01-004356RU Fred Goodman, D/B/A Eyes And Ears Investigative Services vs. Department Of Banking And Finance, Division Of Finance Status: Closed DOAH Final Order on Tuesday, April 2, 2002.

Summary: Petition should be dismissed and relief should be denied when Petitioner fails to prove essential elements of basis for claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED GOODMAN, d/b/a EYES AND EARS )

INVESTIGATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No: 01 - 4356RU

)

DEPARTMENT OF BANKING AND FINANCE, )

DIVISION OF FINANCE, )

)

Respondent. )

_________________ __________________ )

FINAL ORDER

Pursuant to a stipulation, all parties in this case

waived their right to an evidentiary hearing and agreed that

this case would be submitted to the Administrative Law Judge

for disposition on the basis of stipulated f acts and certain

documentary exhibits identified in the stipulation.

APPEARANCES

For Petitioner: Philip J. Stoddard, J.D.

Finder Resource, Inc.

150 Kent Road, Suite 2 - A

St. Augustine, Florida 32086

For Respondent: Paul C. Stadler, Jr., Esq uire

Office of the Comptroller

Department of Banking and Finance

The Fletcher Building, Suite 526

101 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The central issue presented in this case concerns whether

the Depa rtment of Banking and Finance’s application of Section

717.124(5), Florida Statutes, as amended effective October 1,

2001, to claims filed prior to October 1, 2001, but paid after

October 1, 2001, is an unpromulgated rule in violation of

Section 120.56(4), Florida Statutes.

PRELIMINARY STATEMENT

On or about November 9, 2001, Fred Goodman, d/b/a Eyes

and Ears Investigative Services ("Petitioner"), filed the

instant Petition with the Division of Administrative Hearings.

In his Petition, Petitioner challenges as an unpromulgated

rule the application of Section 717.124(5), Florida Statutes,

as amended, to claims filed with the State of Florida,

Department of Banking and Finance ("Department"), prior to

October 1, 2001, and paid on or after October 1, 2001.

On January 14, 2002, Petitioner and the Department filed

a stipulation which stipulated to certain facts and also

stipulated that certain documentary exhibits would be received

in evidence. The parties also stipulated to the filing of

their proposed final ord ers on or before February 20, 2002.

All parties filed timely proposed final orders containing

proposed findings of fact and conclusions of law. The

parties' proposals have been carefully considered during the

preparation of this Final Order.

FINDINGS O F FACT

Computer Mart Claim

1.(A) On or about September 4, 2001, Petitioner filed a

claim on behalf of Computer Mart, Inc., for unclaimed property

account number 3563 - 1994 - 44 in the amount of $1,854.85 and

reported in the name of Computer Mart (“the Comput er Mart

Claim”).

(B) Prior to the filing of the Computer Mart Claim,

Computer Mart, Inc., executed an Agreement authorizing

Petitioner to file the claim on its behalf.

(C) Petitioner obtained a bankruptcy search for Florida

Central Realty, formerly known as Computer Mart.

(D) On or about October 12, 2001, the Department

approved the Computer Mart Claim.

(E) The Agreement authorized the payment of fees of

thirty percent of the accounts claimed, which equaled $556.45.

(F) The remaining seventy percent of the accounts

claimed equaled $1,298.40.

(G) On or about October 19, 2001, the Department issued

a warrant in the amount of $556.45 to Petitioner.

(H) On or about October 19, 2001, the Department issued

a warrant in the amount of $1,298.40 to Computer Ma rt, Inc.

Diversified Claim

2.(A) On or about September 4, 2001, Petitioner filed a

claim on behalf of Diversified Hospitality Group, Inc., for

unclaimed property account numbers 6467 - 96 - 31364, 1165 - 92 -

2634, 1165 - 92 - 2241, 1165 - 92 - 24712, and 1165 - 92 - 1871 in the

aggregate amount of $4,165.60 and reported in the name of

Diversified Hospitality or Diversified Hospitality Group (“the

Diversified Claim”).

(B) Prior to the filing of the Diversified Claim,

Diversified Hospitality Group, Inc., executed an Agreement

authorizing Petitioner to file the claim on its behalf.

(C) Petitioner obtained a bankruptcy search for

Diversified Hospitality Group, Inc.

(D) On or about October 8, 2001, the Department approved

the Diversified Claim.

(E) The Agreement authorized the payment of fees of

thirty percent of the accounts claimed, which equaled

$1,249.68.

(F) The remaining seventy percent of the accounts

claimed equaled $2,915.92.

(G) On or about October 19, 2001, the Department issued

a warrant in the aggregate amount of $1,249.68 to Petitioner.

(H) On or about October 19, 2001, the Department issued

a warrant in the aggregate amount of $2,915.92 to Diversified

Hospitality Group, Inc.

Charde Claim

3.(A) On or about November 13, 2001, Petitioner filed a

claim on behalf of Charde, Inc., for unclaimed property

account number 4432 - 00 - 2 in the amount of $1,641.47 and

reported in the name of Charde, Inc. (“the Charde Claim”).

(B) Prior to the filing of the Charde Claim, Charde,

Inc., executed an Agreement authorizing Petiti oner to file the

claim on its behalf.

(C) Petitioner obtained a bankruptcy search for Charde,

Inc.

(D) On or about November 13, 2001, the Department

approved the Charde Claim.

(E) The Agreement authorized the payment of fees in the

amount of $125.00.

(F ) After the deduction of fees, the remaining amount

equals $1,516.47.

(G) On or about November 20, 2001, the Department issued

a warrant in the amount of $125.00 to Petitioner.

(H) On or about November 20, 2001, the Department issued

a warrant in the am ount of $1,516.47 to Charde, Inc.

MTS Claim

4.(A) On or about July 11, 2001, Petitioner filed a

claim on behalf of MTS Roofing and Installation Corporation,

for unclaimed property account number 1495 - 96 - 83 in the amount

of $1,000.00 and reported in the n ame of MTS Roofing

Corporation (“the MTS Claim”).

(B) Prior to the filing of the MTS Claim, MTS Roofing

and Installation Corporation, executed an Agreement

authorizing Petitioner to file the claim on its behalf.

(C) Petitioner obtained a bankruptcy searc h for MTS

Roofing and Installation Corporation

(D) On or about November 7, 2001, the Department

approved the MTS Claim.

(E) The Agreement authorized the payment of fees of

thirty percent of the accounts claimed, which equaled $300.00.

(F) The remaining seventy percent of the accounts

claimed equaled $700.00.

(G) On or about November 14, 2001, the Department issued

a warrant in the amount of $300.00 to Petitioner.

(H) On or about November 14, 2001, the Department issued

a warrant in the amount of $700.0 0 to MTS Roofing &

Installation Corp.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

Sections 120.56, 120.569 and 120.57, Florida Statutes.

6. Section 120.52(15), Florida Statutes, provides:

(15) "Rule" means each agency statement

of general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form whic h imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which

do not affec t either the private interests

of any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued

to an agency by the Attorney General or

agency legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or

instructions to state agencies issued by

the Comptroller as chief fiscal officer of

the state and relating or pertaining to

claims for payment submitted by state

agencies to the Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive

Office of the Governor relating to

inf ormation resources management.

7. Section 120.56, Florida Statutes, provides in pertinent

part:

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS. –

(a) Any person substantially affected by

an agency statement may seek an

admini strative determination that the

statement violates s. 120.54(1)(a). The

petition shall include the text of the

statement or a description of the statement

and shall state with particularity facts

sufficient to show that the statement

constitutes a rule un der s. 120.52 and that

the agency has not adopted the statement by

the rulemaking procedure provided by s.

120.54.

* * *

(c) The administrative law judge may

determine whether all or part of a

statement violates s. 120.54(1)(a). The

decision of the administrative law judge

shall constitute a final order. The

division shall transmit a copy of the final

order to the Department of State and the

committee. The Department of State shall

publish notice of the final order in the

first available issue of the Florida

Administrative Weekly.

(d) When an administrative law judge

enters a final order that all or part of an

agency statement violates s. 120.54(1)(a),

the agency shall immediately discontinue

all reliance upon the statement or any

substantially similar statement as a basis

for agency action.

8. With regard to the types of claims which underlie the

dispute in this case, Section 717.124, Florida Statutes, as

amended effective October 1, 2001, provides as follows, in

pertinent part:

(5)(a) If a n 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 distributio n 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.

9. It is fundamental that, in order to have created a

“ rule,” as defined, subject to invalidation for lack of a

formal promulgation consistent with the requirements of

Chapter 120, Florida Statutes, Petitioner must establish that

an agency has issued a statement of general applicability. No

such statement has been stipulated to by the parties, nor is

any such statement revealed in the exhibits stipulated into

the record. This shortcoming, standing alone, is dispositive

of Petitioner’s challenge pursuant to Section 120.56(4),

Florida Statutes. Petitioner has failed to establish by

stipulation or evidence the existence of any agency statement

defined as a rule that has been impermissibly issued by the

Department. Petitioner has, therefore, failed to carry his

ultimate burden in this proceeding. 1

10. The stipu lated facts in this matter show only that

the Department has been consistent in the manner in which it

has applied the requirements of Section 717.124(5), Florida

Statutes (2001), to the payment of claims paid after

October 1, 2001, in those circumstanc es where the claims were

filed by an authorized third party on behalf of the owner of

unclaimed property. On the four occasions which form the

basis for Petitioner's complaints in this case, the Department

has sent Petitioner his fee and has sent the rema ining

proceeds of the claim to the respective owners. Such a

distribution of the property appears to be nothing more or

less than what is provided for and required by the statutory

language quoted above. An agency is not required to embark

upon rulemakin g in order to take action that is mandated by a

statute.

11. In order to prevail in a case of this nature, a

Petitioner must, by means of stipulation or by means of

persuasive evidence, establish each and every essential

element of the statutory prerequis ites to the relief he seeks.

Petitioner in this case has failed to establish several

essential elements. 2 Such being the case, his petition must

be dismissed and the relief he seeks must be denied. 3

12. In the closing portion of its Proposed Final Order ,

the Department argues that an order should be issued pursuant

to Section 120.569(2)(c), Florida Statutes, imposing sanctions

against Petitioner and his representative. Upon consideration

of the language of Section 120.569(2)(c), Florida Statutes, as

exp lained and interpreted in such cases as, Mercedes Lighting

and Electrical Supply, Inc. v. Department of General Services ,

560 So. 2d 272 (Fla. 1st DCA 1990), Procacci Commercial

Realty, Inc. v. Department of Health and Rehabilitative

Services , 690 So. 2d 6 03 (Fla. 1st DCA 1997), and Friends of

Nassau County, Inc. v. Nassau County , 752 So. 2d 42 (Fla. 1st

DCA 2000), this does not appear to be a case in which

sanctions are warranted.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it i s ORDERED:

That the petition in this case is hereby dismissed, and

that all relief requested by Petitioner is hereby DENIED.

DONE AND ORDERED this 2nd day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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

D ivision of Administrative Hearings

this 2nd day of April, 2002.

ENDNOTES

1/ In this regard it is also worthy of note that the petition

in this case falls quite a bit short of compliance with the

statutory requirement that the petition "shall include th e

text of the statement or a description of the statement and

shall state with particularity facts sufficient to show that

the statement constitutes a rule under s. 120.52 and that the

agency has not adopted the statement by the rulemaking

procedure provid ed by s. 120.54."

2/ Most significantly, he has failed to establish the

existence of an agency statement that constitutes a rule.

Petitioner has also failed to establish that he is

substantially affected by any such statement.

3/ The specific relief s ought by Petitioner would have to be

denied in any event, because there is no language in Section

120.56(4), Florida Statutes, which authorizes an award of

damages to a Petitioner.

COPIES FURNISHED:

Paul C. Stadler, Esquire

Office of the Comptroller

Dep artment of Banking and Finance

101 East Gaines Street

The Fletcher Building, Suite 526

Tallahassee, Florida 32399 - 0350

Philip J. Stoddard, J.D.

Finder Resource, Inc.

150 Kent Road, Suite 2 - A

St. Augustine, Florida 32086

Honorable Robert F. Milligan

Off ice of the Comptroller

The Capitol, Plaza Level 09

Tallahassee, Florida 32399 - 0350

Robert Beitler, General Counsel

Department of Banking and Finance

Fletcher Building, Suite 526

101 East Gaines Street

Tallahassee, Florida 32399 - 0350

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commen ced by filing the original notice of appeal with the

Clerk of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

District Court of Appeal, First District, or with the District

Court of Appeal in the A ppellate District where the party

resides. The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.