STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

MOBILE HOMES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5314

)

JERRY GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on March 18, 1997. The hearing was conducted by video between Tallahassee, Florida, and Tampa, Florida.

APPEARANCES

For Petitioner: Suzanne V. Estrella

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Paul T. Marks, Esquire

Post Office Box 4048 Tampa, Florida 33677

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Jerry Green, acted as a yacht and ship broker as defined in Section 326.022(1), Florida Statutes, without being licensed by Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, as alleged in a Notice to Show Cause entered September 3, 1996.

PRELIMINARY STATEMENT

On or about September 3, 1996, Petitioner entered a Notice to Show Cause alleging that Respondent had acted as a yacht and ship broker as defined in Section 326.022(1), Florida Statutes, without being licensed. Respondent responded to the Notice to Show Cause by response dated September 13, 1996. Respondent admitted some, but not all, of the facts alleged in the Notice to Show Cause. Respondent requested a formal administrative hearing to contest Petitioner’s Notice to Show Cause.

The request for hearing was filed with the Division of Administrative Hearings on November 7, 1996. The matter was designated case number 96-5314 and was initially assigned to Administrative Law Judge William F. Quattlebaum. The case was transferred to Administrative Law Judge Daniel Manry who scheduled the formal hearing for March 18, 1997. The case was subsequently transferred to the undersigned.

The formal hearing was conducted by video conferencing. The undersigned participated in the hearing from a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The parties participated from Orlando, Florida.

At the formal hearing, Petitioner presented the testimony of Janet L. Gray and James J. Courchaine. Petitioner offered three exhibits. They were accepted into evidence. Respondent testified on his own behalf. Respondent offered no exhibits.

A transcript of the formal hearing was filed with the Division of Administrative on March 28, 1997. Proposed recommended orders were, therefore, required to be filed on or before April 7, 1997. Petitioner filed a proposed recommended order on April 7, 1996. Respondent filed a proposed recommended order on April 25, 1997.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter referred to as the “Division”), is an agency of the State of Florida. The Division is charged with the responsibility for carrying out the provisions of Chapter 326, Florida Statutes, the Florida Yacht and Ship Brokers’ Act (hereinafter referred to as the “Act”).

2. Respondent is Jerry Green. Mr. Green is not licensed by the Division pursuant to the Act as a yacht and ship broker.

3. At all times relevant to this proceeding, Mr. Green was employed at Rick’s on the River (hereinafter referred to as “Rick’s”), in Tampa, Florida.

4. Mr. Green was compensated for his employment at Rick’s by being provided room and board.

5. During 1996 the Division received an anonymous complaint including a copy of an advertisement from a October 13, 1995 edition of a publication known as the “West Florida Boat Trader”. The advertisement indicated it was from Rick’s and included several photographs of boats purportedly for sale at Rick’s.

6. Among other boats listed on the advertisement was the following:

   1975 42’POST

   Full Tuna Tower, Twin Turbo Charge Detroit 671 Out of Town Owner

   DESPARATE to Sell, $84,500

   
   

7. A similar advertisement was placed in the November 3, 1995 edition of the “West Florida Boat Trader”.

8. Although Mr. Green denied at hearing that he had placed the advertisement, he admitted in his Response to Notice to Show Cause that “between October of 1995 and May of 1996 he advertised a 1975 42’ Post named the ‘Dunn Deal’ . . . .” He also admitted in the Response “that he advertised the 42’ Post at the request of the owner, Richard Dame, who is a personal friend, for the purpose of testing whether there was a market for such a boat and to determine the approximate value of the boat.” It is,

   therefore, concluded that Mr. Green was responsible for the advertisement.

9. On May 31, 1996, James Courchaine, an investigator for the Division, went to Rick’s.

10. After arriving at Rick’s, Mr. Courchaine met Mr. Green. Mr. Green identified himself as the “dockmaster”. Mr. Courchaine asked about the 42-foot Post and Mr. Green told him that he knew all about the Post and could talk to Mr. Courchaine about it.

11. Mr. Green told Mr. Courchaine the Post belonged to a friend and that he, Mr. Green, could sell it. Mr. Green also indicated the Post was in Key West and that he wasn’t sure if the owner would be bringing it back.

12. Mr. Green also told Mr. Courchaine that the owner was originally asking $84,500.00 for the Post but, that since it had been on the market so long without any interest, he might take between $79,000.00 and $81,000.00 for it.

13. Mr. Courchaine asked Mr. Green whether the amount Mr. Green quoted included Mr. Green’s commission. Mr. Green told Mr. Courchaine that “he would be taken care of.”

14. Mr. Green wasn’t employed as the dock master at Rick’s. Mr. Green lived on the premises and looked after the property, including boats located there. In return, he received room and meals.

15. At the time of the formal hearing Mr. Green testified that he was not employed and that his only source of funds is

    Social Security. He also testified, however, that he still lives at Rick’s.

16. The evidence failed to prove that Mr. Green has any source of funds other than Social Security.

17. The evidence failed to prove that Mr. Green offered to sell any vessel regulated under the Act except as described in this Recommended Order.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120,57, Florida Statutes (1996 Supp.).

19. Section 326.004(1), Florida Statutes, provides, in relevant part, the following:

    1. A person may not act as a broker or salesperson unless licensed under the Yacht and Ship Brokers’ Act. . . .

       
       

20. The term “broker” is defined in Section 326.002(1), Florida Statutes, as follows:

    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.

       
       

21. The evidence in this case failed to prove that Mr. Green was a person that “sells . . . or negotiates to sell; buys, offers, or negotiates to buy; solicits or obtains listings of; or negotiates the purchase, sale, or exchange of, yachts . . . .” At issue, however, is whether Mr. Green was a person who “[offered]

    . . . to sell . . . yachts for other persons” and, if so, whether he did so “for or in expectation of compensation ”

22. At hearing, Mr. Green testified that he did not place the advertisement of the Post. This testimony was contrary to his admission in his Response to Notice to Show Cause: “Respondent admits that approximately between October of 1995 and May of 1996

    he advertised a 1975 42’ Post named the ‘Dunn Deal’ . . . .” He also admitted in the Response the following: “Respondent says further that he advertised the 42’ Post at the request of the owner, Richard Dame, who is a personal friend, for the purpose of testing whether there was a market for such a boat and to determine the approximate value of the boat.”

23. Given Mr. Green’s contradictory testimony concerning whether he advertised the Post and Mr. Courchaine’s testimony about his conversation with Mr. Green, Mr. Green’s testimony that he did not offer to sell the Post to Mr. Courchaine was not credible.

24. Mr. Green did place the advertisement of the proposed sale of the Post and he offered to sell the Post to Mr. Courchaine. The only remaining issue is whether he did so for “compensation”.

25. Although the evidence failed to prove that Mr. Green would be paid a commission in the form of cash if the Post were sold, Mr. Green was receiving room and meals for his work at Rick’s and he admitted to Mr. Courchaine that he “would be taken care of” if the Mr. Courchaine purchased the vessel. It is, therefore, concluded that Mr. Green did offer to sell a yacht for the expectation of compensation.

26. Section 326.006(2)(d), Florida Statutes, authorizes the Division to institute proceedings against unlicensed persons who

    act as brokers and authorizes the Division to take the following pertinent actions for violations by unlicensed persons of the Act:

    . . . .

    2. The division may issue an order . . . requiring any unlicensed person . . . to cease and desist from the unlawful practice and take such affirmative action as in the judgment of the division will carry out the purposes of this chapter.

    . . . .

    4. The division may impose a civil penalty against . . . an unlicensed person . . . for any violation of this chapter or a rule adopted under this chapter. A penalty may be imposed for each day of continuing violation, but in no even may the penalty for any offense exceed $10,000.00. . . .

    
    

27. In this matter the Division has suggested that a civil penalty of $4,000.00 should be imposed on Mr. Green. This recommendation fails to take into account the fact that the evidence failed to prove that Mr. Green has attempted to sell the Post or any other vessel except on the one occasion he spoke to Mr. Courchaine, the specific compensation Mr. Green would receive had the Post been sold or the fact that Mr. Green’s only source of funds is Social Security. Given these facts, a cease and desist order and a civil penalty of $500.00 should be adequate to deter Mr. Green from further unlawful acts under the Act.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes ordering Jerry Green to cease and desists from acting as an unlicensed broker in violation of the Act and that he pay a civil penalty in the amount of $500.00 within thirty days of the date this matter becomes final.

DONE and ORDERED this 28th day of April, 1997, in Tallahassee, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.

COPIES FURNISHED:

Suzanne V. Estrella Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

Paul T. Marks, Esquire Post Office Box 4048 Tampa, Florida 33677

Lynda L. Goodgame General Counsel Department of Business

& Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Robert H. Elizey, Jr., Director Department of Business

& Professional Regulation Florida Land Sales, Condominium

& Mobil Homes

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-005314

Orders for Case No: 96-005314