20-005031 Choice Plus, Llc, On Behalf Of Felicia R. Leggiero vs. Department Of Financial Services Status: Closed Recommended Order on Wednesday, March 3, 2021.

Summary: Petitioner, a claims representative, did not carry its burden to prove that it was entitled to unclaimed funds for claimant. DFS had not yet made a determination of entitlement when the claimant died and her entitlement to the funds vested in her estate.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C HOICE P LUS , LLC, O N B EHALF OF

F ELICIA R. L EGGIERO ,

Petitioner ,

C ase No. 20 - 5031

vs.

D EPARTMENT OF F INANCIAL S ERVICES ,

Respondent .

/

R ECOMMENDED O RDER

A hearing was held before Administrative Law Judge, Robert L. Kilbride,

of the Division of Administrative Hearings (ÑDOAHÒ) on January 15, 2021 , in

Tallahassee, Florida , by Zoom conference.

A PPEARANCES

For Petitioner: Michael J. Farrar, Esquire

Michael J. Farrar, P.A.

18851 Northeast 29th Avenue , Suite 700

Aventura, Florida 33180

For Respondent: Michael A. Alao, Esquire

Department of Financial Services

200 East Gaines Street

Tallah assee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether the Department of Financial Services (the ÑDepartmentÒ)

correctly denied the unclaimed property claim submitted by Choice Plus, LLC

(ÑChoice PlusÒ or ÑPetitionerÒ), on behalf of Louis Nardi as attorney - in - fact for

Felicia Leggiero (ÑLeggieroÒ) .

P RELIMINARY S TATEMENT

On May 26, 2020, Petitioner submitted a claim to the Department on

behalf of the claimant for 24 unclaimed property accounts with a total value

of $116,322.10.

On October 20, 2020, the De partment issued a Notice of Intent to deny

PetitionerÔs claim.

Taking exception to this determination, on November 3, 2020 , Petitioner

made a Request for Hearing under section 120.57(1), Florida Statutes (2020).

The Department referred the case to DOAH o n November 18, 2020.

On January 15, 2021, the undersigned conducted a final evidentiary

hearing in Tallahassee, Florida.

Petitioner called Randy Lee Hotz, co - founder, chief executive , and

president of Choice Plus, as its witness. The Department called W alter

Graham, Director of the Division of Unclaimed Property, as its witness. The

parties submitted Joint Exhibits 1 through 5. All exhibits were admitted into

evidence. The Joint Exhibits will be referred to as ÑJoint Ex.Ò with the

corresponding number an d Bates stamp number .

The Department moved for official recognition of the Recommended

Order, Final Order, and Per Curiam Affirmation in Choice Plus , LLC , f/b/o

Mary E. Morrison v. Florida De par t ment of Fin ancial Services , Case

No. 194635 - 16 - FA ( Fla. DFS Ma r. 27, 2017); Choice Plus , LLC v. Florida

Dep artment of Fin ancial Services, Div ision of Unclaimed Pro perty , Case

No. 1D17 - 1454, 2018 WL 486750, at *1 (Fla. 1st DCA Jan . 19, 2018)(the

ÑMorrison CaseÒ), and official recognition of the Recommended Order an d

Final Order in Choice Plus , LLC , f/b/o Ramona D. Shedroff v. Florida

Dep artment of Fin ancial Services , Case No. 211106 - 17 - FA ( Fla. DFS Oct. 18,

2018)(the ÑShedroff CaseÒ). Petitioner likewise moved for official recognition

of PetitionerÔs Proposed Recomm ended Order in the Shedroff Case. The

partiesÔ respective motions for official recognition were granted during the

hearing.

A T ranscript of the hearing was ordered. The T ranscript was filed with

DOAH on February 2, 2021. Thereafter, the parties timely fil ed their

proposed recommended orders. Each were reviewed and considered by the

undersigned in the preparation of this Recommended Order.

Any references in th is Recommended Order to statutes, rules , or other

laws refer to the versions in effect when the ac t, conduct , or omission

occurred.

F INDINGS OF F ACT

Based on the evidence presented at the hearing, and the record as a

whole, the undersigned makes the following findings of relevant and material

fact:

1. Choice Plus is registered with the Department as a ÑclaimantÔs

representativeÒ pursuant to section 717.1400, Florida Statutes (2020). In

Florida, a claimantÔs representative may file claims with the Department on

behalf of owners of unclaimed property for a fee. See Joint Ex. 1, Bates

Nos. 0001 - 17.

2. T he Department is the state agency charged with the responsibility of

administering and processing claims , pursuant to the provisions of

chapter 717, the Florida Disposition of Unclaimed Property Act (ÑActÒ).

See Joint Ex. 4, Bates No. 0045.

3. Between 2005 and 2018, the Department received unclaimed stock

shares and dividends reported in the names of John R. Leggiero and Felicia

R. Leggiero, from various holders. The Department currently maintains the

funds, totaling $116,322.10, in 24 unclaimed property ac counts. See Joint

Ex. 1, Bates Nos. 0001 - 3.

The Claim b y Choice Plus

4. On or about May 26, 2020, Choice Plus filed a written claim,

N o. C8610372, on behalf of Louis Nardi, as attorney - in - fact for Felicia R.

Leggiero, for 24 unclaimed property accounts.

5 . In support of the claim, Choice Plus provided the Department a copy of

a Limited Power of Attorney (ÑLPOAÒ) and full disclosure statement,

pursuant to section 717.135, executed by Louis Nardi; a copy of Louis NardiÔs

driverÔs license; a copy of LeggieroÔ s driverÔs license; a Florida Certificate of

Death for John R. Leggiero, indicating that he predeceased Felicia R.

Leggiero; a copy of a durable power of attorney where Leggiero designated

her brother, Louis Nardi, as her attorney - in - fact; and the results of a

TLO.com search. 1 See Joint Ex. 1, Bates Nos. 0001 - 17.

6. The LPOA and full disclosure statement, executed on May 4, 2020,

authorized Choice Plus to file a claim on behalf of Louis Nardi as attorney - in -

fact for Felicia R. Leggiero, for a fee of $11,632 .21. § 717.135 , Fla. Stat . The

LPOA included the following language:

CP offers to advance its expertise and financial

resources, including legal expenses, on ClaimantÔs

behalf, to prove entitlement and secure release of

property from any person or entity i n possession of

property. In exchange for CPÔs resources Claimant

irrevocably assigns ClaimantÔs right, title and

interest in property up to the amount and/or

percentage reference above as Compensation. If CP

1 A people and business location sys tem that searches public and proprietary databases.

fails to document ClaimantÔs entitlement, noth ing

will be owed to CP.

See Joint Ex. 1, Bates Nos. 0004 - 5.

7. As a part of the DepartmentÔs statutorily mandated review of the claim

submitted by Choice Plus, it conducted a Driver and Vehicle Information

Database (ÑDAVIDÒ) search for Leggiero on June 1 7, 2020. The search

indicated that she died on May 27, 2020. See Joint Ex. 4, ¶ 3; and Joint Ex. 5,

Bates No. 0042.

8. In part, because of her death, the Department issued a Request for

Information (Ñ RFI Ò) on June 18, 2020 , to Choice Plus. The RFI noted th at

Felicia R. Leggiero was deceased, and requested probate documentation for

her estate. See Joint Ex. 2, Bates No. 0018.

9. As it turns out, this is a common request when the Department has

questions or concerns about a claim that is filed, or needs addi tional

documentation as it sorts through and evaluates the merits of a claim.

10. On July 13, 2020, the Department received Choice PlusÔs response to

the RFI. The response consisted of a four - page memorandum which

extensively outlined the law and the posit ion of Choice Plus on the claim. In

the memorandum , Choice Plus took the position that the claim was complete

when filed, and that the claim determination was retroactive to the date of

filing the claim. See Joint Ex. 3 .

11. Choice Plus further argued that the Department should not consider

subsequent events, i.e., the death of the claimant, when determining

entitlement to the unclaimed property. Interestingly, however, it took the

position that the Department must pay the claim to the ÑestateÒ of the

decea sed claimant. Id.

12. However, and of particular note, Choice Plus provided no

documentation to show that (1) Felicia R. LeggieroÔs estate had been

submitted to probate court for administration ; (2) that Choice Plus

represented Felicia LeggieroÔs estate ; o r (3) represented the personal

representative of her estate. See Joint Ex. 3, Bates Nos. 0019 - 24.

13. After its review of the claim file and the memorandum submitted by

Choice Plus, the Department issued a Notice of Intent (ÑNOIÒ) on October 20,

2020 , sta ting that it would enter a f inal o rder denying the claim filed by

Choice Plus on behalf of Louis Nardi as attorney - in - fact for Felicia R.

Leggiero.

14. The Department took the position, essentially, that at the time it

began its review of the claim, Leggi ero had already died and that , therefore,

as a matter of law, Leggiero no longer had any legal or beneficial entitlement

to the unclaimed funds , as entitlement had already vested in her estate. See

Joint Ex. 4, Bates Nos. 0045 - 49, ¶¶ 11 - 13.

15. Director Gr aham also testified that the DepartmentÔs treatment of this

particular claim was consistent with the DepartmentÔs treatment of similarly

situated claims where the claimant or person entitled to the property dies

after submitting a claim to the Department, but before the Department has

the opportunity to review and evaluate the claim.

C ONCLUSIONS OF L AW

After reviewing the proposed recommended orders submitted by the

parties, studying and applying the law, and considering the Findings of Fact,

the undersign ed makes the following conclusions of law:

16. DOAH has jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 717.126, Fla. Stat.

General Principles of Unclaimed Property Law in Florida

17. Petitioner has th e burden of proving by a preponderance of the

evidence that it is entitled to the unclaimed funds it seeks from the

Department. § 717.126(1) , Fla. Stat.

18. Under the provisions of the Act, the Department is charged with the

responsibility and duty to del iver or pay over to the rightful owner,

unclaimed property held by the Department. See g enerally Ch. 717, Fla. Stat.

19. ÑUnclaimed propertyÒ is intangible or tangible property that has been

abandoned or lost by its rightful owner for an extended amount o f time - - this

period of time is often referred to as the Ñdormancy period . Ò Once property is

identified as unclaimed, the holder of the property (usually a financial

institution or business entity) is required to report that property to the

Department. § 71 7.117, Fla. Stat.

20. There is also a procedure to allow the Department to accept custody of

the unclaimed property from the holder. Id .

21. A person claiming ownership or an interest in unclaimed property may

file a claim with the Department. § 717.124( 1), Fla. Stat.

22. Pursuant to Florida Administrative Code Rule 69G - 20.0021(1) , claims

for unclaimed property must be submitted to the Department on the

prescribed forms supported by documentation proving entitlement to the

unclaimed property.

23. A comp leted claim, as described in the rule, generally consists of the

claim for m -- fully completed, signed, and dated by the claimant -- a copy of

photographic government - issued identification, proof of entitlement, and

supporting documentation. Fla. Admin. Code R . 69G - 20.0021(1)(b) .

24. Furthermore, when the apparent or reported owner of unclaimed

property is deceased, r ule 69G - 20.0022(3) outlines additional documentation

requirements be for e such a claim will be approved and paid to beneficiaries

or estates. The rule addresses four different scenarios: (1) Open Estates,

(2) Closed Estates, (3) Will Never Probated, and (4) No Will and No

Administration.

25. After the Department receives a claim for unclaimed property,

and determine s that t he claim is complete in a ccordance with

r ule 69G - 20.0021(1)(b), the Department is then required to engage in a

second step -- to evaluate and determine the merits of the claim.

26. This determination involves an analysis of whether entitlement by the

person or entity making the c laim to the property is appropriate, valid , and

has been properly established. §§ 717.1244 and 717 .126, Fla. Stat.

27. To this end, the Department may request additional information by

way of an RFI and will investigate the claim, any reports, and other r ecords it

deems necessary to administer and enforce the provisions of the Act.

§§ 717.124(1)(a) and 717 .1301, Fla. Stat.

28. During this review, the Department has 90 days after the receipt of a

claim, or the response of the claimant or claimantÔs represe ntative to the

DepartmentÔs request for additional information, whichever is later, in which

to review a claim and make a determination to approve, request additional

information, or deny a claim. § 717.124(1)(c), Fla. Stat.

29. As a part of its evaluatio n and determination regarding the merits of a

claim, the Department is expressly directed to rely on the applicable

statutory, regulatory, common, and case law. § 717.1244, Fla. Stat.

30. The role of the Department in cases of unclaimed property under

c ha pter 717 has been characterized as that of a Ñcustodian , Ò suggesting to the

undersigned a special, cautious , and circumspect role by the Department in

the handling and payout of such funds or property. See generally Choice Plus,

LLC v. DepÔt of Fin. Servs. , Bureau of Unclaimed Prop ., 244 So. 3d 343,

347 - 48 (Fla. 1 st DCA 2018).

31. Moreover, when various types of unclaimed or escheated funds come

into the DepartmentÔs possession , the Department Ñcarries a responsibility to

ensure that funds are properly di sbursed to the rightful owner.Ò Id.

32. In that case, the First District Court of Appeal , in addition to

addressing escheated funds, also commented on unclaimed property under

c hapter 717:

Chapter 717 gives the Department a panoply of

tools in order to de termine the merits of a claim of

ownership to Ñunclaimed propertyÒ that come to the

Department through various means. See, e.g.,

§ 717.1244, Fla. Stat. (2013)(ÑIn rendering a

determination regarding the merits of an

unclaimed property claim, the department shall

rely on the applicable statutory, regulatory,

common, and case law.Ò); £ 717.1301, Fla. Stat.

(2013) (the Department has the authority to make

investigations and examinations to enforce chapter

717); £ 717.1341, Fla. Stat. (2013)(ÑNo person shall

re ceive unclaimed property that the person is not

entitled to receive.Ò); £ 717.126, Fla. Stat.

(2013)(Ñ[T]he burden shall be upon the claimant to

establish entitlement to the property by a

preponderance of the evidence.

Id .

LeggieroÔs Death Immediately Ve sted Rights to Her Property in Her Heirs

33. In addition to chapter 717, other sections of Florida law must be

considered in this case.

34. For instance, Florida Probate Code, section 732.101(2), Florida

Statutes, provides that Ñthe decedentÔs death is the event that vests the heirsÔ

right to the decedentÔs intestate property.Ò

3 5 . Section 732.514 similarly provides , in the case of a will , that Ñ[t]he

death of the testator is the event that vests the right to devises unless the

testator in the will has pro vided that some other event must happen before a

devise vests.Ò See also Sorrels v. McNally , 89 Fla. 457, 466 - 67 (1925)(holding

that devises vest at the death of testator, unless there is a clear intent to

postpone vesting).

3 6 . Thus, it is clear that Leg gieroÔs existing interest in the proceeds of the

unclaimed property vested in her heirs upon her death on May 27, 2020.

3 7 . The fact that Leggiero was alive on the date the claim was file d and

that the claim was complete when filed does not mandate that th e

Department shall approve the claim, or pay it out to Choice Plus or its client.

The DepartmentÔs obligations and responsibilities extended beyond that.

3 8 . One pertinent fact in this case is that Leggiero died on May 27, 202 0 --

before the Department had f ulfilled its full statutory obligation and before it

investigated or made any determination of entitlement.

39 . Because Leggiero was deceased at the time the Department reviewed

the claim, the Department exercised the appropriate caution and properly

dete rmined that the rights to the unclaimed funds had already vested in her

estate or heirs. See §§ 732.101(2) (intestate) and 732.514 (testate), Fla. Stat.

40 . It would be illogical and shortsighted to conclude that c hapter 717, or

a rule promulgated under t hat chapter, require d the Department to hastily

approve a pending claim for unclaimed property when it had evidence that

the claimant is no t alive and no longer in a position to accept the property.

4 1 . The Department could not legally disburse funds to a person or entity

who is not entitled to them. Furthermore, no statute or rule supports Choice

PlusÔs assertion that a claim must be reviewed and considered retroactively

to the date the claim was filed.

A Power of Attorney Terminates Upon the Death of the Principal

4 2 . Choice Plus filed the claim on behalf of Louis Nardi, as attorney - in -

fact for Felicia R. Leggiero. Consistent with section 717.135, it also submitted

a LPOA executed by Louis Nardi. The authority of Louis Nardi to act on

behalf of Leggiero w as under a separate durable power of attorney.

4 3 . A power of attorney creates a principal and agent relationship between

the person who grants the power and the person who holds the power. See

Kotsch v. Kotsch , 608 So. 2d 879, 880 (Fla. 2d DCA 1992). Not ably, a power of

attorney terminates upon the occurrence of certain events, including the

death of the principal. § 709.2109(1)(a) , Fla. Stat.

4 4 . Similarly, the agentÔs authority is exercisable until the authority

terminates, including when the power of attorney terminates.

§ 709.2109(2)(c) , Fla. Stat.

4 5 . Here, both the durable power of attorney and the LPOA terminated

upon Felicia R. LeggieroÔs death on May 27, 2020. Thus, Choice PlusÔs claim,

although complete when filed, required further investigation and a

determination as to entitlement. Choice Plus no longer had the authority to

act on behalf of Louis Nardi . Similarly, Louis Nardi no longer had authority

to act on behalf of Leggiero.

4 6 . Additionally, when the Department learned that Leggiero died, it had

an obligation to pause and carefully determine who may be entitled to the

funds under other provisions of the law, including, as mentioned, FloridaÔs

probate laws.

4 7 . Choice Plus argues that the Department should pay the claim, less

Choice PlusÔs f ees, and submit the remainder to LeggieroÔs estate. See

T . 26:24 - 27:1 and 27:24 - 25. But Choice Plus has not demonstrated that an

estate for Leggiero has even been established nor has it demonstrated that

the estate, LeggieroÔs heirs , or a probate court , ha ve authorized payment of

any portion of the estate to it .

4 8 . Choice Plus does not have a LPOA from Felicia R. LeggieroÔs estate or

her heirs (the putative and current beneficial owners of the property).

Therefore, Choice Plus has shown no legal basis to claim the account on

behalf of, or charge a fee to, LeggieroÔs estate or heirs.

Arguments Advanced by Choice Plus

4 9 . As a matter of law, Choice PlusÔs contention that its unclaimed

property claim on behalf of its client was complete upon filing, and shou ld be

paid out, is incorrect. That contention overlooks and ignores the

DepartmentÔs responsibility to investigate and determine entitlement.

Determining that a claim is complete precedes, and is separate from, a

determination of entitlement to the funds.

50 . Completeness of the claim filing is in the nature of a condition

precedent before a review on the merits begins. The Department then makes

the entitlement determination, not the claimant or the claimantÔs

representative. See Atwater v. Mort g. Elec . Re gistration Sys . , Inc., 98 So. 3d

1191, 1192 (Fla. 3d DCA 2012)(ÑThe Department of Financial Services is

vested with the sole authority to make financial determinations as to

unclaimed funds.Ò)(citations omitted).

5 1 . Choice PlusÔs central premise underlyin g its claim -- relation back to

the filing of its claim -- is based on a misreading of r ule 69G - 20.0021(2), which

provides:

The Department will only review the merits of a

claim that has been deemed complete as filed. The

Department will determine whether the claimant

has established ownership and entitlement to the

unclaimed property.

Id . (Emphasis added.)

5 2 . T his is clearly a multi - step process involving (1) a complete d

claim filing by the claimant , followed by , (2) a review , with an ultimate

determinatio n of entitlement being made by the Department.

5 3 . Section 717.124(1)(c) expressly provides the Department with

90 days in which to review a claim. Furthermore, section 717.124(1)(a)

and r ule 69G - 20.0021(1)(d) - (e) reasonably provides that if the claim is

i ncomplete as submitted, the Department may request additional

information or return the submitted documents to the claimant. If the

documents are returned, the claimant may refile the claim when it has

additional evidence that may entitle it to the propert y. Id .

5 4 . Also noteworthy in the analysis of this case is the recognition

that a claim will not be approved or paid until after the Department has

reviewed the claim on the merits and determined that the supporting

documents establish the claimantÔs enti tlement to the unclaimed

property. § 717.124(4)(a), Fla. Stat. ; Fla. Admin. Code

R. 69G - 20.0021(2)(a)(2016). There is nothing in section 717.124 or

r ule 69G - 20.0021 that makes the DepartmentÔs claim determination

retroactive to the date of filing.

5 5 . Th e fact that a claim is complete as filed does not necessarily

mean that the claimant is entitled to the unclaimed funds, or that the

DepartmentÔs work has come to an end. 2

5 6 . Rather, when the claim is complete, the Department must then

review the claim on the merits to determine if the claimant has

demonstrated entitlement to the unclaimed funds.

5 7 . The DepartmentÔs review may determine that entitlement has

been established and the claim will be approved and paid.

5 8 . The DepartmentÔs review may also show that while the claimant

has submitted a complete claim, some of the information the claimant

provided, such as a social security number, a date of birth, or an

address does not match the reported information. In that event, the

claim will be denied be cause the claimant is not the same person as the

reported owner , and , therefore, is not entitled to the funds.

5 9 . Finally, as in this case, upon learning of the death of the

benefactor , the Department may reasonably conclude that there are

beneficiaries entitled to the unclaimed property whose interest must be

considered and protected. 3

60 . The e ntitlement to unclaimed funds requires, in part, a legal

analysis. That analysis may include the source of the funds in the

unclaimed property account. It may al so include consideration of other

legally significant circumstances, such as the underlying merits of the

ownerÔs claim and, in some circumstances, the rights or competing

interests of beneficiaries or heirs of a deceased owner.

6 1 . Next, Choice Plus asse rts that the Department has failed to treat

similar claims in the same manner . It cites to C laim N os. 7165211 and

7299596 filed with the Department, which are related to one another,

2 Petitioner has provided no statutory or case authority to suggest otherwise.

3 This concern may be heightened when the claim representative returns no probate or trust

documentation after receiving the RFI.

but are distinguishable from the claim filed by Choice Plus in this

proce eding. 4

Kaczer Claim cited by Choice Plus

6 2 . Claim N o. 7165211 cited by Choice Plus was filed by International

Locator Service on behalf of Simon Kaczer, for property reported in the name

of Irvin Kaczer. After the Department determined entitlement and is sued

payment in the name of Simon Kaczer, Simon KaczerÔs daughter, Matilde

Barish (ÑBarishÒ) , informed the Department that her father had died, and ,

therefore , the funds could not be deposited into his bank account.

6 3 . Thereafter, on June 16, 2017, after Simon KaczerÔs death, Barish, as

trustee of The Simon Kaczer Family Trust, filed C laim N o. 7299596 and

requested that the warrant be reissued to The Simon Kaczer Family Trust.

6 4 . The supporting documentation submitted to the Department included

a copy of the Trust, evidencing BarishÔs right to act on behalf of the Trust, a

copy of BarishÔs driverÔs license, and a copy of her fatherÔs death certificate.

The Department determined that BarishÔs claim was complete and that

Barish, as trustee, was entitled to receive the unclaimed property.

6 5 . The history, facts , and outcome of the Kaczer trust claim are

distinguishable from the case at bar.

Morrison Claim cited by the Department

6 6 . More analogous to the facts of this case is Claim N o. 6799375. It was

filed by Choice Plus on behalf of Mary Morrison on May 9, 2016. When the

Department began its review of the claim in June, it learned that Mary

Morrison had died on June 8, 2016.

6 7 . On June 22, 2016, the Department sent an RFI to Choice Plus

indicating that it s claimant was deceased. On June 28, 2016, Choice Plus

responded to the DepartmentÔs RFI by providing a death certificate for

4 While these cases, and others at the Department, are not necessarily binding on the

undersigned, they provide useful and persuasive authority to consider.

Mary MorrisonÔs mother. The claim was denied and Choice Plus requested a

hearing.

68 . At the hearing and in its Proposed Written Report and Recommended

Order, Choice Plus argued, among other things, that the claim was complete

when filed, and since the claimant died after the complete d claim was filed

with the Department, the claim should have been approved. That argument

is nearly identical to the facts and arguments made by Choice Plus in this

case.

69 . In a well reasoned and concise order, the hearing officer properly

rejected Choice PlusÔs argument finding that it would be illogical to conclude

that the Act, or a rule promulgated thereunder, would require the

Department to approve even a completed claim when it had evidence that the

claimant is not entitled to the property.

7 0 . The hearing officerÔs F indings of F act and C onclusions of L aw were

adopted by Final Order on March 27, 2017. Choice Plus appealed the Final

Order to the First District Court of Appeal arguing that the Department

erred in denying the claim, regardless of the claimantÔs death, because the

claim was complete when filed.

7 1 . On January 19, 2018, the First Dist rict Court of Appeal per curiam

affirmed the DepartmentÔs Final Order denying the claim. See Choice Plus ,

LLC , 239 So. 3d 3 43, 34 7 - 48.

Shedroff Claim cited by the Department

7 2 . Claim N o. 7152814 was filed by Choice Plus on behalf of Ramona

Shedroff on Feb ruary 28, 2017. When the Department began its review of the

claim in April 2 01 7, it learned that Ramona Shedroff had already died on

March 9, 2017.

7 3 . As part of its review, the Department sent an RFI to Choice Plus on

April 21, 2017, indicating that its claimant was deceased.

7 4 . As it did in this case, Choice Plus sent the Department a response to

the RFI on June 19, 2017, stating, Ñ [i] t is our position that the claim was

complete when filed.Ò The claim was denied and Choice Plus requested a

hearing.

7 5 . At the hearing and in its Proposed Written Report and Recommended

Order, Choice Plus argued that the claim was complete when filed, and since

the claimant died after the complete d claim was filed with the Department,

the claim should have been approved . Again, these arguments were nearly

identical to the arguments raised in this case.

7 6 . The hearing officer rejected Choice PlusÔs argument finding that it

would be illogical to conclude that the Act, or a rule promulgated thereunder,

would require the De partment to approve a claim when it has evidence that

the claimant is no longer entitled to the property. The hearing officerÔs

F indings of F act and C onclusions of L aw were adopted by Final Order, with

unrelated limited exceptions, on October 18, 2018.

7 7 . Thus, despite Choice PlusÔs claims to the contrary, the Department

has treated similarly situated claims in the same manner. Moreover, Director

Graham also confirmed that claims similar to the claim at issue have been

treated in the same manner.

7 8. As a claimantÔs representative, Choice Plus is only entitled to a fee

when a claim is determined in favor of its claimant. In fact, the plain

language of the LPOA executed by Louis Nardi as attorney - in - fact for

Leggiero states, ÑIf CP fails to document Claimant Ôs entitlement, nothing will

be owed to CP.Ò Furthermore, the Department is merely ÑauthorizedÒ to make

distribution to a claimantÔs representative in accordance with the LPOA, it is

not required to do so. Section 717.124(4)(a ) - (b) provides , in relevant pa rt:

(a) Except as otherwise provided in this chapter, if

a claim is determined in favor of the claimant, the

department shall deliver or pay over to the

claimant the property the department actually

received È .

(b) If an owner authorizes È a private inves tigator

licensed under chapter 493, and registered with the

department under this chapter, to claim the

unclaimed property on the ownerÔs behalf, the

department is authorized to make distribution of

the property or money in accordance with such

power of at torney È .

Id .

79 . In this proceeding, Choice Plus did not establish entitlement to the

property on behalf of its c laimant. As such, pursuant to section 717.124 and

the plain language of its LPOA, Choice Plus is not entitled to a fee.

C ONCLUSION

8 0 . The fact that Leggiero was alive on the date the claim was filed and

that the claim was complete when filed does not mandate that the claim must

be paid to Choice Plus .

8 1 . The relevant fact is that Leggiero was deceased before the Department

made any determi nation of entitlement. Because Leggiero was deceased at

the time the Department reviewed the claim, the Department correctly

determined that, as a matter of law, she no longer had any legal or beneficial

entitlement to the unclaimed funds as entitlement al ready had vested in her

estate. §§ 732.101(2) and 732 .514, Fla. Stat .

8 2 . Choice Plus provided no documentation demonstrating that it

represent ed Felicia R. LeggieroÔs estate, the personal representative of her

estate, or her heirs.

8 3 . Pursuant to secti on 717.124(4), a claimantÔs representative is only

entitled to a fee when a claim is determined in favor of its claimant. Due to

the unforeseen death of Leggiero, Choice Plus cannot successfully recover the

unclaimed property account on behalf of its claim ant and is , therefore , not

entitled to a fee.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department enter a final order affirming the denial

of PetitionerÔs claim. However, it is recommended that the Department

should accept and consider the submission of a supplemental claim by any

lawful beneficiaries or heirs of Felicia Leggiero to determine entitlement

pursuant to the provisions of chapter 717 and other provisions of law.

D ONE A ND E NTERED this 3rd day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT L. K ILBRIDE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Adminis trative Hearings

this 3rd day of March , 2021 .

C OPIES F URNISHED :

Michael A. Alao, Esquire Michael J. Farrar, Esquire

Department of Financial Services Michael J. Farrar, P.A.

200 East Gaines Street 18851 Northeast 29th Avenue , Suite 700

Tallahassee, Florida 32399 Aventura, Florida 33180

Diane Wint, Agency Clerk

Division of Legal Services

Department of Financial Serv ices

Room 612.14, Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.