14-000895 Choice Plus, Llc, On Its Own Behalf As A Purchaser Of The Unclaimed Property Account Held In The Name Of Donald C. Rogers, Sr. vs. Department Of Financial Services, Bureau Of Unclaimed Property Status: Closed Recommended Order on Tuesday, June 24, 2014.

Summary: Petitioner is in conformity with the requirments of the Florida Disposition of Unclaimed Property Act and met its burden and established entitlement to the unclaimed property Account 103851316.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHOICE PLUS, LLC, ON ITS OWN

BEHALF AS A PURCHASER OF THE

UNCLAIMED PROPERTY ACCOUNT HELD

IN THE NAME OF DONALD C.

ROGERS , SR.,

Petitioner,

vs. Case No. 14 - 0895

DEPARTMENT OF FINANCIAL

SERVICES, BUREAU OF UNC LAIMED

PROPERTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 15, 2014, a duly - noticed hearing was held by video -

teleconference in Tallahassee and Miami, Florida, before June C.

McKinney, an ad ministrative law judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael Farrar, Esquire

Choice Plus, LLC

Suite 890

3470 Northwest 82nd Avenue

Miami, Florida 33122

For Respondent: Josephine Schultz, Esquire

Department of Financial Services

Legal Services, Room 601

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Choice Plus, LLC is entitled to Unclaimed Propert y

Account Number 103851316.

PRELIMINARY STATEMENT

On January 17, 2014, the Department of Financial Services

(ÐDepartmentÑ) issued a Notice of Intent to deny the claim it had

received for the unclaimed property identified as Account Number

103851316, report ed in the name Donald C. Rogers, Sr. On

February 5, 2014, Choice Plus, LLC (ÐChoice PlusÑ or

ÐPetitionerÑ) requested a formal hearing to contest the Notice of

Intent.

On February 24, 2014, the Department forwarded the

PetitionerÓs request to the Division of Administrative Hearings

to conduct a formal hearing. The hearing was scheduled for

April 15, 2014.

On April 4, 2014, the Department filed a Motion to

Relinquish Jurisdiction. Petitioner filed a Motion for Official

Recognition of four mandamus actions, three of which Petitioner

had filed in January and February, 2014.

At the hearing, the Motion to Relinquish Jurisdiction was

denied and the Motion for Official Recog nition was granted. The

parties offered Joint C omposite Exhibits 1 - A through 1 - I, which

were received into evidence. Choice Plus did not present any

witnesses. Choice Plus Exhibits 2 through 5 were received into

evidence. The Depart ment presented the testimony of Walter

Graham, Bureau Chief for the Bureau of Unclaimed Property. The

Depart mentÓs Exhibit 1 was received into evidence.

This matter was recorded and transcribed. On April 29,

2014, a one - volume Transcript was filed with the Division of

Administrative Hearings. Both parties filed timely Proposed

Recommended Orders, which have be en considered in this matter .

FINDING S OF FACT

1. On January 25, 1999, Donald C. Rogers died.

2. On August 19, 1999, the Estate of Donald C. Rogers,

(ÐdecedentÑ) was submitted for probate.

3. The Department received the following described

unclaimed pro perty:

Account Number : 103851316

Reported Amount : $28,007.01

Reported Name: Rogers, Donald C. Sr.

Reported Address: Hillsborough

SSN# : None

Holder: Clerk of Court

Property Type: Cash

4. On March 22, 2005, the probate court entered an Order

Grantin g Petitioner to Distribute Funds and to Distribute Surplus

Funds into Registry of Court. The Personal Representative for

the Estate had been unable to locate Sean Henry Casner

(ÐCasnerÑ), the decedentÓs grandson. CasnerÓs share of the

Estate was $23,689. 95. The Order for Discharge was rendered

June 24, 2005.

5. On November 3, 2012, C asner executed a Limited Power of

Attorney ( Ð LPOA Ñ ) authorizing Choice Plus to act on his behalf as

ClaimantÓs Representative. The LPOA disclos ed that Choice PlusÓ

fee was 25 percent of the funds recov ered. The 25 percent

equaled $5,922.49; th e net amount to Casner was $17, 767.46.

6. O n April 29, 2013, the Department received a completed

claim form filed by Choice Plus on behalf of Casner.

7. On August 12, 2013, Choice Pl us withdrew its claim on

behalf of Casner by email.

8. On August 17, 2013, Casner sold his interest in the

property related to the above - referenced account (ÐaccountÑ) to

Choice Plus by means of a purchase agreement.

9. On or about August 19, 2013, Casne r cashed the

$13,029.47 check from Choice Plus for the purchase agreement.

10. On September 3, 2013, the Department received a claim

from Choice Plus on behalf of Casner, as the purchaser of the

account.

11. The P urchase Agreement disclosed the following :

$23,689.95=Approximate Dollar Value of the Property

$23,689.95=Amount to be Paid to Buyer

$13,029.47=Net Amount to be Paid to Seller

Property Account Number(s): 103851316

12. The Department issued a Notice of Intent to enter a

final order denying the c laim filed by Choice Plus as the

purchaser for the unclaimed property relating to Account Number

103851316. The Department determined Choice Plus failed to

comply with section 717.1351, Florida Statutes , by deleting the

percentage line in the P urchase A gr eement without a flat fee .

CONCLUSIONS OF LAW

1 3. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to sections 120.569 and 120.57(1) , Florida Statutes

(2013) .

14. The Department is charged with the responsibility and

duty of delivering or paying over to a claimant, property paid or

delivered to the Department under the Florida Disposition of

Unclaimed Property Act, chapter 717, Florida Statutes (ÐActÑ).

15. In this matter, Choice Plus has the burden of proof to

establish entitlement to the property by the preponderance of the

evidence. See § 717.126, Fla. Stat.

16. Respondent contends in the Notice of Intent that the

specific dollar amount Choice Plus described within its

disclosure secti on of the Purchase Agreement did not constitute a

Ðflat feeÑ and therefore Choice Plus improperly deleted the

percentage line item disclosure. In the DepartmentÓs Proposed

Recommended Order, the Department asserts that Choice PlusÓ

Ðfail[ure] to disclose the amount it would receive for its

services or the percentage of the account that it would receive ,

. . . failed to comply with the requirements of § 717.1351.

[Such] fail[ure] to clearly disclose its compensation deprived

Mr. Casner of the information he needed to make an informed

decision.Ñ

17. This is a de novo proceeding for the purpose of

formulating agency action, not to determine whether the

DepartmentÓs decision was correct at the time that it made the

decision. The findings of fact Ðshall be b ased exclusively on

the evidence of record and on matters officially recognized.Ñ

§ 120.57(1)(j) and (k), Fla. Stat.

18. Section 717.1351 sets forth the law that is at issue in

this matter and says in pertinent part:

PURCHASE AGREEMENT

$ = Approximate Dollar Value of the

Property

= Number of Shares of Stock (If

Applicable)

= Percent of Property to be Paid to the

Buyer

$ = Amount to be Paid to Buyer

$ = Net Amount to be Paid to Seller

Property Account Number(s):

(6) All agreements shal l include:

(a) The name and professional license number

of the registrant.

(b) The name, address, and telephone number

of the registrantÓs firm or employer.

(c) The name, address, and telephone number

of the seller.

(d) The taxpayer identification nu mber or

social security number of the seller, if

available.

(e) The name and address to whom the warrant

is to be issued if it is different from the

sellerÓs name and address.

(f) The original signature of the registrant

and the date signed by the regist rant.

(7) This section does not prohibit the:

(a) Use of bolding, italics, print of

different colors, or text borders as a means

of highlighting or stressing certain selected

items within the text.

(b) Placement of the name, address, and

telephone numb er of the registrantÓs firm or

company in the top margin above the words

ÐPURCHASE AGREEMENT.Ñ No additional writing

of any kind may be placed in the top margin,

including, but not limited to, logos, license

numbers, Internet addresses, or slogans.

(c) D eletion of the words ÐNumber of Shares

of Stock (If Applicable)Ñ if the agreement

does not relate to the recovery of

securities.

(d) Deletion of the words ÐPercent of

Property to be Paid to Buyer,Ñ if the

purchase agreement provides for a flat fee to

be p aid as compensation to the buyer.

19. The term Ðflat feeÑ is not defined in the DepartmentÓs

rules or statutes. Therefore, statutory interpretation begins

with the plain an d obvious meaning of the statute. See Holly v.

Auld , 450 So. 2d 217 (Fla. 1984).

20. In the instant case, Choice Plus complied with the

requirements of section 717.1351 when it disclosed the amount it

would receive for its services by specifically listing in the

Purchase Agreement the value of the property, as well as how much

of tha t value would be paid to the seller, which is the flat fee

at issue. By doing so, Choice Plus provided the buyer notice of

exactly what he was to receive in payment.

21. Choice Plus was not required to state the information

ÐPercent of Property to be Pai d to BuyerÑ because that

information was not required since the Purchase Agreement

provided the fixed amount of $23,689.95, a flat fee, to be paid

as compensation to the buyer. The evidence in this matter

demonstrates Choice Plus is in conformity with the r equirements

of the Act. Therefore, Choice Plus has met its burden and

established entitlement to the Account Number 103851316.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

REOMMENDED that a final order be entered g ranting Choice

Plus claim to the unclaimed property Account Number 103851316.

DONE AND ENTERED this 24 th day of June, 2014, in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Adm inistrative 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 24th day of June , 2014 .

CO PIES FURNISHED:

Seann M. Frazier, Esquire

Parker, Hudson, Rainer and Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

Josephine Schultz, Esquire

Department of Financial Services

Legal Services, Room 601

200 East Gaines Street

Tall ahassee, Florida 32399

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.