STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ) FLORIDA LAND SALES, ) CONDOMINIUMS AND MOBILE ) HOMES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5030

)

DAVID HIRSHBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by William R. Cave, the assigned Hearing Officer from the Division of Administrative Hearings, on December 5, 1991, in Sarasota, Florida.

APPEARANCES

For Petitioner: Mark Henderson, Esquire

Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: David R. Hirshberg, pro se

6035 30th Avenue West Bradenton, Florida 34209

STATEMENT OF THE ISSUE

The issue presented is whether the Respondent, David Hirshberg acted as a yacht salesman without being licensed in accordance with Chapter 326, Florida Statutes.

PRELIMINARY STATEMENT

On July 2, 1991 the Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division) issued a Notice to Show Cause on Respondent, David Hirshberg which was served on the Respondent July 5, 1991 by certified mail. The Notice to Show Cause charged the Respondent with violating Section 326.004(1), Florida Statutes. As grounds therefor, it is alleged that Respondent acted as a yacht salesman without being licensed by Division when he, for or in expectation of compensation, acted on behalf of or as agent for a secured party in a transaction involving the foreclosure of a security interest in a yacht exceeding 32 feet in length. By letter to the

Division dated July 22, 1991 the Respondent denied the allegations, and requested a formal hearing. By letter of August 7, 1991 the Division transferred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer, and to conduct a formal hearing. The matter was initially scheduled for hearing on December 3, 1991 but due to a conflict in the Hearing Officer's schedule, the hearing was rescheduled for December 5, 1991 and heard on that date.

At the hearing, the Division presented the testimony of David Hirshberg, Janet Gray and Peter P. Butler, Sr. The Division's exhibits 1 through 5 were admitted as evidence. The Respondent presented the testimony of Ron Hirshberg but did not offer any documentary evidence. Official Recognition was taken of Chapter 326, Florida Statutes, and Chapter 7D-60, Florida Administrative Code.

A transcript of this proceeding, was filed with the Division of Administrative Hearings on December 19, 1991. The Division timely filed a proposed recommended order. Respondent has not filed any proposed findings of fact and conclusions of law. A ruling has been made on each proposed finding of fact submitted by the Division as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Respondent was not licensed as a yacht broker or as a yacht salesman in accordance with Chapter 326, Florida Statutes, commonly referred to as the "Yacht and Ship Broker's Act".

   
   

2. The Division is the state agency statutorily authorized to regulate yacht and ship brokers and salesmen.

   
   

3. At all times material to this proceeding, the Respondent was employed by Tampa Bay Marine Repossession Center (Center). Respondent's main responsibility was the sale of new Chris Craft boats and occasionally used boats. However, other than giving directions or explaining procedures at the boat show as set out in Finding of Fact 11 the Respondent was not involved with the sale of yachts.

   
   

4. The Center is a division of Hirsh Marine, Inc., and acts as the showing agent between banks owning the repossessed boats and the boat buyer.

   
   

5. At all times material to this proceeding, Center was not licensed as a yacht broker in accordance with Chapter 326, Florida Statutes, but was licensed as a boat dealer.

   
   

6. On Sunday, March 10, 1991, the Center maintained a display booth at the Ninth Annual Suncoast Boat Show (Show) at Sarasota, Florida.

   
   

7. The Center's display booth at the Show on March 10, 1991 contained listings offering boats for sale which had been repossessed by banks. One of those listings was for a 34-foot Mainship Trawler (Trawler).

   
   

8. Listing of boats on a display board at boat shows is a common method of offering brokerage boats for sale.

9. At the time Center was offering the Trawler for sale on March 10, 1991, the Center did not own, hold title to or have a secured interest in the Trawler. On March 10, 1992, the Trawler was owned by a lending institution that had foreclosed its security interest in the Trawler. The Trawler had been delivered to the Center by the lending institution to be offered for sale. The Trawler was held for sale by the Center for the owner in expectation of compensation for the sale.

   
   

10. Ron Hirshberg testified that after the Center negotiated the sale of a repossessed boat with a buyer, the Center paid the lending institution off and title to the boat was transferred to the Center which in turn transferred title to the buyer. Based on material available at Center's display booth, this does not appear to be the procedure used by the Center in handling a sale. The material available at the Center's display booth advises the potential buyer, among other things, that: (a) Center acts as the showing agent between the boat owner (bank) and buyer; (b) certain guidelines are imposed by the bank; (c) no offers will be submitted to the bank without a 10% refundable deposit on initial offer; (d) offers are subject to bank's acceptance; and (e) if repairs are needed, this will be negotiated between bank and buyer.

    
    

11. Respondent had his business cards on the table at the display booth which indicated he was associated with the Center. Also, on the display board was a notice that read "Any questions, come out to Chris Craft in-water display and ask for Dave". Dave is the Respondent herein. Upon inquiry, Respondent would direct the person to the marina where the repossessed boats were stored and explain the procedure on how to make an offer or purchase a repossessed boat.

    
    

12. There was insufficient competent substantial evidence to establish facts to show that the Respondent was employed by the Center as a yacht salesman or that the Respondent acted as a yacht salesman on behalf of Center as the term "salesman" is defined in Section 326.082(4), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Sections 120.57(1) and 326.006(1), Florida Statutes.

    
    

14. Section 326.006(2), Florida Statutes, provides in pertinent part as follows:

    
    

    (2) The division has the power to enforce and ensure compliance with the provisions of this chapter and rules promulgated pursuant hereto relating to the sale and ownership of yachts and ships. In performing its duties, the division has the following powers and duties:

    . . . .

    (d) Notwithstanding any remedies available to a yacht or ship purchaser, if the division

    has reasonable cause to believe that a violation of any provision of this chapter or rule promulgated pursuant hereto has occurred, the division may institute enforcement proceedings

    in its own name against any broker or salesman or their assignees or agents, as follows:

    . . . .

    4. The division may impose a civil penalty against a broker or salesman, or their assignees or agents, for any violation of this chapter or a rule promulgated pursuant hereto. A penalty may be imposed on the basis of each day of continuing violation, but in no event shall the penalty for any offense exceed $10,000 . . . .

    If a broker or salesman fails to pay the civil penalty, the division shall thereupon issue an order suspending the broker's license until such time as the civil penalty is paid or may pursue enforcement of the penalty in a court of competent jurisdiction . . . .

    
    

15. Section 326.002(1) and (3), Florida Statutes, defines broker and salesman to include unlicensed as well as licensed persons.

    
    

    1. "Broker" means a person who, for or in expectation of compensation: sells, offers, or negotiates to sell; buys, offers, or negotiates to buy; solicits or obtains listings of; or negotiates the purchase, sale, or exchange of, yachts for other persons.

       . . . .

       (3) "Salesman" means a person who, for or in expectation of compensation, is employed by a broker to perform any acts of a broker.

       
       

16. Section 326.004(1), Florida Statutes provides in pertinent part as follows:

    
    

    1. A person may not act as a broker or salesman unless licensed pursuant to the Yacht and Ship Brokers' Act. [Chapter 326, Florida Statutes.]

       
       

17. Section 326.002(4), Florida Statutes, defines a yacht to mean "any vessel which is propelled by sail or machinery in the water which exceeds 32 feet in length and which weighs less than 300 gross tons". The Trawler listed on the Central's display board for sale comes within this definition of a yacht.

    
    

18. Section 326.004(4), Florida Statutes, exempts from licensure any person who purchases a used yacht for resale and transfer title of such yacht into that persons name and maintains title or bill of sale in his possession. However, where a person acts as a broker, as defined by Section 326.002(1), Florida Statutes, on behalf of, or as agent for, a party who has foreclosed its secured interest in a yacht, Rule 7D-6.0001(2)(a), Florida Administrative Code, requires that such person be licensed under Chapter 326, Florida Statutes.

    
    

19. As the party asserting an affirmative issue before an administrative tribunal, the burden of proof is on the Division to prove the truth of the allegations. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). While it appears that the Center was acting as an agent for the lending institution that owned the Trawler, the Division has failed to show, even by a preponderance of the evidence, that Respondent acted

as a yacht salesman as defined in Section 326.002(3), Florida Statutes, in that regard. Therefore, the Division has failed sustained this burden.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, accordingly,

RECOMMENDED:

That Petitioner, Department of Business Regulation, Florida Land Sales, Condominiums and Mobile Homes enter a final order dismissing the order to show cause.

DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Adopted in substance as modified in Findings of Fact 6 and 7.

2. Adopted in substance as modified in Finding of Fact 8.

3. - 5. Adopted in substance as modified in Finding of Fact 9.

1. Adopted in substance as modified in Findings of Fact 3 and 11.

2. Rejected as not being supported by competent substantial evidence in the record.

3. Adopted in substance as modified in Finding of Fact 11.

4. Adopted in substance as modified in Findings of Fact 1 and 5.

5. Adopted in substance as modified in Finding of Fact 1.

6. Adopted in substance as modified in Finding of Fact 9.

Rulings on Proposed Findings of Fact Submitted by the Respondent

The Respondent did not submit any Proposed Findings of Fact.

COPIES FURNISHED:

Mark Henderson, Esquire Department of Business

Regulation

Division of Florida Land Sales, Condominiums and Mobile Homes

725 South Bronough Street Tallahassee, Florida 32399-1007

David R. Hirshberg 6035 30th Avenue West

Bradenton, Florida 34209

Henry M. Solares, Director Division of Florida Land Sales,

Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

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: 91-005030

Orders for Case No: 91-005030