STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 08-3014

)

AUCTION DEPOT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 25, 2009, by video teleconference, with the parties appearing in West Palm Beach, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32303 For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 5, 2007, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated February 5, 2007, the Department of Business and Professional Regulation, Board of Auctioneers ("Board") charged Auction Depot with having failed to account for, pay for, or return money or property belonging to another, in violation of Section 468.389(1)(c), Florida Statutes (2007),1 and with having engaged in conduct evidencing bad faith or dishonesty, in violation of Section 468.389(1)(e), Florida Statutes. Anton Rechner, the president of Auction Depot, timely filed a request for an administrative hearing on behalf of Auction Depot, and the Board forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant notice, after several continuances, the final hearing was held on March 25, 2009.

At the hearing, the Board presented the testimony of Kathy

A. Murphy and Allan Murphy, and Petitioner's Exhibits 1 through

10 were offered and received into evidence. No one appeared on behalf of the Auction Depot.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on April 11, 2009, and the Board timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Board is created within the Department of Business and Professional Regulation and is the state agency responsible for regulating and imposing discipline on auctioneers and auction businesses. See §§ 468.384 and 468.189(2), Fla. Stat.

2. At the times material to this matter, the Auction Depot was a licensed auction business in the State of Florida. The auction business license of Auction Depot expired effective November 30, 2007, and has been considered delinquent since December 1, 2007. Anton Rechner was the president of Auction Depot at the times material to this proceeding.

3. Kathy Murphy is the owner of Endless Treasures Estate Sales and Service ("Endless Treasures"). On December 29, 2005, Mrs. Murphy consigned a number of items with Auction Depot for sale at auction. Auction Depot conducted an auction on

   January 5, 2005, and sold a number of the items Mrs. Murphy had put on consignment on December 29, 2005.

4. On January 6, 2006, Mrs. Murphy picked up from Auction Depot a list of items sold at the auction on January 5, 2005. The list included the items Mrs. Murphy had put on consignment, with the lot numbers for each item, the sales price for each

   item sold, the Auction Depot's commission for each item sold, and the total due to Mrs. Murphy for each item sold. Among the items shown sold on the list Mrs. Murphy picked up on January 6, 2006, were two mahogany hutches; the sales price was shown as

   $600.00 for each hutch, and $450.00 was owed to Mrs. Murphy for each hutch. The list Mrs. Murphy picked up on January 6, 2006, also included several items that were not sold at the January 5, 2006, auction, and no sales price or the notation "$0.00" was shown on the list. The total amount owed to Mrs. Murphy stated on the list of items Mrs. Murphy picked up on January 6, 2006, was $4,976.25, on total sales of $6,635.00.

5. Mrs. Murphy did not receive payment of the $4,976.25 from Auction Depot shown on the list she picked up on January 6, 2006. In February 2006, she received a check for $4,113.75, together with a revised list showing that the mahogany hutches had not been sold. Mrs. Murphy was told that the person who purchased the mahogany hutches had not paid for them.

6. On January 10, 2006, Auction Depot picked up additional items from Endless Treasures on consignment. The items were auctioned on January 12, 19, and 26, 2006. A list of the items sold at the January 12, 2006, auction shows that two mahogany "bookcases" were sold for $450.00 each. Mrs. Murphy was at the auction and identified the "bookcases" as the mahogany hutches that she sent to Auction Depot on December 29, 2005. These two

   items were sold in a telephone auction, but there was no speakerphone, so that the only person who could hear the telephone bids was Mr. Rechner. Mrs. Murphy later saw the hutches for sale in an antique gallery owned by Mr. Rechner.

7. According to the list provided by Auction Depot of the items sold at the January 12, 2006, the gross sales totaled

   $2,292.50, minus Auction Depot's commission of $573.13, for a total owing to Mrs. Murphy of $1,719.38. Mr. Rechner wrote a check to Endless Treasures for $1,719.38 and gave it to

   Mrs. Murphy; the check was dated January 12, 2006, but it was not signed, and Mrs. Murphy could not cash it. When she returned to Auction Depot and asked Mr. Rechner to sign the check, he refused with a rude remark and told her that he would see her in court. Mrs. Murphy finally received a check from Auction Depot for the $1,719.38 owed for the items sold on January 12, 2006; the check was dated January 1, 2006, and signed by Mr. Rechner. It was sent to Mrs. Murphy through the Board, after she filed a complaint against Auction Depot.

8. The total amount owning Mrs. Murphy for the items sold on Mrs. Murphy's behalf on January 19 and 26, 2006, was $53.13 and $105.00, respectively. Mrs. Murphy received payment of these amounts in February 2006.

9. A number of the items Mrs. Murphy placed with Auction Depot were not sold at the auctions held on January 5, 12, 19,

   or 26, 2006. Although Mrs. Murphy and her husband asked several times that Auction Depot return the unsold items, they were told that they had been broken or could not be found. Mrs. Murphy never received the unsold items from Auction Depot.

10. The evidence presented by the Board is sufficient to establish with a high degree of certainty that Mrs. Murphy did not receive payment for the items sold on January 5, 2006, within a reasonable amount of time. The evidence presented is also sufficient to establish with a high degree of certainty that Auction Depot committed acts of bad faith and dishonesty in connection with the sales of Mrs. Murphy's property by not returning unsold items to Mrs. Murphy and by manipulating the sale of the two mahogany hutches for his own benefit.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).

12. In its Administrative Complaint, the Department seeks to impose penalties against the Auction Depot that include suspension or revocation of his license and the imposition of an administrative fine. Therefore, it has the burden of proving by clear and convincing evidence that the Auction Depot committed the violations alleged in the Administrative Complaint.

    Department of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. In Evans Packing Co. v. Department of Agriculture and

    
    

    Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

    Judge Sharp, in her dissenting opinion in Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed recent pronouncements on clear and convincing evidence:

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the

    trier of fact without any hesitancy. Id. It must produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

    
    

14. Section 468.389, Florida Statutes, provides in pertinent part:

    1. The following acts shall be grounds for the disciplinary activities provided in subsections (2) and (3):

       
       

       * * *

       
       

       (c) Failure to account for or to pay or return, within a reasonable time not to exceed 30 days, money or property belonging to another which has come into the control of an auctioneer or auction business through an auction.

       
       

       * * *

       
       

       (e) Any conduct in connection with a sales transaction which demonstrates bad faith or dishonesty.

       
       

       * * *

       
       

    2. When the board finds any person guilty of any of the prohibited acts set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       * * *

       
       

       1. Revocation or suspension of a license.

          
          

       2. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

15. Based on the findings of fact herein, the Board has proven by clear and convincing evidence that Auction Depot violated Section 468.389(1)(c) and (e), Florida Statutes. Under the circumstances of this case, the appropriate penalty would be the revocation of Auction Depot's license to engage in the auction business and the imposition of an administrative fine in the amount of $1,000.00 for each of the two statutory violations, for a total administrative fine of $2,000.00. License revocation is not, however, possible in this case because the license of Auction Depot expired on December 1, 2007, and has not been renewed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Auctioneers enter a final order finding that Auction Depot violated

Section 468.389(1)(e) and (c), Florida Statutes, in connection with the transactions involving Endless Treasures Sales and Service and imposing an administrative fine of $2,000.00.

DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 April, 2009.

ENDNOTE

1/ All references herein to the Florida Statutes are to the 2007 edition unless otherwise indicated.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32303

Anton Rechner Auction Depot

1350 North Federal Highway Delray Beach, Florida 33483

Anthony B. Spivey, Executive Director Board of Auctioneers

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, 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: 08-003014

Orders for Case No: 08-003014