STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1086

)

BRUCE C. SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held on June 29, 1995. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Charles F. Tunnicliff

Chief Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Bruce C. Scott, pro se

2424 McGregor Boulevard Ft. Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent failed to execute a written agreement with the owner of property to be auctioned and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed October 13, 1994, Petitioner alleged that Respondent conducted an auction without a written agreement with the owner of the property to be auctioned, in violation of Section 468.388, Florida Statutes. (Petitioner dropped a second count at the hearing.)

Respondent demanded a formal hearing by Election of Rights signed November 1, 1994.

At the hearing, Petitioner called one witness and offered into evidence one exhibit. Respondent called one witness and offered into evidence two exhibits. All exhibits were admitted.

The transcript was filed July 17, 1995. Petitioner's proposed findings of fact are adopted or adopted in substance.

FINDINGS OF FACT

1. Respondent is a licensed auctioneer, holding license number AU 0000415.

   
   

2. Respondent and Danny Mitchell are coworkers at a County mosquito control agency. Mr. Mitchell and his wife Joan were selling their house and moving out of town. Wanting to sell their personal possessions fast, they agreed that Mr. Mitchell would contact Respondent and ask him about conducting an auction.

   
   

3. In late March 1993, Respondent visited the Mitchells at their home to view the property to be auctioned. Based on the number and quality of the property available for auction, Respondent realized that the auction would not raise much money. He estimated the value of the property to be auctioned at

   $1200

   to $2000.

   
   

4. Respondent did not require the Mitchells to sign a contract right away. Because of the friendship between Mr. Mitchell and Respondent, Respondent allowed the Mitchells to sell or give away items without Respondent's approval prior to the auction, and they sold $525 worth of items in the interim. Even the auction date was left open. The Mitchells did not want the auction to take place until they were closing on the sale of their house.

   
   

5. For the next three months, the Mitchells sold and gave away what property they could. Then, without much notice, they told Respondent that they wanted the auction to take place. The Mitchells and Respondent agreed that the auction would take place July 24, 1993. Respondent discussed with Mr. Mitchell the need for advertising, which would come out of the Mitchells' share of the proceeds. The Mitchells agreed on fairly modest advertising.

   
   

6. Respondent never obtained a written contract in the days prior to the auction. Although he was in frequent contact with Mr. Mitchell at work, there was some awkwardness in presenting the contract to him because Mr. Mitchell does not read or write. Respondent instead agreed to meet the Mitchells at their house on the morning of the auction, and he intended to present them a contract at that time to sign.

   
   

7. Respondent appeared at their house at the agreed-upon time with a contract to be signed. However, he did not insist that they read and sign the contract because, as Respondent arrived, the Mitchells were rushing out of the house to take care of other matters. Consistent with their intent all along, the last instructions that the Mitchells gave Respondent was that he had to sell everything so the new homeowners could get into the house and the Mitchells would not have to move anything.

   
   

8. Only about ten bidders appeared for the auction. Bidding was low. Respondent wanted to stop the auction, but had no way to contact the Mitchells, who did not try to contact him that day. Recalling the final instructions about selling everything, Respondent continued with the auction.

9. After about an hour and a half, the auction ended with everything sold. Respondent claims that he received $499.50 in sale proceeds. It is unnecessary to determine whether this testimony should be credited.

   
   

10. Respondent did not hear from the Mitchells for two weeks after the auction. One day, Mr. Mitchell returned to work from his vacation and asked for his money. Bringing the money the next day to work, Respondent gave the Mitchells a check for $200 with a settlement sheet itemizing the expenses.

    
    

11. Upon the insistence of Mrs. Mitchell for documentation of the auction sales, Respondent later provided the Mitchells with copies of the clerking tickets.

    
    

12. The estimated value of the auctioned property exceeded $500.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

14. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

15. Section 468.388(1) requires that an auctioneer execute a written agreement with the property owner "[p]rior to conducting an auction in this state . . .." Section 468.388(3)(c) provides that a written contract is not required if the

    
    

    total estimated value of the property is

    $500 or less. If the actual sale price of the property exceeds $550, the written agreement required by subsection (1) shall be executed after the sale.

    
    

16. The estimated value of the auctioned property exceeded $500. Petitioner originally estimated at least $1200 of value. Less the $525 worth of items sold by the Mitchells, the net estimated value was $675. Also, the estimated value should have exceeded the auction proceeds given the low number of buyers and low prices that caused Respondent to consider even cancelling the auction. If the proceeds from such an unsuccessful auction were, as Respondent claimed, $499.50, the estimated value had to exceed this figure.

    
    

17. Section 468.389(1) provides that the Board of Auctioneers may impose discipline for the violation of any law. Section 468.389(2) states that the Board may order revocation, suspension, the imposition of a fine of not more than $1000 per count, the imposition of bonding requirements, probation, or the issuance of a reprimand.

    
    

18. Respondent conducted the auction honestly, competently, and as an accommodation to his friend and coworker. There is no evidence of fraud or

    over-reaching on Respondent's part. Respondent took a casual attitude toward the auction, allowing the Mitchells to sell whatever they wanted before deciding to go through with the auction. In fact, there really was no agreement for an auction until the Mitchells told Respondent to go ahead a short while before the auction took place.

19. Respondent's casual attitude left him vulnerable to disciplinary action when he failed to insist on a contract. Although he had not seen the property for several months, and thus could not know if its estimated value still exceeded $500, the evidence established that the estimated value of the auctioned property was slightly over $500. But in no way did the absence of a contract injure the Mitchells, who had already given away and sold the most saleable items. Under these circumstances, Respondent should receive no more than a reprimand.

RECOMMENDATION

It is

RECOMMENDED that the Board of Auctioneers enter a final order reprimanding Respondent.

ENTERED on July 28, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on July 28, 1995.

COPIES FURNISHED:

Linda Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Susan Foster, Executive Director Board of Auctioneers

Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Charles F. Tunnicliff, Chief Attorney Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Bruce C. Scott

2424 McGregor Boulevard Ft. Myers, FL 33901

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.

Docket for Case No: 95-001086

Orders for Case No: 95-001086