01-002473 Fred Goodman, D/B/A Eyes And Ears Investigative Services, F/B/O June Rosacker vs. Department Of Banking And Finance Status: Closed Recommended Order on Thursday, October 4, 2001.

Summary: Private investigator, filing claim on behalf of widow whose late husband`s name was the same as the reported lessee of safe deposit box in which unclaimed property found, failed to prove widow`s entitlement to property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED GOODMAN, d/b/a EYES )

AND EARS INVESTIGATIVE SERVICES , )

o/b/o JUNE ROSACKER, )

)

Petitioner, )

)

vs. ) Case No. 01-2473

)

DEPARTMENT OF BANKING AND )

FINANCE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

August 16, 2001, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Philip J. Stoddard, Qualified

Representative

Finder Resource, Inc.

150 Kent Road, Suite 2-A

St. Augustine, Florida 32086

For Respondent : Paul C. Stadler, Jr., Esquire

Department of Banking and Finance

101 East Gaines Street

The Fletcher Building, Suite 526

Tallahassee, Florida 32399-0350

STATEMENT OF THE ISSUE

Whether Petitioner, acting on behalf of June Rosacker, is

entitled, pursuant to Chapter 717, Florida Statutes, to the

$37,281.25 in the Department of Banking and Finance's

(Department's) Unclaimed Property Account Number 00963-1981-

00026, which was derived from the Department's sale of five

$5,000.00 Florida Development Commission Sunshine Skyway Revenue

Bonds, numbers 2114, 2115, 2116, 2117, and 2118, that Gulfstream

Bank, N. A., had turned over to the Department as unclaimed

property.

PRELIMINARY STATEMENT

On June 13, 2001, the Department issued a notice of intent

to deny Petitioner's claim, made on behalf of June Rosacker, of

entitlement to the monies in Unclaimed Property Account Number

00963-1981-00026. On or about June 21, 2001, Petitioner filed a

Petition for Formal Evidentiary Hearing on the Department's

proposed denial of the claim. On June 25, 2001, the matter was

referred to the Division of Administrative Hearings (Division)

for the assignment of a Division Administrative Law Judge to

conduct the hearing Petitioner had requested.

On August 1, 2001, the parties filed a Prehearing

Stipulation which contained, among other things, the following

"Stipulated Facts":

1. The Department has received the amount

of $37,281.25 derived from the sale of five

$5,000.00 Florida Development Commission

Sunshine Skyway Revenue Bearer Bonds numbers

2114-2118 in safe deposit box number 3228

opened in the name of Richard Rosacker and

reported by Gulfstream, N.A., Unclaimed

Property Account Number 00963-1981-00026.

2. Eyes and Ears Investigative Services

filed a claim for the account on behalf of

June Rosacker.

As noted above, the hearing was held on August 16, 2001.

Three witnesses testified at the hearing : Fred Goodman, June

Rosacker, and John Alcorn. In addition, 33 exhibits

(Petitioner's Exhibits 1 through 24, and Respondent's Exhibits 1

through 9) were offered and received into evidence.

At the close of the evidentiary portion of the hearing the

undersigned established a deadline (14 days from the date of the

filing of the hearing transcript with the Division) for the

filing of proposed recommended orders.

A transcript of final hearing (consisting of one volume)

was filed with the Division on September 14, 2001.

Petitioner and the Department filed Proposed Recommended

Orders on September 26, 2001, and September 28, 2001,

respectively. These post-hearing submittals have been carefully

considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made

to supplement the "Stipulated Facts" set forth in the parties'

Prehearing Stipulation:

1. June Rosacker (Mrs. Rosacker) is the widow of Richard

Rosacker (Mr. Rosacker).

2. She and her late husband were married for 38 years

before he passed away on October 11, 1995.

3. Mr. and Mrs. Rosacker lived in a residence on the

premises of Floral Acres, a commercial nursery located at 109

Northeast 17th Street in Delray Beach from 1961 until 1978. It

was their first marital residence.

4. Mr. Rosacker was the Vice President of Operations of

Floral Acres until 1969, when he resigned his position.

5. Mr. Rosacker's resignation coincided with his cousin,

Arthur Rosacker, Jr. (Arthur Jr.), succeeding Arthur Rosacker

Sr. (Arthur Sr.), Arthur Jr.'s father and Mr. Rosacker's uncle,

as President of Floral Acres. Mr. Rosacker and Arthur Jr. did

not get along with each other as well as Mr. Rosacker and Arthur

Sr. did.

6. Mr. Rosacker started his own business in 1970.

7. Arthur Sr. executed his Last Will and Testament (Arthur

Sr.'s Will) in 1971. Mr. Rosacker was not named a beneficiary

in Arthur Sr.'s Will.

8. Arthur Sr. passed away on April 4, 1978.

9. Sometime in the 1970's, Mr. Rosacker received at his

and Mrs. Rosacker's Floral Acres residence correspondence from a

bank, which was not Mr. and Mrs. Rosacker's "regular bank,"

advising Mr. Rosacker that the bank was holding $25,000.00 in

"funds" in his name. 1/

10. Mr. Rosacker thought "the bank must have made a

mistake." He had no knowledge of the "funds" which were the

subject of the bank's correspondence.

11. Mr. Rosacker went to the bank (which was located in

Boca Raton) for the purpose of letting the bank know that the

"funds" were not his.

12. Upon his return, he told Mrs. Rosacker that had taken

care of the matter by telling the bank "it was not his money, he

didn't put any money in the bank, and he knew nothing about it."

13. In 1981, Boca Raton-based Gulfstream Bank, N.A. 2/

(Gulfstream) reported to the Department that it was holding as

unclaimed property five $5,000.00 Florida Development Commission

Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117,

and 2118, (Bonds in Question) that had been left in a safe

deposit box, number 3228, rented in the name of a "Richard

Rosacker" whose address was not "on file" at the bank. 3/

Gulfstream's report to the Department further indicated that the

"date of [the] last transaction" involving safe deposit box

number 3228 was May 5, 1971. On this date, according to the

report, the lessor of the box was Fort Lauderdale-based American

National Bank and Trust Company (which subsequently merged with

Gulfstream).

14. The bonds were remitted to the Department, which sold

them for a total of $37,281.25.

15. At no time did either Mr. or Mrs. Rosacker rent a safe

deposit box from American National Bank and Trust Company or

Gulfstream.

16. At no time did either Mr. or Mrs. Rosacker purchase

Florida Development Commission Sunshine Skyway Revenue Bonds.

17. On May 18, 1984, Mr. Rosacker executed a Declaration

of Trust, which provided, in pertinent part, as follows:

ARTICLE I

TRUST CORPUS

This Trust shall consist of the original TEN

DOLLARS ($10.00) contribution and additional

assets may be contributed by me or by any

other person. All trust assets shall be

listed on the SCHEDULE OF ASSETS attached

hereto, may be comprised of property of any

kind and character, including insurance

benefits of any nature, and may be added by

inter vivos or testamentary transfer, or

otherwise at my demise. Any asset

registered in the name of the Trust or

Trustee 4/ shall be presumed to be a part

of this Trust, whether such asset is listed

on the SCHEDULE OF ASSETS or omitted

therefrom, it being my intent to expand

rather than restrict the list of assets held

in this Trust. . . .

ARTICLE V

DISPOSITION AT SETTLOR'S DEMISE-RESIDUARY

TRUST PROVISIONS

A. If my wife, JUNE WEBB ROSACKER, survives

me, I direct my Trustee to fund into "Trust

B" provided under paragraph B the largest

amount, if any, that can pass free of

Federal estate tax under this instrument by

reason of the unified credit and the state

death tax credit, reduced by property

passing outside this instrument which does

not qualify for the marital or charitable

deduction in computing Grantor's federal

estate tax. The values as finally fixed for

Federal estate tax purposes shall govern the

funding of this Trust. The balance of my

estate I give outright to my wife, June Webb

Rosacker. . . .

ARTICLE VI

APPOINTMENT OF TRUSTEE . . .

B. Upon my demise my wife, JUNE WEBB

ROSACKER and my friend, MARVIN SALINE, shall

be appointed the Trustees of all shares of

this Trust. Should MARVIN SALINE be unable

to serve as Trustee, my brother, HANS DONALD

ROSACKER shall be appointed Trustee. . . .

Should neither of the foregoing be able to

serve as Trustee with my spouse then she

shall appoint as Trustee a corporate

fiduciary.

The "Declaration of Trust's" "Schedule of Assets" was left

blank.

18. On September 23, 1988, Mr. Rosacker executed an

Amendment to Trust Agreement, which provided, in pertinent part,

as follows:

I hereby amend Article VI, Paragraph A to

provide that if my spouse cannot serve as

Trustee, then my daughters, JANICE and

ELLEN, shall serve as Trustees, or either

shall serve as sole trustee if one cannot

serve. I then amend Paragraph B to appoint

my spouse and my daughters, JANICE and

ELLEN, (or either if one cannot serve) as

Co-Trustees at my demise. I therefore

revoke all reference to MARVIN SALINE and

HANS DONALD ROSACKER as potential

Trustees, . . . .

19. On May 18, 1984, the same day he executed the

Declaration of Trust, Mr. Rosacker also executed a Last Will and

Testament, which provided, in pertinent part, as follows:

ARTICLE III

I give to my beloved wife, JUNE WEBB

ROSACKER, in fee, all clothing, jewelry,

household goods, personal effects,

automobiles and other tangible personal

property not otherwise specifically

bequeathed by Will, Codicil or Separate

Writing, except cash on hand, owned by me at

the time of my death. . . .

ARTICLE V

All the rest, residue and remainder of the

property which I may own at the time of my

death, real, personal and mixed, tangible

and intangible, of whatsoever nature and

wheresoever situated, including all property

which I may acquire or become entitled to

after the execution of this Will, . . . , I

bequeath and devise to the Trustee of that

Trust Agreement executed by me on ________,

1984, said assets to be held IN TRUST as

part of the Trust Estate as that term is

used in said Trust Agreement as further

amended at time prior to my death. . . .

ARTICLE VI

I hereby appoint my wife, JUNE WEBB

ROSACKER, to be my Personal Representative

of this my Last Will and Testament. . . .

20. Fred Goodman is a Florida-licensed private

investigator who does business as Eyes and Ears Investigative

Services. He has been "involved in abandoned property matters"

for the past nine years.

21. In February of 1994, Mr. Goodman visited Mr. and

Mrs. Rosacker at their home in Oveido, Florida, to seek

authorization to file a claim with the Department, on behalf of

Mr. Rosacker, to recover the proceeds of the sale of the Bonds

in Question.

22. Mr. Rosacker declined to give Mr. Goodman such

authorization. He told Mr. Goodman that, although he believed

that the bonds "were put in the bank for him by his uncle,"

Arthur Sr., "it was a situation in which he was not going to be

able to prove that he owned the funds" and that therefore it

would be a "waste of time" for him to pursue the matter.

23. Following Mr. Rosacker's death in 1995, Mr. Goodman

entered into an agreement with Mrs. Rosacker in which Mrs.

Rosacker agreed to "appoint Eyes and Ears Investigative

Services . . . an irrevocable Limited Power of Attorney to

proceed on [her] behalf in accordance with [the recovery of the

$37,281.25 in assets described in the agreement]; [and] to

perform any and all acts, including but not limited to the

execution of any and all documents, for and on behalf of [her],

as may be required in order to effect the recovery and

disbursement of said assets to Eyes and Ears Investigative

Services Escrow Account." The agreement provided that, "for

full compensation of its Services," Eyes and Ears Investigative

Services would be "assigned a fee of 30% [of] said assets."

24. Although it has been almost six years since

Mr. Rosacker has passed away, his Last Will and Testament has

not yet been probated.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57,

Florida Statutes.

26. Chapter 717, Florida Statutes, contains the "Florida

Disposition of Unclaimed Property Act" (Act). Section 717.001,

Florida Statutes.

27. Section 717.101, Florida Statutes, defines certain

terms used in the Act. It provides, in pertinent part, as

follows:

(2) "Apparent owner" means the person

whose name appears on the records of the

holder as the person entitled to property

held, issued, or owing by the holder. . . .

(6) "Department" means the Department of

Banking and Finance. . . .

(10) "Holder" means a person, wherever

organized or domiciled, who is:

(a ) In possession of property belonging

to another; . . .

(15) "Owner" means a depositor in the

case of a deposit, a beneficiary in case of

a trust other than a deposit in trust, a

claimant, or a payee in the case of other

intangible property, or a person having a

legal or equitable interest in property

subject to this chapter or his or her legal

representative.

28. Pursuant to Section 717.116, Florida Statutes, "[a ] ll

tangible and intangible property held in a safe-deposit box or

any other safekeeping repository in this state in the ordinary

course of the holder's business, and proceeds resulting from the

sale of the property permitted by law, that has not been claimed

by the owner for more than 3 years after the lease or rental

period on the box or other repository has expired are presumed

unclaimed."

29. If such unclaimed intangible property is a bond that

was issued by "this state or any political subdivision of this

state" and the "last known address of the apparent owner or

other person entitled to the property" is unknown, the property

is "subject to the custody of the [D ]epartment as unclaimed

property." Sections 717.103 and 717.1035, Florida Statutes.

30. The holder of a bond that is "subject to the custody

of the [D ]epartment as unclaimed property" is required to

deliver the property to the Department, along with a report.

Sections 717.117 and 717.119, Florida Statutes.

31. "Upon . . . delivery of property to the [D ]epartment,

the state assumes custody and responsibility for the safekeeping

of property". Section 717.1201(1), Florida Statutes.

32. Unclaimed "[p ] roperty removed from a safe-deposit box

or other safekeeping repository is received by the [D]epartment

subject to the holder's right . . . to be reimbursed for the

actual cost of the opening and to any valid lien or contract

providing for the holder to be reimbursed for unpaid rent or

storage charges. The [D ]epartment [must] make the reimbursement

to the holder out of the proceeds remaining after the deduction

of the [D] epartment's selling cost." Section 717.1201(7),

Florida Statutes.

33. The Department has the authority, after receiving the

unclaimed property, to sell it. Section 717.122, Florida

Statutes.

34. Section 717.123(1), Florida Statutes, requires that

the Department do the following upon selling the property:

All funds received under this chapter,

including the proceeds from the sale of

unclaimed property under s. 717.122, shall

forthwith be deposited by the department in

the Unclaimed Property Trust Fund. The

department shall retain, from funds received

under this chapter, an amount not exceeding

$8 million from which the department shall

make prompt payment of claims allowed by the

department and shall pay the costs incurred

by the department in administering and

enforcing this chapter. All remaining funds

received by the department under this

chapter shall be deposited by the department

into the State School Fund.

35. Section 717.124, Florida Statutes, addresses the

"[f ] iling of claim[s] with [the] [D]epartment," and provides as

follows:

(1 ) Any person, excluding another state,

claiming an interest in any property paid or

delivered to the department under this

chapter may file with the department a claim

on a form prescribed by the department and

verified by the claimant. The department

shall determine each claim within 90 days

after it is filed. Such determination shall

contain a notice of rights provided by ss.

120.569 and 120.57.

(2 ) A claim for a cashier's check or a

stock certificate without the original

instrument may require an indemnity bond

equal to the value of the claim to be

provided prior to issue of the stock or

payment of the claim by the department.

(3 ) The department may require an

affidavit swearing to the authenticity of

the claim, lack of documentation, and an

agreement to allow the department to provide

the name and address of the claimant to

subsequent claimants coming forward with

substantiated proof to claim the account.

This shall apply to claims equal to or less

than $250.

(4 ) If a claim is determined in favor of

the claimant, the department shall deliver

or pay over to the claimant the property or

the amount the department actually received

or the proceeds if it has been sold by the

department, together with any additional

amount required by s. 717.121.

(5)(a ) If an owner authorizes an

attorney, Florida-certified public

accountant, or private investigative agency

which is duly licensed to do business in

this state to claim the unclaimed property

on the owner's behalf, the department is

authorized to make distribution of the

property or money in accordance with such

power of attorney.

(b )1. Payments of approved claims for

unclaimed cash accounts shall be made to the

owner after deducting any fees authorized

pursuant to a written power of attorney.

2. Payments of fees authorized pursuant

to a written power of attorney for approved

cash claims shall be forwarded to the

designated attorney, Florida-certified

public accountant, or private investigative

agency. Such payments may be made by

electronic funds transfer and may be made on

such periodic schedule as the department may

define by rule, provided the payment

intervals do not exceed 31 days.

3. Payments of approved claims for

unclaimed securities and other intangible

ownership interests made to an attorney,

Florida-certified public accountant, or

private investigative agency shall be

promptly deposited into a trust or escrow

account which is regularly maintained by the

attorney, Florida-certified public

accountant, or the private investigative

agency in a financial institution authorized

to accept such deposits and located in this

state.

(c ) Distribution of unclaimed property

by the attorney, Florida-certified public

accountant, or private investigative agency

to the claimant shall be made within 10 days

following final credit of the deposit into

the trust or escrow account at the financial

institution, unless a party to the agreement

protests in writing such distribution before

it is made.

(6 ) The department shall not be civilly

or criminally liable for any property or

funds distributed pursuant to this section,

provided such distribution is made in good

faith.

36. Section 717.1242(1), Florida Statutes, discusses the

"jurisdiction of the circuit court sitting in probate and the

[D ]epartment" in those instances where the apparent owner of the

unclaimed property is deceased. It provides as follows:

It is and has been the intent of the

Legislature that, pursuant to s.

26.012(2)(b), circuit courts have

jurisdiction of proceedings relating to the

settlement of the estates of decedents and

other jurisdiction usually pertaining to

courts of probate. It is and has been the

intent of the Legislature that, pursuant to

s. 717.124, the department determines the

merits of claims for property paid or

delivered to the department under this

chapter. Consistent with this legislative

intent, any estate or heir of an estate

seeking to obtain property paid or delivered

to the department under this chapter must

file a claim with the department as provided

in s. 717.124.

37. "If the apparent owner is deceased, the Claimant must

provide [the Department with] appropriate documentation to

connect the Estate that is being represented by the claimant to

the deceased apparent owner." Rule 3D-20.0022(4), Florida

Administrative Code. 5/

38. "Any person aggrieved by a decision of the

[D ]epartment may petition for a hearing as provided in ss.

120.569 and 120.57. In any proceeding for determination of a

claim to property paid or delivered to the [D ]epartment under

[the Act], the burden shall be upon the claimant to establish

entitlement to the property by a preponderance of evidence."

Section 717.126, Florida Statutes; see also Rule 3D-20.0022(1),

Florida Administrative Code ("Any and all persons filing a claim

for unclaimed property has the burden to provide to the

Department a preponderance of evidence to prove entitlement to

such property being claimed.").

39. "A 'preponderance' of the evidence is defined as 'the

greater weight of the evidence,' . . . or evidence that 'more

likely than not' tends to prove a certain proposition." Gross

v. Lyons , 763 So. 2d 276, 280 (Fla. 2000).

40. In the instant case, Petitioner has filed a claim on

behalf Mrs. Rosacker pursuant Section 717.124, Florida Statutes,

seeking to recover the proceeds of the sale of the Bonds in

Question, five $5,000.00 Florida Development Commission Sunshine

Skyway Revenue Bonds that Gulfstream, in 1981, had turned over

to the Department as unclaimed property. Mrs. Rosacker, through

Petitioner, contends that her deceased husband, Mr. Rosacker,

was the owner of these bonds and that she is entitled to the

bond proceeds as "the successor trustee of her husband's

intervivos trust."

41. The preponderance of the evidence does not support

Mrs. Rosacker's contention.

42. While in the 1981 unclaimed property report it

submitted to the Department Gulfstream indicated that the Bonds

in Question had been left in a safe deposit box leased, on or

before May 17, 1971, by its predecessor, Fort Lauderdale-based

American National Bank and Trust Company, to a "Richard

Rosacker," it does not appear that the Richard Rosacker to whom

Mrs. Rosacker was married was the lessee of this box or the

owner of its contents. More likely than not, some other Richard

Rosacker , 6/ or someone else using that name, leased the box

and used it for the safekeeping of the bonds.

43. No showing has been that Mr. Rosacker, at any time,

had access to the box or exercised dominion and control over its

contents. 7/ Indeed, by Mrs. Rosacker's own admission (made

during her deposition on August 6, 2001, the transcript of which

was received into evidence as Respondent's Exhibit 8), neither

she nor Mr. Rosacker ever rented a safe deposit box from

American National Bank and Trust Company or from Gulfstream, nor

did she or her husband ever purchase Florida Development

Commission Sunshine Skyway Revenue Bonds. 8/ These admissions

by Mrs. Rosacker rebut any presumption, arising from the name of

the lessee of safe deposit box number 3228 (as reported by

Gulfstream), that Mr. Rosacker owned the Bonds in Question. 9/

44. Mrs. Rosacker has speculated (as had Mr. Rosacker when

discussing the mater with Petitioner in February of 1994) that

Mr. Rosacker's uncle, Arthur Sr., left the Bonds in Question in

safe deposit box number 3228 as a gift for Mr. Rosacker. Mere

speculation, however, is insufficient to establish

Mr. Rosacker's ownership of the unclaimed bonds. See Lassett v.

Lassett , 768 So. 2d 472, 474 (Fla. 2d DCA 2000)("The husband

speculated that the wife had acquired additional coins during

their marriage. There was no proof of this and no coins were

produced or traced during the dissolution proceeding.

Speculation, conjecture, and suspicion can neither establish the

existence of the coins nor their status as marital property.");

Pringle v. Marine Fisheries Commission , 732 So. 2d 395, 398

(Fla. 1st DCA 1999)(Van Nortwick, J., specially

concurring)("Bare speculation about a theoretical fishing method

cannot constitute competent substantial evidence to support a

finding of commercial viability.") ; LeMaster v. Glock, Inc. , 610

So. 2d 1336, 1338-39 (Fla. 1st DCA 1992)("It has long been the

rule that a witness's opinion as to what would have happened if

circumstances were different constitutes rank speculation that

is not competent evidence: 'Conjecture has no place in

proceedings of this sort. . . . The law seems well established

that testimony consisting of guesses, conjecture or

speculation--suppositions without a premise of fact--are clearly

inadmissible in the trial of causes in the courts of this

country.'"); and Robinson v. Allstate Insurance Company ,

367 So. 2d 708, 711 (Fla. 3d DCA 1979)("A mere speculation or

inference of negligence is insufficient to support a jury

verdict.").

45. "When a claim of a gift is not asserted until after

the death of the alleged donor [as in the instant case], the

donee [or the donee's successor(s) in interest] must show by

clear and satisfactory evidence every element which is requisite

to constitute a gift." Wood v. McClellan , 247 So. 2d 77, 78

(Fla. 1st DCA 1971). These elements include donative intent and

delivery , either actual, constructive, or symbolic, to the

donee. See J .R. Brooks & Son, Inc. v. Quiroz , 707 So. 2d 861,

862 (Fla. 3d DCA 1998) ("[T ]he record is devoid of any indication

that a valid transfer took place by either of the two

conceivable ways it could have been legally accomplished. No

sale . On the one hand, it is undisputed that Neal did not buy

the corporation's interest in the truck at anytime. No gift .

On the other, even if arguendo a Florida corporation has the

legal power to make a non-charitable gift in any circumstances,

. . . there is no evidence whatever of either (a) an expression

of donative intent or (b) an actual, constructive or symbolic

delivery of the subject matter--both of which are required to

sustain the validity of a gift."). In the instant case, there

is no competent substantial evidence that Arthur Sr. ever

exercised dominion and control over the Bonds in Question, much

less knowingly and intentionally surrendered such dominion and

control to Mr. Rosacker. Accordingly, there is no evidentiary

basis upon which to conclude that the Bonds in Question were a

gift to Mr. Rosacker from Arthur Sr.

46. In view of the foregoing, the claim of entitlement to

the proceeds of the sale of the Bonds in Question, filed by

Petitioner on Mrs. Rosacker's behalf, which is premised upon the

contention that the bonds were owned by Mr. Rosacker, must be

rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department enter a final order

rejecting Petitioner's claim that Mrs. Rosacker is entitled to

the proceeds of the Bonds in Question.

DONE AND ENTERED this 4th day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________ ________________

STUART M. LERNER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of October, 2001.

ENDNOTES

1/ There is no indication that the correspondence specified

that the "funds" the bank was holding were Florida Development

Commission Sunshine Skyway Revenue Bonds.

2/ Gulfstream's offices were located approximately ten to 15

miles from Floral Acres.

3/ The report gave only the name of the lessee of the box, and

no other identifying information.

4/ "Bearer bonds [like the Bonds in Question], by their nature,

are not titled in the name of one or more persons." Winterton v.

Kaufmann , 504 So. 2d 439, 442 (Fla. 3d DCA 1987).

5/ This rule was adopted by the Department pursuant to the

"rulemaking authority" described in Section 717.138, Florida

Statutes, which authorizes the Department "to adopt rules

pursuant to ss. 120.536(1) and 120.54 to implement the

provisions of [Chapter 717, Florida Statutes]."

6/ There has been no showing that, at the time the box was

leased, there was not any other Richard Rosacker living in, or

having some connection to, the South Florida area.

7/ "The fact that a person may have the right of access through

a written instrument to the contents of a safe deposit box does

not mean, absent such language in the lease agreement, that said

person has a right to the ownership of the contents found in the

box." Bechtel v. Bechtel's Estate , 330 So. 2d 217, 219 (Fla. 2d

DCA 1976).

8/ A party's own statement made other than at the final

hearing, which is offered to prove the truth of the matter

asserted therein, is hearsay evidence, but it nonetheless is

sufficient, standing alone, to support a finding of fact because

it falls within the "admissions" exception to the hearsay rule

described in Section 90.803(18), Florida Statutes. See Section

120.57(1)(c), Florida Statutes ("Hearsay evidence may be used

for the purpose of supplementing or explaining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil

actions.").

9/ In its Proposed Recommended Order, Petitioner suggests that

the "funds" referred to in the correspondence Mr. Rosacker

received in the 1970's, described in paragraph 9 of this

Recommended Order, were the Bonds in Question. To the extent

that such an inference may be made, Mr. Rosacker's statement

against interest, upon receiving such correspondence, that the

"funds" were not his further undercuts Petitioner's position

that Mr. Rosacker was the owner of these bonds. See Section

90.804, Florida Statutes (" (1) DEFINITION OF UNAVAILABILITY .--

'Unavailability as a witness' means that the declarant: . . .

(d) Is unable to be present or to testify at the hearing

because of death . . . . (2) HEARSAY EXCEPTIONS .--The following

are not excluded under s. 90.802, provided that the declarant is

unavailable as a witness: . . . . (c ) Statement against

interest.--A statement which, at the time of its making, was so

far contrary to the declarant's pecuniary or proprietary

interest or tended to subject the declarant to liability or to

render invalid a claim by the declarant against another, so that

a person in the declarant's position would not have made the

statement unless he or she believed it to be

true. . . ."); Cf . Rice v. Ransom , 8 Cal.Rptr. 840, 842 ( Cal.

App. 1960) ( "From the testimony of Wiggins [the husband's and

wife's friend] it is quite clear that Charles [the husband]

considered the money in the joint bank accounts was, and

intended that it should be, Alice's (the wife's) separate

property. And the inference is that when Charles stated to

Wiggins that the 'money that was involved in the property they

owned was hers,' he was referring to the ranch property which

was sold. These statements were declarations against interest

and rebut the inference of a true joint tenancy.").

COPIES FURNISHED:

Philip J. Stoddard, Qualified Representative

Finder Resource, Inc.

150 Kent Road, Suite 2-A

St. Augustine, Florida 32086

Paul C. Stadler, Jr., Esquire

Department of Banking and Finance

101 East Gaines Street

The Fletcher Building, Suite 526

Tallahassee, Florida 32399-0350

Honorable Robert F. Milligan

Department of Banking and Finance

Office of the Comptroller

The Capitol, Plaza Level 09

Tallahassee, Florida 32399-0350

Robert Beitler, General Counsel

Department of Banking and Finance

101 East Gaines Street

The Fletcher Building, Suite 526

Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.