The Issue Whether Respondent, a real estate broker, committed the offenses alleged in the Administrative Complaint dated February 16, 2010, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times relevant to this proceeding, Respondent was licensed in the State of Florida as a real estate broker, having been issued license BK-575099. Respondent is registered as a sole proprietor broker, trading as Atlantic Auction Realty. On February 21, 2008, Respondent, acting through his company, entered into a contract (auction contract) with David Mover to auction a townhouse owned by Mr. Mover located at 8626 S.W. 94th Street, Miami, Florida (the subject property). Mr. Mover had been trying to sell the subject property for approximately two years. In March 2007, Mr. Mover became unable to make the mortgage payments on the subject property. On February 21, 2008, the Circuit Court in and for Dade County, Florida, entered a Final Judgment of Mortgage Foreclosure (Judgment of Foreclosure) against the subject property in favor of Washington Mutual Bank, the holder of the first mortgage. The amount of the judgment was $245,727.25. The Judgment of Foreclosure ordered that the property be sold at public sale on April 24, 2008. At the time of the auction, there was a second mortgage on the subject property owned by a trust. The approximate amount of the second mortgage was $120,000.00. The trust was a defendant in the foreclosure proceedings. Prior to the auction conducted by Respondent, the trustee of the trust indicated a possible willingness on the part of the trust to accept less than the balance owed on the second mortgage if the property were sold by private auction, as opposed to the public auction ordered by the Judgment of Foreclosure. However, the subject auction occurred prior to the trustee’s making a commitment to take less than the balance owed on the second mortgage. The price listed on the auction contract was $350,000.00. The minimum amount Mr. Mover wanted for the townhouse was $370,000.00, which would have been sufficient to satisfy the Judgment of Foreclosure and the second mortgage. Mr. Mover never agreed to accept less than $370,000.00 for the subject property.2 Mr. Mover understood that the $350,000.00 figure was a starting point for the auction.3 This was not an absolute auction. Mr. Mover had the right to refuse a bid less than $350,000.00. The auction contract contained the following provision in paragraph 3: 3. 10% BUYER’S PREMIUM will be added to the Buyer’s Bid and be the Auctioneer’s total commission. The auction contract provided that the auction would be on March 20, 2008. Respondent prepared a flyer that announced the terms of the auction. Prospective bidders were notified by the flyer that a 10% deposit would be required the day of the sale and that there would be a buyer’s premium of 10% of the bid. Prospective bidders were required to have a cashier’s check in the amount of $10,000.00. The “Auction Terms and Conditions” included the following provisions: Bidder Registration. The auction is open to the public and your attendance is welcomed. To register, you must display a cashier’s check in the amount as set forth in each property description. Upon being declared the top bidder, the cashier’s check will be applied as a partial deposit, and the deposit must be increased to equal (10%) [sic] of each contract price. Please be advised there are no exceptions. . . . Contract and Deposit. Bids may not be retracted once accepted by the auctioneer. Upon being declared top bidder, the cashier’s check will be applied as a partial deposit. . . . The auction was conducted in the driveway of the subject property. Mr. Mover waited in the upper area of the subject property during the auction. Mr. Gordon opened the bidding at the base bid (the bid amount prior to tacking on the buyer’s premium) of $285,000.00, but agreed to up the base bid to $300,000.00 when Respondent agreed to reduce the buyer’s premium to $10,000.00 from 10% of the base bid amount ($28,500.00 for a base bid of $285,000.00 or $30,000.00 for a base bid of $300,000.00). Respondent went upstairs and wrote down the amount of the bid and told Mr. Mover that he would reduce the buyer’s premium to $10,000.00 if Mr. Mover would accept that price. Mr. Mover refused to accept that bid. Mr. Mover believed that the auction had failed to sell the property. After talking with Mr. Mover, Respondent concluded the auction by declaring Mr. Gordon, bidding on behalf of himself and his wife, the winning bidder at the auction. Mr. Gordon’s base bid was in the amount of $300,000.00 plus a buyer’s premium in the amount of $10,000.00, bringing the total bid to $310,000.00. After being declared the winning bidder, Mr. Gordon gave to the Respondent the $10,000.00 cashier’s check he had brought to the auction. Mr. Gordon signed a document styled “Contract for Sale and Purchase at Auction” (Purchase Contract), which reflected a total selling price of $310,000.00 (this figure included the buyer’s premium) and a requirement that the closing date be on or before April 19, 2008. The Purchase Contract contained the following provision relating to the Buyer’s Premium: 8. BUYER’S PREMIUM – WHEN EARNED: it is understood and agreed by the Seller and the Buyer that the Buyer’s Premium is paid to the Auctioneer at the time of the Auction Sale and is the sole property of the Auctioneer, and he is entitled to this money as his fee at the time of said payment. Respondent told Mr. Gordon that he would cash the check Mr. Gordon gave to him on March 20, 2008, after Mr. and Mrs. Gordon had an executed contract signed by both parties. Respondent cashed Mr. Gordon’s check on March 21, 2008. Respondent never presented the Purchase Contract to Mr. Mover, and the transaction never closed. The Gordons were unable to secure financing because they had no contract. Mr. Gordon has made repeated demands for the return of the proceeds from the check he gave to Respondent. Respondent has refused those demands.4 Respondent was aware of the foreclosure proceeding before he conducted the auction. Respondent did not disclose the foreclosure proceeding to Mr. Gordon prior to the auction. After the auction, Mr. Mover filed for bankruptcy. Mr. Gordon filed no claim in that proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Real Estate find Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint. For the violation found in Count I, it is recommended that the final order impose against Respondent an administrative fine in the amount of $1,000.00 and that it revoke his broker’s license. For the violation found in Count II, it is recommended that the final order impose an administrative fine in the amount of $250.00 and that it revoke his broker’s license. DONE AND ENTERED this 14th day of July, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2010
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against H. Ernest Morris, Sr. be DISMISSED with prejudice. DONE and ENTERED this 3rd day of May, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1984. COPIES FURNISHED: Tina Hipple, Esquire P. O. Box 1900 Orlando, Florida 32802 Carmine M. Bravo, Esquire 1450 State Road 434 Longwood, Florida 32750 Steven H. Coover, Esquire P. O. Drawer H Sanford, Florida 32771 Fred M. Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold R. Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0034049 DOAH NO. 83-3273 H. ERNEST MORRIS, SR. Respondent. /
Findings Of Fact In March, 1974 Respondent entered into a contract with Mr. and Mrs. Francis T. Kent for the construction of a residence for a price of $46,700. After Kent had paid Respondent $26,000 he became aware of a problem in satisfying claims of subcontractors with the resulting possibility of liens against the house. At the time the Kents were in Michigan preparing to move to Florida. They came to Florida in September and met with Selner at their attorney's office at which time a secondary agreement was entered into whereby Kent would make checks payable to Respondent and subcontractor jointly. An additional $18,589.93 was paid to Selner pursuant to this secondary agreement. This made a total payment to Respondent of $44,589.93 as of December 31, 1974. After crediting Respondent for sewer hookup and crediting Kent with allowances provided in the contract for carpets, landscaping, etc. the Kents had paid $46,552.44 of the total contract price of $46,700. Thereafter four liens totaling $3,348.63 were filed against the residence. Kent paid one in full, settled a second lien at a discount and two remain pending. The total still owned to lienors is approximately $1,700.
The Issue Whether C. Fullerton and Landscaping Co., Inc., is indebted to Other Side Sod, LLC, for the purchase of sod and pallets; and, if so, in what amount.
Findings Of Fact Petitioner is a Florida Limited Liability Corporation located in Arcadia, Florida, and at all times relevant hereto was a producer of agricultural products, as defined by section 604.15(9), Florida Statutes. Petitioner is also a “dealer in agricultural products” within the meaning of section 604.15(2). Respondent, during all times relevant hereto, was a “dealer in agricultural products,” within the meaning of section 604.15(2). At all times relevant to this proceeding, Great American served as surety for Respondent. At all times relevant to this proceeding, Respondent was a customer of Other Side Sod. Respondent purchased sod from Petitioner and thereafter resold and installed the sod to Respondent’s customers. Petitioner sold sod to its customers on wooden pallets. An integral part of each transaction involved the pallets. There are 10 invoices in dispute which cover the period October 14, 2016, through February 10, 2017. For the underlying transactions that relate to the invoices in question, the following language is contained on each field/delivery ticket: Terms of Sale: Payment due upon receipt. All payment[s] applied to pallet balance first. Interest at the rate of 1 1/2% per month will be charged on unpaid invoice amounts after 14 days. Invoices will be charged $0.02 per square foot additional after 30 days. Purchaser agrees to pay all costs of collection, including attorney fees, in [the] event it is necessary to institute suit for collection. Venue will be in DeSoto County, Florida. All Sales F.O.B. Shipping Point. On or about October 14, 2016, Petitioner sent Respondent invoice 47293, which showed a balance due of $462 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 83,200 units of Bahia sod related to the transaction ($1,664). Petitioner also added to the invoice a charge of $124.80 for sales tax related to the late payment penalty ($1,664 x 7.50 percent). On or about October 23, 2016, Petitioner sent Respondent invoice 47378, which showed a balance due of $224 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 70,400 units of Bahia sod related to the transaction ($1,408). Petitioner also added to the invoice a charge of $105.60 for sales tax related to the late payment penalty ($1,408 x 7.50 percent). On or about October 24, 2016, Petitioner sent Respondent invoice 47420, which showed a balance due of $280 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 16,000 units of Bahia sod related to the transaction ($320). Petitioner also added to the invoice a charge of $24 for sales tax related to the late payment penalty ($320 x 7.50 percent). On or about November 13, 2016, Petitioner sent Respondent invoice 47549, which showed a balance due of $1,526 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 103,200 units of Bahia sod related to the transaction ($2,064). Petitioner also added to the invoice a charge of $154.80 for sales tax related to the late payment penalty ($2,064 x 7.50 percent). On or about December 6, 2016, Petitioner sent Respondent invoice 47755, which showed a balance due of $434 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 30,400 units of Bahia sod related to the transaction ($608). Petitioner also added to the invoice a charge of $45.60 for sales tax related to the late payment penalty ($608 x 7.50 percent). On or about January 8, 2017, Petitioner sent Respondent invoice 48093, which showed a balance due of $1,256 for 12,800 units of Bahia sod, $224 for a pallet deposit, and $72 for sales tax. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 12,800 units of Bahia sod related to the transaction ($256). Petitioner also added to the invoice a charge of $19.20 for sales tax related to the late payment penalty ($256 x 7.50 percent). On or about December 13, 2016, Petitioner sent Respondent invoice 48166, which showed a balance due of $343 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 163,200 units of Bahia sod related to the transaction ($3,264). Petitioner also added to the invoice a charge of $244.80 for sales tax related to the late payment penalty ($3,264 x 7.50 percent). On or about January 29, 2017, Petitioner sent Respondent invoice 48285, which showed a balance due of $3,000 for 40,000 units of Bahia sod, $308 for a pallet deposit, and $225 for sales tax (total = $3,533). On February 3, 2017, Respondent submitted to Petitioner partial payment in the amount of $3,210.50, which left an unpaid balance of $322.50. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 40,000 units of Bahia sod related to the transaction ($800). Petitioner also added to the invoice a charge of $60 for sales tax related to the late payment penalty ($800 x 7.50 percent). On or about January 31, 2017, Petitioner sent Respondent invoice 48301, which showed a balance due of $390 for 5,200 units of Bahia sod, $91 for a pallet deposit, and $29.25 for sales tax (total = $510.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $468.33, which left an unpaid balance of $41.92.1/ The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent). On or about February 10, 2017, Petitioner sent Respondent invoice 48409, which showed a balance due of $390 for 5,200 units of Bahia sod, $21 for a pallet deposit, and $29.25 for sales tax (total = $440.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $398.33, which left an unpaid balance of $41.92. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Other Side Sod, LLC, against C. Fullerton and Landscaping Co., Inc., in the amount of $4,981.34. DONE AND ENTERED this 7th day of November, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2017.
The Issue The issue is whether Celebration Acres, Inc., or its surety, Florida Farm Bureau General Insurance Company, is liable for funds due Mike's Green Thumb, Inc., for the sale of agricultural products.
Findings Of Fact Petitioner is a Florida corporation with its principal place of business in Delray Beach, Florida, where it engages in the production of nursery stock. Mr. Michael Raimondi testified at the hearing on Petitioner's behalf. Respondent is a Florida corporation located in Coral Springs, Florida. At the time of the transactions which are the subject of this proceeding, Respondent was licensed as a dealer in agricultural products supported by Surety Bond Number BD 0692212 (the Bond) in the amount of $16,000. Respondent engages in the business of landscaping. Mr. David Urs testified at the hearing on Respondent's behalf. Co-Respondent is a corporation, licensed to do business in the state of Florida as an insurer. As surety, it provided the Bond for Respondent. The conditions and provisions of the Bond are to assure proper accounting and payment to producers for agricultural products purchased by Respondent. From October of 1993 through February of 1994, Petitioner sold nursery plants of its own production to Respondent at a sale price in the total amount of $14,562.35. The parties have done business together for over six (6) years. During that time, they have not established a course of performance or course of dealing regarding the terms of payment. In fact they have consistently argued over this point through out their business relationship. Respondent did not always send Petitioner a purchase order. When Petitioner received purchase orders, they consistently stated at the top that the terms of payment would be "net 30." However, on some occasions, the Respondent also stamped the purchase orders with the following additional payment terms: Terms of payment are per contract between general contractor and Celebration Acres, Inc.; and (b) Material sold by this purchase order once installed by Celebration Acres, Inc. belongs to the owner of the property where installed. Payment is due to supplier when payment is received by Celebration Acres, Inc. Suppliers are encouraged to protect themselves by sending a notice to owner. Regardless of whether Petitioner received a purchase order, it always sent Respondent an invoice stating that payment was due thirty (30) days after the date of invoice. The parties agree that subject invoices reflect the correct sale price for plants delivered and accepted. On or before October 11, 1993, Respondent bought 1343 Liriope and 132 Indian Hawthorne from Petitioner for a total sale price of $4,419.25. The express terms of payment for this sale was net in 30 days as set forth in Purchase Order No. 157 and Invoice No. 6504. Mr. Urs, Respondent's witness, testified that Purchase Order No. 157 is incomplete and that Respondent sent Petitioner a subsequent purchase order containing the additional payment terms referenced above in paragraph six (6). Mr. Urs' testimony is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's witness. Respondent admits that it owes and has not paid Petitioner $4,419.25 for Invoice No. 6504. Payment for this invoice is past due. On or before December 16, 1993, Respondent sent Petitioner Purchase Order No. 193 for 200 Variegated Liriope. This purchase order contains the additional payment terms referenced above in paragraph six (6), i.e., payment was due pursuant to the terms of the contract between Respondent and the City of Oakland Park. Pursuant to this order, Petitioner delivered and Respondent accepted 230 plants as described in Respondent's Invoice Nos. 7528 and 7713 for a total sale price of $379.50. Respondent admits that it owes and has not paid Petitioner $379.50 for Invoice Nos. 7528 and 7713. Record evidence indicates that Respondent has completed its work for the City of Oakland Park. Additionally, there is no pending dispute over that contract; Respondent expected payment by May 26, 1994. Petitioner has met its burden of proof regarding Invoice Nos. 7528 and 7713. Respondent presented no evidence to show that payment is not due. Accordingly, payment for Invoice Nos. 7528 and 7713 is past due. On or about November 29, 1993, Respondent sent Petitioner Purchase Order No. 175 requesting shipment of various kinds of nursery stock. Respondent stamped this invoice with the terms referenced above in paragraph six (6). After receiving the order, Petitioner sent Respondent Invoice Nos. 7236 and 7408 reflecting a total sale price in the amount of $5,490.50. At the formal hearing, Respondent produced a copy of a Final Release of Lien signed by Petitioner's representative indicating that Petitioner received payment for Invoice Nos. 7236 and 7408. The release appears to bear an imprint of Petitioner's corporate seal. Petitioner asserts that Respondent never paid for Invoice Nos. 7236 and 7408. Mr. Raimondi, Petitioner's representative, occasionally signed a release before receiving funds so that a general contractor would pay Respondent, who promised, in turn, to pay Petitioner. Respondent faxed the subject release to Mr. Raimondi who signed it and faxed it back to Respondent. Someone at Respondent's office notarized Mr. Raimondi's signature. Respondent presented no evidence to show whether Petitioner ever received payment for Invoice Nos. 7236 and 7408. Respondent admits that it would occasionally request the execution of a release before paying Petitioner for plant material. Mr. Urs, Respondent's representative, testified that Respondent may have paid Petitioner in one of two ways: (a) by Respondent's check (company or certified); or (b) by the general contractor's check payable jointly to Respondent and Petitioner. The testimony of Mr. Urs, Respondent's representative, concerning the parties' execution of releases in general, and the subject release in particular, is contrary to the more compelling testimony of Mr. Raimondi, Petitioner's representative. Petitioner has met its burden of proving that payment for Invoice Nos. 7236 and 7408 is past due. On or about January 27, 1994, Respondent sent Petitioner Purchase Order Nos. 232 and 234 for assorted nursery plants. Both purchase orders contain the additional payment terms referred to in paragraph six (6) above. In response to these orders, Petitioner sent Respondent Invoice Nos. 8026 and 8027 for $660.75 and $612.35 respectively. Respondent admitted at the formal hearing that it owed Petitioner for Invoice Nos. 8026 and 8027 and that payment was past due. On or about February 14, 1994, Petitioner sent Respondent Invoice No. 8244 for 1500 Fern Sword listing the sale price in the amount of $3,000. Neither party produced a corresponding purchase order for this invoice and Petitioner did not recall receiving one. Mr. Urs, Respondent's representative, testified that Respondent owed Petitioner for Invoice No. 8244, but that payment is not due because Respondent has not received payment from the general contractor or the owner, Palm Beach County. Petitioner admits it has been in contact with the general contractor's bond company in an attempt to collect the debt. However, there is no persuasive record evidence that Petitioner ever agreed to defer payment until the general contractor or owner paid Respondent. Petitioner has met its obligation of proving that payment for Invoice No. 8244 is past due.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, I recommend that the Department of Agriculture and Consumer Services enter a Final Order directing Respondent and/or its surety and Co-Respondent to pay Petitioner $14,562.35. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22 day of December 1994. SUZANNE F. HOOD, Hearing Officer 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 this 21st day of October, 1994. COPIES FURNIHSED: Florida Farm Bureau General Insurance Company (Legal Dept.) Post Office Box 147030 Gainesville, Florida 32614 Michael Raimondi, President Mike's Green Thumb, Inc. Post Office Box 6279 Delray Beach, Florida 33445 David S. Urs, Vice President Celebration Acres, Inc. 3300 University Dr. #514 Coral Springs, Florida 33065 Richard Tritschler, Esquire Dept. of Agriculture & Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
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.
Findings Of Fact Respondent is a licensed auctioneer, holding license number AU 0000415. 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. 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. 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. 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. 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. 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. 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. 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. 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. Upon the insistence of Mrs. Mitchell for documentation of the auction sales, Respondent later provided the Mitchells with copies of the clerking tickets. The estimated value of the auctioned property exceeded $500.
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
