The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Haverty's is a corporation that employs many more than 15 employees in many stores. Haverty's sells furniture. The store in which the allegations of this complaint arose is located at 1175 Eglin Parkway in Shalimar, Florida. Unless noted elsewhere, when Haverty's is mentioned, the reference is to the Shalimar store. Ms. Jester is a woman who resides in Niceville, Florida. She obtained a job at Haverty's and began working there as a sales associate on June 16, 2003. She was hired by Gary Hodge, who was the store manager. She was a sales associate during the entire time that she was employed by Haverty's. A sales associate works on a straight commission and the commission is not paid until the furniture is delivered. A sales associate, after the first three months on the job, is required to sell at least $40,000 in product each month. There are generally ten to fifteen sales associates on the floor at any given time. The environment is highly competitive. There is a computer numbering system in place, called the "up" system, which is used to determine who may approach a customer who walks into the store. If a sales associate initially helps a customer and later the customer is helped by another sales associate, the commission, if a sale is made, is split between the two. During Ms. Jester's time as a sales associate she grossed about $26,000 per year. Ms. Jester noticed shortly after she began her employment that there existed at Haverty's a clique of salespersons, including Michael Herring, Charles McEwen, Buzz Howard, and "Travis." Also in this clique was a woman named "Melanie" and another named "Trudy." This loosely affiliated group was sometimes referred to by Ms. Jester and others, as the "Good Old Boys Club," even though women were members of the group. Members of "Good Old Boys Club" would say unpleasant things to her, would make comments about her, and would sometimes make her feel uncomfortable. Sometimes sexual comments were made about her, and sometimes sexual comments were made about other female employees. On occasion, however, Ms. Jester made sexual comments. The "Good Old Boys Club" falsely accused her of stealing sales on occasion. Sometimes persons in the alleged "Good Old Boys Club" would get her so upset that she would have to leave the floor. Her absence resulted in them making more sales, and thus, more money. If a product is sold at a discount, or if a particular item is given to a person without charge to enhance a sale of other items, the official listed price must be overridden in the store computer by using an override code. A sales associate is not usually provided with the code and if, on a particular occasion, a sales associate is given the override code, it is subsequently changed by management. On one or more occasions Charles McEwen did overrides on his own, and at least twice he entered codes for Ms. Jester. Buzz Howard used an override code once. Managers at the store made exceptions to the override policy. Lee Keiran, who was a sales associate, was also a "keyholder," and he had at all times, the authority to make overrides. However, the manager, Mr. Hodge or Michael Herring, when he was promoted to floor manager, would generally enter override codes. Obtaining someone to enter an override often added additional time to completing a sale, and personally having an override code gave the holder a slight advantage over a sales associate who did not have one. Ms. Jester was never provided with her own override code. She believed, incorrectly, that this was because of her gender. Sales meetings were held at Haverty's every Saturday morning at 8:30 a. m. All sales associates were required to attend. At these meetings the manager reiterated rules and informed employees about new rules. New merchandise would be discussed and products being specially advertised would be discussed. During the time of Ms. Jester's employment, the meetings would usually be conducted by Mr. Hodge, the store manager. On one occasion, in or near the month of January 2005, Mr. Herring conducted the sales meeting. There were twelve or thirteen sales associates at this meeting. Mr. Herring, after addressing other subjects, discussed the rules concerning checking out fabrics. He reiterated the rule that sales persons must "check out" fabric samples prior to allowing customers to depart the store with them. "Checking out" fabric requires a credit card slip signed by the customer. Thereafter, Mr. Herring grasped some fabric and raised it over his head and said to Ms. Jester, "Alma, come get your fabrics." Ms. Jester rose from her chair and walked in front of everyone and took the fabric from his hand. As she walked away he said, "Unacceptable." This was at the conclusion of the meeting. Ms. Jester found this to be humiliating. Ms. Jester placed the fabrics on her desk and went straight to Mr. Hodge to complain. She and Mr. Hodge had a conversation. He inquired as to what she wanted him to do about it. She said she wanted Mr. Herring to apologize and he said, "I'll have him talk to you." Ms. Jester informed Mr. Hodge that she was sick and was going home. Mr. Herring never apologized to her. During the time Ms. Jester worked at Haverty's no men were singled out and criticized at sales meetings. During the aforesaid time, some of the men have allowed customers to take fabrics out of the store without being "checked out" and no evidence was adduced that they were rebuked either privately or publicly. Charles McEwen came to work late on more than one occasion. On one occasion when he reported late, an odor of alcohol could be detected on his person. However, he was not under the influence of alcohol. He was never reprimanded for being late or smelling of alcohol. On Sundays sales associates were required to come to work at 11:30, one-half-hour before opening, to clean, and straighten up the store. Employees would enter the building on Sundays through a side door, which was propped open by a rock. On one occasion Ms. Jester reported to the building five minutes late. The rock had been removed and the door was closed. She beat on the door and eventually someone opened it. Ms. Jester believed that she was locked out purposefully, but the evidence indicates only that someone moved the rock, causing the door to close, which resulted in her inability to enter the building immediately upon arrival. Male sales associates "Trent" and Bob Humphries were often late. Male sales associate "Travis" often left early. None of these men were disciplined for tardiness or for departing early. Ms. Jester complained to Mr. Hodge about male sales associate Michael Herring. She informed him that Michael was a male chauvinist pig. Mr. Hodge agreed and suggested that she get over it. Once Buzz Howard called her a stupid liar on the sales floor in front of three people. Ms. Jester was upset about this. She complained to Mr. Hodge. He suggested to her that Mr. Howard's intent was to get her off the sales floor so she couldn't compete with the other sales associates. He said she should, "Cowboy up." In April 2005, a woman named Ashley Bloomfield walked into the store. Ms. Jester spent an hour and a half showing her bedroom suites. Ms. Bloomfield eventually indicated that she was going to cogitate about the purchase, and departed the store. Before she left Ms. Jester gave her a business card so that she could ask for her when she returned. Customers often spend a lot of time looking at furniture, depart, and subsequently return. These customers are called, "be-backs." Sometimes "be-backs" return, and sometimes they don't. A few days after her visit, Ms. Bloomfield called for Ms. Jester on the telephone. She spoke to sales associate Bob Humphries who told her that Ms. Jester was not present. On Wednesday, April 20, 2005, Ms. Bloomfield returned to Haverty's and was assisted by Buzz Howard. Mr. Howard told her that he would ring up the sale but would credit the sale to Ms. Jester. The transaction was completed, but Ms. Jester was not given any credit for the sale. On a Thursday subsequent to Ms. Bloomfield's visit Ms. Jester entered the side door of the store and observed Buzz Howard at the office with Ms. Bloomfield. The office is the place where customers arrange payment for purchases. Mr. Howard informed Ms. Jester that when Ms. Bloomfield walked in the door she asked for Mr. Humphries, that he, Mr. Howard helped her, and that he, and Mr. Humphries, were going to split the commission. Pursuant to policy, Ms. Jester should have gotten half of the commission and a three-way split is not, she believes, possible. Ms. Jester complained to Mr. Hodge about this. Mr. Hodge explained that Ms. Bloomfield had called when she was absent and Mr. Humphries had spoken with her on the telephone. Mr. Hodge said the commission would be subject to a three-way split. The next day Ms. Bloomfield called Ms. Jester to inquire why Mr. Humphries' name was on the sales slip and not hers. When she learned that Ms. Jester was not going to get credit for the sale, she asked Ms. Jester what to do. Ultimately, Ms. Jester told her she should call "management" in Pensacola and gave her the number for "management." Specifically, she referred her to Hunter Wrisley or Zack Mattson. Ms. Bloomfield did call "management" and spoke to Zack Mattson who in turn called Ms. Jester. Mr. Mattson told Ms. Jester, "Don't do anything about this. I will get back to you." Although Ms. Bloomfield testified that Mr. Mattson intimated that Ms. Jester would get all of the commission if she was working solely with Ms. Bloomfield, this did not occur. When Ms. Bloomfield learned that Ms. Jester did not get all of the commission, she announced that she would return to the store, return the merchandise previously purchased, and then would re-purchase it from Ms. Jester. Ms. Jester called Mr. Mattson and left a message on his voicemail informing him of Ms. Bloomfield's plan of action. He did not respond to her immediately. Ms. Bloomfield returned to the store and the office manager, "Michelle," with the assistance of Ms. Jester, deleted the previous sale, and thereafter modified the transaction to reflect Ms. Jester as the seller. Mr. Mattson determined that this event ran afoul of his instruction to, "Don't do anything about this. I will get back to you." Shortly thereafter, Mr. Hodge called Ms. Jester to his office. Mr. Mattson was on the speaker phone. Mr. Mattson announced that she had deliberately disobeyed a direct order. After Mr. Mattson terminated his participation in the conversation, Ms. Jester told Mr. Hodge that she was too upset to continue working that day and that she must go home. Thereafter, she departed the premises. The next day Mr. Hodge directed that Ms. Jester report to his office and she did as requested. Mr. Hodge, in the presence of Lee Keiran, required her to sign a disciplinary form which recited that she had been insubordinate and had discussed commissions with a customer, an activity which is against Haverty's policy. The form further informed that she was suspended with no pay for three days. She signed the form and went home. When Ms. Jester returned to work she asked Mr. Hodge if she could have leave so that she could go on vacation. He denied her request. She submitted a letter of resignation to Mr. Hodge on May 20, 2005. The letter stated that she had put up with being mistreated by the "Good Old Boys Club" for the last time. However, this is not found to be a constructive termination. She gave two weeks notice but Haverty's discharged her on May 22, 2005, in accordance with their policy on notice of termination. Ms. Jester also sent a letter of resignation to a Mr. Smith of Haverty's corporate office in Atlanta. The corporate office did not respond. Haverty's employee Charles McEwen once told a customer named Schneider to ask for Ms. Whalls when she returned on a Wednesday after a Tuesday visit because he would not be working on the proposed return date. He asked Ms. Whalls for her business card to give to Ms. Schneider so that she would be sure and remember to ask for Ms. Whalls. There was some minimal discussion of commission splits at this time. However, this discussion did not result in any further involvement by the customer in the commission structure. Although evidence was adduced indicating that some of the sales associates engaged in underhanded methods designed to deprive their fellow workers of commissions, and that some had their own override codes, and others had tardiness excused, there was no evidence that any other sales associate at Haverty's involved a customer in a dispute over commissions. Although during the time of Ms. Jester's employment no one other than Ms. Jester was rebuked in front of the sales associates, being rebuked is not the type of employment practice that can be an adverse employment action. The facts in this case demonstrate that being a sales associate at Haverty's is extremely competitive. Because of the highly competitive, straight commission sales environment, employees engaged in activities designed to subvert the efforts of their fellow employees to earn commissions. Sales associates often made crude and inappropriate remarks that were upsetting to those who were the targets, in an effort to reduce competition. Ms. Jester's supervisors tolerated this behavior. Undoubtedly, a tough environment existed at Haverty's, but this should not be confused with discrimination. The sometimes unfortunate and mean employment practices permitted at Haverty's were not grounded in gender discrimination or some other prohibited basis. There is no evidence in the record that any employee of Haverty's received favorable treatment, or unfavorable treatment, because of their gender. After Ms. Jester's employment at Haverty's came to an end, she made an unsuccessful attempt to go into business for herself. For about eight months subsequent to her departure from Haverty's she was absolutely unemployed. She received unemployment compensation in the amount of $257.00 per week for four months after her departure from Haverty's. Then she went to work for the Shoe Salon for $9.50 per-hour for three weeks. Ms. Jester did not indicate how many hours per-week she worked at the Shoe Salon. Thereafter she found employment with Massey Wholesale about three months before the hearing, and at the time of the hearing she was still employed there. Her wages at Massey Wholesale compare closely to what she was receiving when working for Haverty's. Massey Wholesale will soon pay for her health insurance. She paid $387.00 per month for health insurance pursuant to COBRA for a period of three months subsequent to leaving Haverty's then secured a policy for which she pays a premium of $250.00 per month.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alma W. Jester. DONE AND ENTERED this 17th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John W. Wesley, Esquire Wesley, McGrail and Wesley 88 Northeast Eglin Parkway Fort Walton Beach, Florida 32548 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this instance are presented through a Notice to Show Cause/Administrative Complaint, in which the Petitioner accuses Respondent, Mary Hordge, through actions of her agent, servant or employee, Mary Donnovan, of unlawfully selling alcoholic beverages in a manner not permitted by the license, namely the sale for consumption on-premises under the package sales license, contrary to Section 562.12, Florida Statutes.
Findings Of Fact Mary E. Hordge, referred to in the Administrative Complaint is the holder of License No. 26-2310, Series No. 2-APS. That type license allows the sale of beer and wine as package sales for consumption off-premises. On- premises consumption is not authorized by that license. An inspection of the licensed premises was made on June 3, 1983. The licensed premises is in Jacksonville, Florida. The licensed premises was open for business on that date. When the inspector entered, Johnny L. Holmes, son of licensee and business manager of the licensed premises, was seated at a counter and an opened can of Coors beer was on the counter in front of him. Another employee of the licensed premises at that time was one Mary Darwell, who is a cook in the licensed premises, and whose other responsibilities include clearing of tables in the bar area. No other conduct was observed related to alcoholic beverages.
The Issue The issue for determination in this proceeding is whether the Respondents violated Section 475.25(1)(b), Florida Statutes, by inducing a seller to enter in a contract for sale of real estate, based on a $50,000.00 earnest money deposit that was never made.
Findings Of Fact Respondent Fred Marberry, Jr. is now and was at all times material hereto a licensed real estate broker-salesman in the State of Florida, having been issued license number 0369879 in accordance with Chapter 475, Florida Statutes. Respondent Bernon Earl Thomas is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 0433736 in accordance with Chapter 475, Florida Statutes. During the relevant time, from July through September 1985, Fred Marberry was President of Marberry and Mack Development, Inc., and maintained an office in Altamonte Springs, Florida. James Mack was the Vice-president, Secretary and Treasurer of the company. During the relevant time, from July through September 1985, Bernon Thomas was a real estate salesman with General Realty Management Corporation. His office was in Kissimmee, Florida. In 1985, the two Respondents had worked together on the potential sale and development of a multi-family project in Kissimmee. Thomas was aware of the availability of some commercial property in Kissimmee known as Cross Creek that he felt would be a good deal and shared that information with Marberry. Thomas got his information on Cross Creek from Larry Heninger, who was working with the owner, R. S. Futch, in putting together a development package to present to potential buyers and developers. Heninger had expended considerable effort in working with an engineer and permit agencies and had made contacts with a number of businesses interested in locating on the property. The engineering reports, correspondence and figures supplied to Marberry by Thomas indicated that the parcel comprised 14.75 usable acres. There were letters from the City saying that sewage capacity, utilities and similar public services would be based on this amount. Marberry told Thomas that the development package looked good and to continue working on it. Some time in mid-July 1985, Larry Heninger informed Thomas that some third parties were also interested in the Cross Creek property and that if Marberry and Mack, Inc., wanted to present an offer, they would need to do so immediately as Mr. Futch was leaving on a vacation for several weeks. Thomas called Marberry to relay this information. The details of the conversation are in dispute, but it is uncontroverted that Thomas was made a Vice-president of Marberry and Mack, Inc., for the sole purpose of executing a sales contract immediately. Arrangements were made for Thomas to draw up the contract/offer and have it taken to the Orlando airport where R. S. Futch was either leaving or was en route on his vacation. Marberry and Thomas disagree on what was discussed with regard to an escrow deposit. Thomas contends that Marberry authorized him to provide for a $50,000.00 escrow deposit to be held by Fred Marberry, licensed real estate broker upon acceptance of contract. Marberry denies this and claims that he never maintained an escrow account, that escrow funds were always handled by his (Marberry's) attorney. Marberry claims that the day after signing, when he actually saw the contract, he said something to Thomas about his failure to delete the escrow language on the contract form. Thomas denies this. Both Marberry and Thomas agree that all parties should have known that the deposit could not be escrowed upon acceptance, since Marberry was not there for the signing. The contract was prepared and signed by Thomas in Thomas' Kissimmee office and was taken to the Orlando airport. The contract, prepared on the standard Florida Bar and Association of Realtors approved form, provided a purchase price of $1,600,000.00, the $50,000.00 escrow deposit, and closing on August 25, 1985. The contract provided that closing could be extended by the buyer for 30 days with an additional $50,000.00 deposit. The contract contained the following special clauses: Contingent upon financing. Above described property of [sic] being viable to building Comm. Prop. with all necessary zoning and available utilities. [Pet. Ex. #5] At the airport, R. S. Futch accepted the offer by Marberry and Mack, made a few changes on the contract, initialled them and signed the contract; the changes were also initialled by Bernon Thomas. Later Thomas called Marberry and told him about the changes. The morning after the contract was signed, Marberry and Thomas visited Heninger's engineer to review the project. They reviewed the engineering plans and learned that the property was in a floodplain. Drainage was a problem and parking was a problem and it appeared that only 4.3 acres was actually buildable. On leaving the engineer's office Marberry told Thomas that there was no way the project could work; they could never get financing for a $1.6 million parcel of 14.75 acres, with only 4.3 buildable acres. Marberry felt the contingencies in the contract could not be met and the contract was off. Thomas still believed in the project, and since he had already put so much time and effort in it, he wanted to keep working on pulling it together. Marberry did not dissuade him, but said only to keep him informed on what was going on. Thomas told Heninger that Marberry didn't want the contract. Heninger said he wanted the contract to stay intact and encouraged Thomas to keep working on it. He also tried to get Thomas to do the deal himself, but Thomas told him he did not have the funds. Thomas claims that Heninger told him not to worry about the $50,000.00; Heninger denies this. Nothing was communicated in writing regarding the contract being terminated. The $50,000.00 deposit was never made. The deadline for closing passed, and sometime in September 1985, Larry Heninger arranged a meeting between R. S. Futch and Fred Marberry in a motel in Orlando. The purpose of the meeting was to either extend the contract entered in July (according to R. S. Futch), or to negotiate a new contract for the property (according to Fred Marberry). During the meeting Futch was told that no $50,000.00 deposit had been made on the original contract. The meeting apparently terminated and shortly later Futch filed suit for the $50,000.00. The testimony of the principal witnesses in this case: Marberry, Thomas, Futch and Heninger, establish a picture of lack of communication, misunderstanding, bungling, and unprofessionalism. It is impossible to determine from the rambling and disjointed stories of these witnesses, that either Fred Marberry or Bernon Thomas, individually or together, engaged in "fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, and breach of trust..."
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Administrative Complaint against both Fred Marberry and Bernon Thomas, be dismissed. DONE and ORDERED this 11th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert D. Gatton, Esquire Maitland Center 1051 Winderley Place Maitland, Florida 32751 Bernon Earl Thomas 4226 Match Point Drive Augusta, Georgia 30909 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Should Petitioner, Charles Caputo's, application for a real estate sales associate license be granted.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is an applicant for licensure as a real estate sales associate. His application was filed on November 3, 2007. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application. Petitioner's application revealed the following record of criminal involvement: Driving "while ability impaired"-- December 21, 1987, Suffolk County, New York. (This is a civil infraction based on a plea to the initial charge of Driving Under the Influence.) Petit Theft--August 29, 1991, St. Cloud, Florida. Burglary--July 27, 1997, Orange County, Florida. (Adjudication withheld.) Passing a Bad Check--March 17, 1998. Trespass After Warning--November 13, 2002, Orange County, Florida. When Petitioner applied for a license in 2005, he only disclosed two offenses. On August 7, 2008, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are "Failure to Disclose," "Unpersuasive Testimony," "Crimes Recent," and "Pattern of Crime." In addition, the Notice of Intent to Deny concludes that Petitioner failed "to demonstrate honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others"; that Petitioner was "guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction"; and that Petitioner had been "convicted or found guilty or entered a plea of nolo contender to, regardless of adjudication, a crime which directly relates to the activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealings." Finally, the Notice of Intent to Deny concludes that Petitioner "has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free." The several "character" witness presented by Petitioner were not well-informed regarding Petitioner's criminal history, and while they apparently thought well of him, their testimony was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Charles Caputo's, application for real estate sales associate licensure be denied. DONE AND ENTERED this 20th day of February, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of February, 2009. COPIES FURNISHED: S. W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801 N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap, in violation of section 760.10, Florida Statutes, and, if so, the appropriate remedy.
Findings Of Fact Petitioner is a 37-year-old Caucasian male. Respondent is an insurance agency registered and licensed to do business in Florida and headquartered in Boca Raton, Florida. Respondent is a direct marketer of insured products, including health insurance policies, and non-insured products, such as lifestyle benefit programs and telemedicine. Respondent uses a call center model to market insurance products. At the call center, sales agents take calls from prospective clients and are paid a "base wage" plus commission. Since sales agents are paid a base wage, they must meet minimum sales requirements to help offset the fixed costs associated with their employment. Petitioner became employed at Respondent's Miramar call center as a sales agent starting on or about September 9, 2013. His employment duties entailed calling potential sales leads and selling non-major medical insurance policies over the telephone. The position for which Petitioner was hired did not have a specified term of employment, and Petitioner and Respondent did not execute an employment contract when Petitioner was hired.1/ Petitioner's work hours were from approximately 8:00 a.m. to 5:30 p.m., five days per week. Sales agents, including Petitioner, were paid $12.50 per hour, with a guaranteed salary of $500 per week, plus a commission on sales made. In late September 2013, Petitioner became ill. His illness manifested itself as shortness of breath and coughing. By late October 2013, his illness had progressed to the point that he was experiencing acute respiratory distress episodes. Petitioner testified that he experienced shortness of breath that, at times, made it "physically impossible" to talk on the telephone. However, he also testified that "I was on the phone doing what I was supposed to be doing, making calls and talking to potential customers, and I was doing it in a way in which other agents did it, which was normal and customary."2/ During his employment tenure with Respondent, Petitioner took time off work for medical appointments related to his condition, but he could not recall how many times, or for how long. There was no evidence presented showing that Respondent was aware of the specific reason for Petitioner's medical appointments. On October 30, 2013, the day he was terminated, Petitioner experienced a respiratory distress episode and had to use the nebulizer while at work. He also had experienced a similar episode at work approximately two days before and had had to use the nebulizer. Petitioner did not inform Respondent that he was experiencing shortness of breath, respiratory distress, or any other medical condition that interfered with his ability to perform his job. The persuasive evidence establishes that Respondent's human resources representative had witnessed the acute respiratory distress episode that Petitioner suffered the day he was terminated. However, there is no direct evidence that anyone with Respondent in a position (such as supervisors or managers) to make decisions about Petitioner's employment was made aware of his shortness of breath, acute respiratory distress episodes, or use of the nebulizer while at work. On October 30, 2013, Respondent terminated Petitioner from his employment. The evidence shows that at the time Petitioner was terminated, he was informed that it was due to inadequate sales production.3/ Petitioner testified at the hearing, on rebuttal, that when he was terminated, the manager who fired him "made a comment to me that I couldn't do my job, referring to the fact that I was short of breath on the phone, not to the——to a reference of low sales."4/ There is no other evidence in the record that Petitioner was told that he was being fired because he was physically unable to do his job. Petitioner testified that he did not recall having been informed, before his termination, that he was not meeting performance expectations. He testified that he did not know how his sales performance compared to that of other agents whose employment duties were the same as his. He testified that he did not believe he was the lowest-performing sales agent at the call center. He also testified that he believed he was the only person terminated that day. However, he did not articulate any specific factual or perceptual bases for these beliefs. At the time he was terminated, Petitioner asked to be given two extra days, until Friday of that week, to allow new medications he recently had been prescribed to be given a chance to work so that he could talk on the telephone without experiencing severe shortness of breath. Respondent declined to provide him the two extra days before terminating him. Petitioner had been employed with Respondent for approximately seven-and-a-half work weeks5/ when he was terminated. Petitioner testified that as of October 30, 2013, he was "disabled,"6/ although he did not know it at that time. He testified, persuasively, that he continued to have difficulty breathing after being terminated. Sometime after he was terminated, Petitioner was determined eligible for Supplemental Security Income ("SSI") benefits from the Social Security Administration, and eligible for vocational rehabilitation services from the Florida Department of Education, Division of Vocational Rehabilitative Services.7/ Petitioner asserts that even though he did not notify Respondent that he was disabled before he was terminated, he believes that Respondent's supervisors and managers perceived him being as disabled due to his respiratory distress episodes, shortness of breath, and use of a nebulizer while at work, and that they terminated him on that basis. However, as noted above, the evidence does not show that anyone in a position to make decisions about Petitioner's employment was aware of his health condition before Respondent terminated him. At the time of Petitioner's employment, Stephen Fingal was Respondent's director of enrollment and oversaw the sales department, including the call centers. Petitioner was among the employees Fingal supervised. Fingal testified that each call center sales agent was required to make a minimum of 12 "primary" insurance policy sales per week8/ in order to cover his or her $500 per week salary,9/ as well as the cost of "leads," which are generated through Respondent's commercial advertising programs, and break down to a fixed cost of roughly $1,500 to $2,000 per week per agent. The competent, persuasive evidence, consisting of Fingal's testimony and sales logs,10/ shows that Petitioner consistently failed to meet the minimum sales performance standard over the entire term of his employment with Respondent. During Petitioner's first week of employment, he was being trained, so made no sales. He made four total sales his second week of employment; no sales his third week of employment; one total sale his fourth week of employment; 17 sales of mostly ancillary policies his fifth week of employment; no sales his sixth week of employment; nine total sales his seventh week of employment; and no sales the week he was terminated.11/ The evidence does not establish a pattern linking Petitioner's lack of productivity to any documented episodes of shortness of breath or respiratory distress. Over Petitioner's entire tenure with Respondent, he sold a total of only 33 policies. Of these, only 15 were primary health insurance policies. By contrast, using the 12-sales-per week minimum performance standard, an agent whose sales performance level was marginally adequate would have sold at least 60 primary policies over a five-week period——approximately four times more than Petitioner sold over a six-and-a-half week period. To prove this point, Respondent presented the sales productivity information for two other sales agents, whose performance was characterized as "average," for the same time period as Petitioner's employment. These agents sold approximately two times more primary policies and three times more ancillary policies than Petitioner sold during the same period. On cross-examination, Fingal characterized Petitioner's comparative sales performance as "in the lower quadrant." When asked whether it was possible that 20 to 25 percent of the sales agents performed at a lower level than Petitioner, Fingal answered "probably not." Fingal testified, persuasively, that Respondent declined to give Petitioner the requested two additional days because he asked for them when he was terminated. By that point, Respondent already had determined, based on Petitioner's consistent failure to meet minimum performance standards over his entire employment term, that Petitioner was not going to be a productive employee.12/ Respondent does not hire part-time sales agents, and at the time Petitioner was terminated, there were no sales positions that did not involve speaking on the telephone. Additionally, at the time Petitioner was terminated, Respondent did not have any available non-sales positions into which Petitioner could transfer. Moreover, even if such positions were available, there was no evidence showing that Petitioner was qualified for them. In any event, the evidence shows that Petitioner never requested to be transferred to an alternative employment position that did not entail speaking on the telephone. Petitioner did request what he characterized as an "accommodation" of two additional days, but, as discussed above, Respondent declined because it had already decided to terminate him due to his consistently inadequate performance over the term of his employment. Petitioner posited that he was not the lowest performing sales agent, but he did not present any evidence to support that supposition. He also posited that he was the only sales agent terminated that day, but, again, did not present any evidence supporting that supposition. He did not present any evidence showing that non- disabled call center sales agents who performed at or below the same level as he performed were not terminated. He presented no evidence showing that Respondent subsequently filled his position with a non-disabled person. In fact, approximately ten months after Petitioner was terminated, Respondent substantially reduced its call center sales agent work force, closed the Miramar call center, and consolidated its call center operations at its Boca Raton location, in an effort to reduce the substantial cost associated with having call centers in multiple locations. This is consistent with Respondent's assertion that Petitioner was terminated because he was not a profitable employee and that Respondent was losing money in continuing to employ him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of February, 2016.
Findings Of Fact Petitioner's business activities include the sale of tangible personal property such as caskets and burial vaults. The written sales contract utilized by Petitioner sets forth the amount of sales tax and includes that sum in the total amount which the customer agrees to pay. The contracts are in the form of a note, containing a promise to pay, and were sold at discount by the Petitioner at certain times during the audit period. The contracts require a down payment and installment payments thereafter. The contracts further contain a clause allowing the customer three days in which to cancel the contract, under which circumstances the customer is reimbursed all moneys paid by him to Petitioner. Under Petitioner's retained- title, conditional-sale contract, if the customer cancels the contract or stops making payments at any time subsequent to the initial three-day period, Petitioner retains all sums which have been paid to it by the customer. Petitioner's business practice is to pay its salesmen commission from the down payment on a contract. Petitioner operates on the accrual method of accounting, and its sales tax liability is entered on its books at the time of the sale. Petitioner pays the total sales tax due at the time that it enters into the contract. When a contract is cancelled (after the initial three-day cancellation period), Petitioner claims a credit against its current liability for the full amount of sales tax charged on the transaction when it files its sales tax report for the month, even though at least the down payment, and frequently additional payments, has been collected from the customer. On audit, Respondent allowed full credit for the amount of sales tax when a contract had been cancelled within the three-day cancellation period, but disallowed that portion of the credits claimed which related to the down payments and installments which the Petitioner retained when a contract was cancelled after the three-day period. Respondent did allow, however, a credit for taxes attributable to the unpaid balance under each cancelled contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Revenue enter its final order disallowing to Petitioner a credit for taxes attributable to amounts retained by it upon the cancellation of its installment sales contracts. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1980. LINDA M .RIGOT Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1980. COPIES FURNISHED: Ms. Cynthia Savage Comptroller Restlawn, Inc. 2600 Ribualt Scenic Dr Post Office Box 9306 Jacksonville, FL 32208 E. Wilson Crump, II, Esq. Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32301 John D. Moriarty, Esq. Deputy General Counsel Department of Revenue Room 104, Carlton Building Tallahassee, FL 32301 Mr. Randy Miller Executive Director Department of Revenue Room 102, Carlton Building Tallahassee, FL 32301
The Issue The issue posed for decision herein is whether or not the Petitioner is subject to the Florida corporate income tax for tax years 1972, 1973, 1974 and 1975 plus accrued penalties and interest since July 7, 1977, the date Petitioner was mailed a proposed notice, of deficiency by the Respondent, Department of Revenue.
Findings Of Fact Based on the evidence adduced at the hearing herein; the documentary evidence received; the Respondent's memorandum in support of the assessed deficiency; the Petitioner's memorandum in response thereto; and the entire record compiled herein, the following relevant facts are found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent enter a Final Order herein denying Petitioner's protest of the proposed deficiency and penalties as set forth hereinabove. RECOMMENDED this 14th day of March, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 March, 1983.
The Issue The issues in these two cases are whether Respondent violated provisions of chapter 475, Florida Statutes (2015),1/ regulating real estate sales brokers, as alleged in the Administrative Complaints, by (1) failing to return a rental deposit to a potential tenant; (2) serving as the qualifying broker for Friendly International Realty, Inc. (“Friendly”), but failing to actively supervise Friendly’s operations and/or sales associates; failing to preserve Friendly’s transaction records and escrow account documents; and (4) acting in a manner that constitutes culpable negligence or a breach of trust. If there was a violation, an additional issue would be what penalty is appropriate.
Findings Of Fact Parties The Department is the state agency that regulates the practice of real estate pursuant to section 20.165, and chapters 455 and 475, Florida Statutes. Ms. King is a licensed real estate broker registered with the Department (license numbers BK 3203595, 3261628, 3293588, 3306619, 3335771, 3354773, and 3363985). Ms. King is registered with the Department as the qualifying broker for 16 brokerages located throughout the state of Florida. At all times relevant to this case, Ms. King’s registered address with the Department was 4430 Park Boulevard North, Pinellas Park, Florida 33781. Friendly International Realty, LLC Friendly was a Florida licensed real estate corporation, holding license number CQ 1040825. Records reflect that James Berthelot was the registered agent for Friendly at the time of incorporation, June 2011. At all times relevant, Mr. Berthelot was a licensed Real Estate Sales Associate (license number SL 3226474) registered with Friendly. In May 2014, Respondent drafted and entered into a Limited Qualifying Broker Agreement (“Broker Agreement”) with Friendly and its owner, Ivania De La Rocha.2/ Friendly and Ms. King entered into the Broker Agreement, “in order to comply with the requirements of the Florida Department of [Business and] Professional Regulation.” Under the terms of the Broker Agreement, Respondent was not paid by Friendly per transaction. Rather, Respondent agreed to serve as the “Corporate Broker of Record” in exchange for a payment of $300 a month “as a flat fee for any and all real estate business conducted by [Friendly].” The Broker Agreement also provided for a “late fee” penalty if Friendly was delinquent in this monthly payment. Section 1.1 of the Broker Agreement outlined Respondent’s duties to Friendly, requiring her to: (1) keep her and Friendly’s licenses active and in good standing under Florida law; (2) keep her other business interests separate from those involving Friendly’s interests; and (3) provide Friendly notice of any governmental inquiry involving her serving as Friendly’s broker. There was no mention in the Broker Agreement of either Respondent’s or Friendly’s responsibilities regarding oversight of transactions, training for sales associates, or day-to-day operations. Regarding document retention, the Broker Agreement provided: Section 9.0 AUDIT & REVIEW RIGHT: Broker shall have the right to enter [Friendly’s] offices upon reasonable advance written notice to verify compliance with the real estate laws of the State of Florida. There was no evidence that Ms. King ever provided Friendly with the kind of notice described in section 9.0 of the Broker Agreement. Although the Broker Agreement did not prohibit Friendly from holding funds or assets on behalf of third parties, section 10.0 (Miscellaneous) explicitly prohibited Friendly from operating an escrow account. (g) Escrow and Ernest Money Accounts. [Friendly] shall not be permitted to hold any escrow account(s). On July 31, 2014, Ms. King was registered with the Florida Department of State, Division of Corporations, as “manager” of Friendly. Ms. King was the qualifying broker for Friendly (license number BK3303898) from August 6, 2014, through September 30, 2015, and November 4, 2015, through January 13, 2016.3/ During the time Ms. King served as the qualifying broker, Friendly operated from a number of addresses in Miami- Dade County, including 11900 Biscayne Boulevard, Suite 292, Miami, Florida 33181; and 2132 Northeast 123rd Street, Miami, Florida 33181. The office door of the Friendly office located on Northeast 123rd Street was painted in large letters, “FRIENDLY INTERNATIONAL REALTY” and “ALICIA KING” painted underneath. At the hearing, when asked about Friendly’s address, Ms. King could only confirm that when she became the broker the office was “on Biscayne.” The Biscayne Boulevard address is the one listed on the Broker Agreement. At the hearing, Ms. King was wrong about when the Friendly office had moved from the Biscayne Boulevard to the Northeast 123rd Street location, insisting it was over the Christmas holidays in 2015. Records establish Friendly moved from the Biscayne Boulevard location to the Northeast 123rd Street location sometime between April and July 2014. In January 2016, Ms. King believed the office was still on Biscayne Boulevard. In reality, it had been over a year since the office had relocated to that location. At the hearing, when asked by her own counsel how many transactions a month Friendly handled, Ms. King replied, “That’s hard to say. It was not many at all. Ten, maybe.” Respondent could not give the exact number of employees or sales associates affiliated with Friendly; when asked, she stated she could not remember the exact amount, but knew it was “very limited.” Respondent did not have any agreements or documentation related to how many sales associates were registered under her broker’s license. Respondent could not name any other sales associates affiliated with Friendly while she was the qualifying broker, except for Mr. Berthelot. While she was Friendly’s qualifying broker, Respondent did not perform any of the training for the sales associates at Friendly. Respondent did not have any face-to-face meetings with any Friendly sales associates, except for Mr. Berthelot. Respondent did not have phone or e-mail contact with any of the Friendly sales associates, except for Mr. Berthelot. Respondent did not have copies of any forms, handbooks, reports or files related to Friendly. All of these documents were in paper form and kept in the Friendly office. Respondent had no access or signatory authority for any of Friendly’s bank accounts. Natalie James was a registered real estate sales associate affiliated with Friendly for approximately five months, from November 2015 through March 2016. Ms. James worked out of the Friendly office and was physically present at the office at least three or four times a week. Ms. James was involved in several rentals and one sales transaction while at Friendly. For each transaction she assembled a file, which was kept in the Friendly office. For rental transactions, Ms. James would negotiate and facilitate lease agreements. When she represented potential tenants, she received deposit funds that she deposited with Friendly. Ms. James attended meetings at Friendly; Ms. King was not present at any of them. Ms. James never had any telephonic, electronic, personal, or other contact with Respondent. While at Friendly, neither Mr. Berthelot nor any of Ms. James’ co-workers mentioned Ms. King to Ms. James. Although Ms. King’s name was on the door of Friendly’s office, Ms. James was unaware Ms. King was Friendly’s broker. There was conflicting testimony as to how often Respondent visited the Friendly office. Ms. King’s testimony at the hearing was at odds with the Department’s evidence and testimony regarding this issue. Ms. King insisted that while she was Friendly’s broker, she would travel from Pinellas Park to the Friendly office once or twice a week. This was not believable for a number of reasons. First, had Ms. King visited Friendly’s office as often as she stated, she would have known about the change in location; she did not. Second, Ms. King could not give one concrete date or detail about her travels to the Friendly office. Third, and most compelling, was the testimony of Ms. James (who worked at Friendly for at least two months while Ms. King was its broker) that she had never seen, communicated with, or heard mention of Ms. King while at Friendly. Ms. James’ unbiased and compelling testimony alone supports a finding that Ms. King did not visit the Friendly office as frequently as she indicated. Ms. King was aware that Friendly and Mr. Berthelot provided rental or “tenant placement” services.4/ Friendly collected security deposits and other move-in funds from potential renters and held them in an escrow account. Ms. King was not aware Friendly had an escrow account until January 2016 when she was contacted by the Department in an unrelated case. On January 13, 2016, Respondent resigned with the Department as the qualifying broker for Friendly effective that same day. On January 14, 2016, Respondent filed a complaint with the Department against Mr. Berthelot for operating an escrow account and collecting deposit funds without her knowledge. Facts Related to the Viton Case In November 2015, during the time Ms. King was Friendly’s qualifying broker, Christian Viton signed a lease agreement to rent an apartment located in Miami at 460 Northeast 82nd Terrace, Unit 8 (“Viton transaction”). The Viton lease agreement listed Friendly as the holder of the deposit monies and required Friendly to transfer the deposit and move-in funds to the owner of the property. Pursuant to the terms of the Viton lease agreement, Mr. Viton remitted an initial deposit of $500, and received a written receipt from Friendly dated November 2, 2015. Mr. Viton gave Friendly a second deposit of $380, and received a written receipt dated November 4, 2015. Mr. Viton never moved into the apartment and demanded a refund of his deposit from Friendly. On December 8, 2015, Friendly issued a check to Mr. Viton in the amount of $530. Three days later, Friendly issued a stop-payment order on the $530 check to Mr. Viton. On February 29, 2016, Mr. Viton filed a complaint with the Department seeking a return of the $880 he had given to Friendly. As a result, the Department initiated an investigation into Mr. Viton’s complaint and contacted Respondent. Upon learning about the Viton complaint, Ms. King contacted Mr. Berthelot who admitted Friendly had stopped payment on the $530 refund check, but had reissued the full amount of the deposit to a third-party not named on the lease. There is no evidence Mr. Viton ever received a refund of his $880 deposit. Facts Related to Dorestant Case In June 2015, during the time Ms. King served as Friendly’s qualifying broker, Cindy Dorestant entered into a lease agreement to rent a condominium located at 1540 West 191 Street, Unit 110 (“Dorestant transaction”). In the lease, Friendly was listed as the “broker” and holder of the deposit; TIR Prime Properties (“TIR”) was listed as the owner’s agent. The Dorestant lease agreement required Friendly to transfer the deposit and move-in funds collected from Ms. Dorestant to TIR. Pursuant to the terms of the Dorestant lease agreement, Ms. Dorestant gave Friendly $1,050 as an initial deposit, and received a written receipt dated June 24, 2015. In late July 2015, Ms. Dorestant contacted TIR’s property manager and sales agent to ask for information about the status of her move into the condominium. TIR explained to Ms. Dorestant that Friendly had not conveyed any of monies collected from Ms. Dorestant to TIR. Both Ms. Dorestant and TIR attempted to contact Friendly, but Friendly was non-responsive. The TIR sales associate relayed this information to TIR’s broker, Mariano Saal, who in turn tried to reach Friendly to resolve the issue. Eventually, TIR was told by Mr. Berthelot that Friendly would release the move-in funds to TIR and that Mr. Berthelot would schedule the move-in. TIR did not receive any funds from Friendly, nor did Mr. Berthelot facilitate Ms. Dorestant’s move into the condominium. On August 31, 2015, Mr. Saal contacted Mr. Berthelot and informed him that if TIR did not receive the move-in funds for the Dorestant transaction by 5:00 p.m. that day, it would be required to find another tenant. Ms. Dorestant did not move into the condominium and demanded a refund from Friendly and TIR. On September 14, 2015, Mr. Saal sent an e-mail to what he believed was Respondent’s address, demanding the $1,050 from Friendly because it considered Ms. Dorestant’s failure to move into the property a default of the lease agreement. Respondent, however, did not have access to Friendly’s e-mails. The e-mail was also sent to Mr. Berthelot, and Ms. De La Rocha. TIR did not receive any funds from Friendly for the Dorestant transaction. After discovering she could not move into the condominium because Friendly had not transferred the deposit to TIR, Ms. Dorestant demanded a refund of her deposit monies from Friendly. She did not receive it. On February 10, 2016, Mariano Saal, TIR’s qualifying broker, filed a complaint against Mr. Berthelot and Friendly with the Department regarding the Dorestant transaction. Ms. Dorestant initially did not receive a refund from Friendly and, therefore, filed a police report against Mr. Berthelot and sued him in small claims court. Eventually, Mr. Berthelot refunded Ms. Dorestant her deposit monies. Department Investigations of Friendly Upon receiving the Viton complaint, the Department assigned the case (DPBR Case No. 2016018731) to Erik Lluy, an Investigator Specialist II in the Miami field office. Similarly, on or around the same time the Department received the Dorestant complaint; it was also assigned to Mr. Lluy (DPBR Case No. 2016018069). On April 25, 2016, Mr. Lluy officially notified Ms. King of each of the complaints. On May 25, 2016, the Department transferred both the Viton and Dorestant complaints from Mr. Lluy to Percylla Kennedy. Ms. King provided a written response to both complaints via e-mail to Mr. Lluy on May 26, 2016. At that time, Mr. Lluy indicated the case had been transferred to Ms. Kennedy and copied Ms. Kennedy on the response. Ms. Kennedy was familiar with Friendly, Mr. Berthelot and Ms. King. In January 5, 2016, she had conducted an investigation of Friendly in an unrelated complaint filed against Friendly by Borys Bilan (“Bilan complaint”). As part of the investigation into the Bilan complaint, Ms. Kennedy arrived at the Friendly office address registered with the Department on Biscayne Boulevard to conduct an official office inspection. When she arrived, however, she found the office vacant. As a result, that same day Ms. Kennedy contacted the registered qualifying broker for Friendly–-Ms. King-–by phone. During that call, Ms. Kennedy asked Ms. King where Friendly’s office was located, but Ms. King did not know. Eventually, Ms. Kennedy determined the Friendly office had relocated to the Northeast 123rd Street location. Ms. Kennedy testified that during this call, Ms. King admitted to her that she had not been to the Northeast 123rd Street location. Respondent testified she did not tell Ms. Kennedy this and as proof insisted that the January call was inconsequential and “a very short call.” The undersigned rejects Respondent’s version of events and finds Ms. Kennedy’s testimony and report regarding the January 2016 interview more reliable. First, although Ms. King describes the conversation as occurring on January 7, 2016, both Ms. Kennedy’s testimony and the Inspection Report establish the conversation occurred on January 5, 2016. Second, Respondent’s characterization of the call as inconsequential contradicts her own May 26, 2016, written response to the Department in which Ms. King outlines a number of substantive issues discussed during this phone conversation, including: the nature of Friendly’s practice, whether Friendly had an escrow account, the type of payment accepted by Friendly, and the address of Friendly’s office. After speaking with Ms. King about the Bilan complaint, Ms. Kennedy conducted the inspection at Friendly’s Northeast 123rd Street location. Respondent was not present when Investigator Kennedy conducted the office inspection. Ms. Kennedy then e-mailed the Office Inspection form to Respondent. As a result of the January 5, 2016, phone conversation with Ms. Kennedy, Ms. King contacted Mr. Berthelot about the Bilan complaint. On January 13, 2016, Mr. Berthelot provided Ms. King with the transaction file related to the Bilan complaint. When Ms. King reviewed the lease agreement, she realized that Friendly was holding deposit funds in escrow. As a result, on December 13, 2016, Ms. King filed a resignation letter with the Department explaining she was no longer the qualifying broker for Friendly. Ms. King did not ask Mr. Berthelot or anyone else at Friendly for any other transaction records at this time, nor did she make any effort to review any of Friendly’s transaction files to determine whether Friendly had obtained other deposit funds or conducted other transactions similar to the one that was the subject of the Bilan complaint. After having knowledge of the Bilan complaint and transaction, and suspecting Friendly had been operating an escrow account, Ms. King made no immediate effort to access the operating or escrow bank accounts or reconcile the escrow account. After resigning as Friendly’s qualifying broker with the Department, Ms. King filed a complaint with the Department against Mr. Berthelot for unlicensed activity involving an escrow deposit.5/ Despite no longer being Friendly’s qualifying broker, on January 21, 2016, Ms. King executed and sent back to Ms. Kennedy the Inspection Report related to the Bilan complaint. Five months later, on or around May 25, 2016, Ms. Kennedy notified Ms. King she was taking over the investigation into the Viton and Dorestant cases. Ms. Kennedy testified that as part of her investigation into the Viton and Dorestant complaints, she interviewed Respondent again. Respondent denies she was interviewed by Ms. Kennedy regarding the Viton and Dorestant complaints, and instead insists she was only interviewed in January 2016 in connection with the Bilan complaint. Ms. King testified she believed Ms. Kennedy lied about interviewing her more than once because Ms. Kennedy was “lazy.” The undersigned rejects this assertion. Ms. Kennedy’s testimony was specific, knowledgeable, and credible, unlike Ms. King’s testimony, which was intentionally vague. Moreover, Ms. Kennedy specifically attributes her findings to specific sources such as Ms. King’s written response, her interview with Ms. King relating to the Viton and Dorestant transactions, and to her previous conversation with Ms. King during the Bilan investigation. The citations to information gleaned from the January 5, 2016, call were marked by the following sub-note. SUBJECT was previously interviewed by this Investigator in January 2016 for the unrelated complaint and was unaware that FRIENDLY INTERNATIONAL REALTY LLC had moved from license location 11900 Biscayne Blvd.[,] Suite 292 Miami, FL 33181 to 2132 NE 123ST[,] Miami, FL 33181 (See Ex. 9). At that time, SUBJECT was unable to provide the transaction file. Ms. Kennedy would have no reason to fabricate the source of the conclusions she reached in her report or the number of times she contacted Ms. King. Ms. Kennedy submitted her original investigative report to the Department for the Viton complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Mr. Viton and submitted a supplemental report on December 13, 2016. In this report, Ms. Kennedy determined that on February 25, 2016, Friendly issued a check in the amount of $875 to a person who was not listed on either the lease agreement, the receipts Friendly issued to Mr. Viton, or any other paperwork. Similarly, Ms. Kennedy submitted her original investigative report to the Department for the Dorestant complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Ms. Dorestant and submitted a supplemental report on December 13, 2016, indicating Ms. Dorestant did eventually receive a refund. During the course of the Viton investigation, Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Viton transaction or Friendly’s escrow account documentation. During the course of the Dorestant investigation Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Dorestant transaction or Friendly’s escrow account documentation. Professional Standards Mr. Saal, TIR’s qualifying broker, testified he had served as a broker for approximately ten years. As TIR’s qualifying broker, he kept the documentation related to the transactions handled by TIR’s six sales associates. The testimony of the TIR sales associate and property manager established that they relied on Mr. Saal for advice and to resolve issues. For example, when Ms. Dorestant began contacting TIR’s sales associate and property manager regarding the move-in and then for a refund of her deposit, the sales associate went to Mr. Saal to discuss the situation. Mr. Saal then attempted to resolve the issue by attempting to communicate with Friendly, Mr. Berthelot and Ms. King. Mr. Trafton, an experienced real estate broker and expert in brokerages, reviewed the Department’s investigative files and reports relating to the Viton and Dorestant complaints, as well as applicable Florida Statutes and rules. Mr. Trafton’s testimony and report established that in Florida the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to others. Petitioner showed that Mr. Viton was entitled to a refund of his deposit from Friendly and that Respondent erred in not ensuring he received this refund. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. “Active supervision” is not defined by statute or rule, but by usual and customary practices exercised statewide. “Active supervision” requires a broker to: have regular communications with all sales associates, not just communicating when there is a complaint; be aware of problems, issues and procedures in the office and among sales associates; have access to and signatory power on all operating and escrow accounts; hold regular scheduled office/sales meetings; conduct in–person training meetings; provide guidance and advice for sales associates; be intimately involved in how transaction forms and other documents are stored and retrieved; and be available to provide advice and direction on short notice. In other words, a broker should set the tone at the brokerage by overseeing her sales associates’ conduct of transactions. Ms. King failed to manage, direct, and control her real estate sales associate, Mr. Berthelot, to the standard expected of a qualifying broker in both the Viton and Dorestant transactions, if not all of Friendly’s transactions. She did not actively supervise Mr. Berthelot as a sales associate. Mr. Trafton also testified that a broker, not the brokerage, is ultimately responsible for preserving transaction files, forms related to transactions, and other related documents. Although less certain than Mr. Trafton about whether a broker or the brokerage firm is responsible for preservation of transaction files, Mr. Saal testified “the broker is responsible for the . . . transactions. It’s [the broker’s] client at the end of the day.” Ms. King failed to preserve accounts and records relating to Friendly’s accounts, the files related to the Viton and Dorestant rental transactions, or any other documents related to Friendly. Petitioner also clearly established that Respondent was guilty of either “culpable negligence” or “breach of trust” in the Viton or Dorestant transaction. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Viton complaint through September 14, 2017, the Department incurred $1,625.25 in costs, not including costs associated with an attorney’s time. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Dorestant complaint through September 14, 2017, the Department incurred $1,608.25 in costs, not including costs associated with an attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission: Case No. 17-3989 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(d)1., 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through IV of the Administrative Complaint in the Viton case. Imposing an administrative fine totaling $2,500 ($500 fine per count for Counts I, II and III; and $1,000 fine for Count IV). Imposing license suspension for a total period of nine months (one-month suspensions each for Counts I, II, and III; and a six-month suspension for Count IV). Imposing costs related to the investigation and prosecution of the case in the amount of $1,625.25. Case No. 17-3961 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through III of the Administrative Complaint in the Dorestant case. Imposing an administrative fine totaling of $2,000 ($500 fine per count for Counts I and II; and $1,000 fine for Count III). Imposing license suspension for a total period of eight months to be imposed consecutive to the suspension in Case No. 17-3989 (one-month suspensions each for Counts I and II; and a six-month suspension for Count III). Imposing costs related to the investigation and prosecution of the case in the amount of $1,608.75. DONE AND ENTERED this 25th day of January, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 25th day of January, 2018.
The Issue Whether Respondent acted as a broker or sales associate without being the holder of a valid and current broker or sales associate license, in violation of Subsection 475.42(1)(a), Florida Statutes (2004),1 and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes; and Whether Respondent published or caused to be published an advertisement for the sale of real properties, advertising himself to be a broker, at the time Respondent's license was in inactive status for failure to renew, in violation of Subsection 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings for the Commission. Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. From April 18, 2002, through September 30, 2003, Respondent was an active sales associate in association with Caldwell Banker Residential Real Estate, Inc., a brokerage corporation located at 5981 Catheridge Avenue, Sarasota, Florida 34232. Respondent's Florida real estate sales associate license, number 95480, was involuntarily placed on inactive status due to non-renewal during the period October 1, 2003, through August 15, 2004. On or about February 22, 2004, Respondent published or caused to be published an advertisement for the sale of real properties with the South Florida Sun Sentinel, and in that advertisement, Respondent held himself out to be a realtor in the State of Florida, associated with Caldwell Banker. From August 16, 2004, through the present, upon the late renewal of his license, Respondent is listed as an inactive sales associate.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Subsections 475.42(1)(a), 475.25(1)(a), and 475.25(1)(c), Florida Statutes, and Florida Administrative Code Rule 61J2-10.025 and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint; suspending Respondent's license for a period of one year; fining Respondent the sum of $1,000; and requiring that Respondent pay fees pursuant to Subsection 455.227(3), Florida Statutes, for investigative costs, in the amount of $841.50. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 4th of December, 2006.
The Issue Should Petitioner, Ariella Rubinger's, application for a real estate sales associate license be granted.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is an applicant for licensure as a real estate sales associate. Her application was filed on December 5, 2007. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application. On July 25, 2007, the Broward County, Florida Circuit Court, returned a four-count information charging Petitioner with DUI Manslaughter and Vehicular Homicide. The charges are still pending in Broward County. On May 7, 2008, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are "Unpersuasive Testimony" and "Crimes Recent." In addition, it indicates that the "[a]pplicant is currently facing charges of DUI Manslaughter and Vehicular Homicide in the Broward County Circuit Court."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Ariella Rubinger's, application for licensure be held in abeyance until the prosecution of the crimes pending in Broward County Circuit Court is resolved. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of October, 2008. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kerey Carpenter, Esquire 1551 Sandspur Road Maitland, Florida 32751 S.W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
