STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD OF ) AUCTIONEERS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2037

)

DONALD E. GROSS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 19, 1994 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles E. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUES

An administrative complaint dated September 13, 1993, alleges that Respondent, Donald Gross, conducted auctions without a proper license. The issue is whether that violation occurred, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

Respondent returned an election of rights form on October 3, 1993, requesting a formal hearing on the administrative complaint. The file was then referred to the Division of Administrative Hearings.

All notices regarding hearing were sent by the Division of Administrative Hearings to Mr. Gross' address of record, which address is also reflected on his election of rights form. No notice was returned as undelivered mail.

Nonetheless, Mr. Gross did not appear at the hearing and a representative of Petitioner announced that the agency had lost contact with this Respondent.

The hearing proceeded, and the Department of Business and Professional Regulation (agency) presented its case through one witness, Investigator Henry Rivera; and one exhibit, the computer license file.

No transcript nor proposed recommended orders were filed.

FINDINGS OF FACT

1. Donald E. Gross received an auctioneer apprentice license #AE 0000117 in August 1991; the license became "involuntary inactive, delinquent" by August 1993 and remains in that status.

   
   

2. In response to a complaint that Mr. Gross was conducting unlicensed auctions, Henry Rivera, an agency investigator since 1981, made a site visit on April 4, 1993. He found Mr. Gross at his address, 1950 W. Memorial Blvd., Lakeland, conducting an auction. Mr. Gross did not have a licensed auctioneer with him and did not claim that any was supervising him.

   
   

3. Mr. Gross claimed instead that he was exempted from license requirements as he was affiliated with Universal Life Church in California.

   When Henry Rivera followed up his investigation with contacts to Church headquarters, he was informed by Andrew Hinsley in July 1993 that the Church had no record of Mr. Gross' affiliation and no record of any proceeds from auctions which he may have conducted.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Section 120.57(1), F.S. and 455.225(4), F.S.

   
   

5. Section 468.385(2), F.S. prohibits auctions by any person who is not licensed or exempt from licensure as an auctioneer. Section 468.385(5), F.S. provides that persons licensed as apprentice auctioneers must be supervised by a licensed auctioneer and apprentices may only conduct auctions under the supervision and approval of the supervisor auctioneer. Section 468.385(7), F.S. prohibits any business from conducting auctions unless it is licensed or exempt from licensure under Section 468.383, F.S.

   
   

6. Exemptions under Section 468.383, F.S. include auctions conducted by a charitable, civic or religious organization or conducted for such organization by a person who receives no compensation.

   
   

7. The administrative complaint at issue alleges that Respondent violated both Sections 468.385(2) and (7), F.S. The agency has the burden of proving its allegations by evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. The agency met that burden with regard to Section 468.385(2), F.S. Mr. Gross' claim to an exemption is an affirmative defense which he failed to prove. The agency provided a credible prima facie case that he conducted auctions without proper licensure. It was Mr. Gross' duty to prove the affirmative claim that he was exempt by his affiliation with a religious organization. See, Florida Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778, 787 (Fla. 1st DCA 1981).

   
   

9. No evidence was presented by the agency with regard to a violation of Section 468.385(7), F.S. From the evidence we know Respondent Gross only as an individual, not a "business".

10. Violation of a statute or rule regulating the practice of auctioneering subjects the licensee to discipline under Section 468.389, F.S. which discipline includes revocation, suspension, reprimand, probation and fine.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Board of Auctioneering enter a final order finding that Donald E. Gross violated Section 468.385(2), F.S. and revoking his inactive apprentice license.

DONE AND RECOMMENDED this 13th day of December, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994.

COPIES FURNISHED:

Charles E. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Donald E. Gross

1950 West Memorial Boulevard Lakeland, Florida 33801

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Suzanne Lee, Executive Director Board of Auctioneers

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

BOARD OF AUCTIONEERS

DONALD E. GROSS,

Petitioner,

v. DOAH CASE NO.: 94-2037

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF AUCTIONEERS,

Respondent.

/

FINAL ORDER

THIS MATTER came on to be heard by the Board of Auctioneers at a regularly scheduled meeting held In Ft. Lauderdale, Florida on March 23, 1995, for consideration of the Recommended Order entered in this cause by Mary Clark, Hearing Officer, dated December 13, 1994.

The Board, having reviewed the complete record in the above-styled case, including the transcript and exhibits, hereby adopts the Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order. and said Recommended Order and this Order are declared to be and become the Final Order of the Board of Auctioneers.

This Order becomes effective upon filing with the Agency Clerk.

The Parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing within thirty days of the filing date of this Order, a Notice of Appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

DONE AND ORDERED this 14th day of April, 1995.

BOARD OF AUCTIONEERS

SUSAN FOSTER EXECUTIVE DIRECTOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S Mail to Donald E. Gross, 1950 West Memorial Boulevard, Lakeland, Florida 33801 this 2nd day of May, 1995.

GARY DEMPSEY

=================================================================

CORRECTED AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF AUCTIONEERS

DONALD E. GROSS,

Petitioner,

DOAH CASE NO.: 94-2037

vs. BPR NO.: 93-O6472

LICENSE NO.: AE117

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF AUCTIONEERS,

Respondent.

/

CORRECTED FINAL ORDER

THIS MATTER came on to be heard by the Board of Auctioneers at regularly scheduled meeting held in Ft. Lauderdale, Florida on March 23, 1995, for consideration of the Recommended Order entered in this cause by Mary Clark.

Hearing Officer, dated December 13, 1994.

The Board, having reviewed the complete record in the above-styled case, including the transcript and exhibits, hereby adopts the Findings of Fact.

Conclusions of Law, and Recommendation contained in the Recommended Order, and

said Recommended Order and this Order are declared to be and become the Final Order of the Board of Auctioneers.

This Order becomes effective upon filing with the Agency Clerk.

The Parties are notified, pursuant to Section 120.8, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a Notice of Appeal, accompanied by the filing fees prescribed by law, with the District Court of Appeal.

DONE AND ORDERED this 29th day of June, 1995.

BOARD OF AUCTIONEERS

SUSAN FOSTER EXECUTIVE DIRECTOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the forgoing Final Order has been provided by U.S. Mail to Donald E. Gross, 1950 West Memorial Boulevard, Lakeland, Florida 33801 this 12th day of July, 1995.

GARY DEMPSEY

================================================================= SECOND CORRECTED AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF AUCTIONEERS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF AUCTIONEERS,

Petitioner,

vs. DOAH CASE NO.: 94-2037

BPR NO.: 93-06472

DONALD E. GROSS,

Respondent.

/

CORRECTED FINAL ORDER

THIS MATTER came on to be heard by the Board of Auctioneers at a regularly scheduled meeting held in Ft. Lauderdale, Florida on March 23, 1995, for consideration of the Recommended Order entered in this cause by Mary Clark, Hearing Officer, dated December 13, 1994.

The Board, having reviewed the complete record in the above-styled case, including the transcript and exhibits, hereby adopts the Findings of Fact.

Conclusions of Law, and Recommendation contained in the Recommended Order, and said Recommended Order and this Order are declared to be and become the Final Order of the Board of Auctioneers.

This Order becomes effective upon filing with the Agency Clerk.

The Parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a Notice of Appeal, accompanied by filing fees prescribed by law with the District Court of Appeal.

DONE AND ORDERED this 29th day of August, 1995.

BOARD OF AUCTIONEERS

SUSAN FOSTER EXECUTIVE DIRECTOR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to Donald E. Gross, 1950 West Memorial Boulevard, Lakeland, Florida 33801 this 8th day of September, 1995.

GARY DEMPSEY

Docket for Case No: 94-002037

Orders for Case No: 94-002037