Findings Of Fact On July 26, 1990, Lake filed an intent to sell said dealership to Nolette. On September 13, 1991, the Petitioner filed a verified complaint with the Department rejecting the proposed transfer between Lake and Nolette. The Petitioner was also informed that the proposal included relocation of the dealership from its current location to 710 South Bay Street, Eustis, Florida. The Petitioner moved to dismiss that portion of the matter related to relocation of the dealership. By Order dated December 19, 1990, that portion of the complaint relating to the approval of the change of location was dismissed. The only matters before the Division of Administrative Hearings are those related to the change of ownership. The Petitioner's basis for opposing the proposal is the failure of Nolette, a Jeep Eagle dealer (another Chrysler subsidiary), to meet existing customer satisfaction standards for Chrysler dealers. The Petitioner's agreements with its dealers require them to maintain certain objective customer satisfaction standards. The Petitioner asserts its standards are reasonable; Nolette failed to meet those standards; and the Petitioner has rejected other proposed transfers for the acquiring dealer's failure to meet those standards. The Petitioner markets Chrysler, Plymouth, Dodge, and Dodge Trucks, which are the line-makes sold by Lake. (TR-7). Nolette, the proposed purchaser of Lake, is the current owner and operator of Plaza Jeep Eagle, located in Lake County, Florida. (TR-8; EX-2, pg. 1). Jeep was manufactured by American Motors. The Petitioner purchased American Motors and entered into uniform dealer agreements with American Motors' Jeep and Eagle dealers, including Plaza Jeep Eagle. (TR-9; EX-2). Upon entering into the agreement with Plaza Jeep Eagle, the Petitioner, through its subsidiary, American Motor Sales Corporation, relied "on the active, substantial and continuing personal participation in the management of Dealer's organization by Joseph H. Nolette". (EX-2, pg. 1, paragraph 2). As a part of the Jeep Eagle sales agreement, Nolette agreed, in paragraph 11B, on page 4, as follows: Dealer shall at all times during this agreement meet its minimum service satisfaction requirements by maintaining a rating on American Motors Sales Corporations' Customer Satisfaction Index, Prep-It-Right and Deliver-It-Right evaluations, as determined by American Motors Sales Corporation from time to time based upon surveys conducted of the dealer's customers, which is equal to or greater than the average Customer Satisfaction Index, Prep-It-Right and Deliver-It-Right ratings for the National sales group levels as those groups are determined by AMSC from time to time in which the dealer is included. (emphasis supplied). The sales group referred to in the dealer agreement are determined by the sales volume of the dealership so that similar size dealers may be compared. (TR-11). The system by which dealers are measured is explained to the dealer through booklets detailing the operation of the surveys and their results. (EX- 3). Customer satisfaction is sampled by questionnaires to the dealer's customers. Only questions relating to the operation of the dealership are used to assess the dealership, including courtesy of dealership personnel, convenience of scheduling, vehicle ready when promised, work done right the first time, the availability of parts, explanation of service, repairs, charges, and service and maintenance work after the sale. (TR-30). Other questions dealing with the vehicle itself, such as "Would you buy another vehicle from Chrysler Corporation?", are asked; however, the dealer is not scored on those questions. (TR-30). Nolette's operation at Plaza Jeep Eagle does not comply with the standards set out in its dealer agreement for Customer Satisfaction Index (hereinafter referred to as the Prep-It-Right, and the Deliver-It-Right standards. (TR-13). In the CSI survey, Plaza Jeep Eagle scored a 2.70 on a 0 to 4 scale, compared to 3.40 for similar dealers throughout the nation ("National Sales Group") for the twelve (12) month period ending June of 1989. (EX-4, pg. 6). Utilizing other standards to review Plaza Jeep Eagle's performance, similar results appear. Plaza Jeep Eagle is also substantially below the national average for all dealers (3.12); the average for dealers in the Orlando zone (3.00); the average for the Orlando zone for Similarly-sized dealers ("Zone Sales Group")(2.83); and for all dealers in the central Florida district near Plaza Jeep Eagle (3.19). Since June of 1989, Plaza Jeep Eagle's cumulative twelve (12) month average score has decreased, both in absolute terms and as a percentage of the National Sales Group standard, as follows: 6/89 12/89 6/90 Plaza Jeep Eagle 2.70 2.63 2.29 National Sales Group 3.40 3.40 3.38 Plaza, as a percentage of National Sales Group 79% 77% 68% Similarly, Plaza Jeep Eagle is consistently below other measures of CSI performance which, although not contractually mandated for comparison, demonstrate the reasonableness of the National Sales Group standard, as follows: 6/89 12/89 6/90 Plaza Jeep Eagle 2.70 2.63 2.29 National Average 3.12 3.15 3.14 Orlando Zone Average 3.00 3.02 3.01 Orlando Zone Sales Group 2.83 3.04 2.95 Central Florida District Average 3.19 3.12 3.12 With regard to the Prep-It-Right and Deliver-It-Right questions of consumers, a consistent and substantially lower percentage of buyers were satisfied with Plaza Jeep Eagle than with the national group of similarly-sized dealers. For the period ending in Juice of 1989, 71% of Plaza Jeep Eagle's customers were satisfied with the preparation of their vehicle and 71% with the delivery of the vehicle, compared to 97% for both measures in the National Sales Group. In December of 1989, Plaza Jeep Eagle's percentage of satisfied customers was 75% for both preparation and delivery, compared to 96% on both measures in the national group. For June of 1990, Plaza Jeep Eagle's percentage of satisfied customers was 71% for preparation, compared to 97% for the national group, and 77% for delivery, compared to 96%. The Petitioner has established written, reasonable, and uniformly- applied standards with respect to performance of a dealership. These standards are published in the dealer sales and service agreements and related documents concerning a dealer's obligation with respect to customer satisfaction. The Petitioner has rejected other proposed applicants because of their failure to meet such standards. (TR- 42)
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Department enter a Final Order denying the Respondents' proposal to change the ownership of Lake. DONE AND ENTERED this 19th day of April, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 19th day of April, 1991. COPIES FURNISHED: Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Dean Bunch, Esq. RUMBERGER, KIRK, ET AL. 106 E. College Street Suite 700 Tallahassee, FL 32301 Lawrence J. Semento, Esq. STONE & SEMENTO P.O. Drawer 2048 Eustis, FL 32727 J. Robert Duggan, Esq. P.O. Box 490208 Leesburg, FL 34749
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at the "formal hearing," and the record as a whole, the following findings of fact are made: Respondent is now, and has been since October of 2000, a licensed real estate sales associate in the State of Florida, holding license number 695252. He is currently associated with AAA Realty, Inc., a broker corporation doing business in Broward County, Florida. From March 1, 2001, through June 26, 2001, Respondent was an active real estate sales associate with Allen Real Estate, Inc. (Allen), a broker corporation doing business in St. Lucie County, Florida. From June 27, 2001, through August 13, 2001, Respondent was an active real estate sales associate with Realty Unlimited, Inc. (Unlimited), a broker corporation (affiliated with GMAC Real Estate) with offices in Port St. Lucie and Stuart, Florida. Unlimited is now, and has been at all times material to the instant case, owned by Kevin Schevers, a Florida-licensed real estate broker. Gary Sprauer is a Florida-licensed real estate sales associate. He is currently associated with Unlimited. Like Respondent, Mr. Sprauer began his association with Unlimited on June 27, 2001, immediately after having worked for Allen. Respondent and Mr. Sprauer worked as "partners" at both Allen and Unlimited. They had an understanding that the commissions they each earned would be "split 50-50" between them. On February 7, 2001, Allen, through the efforts of Respondent and Mr. Sprauer, obtained an exclusive listing contract (Listing Contract) giving it, for the period of a year, the "exclusive right to sell," in a representative capacity, commercial property located at 3800 South Federal Highway that was owned by Vincent and Renee Piazza (Piazza Property). Paragraphs 6 and 7 of the Listing Contract addressed the subjects of "compensation," "cooperation with other brokers," and "dispute resolution," respectively, and provided, in pertinent part as follows as follows: COMPENSATION: Seller will compensate Broker as specified below for procuring a buyer who is ready, willing, and able to purchase the Property or any interest in the Property on the terms of this Agreement or on any other terms acceptable to Seller. Seller will pay Broker as follows (plus applicable sales tax): 8% of the total purchase price or $15,000 maximum, no later than the date of closing specified in the sales contract. However closing is not a prerequisite for Broker's fee being earned. * * * (d) Broker's fee is due in the following circumstances: (1) If any interest in the Property is transferred . . . , regardless of whether the buyer is secured by Broker, Seller or any other person. * * * COOPERATION WITH OTHER BROKERS: Broker's office policy is to cooperate with all other brokers except when not in the Seller's best interest, and to offer compensation to: Buyer's agents, who represent the interest of the buyer and not the interest of Seller in a transaction, even if compensated by Seller or Broker Nonrepresentatives Transaction brokers. None of the above (if this box is checked, the Property cannot be placed in the MLS). * * * 10. DISPUTE RESOLUTION: This Agreement will be construed under Florida law. All controversies, claim and other matters in question between the parties arising out of or relating to this Agreement or the breach thereof will be settled by first attempting mediation under the rules of the American Arbitration Association or other mediator agreed upon by the parties. . . . Shortly after they left the employ of Allen and began working for Unlimited, Respondent and Mr. Sprauer showed Nicholas Damiano the Piazza Property. Mr. Damiano thereafter made a written offer to purchase the Piazza Property, which the Piazzas accepted, in writing, on July 4, 2001. The sales price was $165,000.00. Mr. Damiano put down a $10,000.00 deposit, which, in accordance with paragraph 2(a) of the contract between Mr. Damiano and the Piazzas (Sales Contract), was "held in escrow by [Unlimited]." The obligations of Unlimited, as escrow agent, were described in paragraph 6 of the Sales Contract, which provided as follows: ESCROW. Buyer and Seller authorize GMAC, Realty Unlimited Telephone: . . . Facsimile: . . . Address: . . . to receive funds and other items and, subject to clearance, disburse them in accordance with the terms of this Contract. Escrow Agent will deposit all funds received in a non- interest bearing account. If Escrow Agent receives conflicting demands or has a good faith doubt as to Escrow Agent's duties or liabilities under this Contract, he/she may hold the subject matter of the escrow until the parties mutually agree to its disbursement or until issuance of a court order or decision of arbitrator determining the parties' rights regarding the escrow or deposit the subject matter of the escrow with the clerk of the circuit court having jurisdiction over the dispute. Upon notifying the parties of such action, Escrow Agent will be released from all liability except for the duty to account for items previously delivered out of escrow. If a licensed real estate broker, Escrow Agent will comply with applicable provisions of Chapter 475, Florida Statutes. In any suit or arbitration in which Escrow Agent is made a party because of acting as agent hereunder or interpleads the subject matter of the escrow, Escrow Agent will recover reasonable attorneys' fees and costs at all levels, with such fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court or other costs in favor of the prevailing party. The parties agree that Escrow Agent will not be liable to any person for misdelivery to Buyer or Seller of escrowed items, unless the misdelivery is due to Escrow Agent's willful breach of this Contract or gross negligence. Paragraph 12 of the Sales Contract addressed the subject of "brokers" and provided as follows: BROKERS. Neither Buyer nor Seller has utilized the services of, or for any other reason owes compensation to, a licensed real estate broker other than: Listing Broker: Allen Real Estate, Inc. who is a transaction broker and who will be compensated by x Seller _ Buyer _ both parties pursuant to x a listing agreement _ other (specify) Cooperating Broker: GMAC Realty Unlimited who is a transaction broker who will compensated by _ Buyer x Seller _ both parties pursuant to _ an MLS or other offer of compensation to a cooperating broker _ other (specify) (collectively referred to as "Broker") in connection with any act relating to the Property, included but not limited to, inquiries, introductions, consultations and negotiations resulting in this transaction. Seller and Buyer agree to indemnify and hold Broker harmless from and against losses, damages, costs and expenses of any kind, including reasonable attorneys' fees at all levels, and from liability to any person, arising from (1) compensation claimed which is inconsistent with the representation in this Paragraph, (2) enforcement action to collect a brokerage fee pursuant to Paragraph 10, (3) any duty accepted by Broker at the request of Buyer or Seller, which duty is beyond the scope of services regulated by Chapter 475, F.S., as amended, or (4) recommendations of or services provided and expenses incurred by any third party whom Broker refers, recommends or retains for or on behalf of Buyer or Seller. The Damiano/Piazza transaction was originally scheduled to close on July 25, 2001. At the request of the Piazzas, the closing was rescheduled for August 7, 2001. A few days before August 7, 2001, Mr. Sprauer asked Respondent "where the closing was going to take place" and "what title company" would be handling the matter. Respondent replied that the closing was "going to be delayed again because Mr. Damiano . . . was going to have to have some type of cancer surgery." It turned out that the closing was not "delayed again." It took place on August 7, 2001. At the closing were Mr. Damiano, the Piazzas, Respondent, and the closing agent from the title company, First American Title Insurance Company (First American).3 Neither Mr. Schevers, nor Mr. Sprauer, was in attendance. Mr. Sprauer did not even know that the closing was taking place. He was under the impression, based on what Respondent had told him, that the closing had been postponed. Had he not been misinformed, he would have attended the closing. Respondent did not contact Mr. Sprauer following the closing to let him know that, in fact, the closing had occurred. Mr. Schevers, on the other hand, was made aware that closing would be held on August 7, 2001. He was unable to attend because he had "prior commitments." It was Respondent who informed Mr. Schevers of the August 7, 2001, closing date. The morning of August 7, 2001, Respondent went to Unlimited's Stuart office and asked Mr. Schevers for the $10,000.00 Unlimited was holding in escrow in connection with the Damiano/Piazza transaction, explaining that he needed it for the closing that was going to be held later that day. Before complying with Respondent's request, Mr. Schevers contacted First American and asked that he be faxed a copy of the United States Department of Housing and Urban Development Settlement Statement (HUD Statement) that First American had prepared for the closing. As requested, First American faxed a copy of the HUD Statement to Mr. Schevers. Upon reviewing the document, Mr. Schevers "immediately noticed that [it indicated that] the entire commission [of $7,000.00] was going to Allen." Mr. Schevers "then proceeded to call First American" and asked why Unlimited was not "reflected on this settlement statement." Mr. Schevers was told that a First American representative "would get right on it and get back to [him]." Mr. Schevers did not wait to hear back from First American before handing an "escrow check" in the amount of $10,000.00 to Respondent. He instructed Respondent, however, to "not give anybody this check unless that statement [the HUD Statement] [was] changed and reflect[ed] [Unlimited's]" share of the commission earned from the sale of the Piazza Property. He further directed Respondent to telephone him if this change was not made. Respondent did not follow the instructions Mr. Schevers had given him. He delivered the $10,000.00 "escrow check" to the closing agent at the closing, even though the HUD Statement had not been changed to reflect Unlimited's sharing of the commission. At no time during the closing did Mr. Schevers receive a telephone call from Respondent. According to the HUD Statement that Mr. Damiano, the Piazzas, and the closing agent signed at the closing, Allen received a commission of $7,000.00 "from seller's funds at settlement." The document makes no mention of any other commission having been paid as part of the closing. On or about August 9, 2001, Respondent received a "commission check" from Allen. The check was made payable to Respondent and was in the amount of $3,000.00. Under the "DOLLARS" line on the check, the following was typed: 4200 Total Comm[4] 1200 ADVANCE[5] Typed next to "MEMO" on the bottom left hand corner of the check was "DAMIANO-PIAZZA 165,000 S&L." It has not been shown that the "commission check" Respondent received from Allen was for anything other than the commission Allen owed Respondent for services performed when Respondent was still employed by Allen. Mr. Schevers' consent to Respondent's receiving this $3,000.00 "commission check" was neither sought nor given. Less than a week after the closing, having spotted Mr. Damiano mowing grass on a vacant lot that Mr. Damiano owned, Mr. Sprauer walked up to him and asked "how his surgery [had gone]." Mr. Damiano "acted very surprised [like] he didn't know what [Mr. Sprauer] was talking about." Mr. Damiano's reaction to his inquiry led Mr. Sprauer to believe "that the closing had probably taken place." He "immediately contacted [Mr. Schevers] and asked him to check into it." Mr. Schevers subsequently learned from First American that Allen "had gotten all of the [commission] check" at the closing. Mr. Schevers then telephoned Respondent. This was the first communication he had had with Respondent since before the closing. Respondent told Mr. Schevers that "he got the check" and "he would be right over with it." Respondent, however, did not keep his promise. After his telephone conversation with Respondent, Mr. Schevers discovered that Allen "had cut [Respondent] a check and [Respondent] had gone immediately and deposited it." This discovery prompted Mr. Schevers to place another telephone call to Respondent. This telephone conversation ended with Mr. Schevers telling Respondent "he was terminated." Mr. Schevers thereafter notified Petitioner in writing that Respondent was no longer associated with Unlimited. He also filed with Petitioner a complaint against Respondent alleging that Respondent had "acted inappropriately" in connection with the Damiano/Piazza transaction. Mr. Schevers had expected Unlimited to receive, for the role it played in the Damiano/Piazza transaction, "50 percent of the total commission," or $3,500.00, in accordance with the provisions of the "multiple listing service for St. Lucie County."6 He holds Respondent responsible, at least in part, for Unlimited's not receiving these monies.7 At the time of the Damiano/Piazza transaction, Unlimited had contracts with its sales associates which provided that the associates would receive "70 percent of the net" of any commission Unlimited earned as a result of the associates' efforts. Had Unlimited received a commission as a result of the Damiano/Piazza transaction, it would have "split" it with Respondent and Mr. Sprauer as required by the contracts it had with them.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint issued against Respondent in the instant case in its entirety. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 7th day of July, 2004.
Findings Of Fact The facts in this case are not in dispute. In October 1978 Herbert Grossman, a CPA, one of whose clients was Red Aircraft, Inc., and Spencer Gordon formed the corporation Southern Air Charter, Inc., for the purpose of taking title to an aircraft to be operated by Red. The bill of sale for $140,000 in September 1978 was from Red to Southern Air Charter, Inc., who financed the plane with a loan from Barnett Bank. Red, at all times here relevant, was registered with the Department of Revenue (DOR or Petitioner) as a dealer engaged in the business of selling tangible personal property. Southern Air Charter submitted application to DOR for a certificate of registration (Exhibit 1) bearing the typed date October 1978 scratched out, and inserted in handwriting 6-1-79. This application (Exhibit 1) was stamped received in DOR office February 1, 1979. Grossman's testimony, which was undisputed, was that Southern was formed as an accommodation to Red for the purpose of taking legal title to the aircraft to improve Red's balance sheet. Red continued to provide insurance coverage on the aircraft, charter the aircraft and perform all of their activities respecting the aircraft that would be done by an owner. Southern, having legal title to the aircraft, took depreciation and investment tax credit while Red used the aircraft. At the time of the sale of the aircraft to Southern, the latter was not a registered dealer, and Red did not collect sales tax on this transaction. On July 7, 1979, the tax, penalty and interest assessed on this transaction was $6,331.68 (Exhibit 2). The accuracy of this figure was not contested, nor was the assessment for rentals of aircraft in the amount of $1,704.34 (Exhibit 2). Red contended that no tax was due on the leasing of the aircraft but no evidence to support this exemption was presented.
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
The Issue Whether Respondent engaged in the activities of a yacht broker without a license in violation of Chapter 326, Florida Statutes.
Findings Of Fact The Department is charged with licensing and regulating yacht and ship brokers and salespersons pursuant to Chapter 326, Florida Statutes. In May 1993, the Department issued a yacht and ship salesman's license to Davis. In 1995, after a formal hearing, the Department revoked Davis' license for misrepresentation in entering false answers on his license application. Davis had been a licensed stock broker with the Securities and Exchange Commission between 1971 and 1991. He failed to tell the Department on his application that the National Association of Securities Dealers had censured him, imposed a fine of $20,000, and suspended his license for two years. Davis attended a Department workshop on yacht and ship brokerage laws during the time he held a license. The workshop covered Chapter 326, Florida Statutes, brokerage activities, and administrative rules. In June 1997, Davis approached Don Gilman of Gilman Yachts with an offer to co-broker the purchase of the Princessa del Mar by his client, William Bond Elliott (Elliott). Davis suggested that Gilman split the commission on the purchase with him on a 50/50 basis. Gilman is a licensed yacht and ship broker. Gilman, who knew Davis personally and knew that Davis had been licensed by the Department, agreed to co-broker the transaction. Gilman was unaware that Davis' license had been revoked. Davis had an office in Palm Beach, Florida, with a local telephone and facsimile machine number. Diana Harvey, an employee of Gilman Yachts who handled the closing and paperwork associated with the sale of the Princessa del Mar, thought that Davis had represented himself to her as a licensed broker. The Princessa del Mar is a 105-foot Broward yacht built in 1984. Throughout the negotiations for Elliott's purchase, the Princessa del Mar was moored at docks in West Palm Beach, Florida. The listing broker for the Princessa del Mar was Richard Betram Yachts, Inc. Gary Fisette (Fisette) was the licensed broker handling the listing. Davis requested that Fisette send him the listing specifications on the Princessa del Mar. Fisette sent the specifications to Davis by facsimile transmission and by mail to Davis' Palm Beach office. Davis and Gilman met with Elliott onboard the Princessa del Mar in June 1997 for Elliott to view the yacht. The two discussed the yacht, including the purchase of the yacht, with Elliott. Davis also discussed placing the yacht into charter service to cover some of the costs of the purchase, operation and maintenance of the yacht. Davis met with both the buyer and seller alone and with Gilman and Fisette. On July 3, 1997, Elliott signed an initial purchase contract, offering $1.5 million for the Princessa del Mar on the condition of a sea trial and survey satisfactory to him. Davis signed the contract on the witness line. On July 16, 1997, Fisette sent a letter by facsimile transmission to Davis at his Palm Beach office with information on the engine rebuild on the Princessa del Mar that Davis had discussed with him. Fisette also wrote that the owner would sign and return the agreement by facsimile transmission. Davis arranged for William Seger to conduct the survey. Davis also arranged for the sea trial, which was conducted along the Intracoastal Waterway in Florida. Davis, Gilman, and Elliott attended the sea trial. Captain John Lloyd piloted the yacht. Davis arranged for some engine repair to the yacht. On August 5, 1997, Diana Harvey sent the executed purchase agreement and addendum to Davis at his Palm Beach office. On the same day, Gilman advised Elliott by facsimile transmission with a copy to Davis at his Palm Beach office that the yacht should be hauled for an inspection of the bottom. Gilman and Elliott met to negotiate the final offer. The closing was scheduled in the Bahamas. On September 3, 1997, Gilman confirmed his conversation with Davis about their agreement to reduce their commission by $4,000 toward the seller's request of an additional $12,000 to close the transaction. At the conclusion of the transaction, Gilman received a commission check from the attorney handling the closing. Davis directed Gilman and Harvey to pay his share of the commission, $19,500, in five separate checks: $5,000 to himself as his commission, $1,000 to Foley Law Office for legal fees for the yacht, $1,000 to A. Stokes and $9,500 to Peter Gollsby for reimbursement for expenses for the yacht, and $3,000 to Bill Seger for the survey. A check for $2,850 was also given to Davis for repairs to the yacht. Davis picked up the checks in person from Ms. Harvey at Gilman Yachts. Davis claims that any brokering activities that he may have done were not done in the State of Florida. He claimed that calls to his Palm Beach office were forwarded to Rhode Island, and that only conversations between him and Elliott concerning chartering services and assisting with Elliott's due diligence activities took place in Florida. Davis' claims are rejected as not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered requiring Thomas I. Davis to cease and desist from engaging in yacht and ship brokerage activities in Florida and imposing a civil penalty of $5,000. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 19th day of October, 2000. COPIES FURNISHED: Janis Sue Richardson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Ashley R. Pollow, Esquire Atrium Financial Center 1515 North Federal Highway, Suite 300 Boca Raton, Florida 33432-1994 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Ross Fleetwood, Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.
Recommendation Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of May, 1985. COPIES FURNISHED: Joe Miklas Esquire Post Office Box 366 Islamorada, Florida 33036 James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138 Judy Rice, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064 Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064
Findings Of Fact In the Spring of 1978, Roach purchased 1965 Piper aircraft No. 3406W from an out-of-state broker. On the assumption that sales tax had been collected, and not being familiar with Florida's Sales/Use tax laws, Roach took no other action. This aircraft was sold in August of 1978 and 1972 Piper No. 5309T was purchased in September of 1978; this aircraft was purchased under the same circumstances. No records were kept of the purchase price of either aircraft. DOR wrote Roach in August and September of 1978 regarding 3406W, without result. Thereafter, DOR used the average book value of $19,000 to arrive at a tax due of $760.00 Roach paid $720 tax on July 15, 1979; he contended that 3406W had $1000 less equipment than the average book valued aircraft. Prior to this time Roach became aware that tax was due but indicated he was financially unable to pay. On July 18, 1979, DOR sent Roach the proposed assessment for $40.00 tax, $190.00 penalty and $83.60 interest. Meantime, DOR was writing Roach regarding the second aircraft, 5309T, with no response being received until August 8, 1979. A proposed assessment was issued for $1500 tax, $375 penalty and $394.93 interest on September 10, 1979. During the subsequent informal conference, Roach advised that the tax due was in fact $1520, which was paid on October 4, 1979. Revised assessment dated October 22, 1979, was for $380 penalty and $400.20 interest. DOR's witness, Assistant Area Supervisor, Collection and Enforcement Division, received the matter from higher headquarters in December of 1979. He merely indicated that someone else in DOR used the "blue book" to determine value; he presented no evidence contrary to Roach's estimated value of $18,000 for the first aircraft or regarding the imposition of the penalty.
The Issue The issue is whether respondent's independent motor vehicle license should be disciplined for the reasons set forth in the administrative complaint filed on September 6, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Charles W. Antolick, operated an independent automobile dealership under the name of C. Antolick Car & Truck Sales at 7400 Highway 21, Keystone Heights, Florida. He has been issued independent motor vehicle dealer license number VI-10846 by petitioner, Department of Highway Safety and Motor Vehicles (Department). That license authorizes respondent to engage in the business of buying, selling, or dealing in motor vehicles. Based on complaints received in June 1996 from two consumers, Florrie B. Mingo and Devon T. Ross, the Department conducted an investigation of respondent. The Department then issued an administrative complaint on September 5, 1996, alleging that respondent failed to apply for registration and title for two used automobiles sold by him to Mingo and Ross in November 1995. Respondent denies that his dealership sold the vehicles. Except for the allegations raised in this proceeding, respondent has an unblemished record as a licensee. An Employee Named Pettway In 1995, Gregory A. Pettway, a resident of Gainesville, Florida, was employed by respondent as a mechanic. Effective July 19, 1995, Pettway was authorized to "buy/sell vehicles under (respondent's) license at Big Sun Auto Auction," an automobile wholesaler and auctioneer in Ocala, Florida. This authorization only enabled Pettway to buy cars on a wholesale basis on the premises of Big Sun Auto Auction. Pettway also held similar authorization to purchase cars at a Jacksonville car auction. A disputed fact in this case is whether Pettway was authorized to sell cars on behalf of respondent on a retail basis, that is, to persons such as Mingo and Ross. To establish that fact, petitioner relies upon a letter dated June 5, 1996, from respondent’s wife to Frank Heath, a Department employee based in Ocala, Florida. In the letter, she stated that “it was always customary for me to give Greg Pettway a receipt every time he would turn in a contract and pay tax and title for his customer.” Although received in evidence as a part of petitioner’s composite exhibit 2, the statement was not clarified or explained at hearing even though the wife was present, and it was not used by petitioner when respondent was cross-examined. Given respondent’s contrary testimony at hearing, which was not seriously challenged, his testimony is accepted as being the most credible and persuasive on this issue. Accordingly, it is found that Pettway was not authorized to sell vehicles for respondent on a retail basis. In Pettway's role as respondent's representative at auctions, he would attend and bid on cars, and if successful, he would then transport the car to respondent's car lot in Keystone Heights. After a car was purchased, Pettway was instructed by respondent to turn over all paperwork related to the purchased vehicle. It can be reasonably inferred from the evidence that, although he was not authorized to sell cars on a retail basis, Pettway had access to respondent's bill of sale forms and, without respondent's knowledge, he took a number of them for his own use. He used two such forms in conjunction with the Mingo and Ross transactions. After learning that Pettway had made these two unauthorized sales, respondent terminated Pettway’s employment in January 1996. Although the evidence shows that Pettway still resides in Gainesville, it is surprising that neither party subpoenaed him to attend the final hearing. Therefore, any statements allegedly made by Pettway are hearsay in nature and cannot be used to make findings of fact. The Mingo Transaction Mingo is a resident of Brooker, Florida. Through a mutual friend, she was introduced to Pettway and learned that he sometimes went to car auctions. Mingo was interested in purchasing a 1985 Cadillac and was led to believe that Pettway could obtain one at a fair price. Accordingly, one evening in September 1995 she and Pettway traveled to a Jacksonville car auction. Respondent had authorized Pettway to attend the auction, but he was unaware of Pettway's efforts to buy a car for Mingo. Although Pettway purchased two cars that evening, he was unsuccessful in locating a 1985 Cadillac. On October 4, 1995, respondent, Pettway, and Mingo traveled together in Pettway's truck to Big Sun Auto Auction. Respondent was under the impression that Mingo was Pettway's girlfriend and was merely accompanying him to the auction. At the auction, Mingo saw a violet colored 1985 Cadillac and asked Pettway to bid on the vehicle. After Pettway made a successful bid, Mingo paid Pettway $1,500.00 cash as a deposit, and Pettway gave her a receipt. It is fair to infer that Pettway used all or part of Mingo's money to pay for the vehicle and pocketed the remainder, if any, as profit. There is no evidence that respondent was aware of the transaction, and he did not authorize Pettway to sell the car to Mingo under his dealer's license. Big Sun Auto Auction requires that all bidders sign a log book to evidence each car sale. That evening, Pettway placed his initials on the log book to indicate that he had received the paperwork for Mingo’s vehicle from the auctioneer. Respondent also purchased a car that evening and drove the car back to his dealership. Meanwhile, Pettway transported Mingo’s vehicle to Gainesville on his truck. The vehicle was never taken to respondent's lot. On November 8, 1995, Mingo gave Pettway another $684.00 making a total purchase price of $2184.00. This amount included a sales price of $1900.00, sales tax of $114.00, and tag, title and miscellaneous fees of $170.00. Pettway obviously earned a profit on the transaction. The bill of sale given by Pettway to Mingo on November 8 was on respondent's bill of sale form and contains Pettway's signature as "agent." Respondent did not sign the form and was unaware of the transaction. Mingo was led to believe that she would receive her title, tag and "paperwork" within a few weeks. Pettway never turned over any money or paperwork to respondent regarding the Mingo transaction. Also, he never disclosed the sale to respondent. When Mingo was unable to obtain a title or registration for the vehicle from Pettway, she contacted respondent, whose name was on the bill of sale. Until then, it is fair to infer that Mingo always considered the transaction to be a private one with Pettway, and not respondent. Indeed, the transaction was consummated at Pettway’s home, and not on the dealer’s licensed premises. Respondent was understandably reluctant to furnish paperwork for a transaction in which he did not participate. Even so, at the urging of the Department, respondent and Mingo met at a local tag office in June 1996 for the purpose of seeking to reach an amicable settlement. When Mingo declined to provide respondent with an original copy of the bill of sale, he balked at filling out the necessary paperwork for a title. An argument ensued, an agreement was never reached, and Mingo did not receive her title. The present status of the vehicle is not of record. The Ross Transaction In late October 1995, or just before Mingo made the final payment on her vehicle to Pettway, she asked him to locate a car for her nephew, Devon T. Ross. By chance, on October 4, 1995, Pettway had purchased a 1980 Oldsmobile Cutlass from Big Sun Auto Auction for $460.00 and had it parked at his house in Gainesville. On November 7, 1995, Pettway received a title to the vehicle from Big Sun Auto Auction and signed the auctioneer's log that date to acknowledge receipt of same. Pettway never told respondent that he had purchased this vehicle. In late October or early November 1995, Devon and his father, Johnny G. Ross, went to Pettway's house and inspected the car. Devon agreed to purchase it for $1670.00, which included a $1500.00 sales price, $90.00 for sales tax and $80.00 for tag, title and miscellaneous fees. On November 6, 1995, Pettway drove the car to Devon’s house where his mother paid Pettway the full price in cash. Respondent was unaware of this transaction, and he had not authorized Pettway to sell the vehicle under his license. It is fair to infer that when Devon entered into negotiations with Pettway to buy the car, he considered this to be a private transaction between he and Pettway, and not with respondent's dealership. Devon was given a bill of sale filled out on one of respondent's forms. Pettway signed the form as seller while both Devon and his father are listed as the co-owners. Devon was led to believe that he would receive the title within a few days. Pettway did not turn over any money or paperwork regarding the transaction to respondent. After Devon did not receive a title within a reasonable period of time, his mother attempted to contact Pettway on numerous occasions by telephone. Pettway, however, would not return her calls. Devon's mother then contacted respondent in December 1995 regarding the status of her son's title. Although respondent was unaware of the sale, he agreed to contact Big Sun Auto Auction and make inquiry regarding the status of the title. Throughout the months of January through April 1996, respondent continued these efforts. This was corroborated by testimony from a Big Sun Auto Auction title clerk. In April 1996, the auctioneer finally confirmed that, according to its sign-off log, the title had been picked up by Pettway in November 1995. On January 17, 1996, the title to Devon’s vehicle was sent by an unidentified person to the Department's Tallahassee office with a request that the automobile be "junked." Department regulations do not require that the person requesting such action be identified. It is noted, however, that Pettway had been given the title on November 7, 1995, and had never turned it over to respondent. In accordance with this anonymous request, the Department junked the title on January 17, 1996. Respondent was unaware that this action was taken. In February 1996, Devon was rear-ended by another vehicle and his car was totaled. He was offered $1000.00 by the other driver's insurance company as settlement, but he was required to produce a title in order to collect the money. Because he had never been issued a title, the insurance company declined to make a settlement. In an effort to resolve this matter, on July 11, 1996, respondent offered to refund Devon the money paid by Pettway ($460.00) for the vehicle if Devon would return the car to his licensed premises. Devon refused since he would be required to pay a wrecker to tow his disabled vehicle to Keystone Heights. The current status of his vehicle is not of record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the administrative complaint with prejudice. DONE AND ENTERED this 27th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997. COPIES FURNISHED: Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room 432A Tallahassee, Florida 32399-0504 Charles W. Antolick 22 Comanche Trail Hawthorne, Florida 32640-3736
Findings Of Fact On November 24, 1976, petitioner purchased an airplane (the Corsair) in Florida from R. D. Whittington Aircraft Sales, Inc., for which he paid eighty thousand dollars ($80,000.00). Sales tax has never been paid on account of this transaction. Before the purchase, petitioner asked George W. Sullivan, an airplane mechanic and test pilot, to evaluate the Corsair as an investment for resale. After petitioner acquired the Corsair, he caused three new cylinders to be installed and had the carburetor, the magneto and the propeller overhauled. Within three or four months of petitioner's acquisition, several prospective purchasers had inspected the Corsair. In the spring of 1977, petitioner began displaying the Corsair. At various times, petitioner engaged other pilots to ferry the Corsair to aircraft shows at Cherry Point, North Carolina, Greenville- Spartanburg, South Carolina, and elsewhere. At the time of the hearing, the Corsair had been flown approximately 43 hours since petitioner had acquired it, ten to twelve hours of which petitioner flew himself, in the course of displaying the Corsair and checking out repairs. Petitioner has traded in airplanes for the last several years and has been recognized as a dealer in aircraft by the Internal Revenue Service. Petitioner, who moved to Florida from California, applied to respondent for a dealer's certificate promptly upon learning that he was required to do so. On November 24, 1976, however, petitioner was not registered as an aircraft dealer with respondent. After an unsuccessful attempt to register effective retroactively to July 1, 1972, petitioner registered as a dealer with respondent, effective October 1, 1977. According to respondent's records, R. D. Whittington Aircraft Sales, Inc., was not registered as a dealer with respondent on November 24, 1976, and has not registered since. Petitioner obtained an address for R. D. Whittington Aircraft Sales, Inc., from respondent and, on or about, December 20, 1977, sent by certified mail a blanket resale and exemption certificate to the address respondent had furnished. A return receipt indicated that the certificate was delivered as addressed. In the past, respondent has treated sales to dealers as exempt from sales tax where the purchaser furnished the seller a resale and exemption certificate at the time of the sale and even when the certificate has been furnished afterwards, where the purchaser was registered as a dealer with respondent at the time of the transaction. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's proposed assessment be upheld. DONE and ENTERED this 11th day of August, 1978 in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675
