the Respondent and made arrangements to audit Respondent's books on February 15, 1989. A review of the records by Brantley on February 15, 1989 revealed that the records were in a state of disarray and the ledgers were not posted. At that time, Brantley advised the Respondent that the records had to be put in order, the ledgers posted, and accounts reconciled by February 17, 1989, when she would reinspect the records. Brantley reinspected the records on February 17, 1989, and all the ledgers had been posted and the accounts had been reconciled through January. The audit revealed that Tuno had received $47,961.45 in security deposits, sales taxes, and rental deposits which were not refundable under the lease agreement. The audit revealed that the balance of the Respondent's escrow account was $33,321.45. The difference between the balance of the escrow account and the money received by the Respondent includes $8,000 which the Respondent paid to himself with checks drawn on the account for "commissions", and $6,540 which had been stolen by an employee of the Respondent. The monies stolen included cash deposits paid by rental customers to the employee and one check on the escrow account endorsed in blank and given to the employee to pay for items purchased for one of the rental units which the employee cashed and converted to his own use. The theft was reported to the local police and their investigation revealed that the employee had disappeared under suspicious circumstances, indicating foul play. The lease agreement states that a deposit of 50% of the rental rate was required to reserve a property and the deposit was refundable only if another tenant could be found for the same period. The Respondent's agreement with the owner of the property called for a commission of 30% of the rental receipts. However, there was no mention of when the commission was earned and under what circumstances it would be paid in the original rental agreement. Upon being criticized for this practice by Brantley, the Respondent repaid the total amount of the draws. Subsequently, he had a new agreement drawn purporting to authorize early payment of management fees. The new agreement states in pertinent part: Owner agrees to compensate Agent a commission of 30% of rental receipts with the exception of long term winter rentals which will be at a rate of 20%. Agent is authorized to draw management fees upon receipt of tenant's non-refundable reservation deposit. The balance of the escrow account was sufficient to meet any potential demands against it. Had the property been leased to another renter for the same period of time, the second renter's deposit would have been deposited to the account making up the funds refunded to the first renter. The audit also revealed that the Respondent had paid monies from the escrow account to a maintenance company operated by the Respondent for work performed on various of the properties. However, the Respondent had not debited the individual property accounts at the time the check was drawn. Each of the properties had a sufficient individual balance to pay for work charged against the property. The appropriate entries were made eventually in the ledgers for the property by the Respondent. The Respondent has amended his agreement with property owners to permit him to bill for repairs on their property on a cost-plus-10% basis to eliminate this problem. None of the actions by the Respondent resulted in financial loss to any of his clients, and the Respondent was cooperative and candid with the auditor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent: Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing commissions to himself; Be required to pay an administrative fine of $1,000 for violation of Section 475.25(1)(k), Florida Statutes, by distributing payments to a maintenance company which he owned without debiting individual property accounts; and Be required to enroll and satisfactorily complete a course on maintenance of escrow funds and accounts. DONE AND ORDERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 1989. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 89-2681 The Respondent filed a letter in place of proposed findings which contained legal argument which was read and considered. It did not contain any findings. The Petitioner filed proposed findings which were read and considered as follows: Paragraphs 1-3 Adopted Paragraph 4, 1st sentence Adopted Paragraph 4, 2nd sentence Rejected as irrelevant Paragraphs 5-7 Adopted Paragraphs 8-10 Rejected. The terms of the contracts do not address when Tuno was entitled to his commission. Under the terms of the contracts the renters were not entitled to a refund of their advance deposit after a reservation was made unless a new renter could be found for the same time, in which case that renter would have to make a deposit. When Tuno was entitled to his commission was not addressed in the contracts. While findings that Tuno violated the provisions of statute relating to maintenance of funds in his escrow account; this failure was based upon the lack of clarity in the contracts and the high standard of conduct in maintaining escrow accounts which is required of licensees. COPIES FURNISHED: Ms. Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. 0. Box 1900 Orlando, Florida 32802 Mr. Robert P. Tuno 16428 West Highway 98A Panama City, Florida 32407
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated March 22, 1982. This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself. At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf. Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.
Findings Of Fact The following findings of fact are contained in the Prehearing Stipulation: The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license. The Respondent did not renew such license until November 9, 1981. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981. The Respondent acted as broker on behalf of George B. Wilds and Jetie B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period. The following additional facts are found from the evidence presented at the hearing: Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2) In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent) On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2) Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)
Recommendation That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes. DONE and ENTERED this 14 day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of September, 1982. COPIES FURNISHED: David P. Rankin, Esquire Freeman & Lopez, P.A. 4600 West Cypress (Suite 410) Tampa, Florida 33607 William McCoy 5725 North 40th Street Tampa, Florida 33610 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801 Fred Wilsen, Esquire Department of Professional Regulation, Legal Services 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32801
