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. 99-0602

)

PAT RAUM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, an Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on April 16, 1999, by telephone in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kathryn E. Price, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Pat Raum, pro se

Post Office Box 302 Kennebunkport, Maine 04046

STATEMENT OF THE ISSUE

Whether Respondent acted as a yacht broker in Florida without holding a yacht broker's license issued by petitioner?

PRELIMINARY STATEMENT

By notice to show cause, dated October 19, 1998, Petitioner alleges that:

Respondent, Pat Raum, acted as a yacht broker without a license issued by the Division in violation of section 326.004(1), Florida Statutes, as that term is defined by section 326.002(1), Florida Statutes. More specifically, during the period of

February 13, 1998 through April 13, 1998, beginning at the Strictly Sail portion of the 57th annual Miami International Boat Show & Strictly Sail, Respondent offered to sell a 1994 37’5" Jeanneau Sun Odyssey 37.1 sloop named "Southern Belle," in expectation of compensation.

On January 10, 1999, Respondent requested a formal hearing, and Petitioner duly referred the request to the Division of Administrative Hearings, in accordance with Section 120.57(1), Florida Statutes.

In the course of the final hearing, Petitioner presented testimony of three witnesses and eight exhibits. Respondent testified in his own behalf.

A Transcript of the final hearing was filed on May 4, 1999.

Proposed recommended orders submitted by the parties have been utilized where possible in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, presently retired, was formerly employed with Sun Yacht Charters located in Camden, Maine. He has never

   been licensed by the State of Florida as a yacht and ship salesperson or broker.

2. Respondent attended the 57th Annual Miami International Boat Show and Strictly Sail (boat show) held February 12-18, 1998. Respondent was in attendance at the Sun Yacht Charters Exhibit Booth, a booth in the Strictly Sail portion of the boat show.

3. Investigators and other Petitioner employees regularly attend this specific boat show in order to find unlicensed activity, such as selling and brokering of regulated yachts by persons not holding valid salesperson or broker’s licenses.

4. On February 13, 1998, Petitioner investigators James Courchaine and Peter Renje attended the boat show. They carried fictitious business cards with false names and the designation "Yacht Consultant" on the cards. Courchaine’s fictitious name was James K. Ramson. Renje’s card bore the name Pete Benson.

5. While walking through the Strictly Sail portion of the show, the investigators saw the booth for Sun Yacht Charters and Respondent. Respondent’s name tag read "Pat Raum." Outside the tent, the two investigators checked their list of licenses and did not find Pat Raum’s name listed. Although a license is not required in the sailboat portion of the show, Courchaine, posing as James K. Ramson, went back into the show and introduced himself to Respondent, handing him the fictitious business card with the name James K. Ramson, Yacht Consultant, displayed on it.

6. Courchaine, a/k/a Ramson, inquired of Respondent that he was looking for a boat for a client for an outright purchase for a client. Courchaine asked if there were any boats for sale through Sun Yacht Charters. Respondent replied that sometimes people in their charter program wanted to sell a boat and that Sun Yacht Charters would sell it for them. He gave Courchaine his business card identifying himself as Pat Raum, Director of Yacht Sales for Sun Yacht Charters. The business address on the card was Camden, Maine. Respondent also gave Courchaine a specifications sheet on the Southern Belle, destined to come out of the charter program in April of 1998. The specifications sheet listed an asking price of $9,000 for the boat.

7. From conversations he had with Petitioner's employees at a previous time when he discussed obtaining a Florida license, Respondent understood that Florida law did not permit him to sell or purchase yachts in Florida as an owner's agent.

8. On February 17, 1998, following contact with Sun Yacht’s Camden office, Courchaine learned that Respondent was still in Florida. Courchaine contacted Respondent and asked for a contract. Believing that he was dealing with a licensed Florida Yacht broker, Respondent agreed to what he thought was an appropriate arrangement between himself and Courchaine whereby the sale of the Southern Belle would involve a 30/70 split on the commission from the sale. Respondent later confirmed to Courchaine in a fax message that same day that Courchaine, a/k/a

   Ramson, would get three percent of the sales commission. Also, he included in the fax to Courchaine a blank Yacht Purchase and Sale agreement. It was Respondent’s understanding that in the event of a sale, the matter would have to be handled by Courchaine a/k/a Ramson, or another Florida broker, that he, Respondent could not act as a broker in Florida.

   CONCLUSIONS OF LAW

   
   

9. Since Petitioner referred Respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1), Florida Statutes, "the division has jurisdiction over the formal proceeding."

10. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986); Anheuser- Busch, Inc. vs. Department of Business Regulation, 393 So. 2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry,

    322 So. 2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So. 2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis"; Bowling vs. Department of Insurance,

    394 So. 2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. An unlicensed person faced

    with substantial monetary penalties is no less entitled to clear notice and clear proof.

11. Section 326.006(2), Florida Statutes, confers power and imposes a duty on Petitioner:

    to enforce and ensure compliance with the provisions of . . . chapter [326] and rules promulgated pursuant [t]hereto relating to the sale and ownership of yachts and ships.

    
    

12. Section 326.002(1), Florida Statutes, defines broker to include unlicensed as well as licensed persons:

    '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.

    
    

13. Section 326.004(1), Florida Statutes, provides in pertinent part:

    A person may not act as a broker or salesman unless licensed pursuant to the Yacht and Ship Brokers Act . . . .

    
    

14. The question is whether Petitioner has clearly and convincingly proven that Respondent acted as a yacht broker at the boat show in Miami, Florida, in February of 1998.

15. Respondent asserts that he thought he was dealing with a licensed Florida broker and that there was no illegality. As argued by Respondent, the only other interpretation of the law is not rational, in that both he and Courchaine could deal only by telephone from Maine to Florida as opposed to face-to-face meetings.

16. The record evidence is silent with regard to whether Respondent was compensated in any way for the attempt to move the Southern Belle. The evidence did not clearly and convincingly establish otherwise.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order dismissing the notice to show cause.

DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999.

COPIES FURNISHED:

Kathryn E. Price, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pat Raum

Post Office Box 302 Kennebunkport, Maine 04046

Philip Nowick, Director Division of Florida Land Sales,

Condominiums and Mobile Homes Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Woodyard, General Counsel Department of Business and

Professional Regulation 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: 99-000602

Orders for Case No: 99-000602