The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints related to the real estate profession pursuant to the laws of the State of Florida. Respondent Valyne Batchelor is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0311190 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Batchelor was in care of Adventure Properties, Inc., 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. Respondent Adventure Properties, Inc. was at all times pertinent to this proceeding a corporation registered as a real estate broker in the State of Florida having been issued license number 0238654 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent Adventure Properties, Inc., was at the address of 10800 N. Military Trail, Palm Beach Gardens, Florida 33410. At all times pertinent hereto, Respondent Batchelor was licensed and operating as a qualifying broker and officer of Respondent Adventure Properties, Inc. At all times pertinent hereto, Respondent Batchelor was a one-half owner of Dream Home Builders of Royal Palm Beach, Inc. (Dream Home). Joel B. Wingate was in the land clearing business and had done work prior to September 1988 for Dream Home and Dream Home's subsidiary, Redi Concrete. On September 18, 1988, Dream Home, the owner of a house located at 5510 Royal Palm Beach Boulevard, Royal Palm Beach, Florida, entered into a contract to sell that house to Joel B. Wingate, his wife, Eva C. Wingate, and his mother, Sarah F. Wingate. The contract reflected that the purchase price of the property was $87,400. The contract reflected that the sum of $4,400 was received by Adventure Properties as a deposit. The balance of the purchase price was to be paid by a first mortgage in the amount of $69,900 to be obtained by the Buyers from a lending institution and by a second mortgage in favor of Seller in the amount of $13,100 that was to be amortized over a period of 30 years with a balloon payment at the end of 5 years. Respondent Batchelor executed the contract on behalf of Adventure Properties and on behalf of Dream Home. In addition, Respondent Batchelor signed a statement on the face of the contract which acknowledged receipt of the deposit that was to have been held in escrow. The sum of $4,400 was not paid over to Respondent Adventure Properties or to Respondent Batchelor by the Wingates at the time the contract was executed and there never was a deposit made into the escrow account of Adventure Properties. Instead, Mr. Wingate agreed to pay the sum of $4,400.00 prior to the closing from sums he would earn from work he was performing for Redi Concrete. All parties pertinent to this transaction, including the bank that financed the first mortgage, knew that the Wingates had not paid that sum. The Wingates applied for financing with Security First Federal for financing of the first mortgage. The application for the loan was in the name of Sarah F. Wingate because of Joel Wingate's poor credit. On September 17, 1988, a "Good Faith Estimate of Settlement Charges" was prepared by Security First Federal which estimated that the settlement charges that would be due from the Wingates at closing would equal $4,328.30. On September 19, 1988, the Wingates, as buyer, and Dream Home, as seller, executed an addendum to the contract which provided that the Seller would pay up to $4,400 in closing costs and that the amount of the second mortgage would be increased from the sum of $13,100 to the sum of $17,500. The addendum provided, in pertinent part, as follows: Seller to pay up to $4,400 in closing costs. Buyer agrees to give seller a second mortgage in the amount of $17,500. Said Mortgage to be for a term of one year from date of contract and is to be paid as follows: Buyer agrees to do work for Redi Concrete, Inc. consisting of clearing, digging of necessary fill, building and compact ion of house pads according to Palm Beach County Building Codes, all grading and trash removal at contract price of $2,450 per lot. Of this amount $1,250 is to be applied to second mortgage until mortgage is paid in full. Additionally, any unused portion of the $4,400 allowance for closing costs not used for that purpose is to be applied to the second mortgage of $17,500. If any portion of this agreement is not kept, Redi Concrete, Inc. reserves the option to impose interest at the rate of 10% per annum against any unpaid amount of second mortgage. The fact that the amount of closing costs Dream Homes agreed to pay on behalf of the Wingates ($4,400) was identical to the amount that the Wingates were supposed to pay as a deposit ($4,400) was coincidence. Respondent Batchelor executed the addendum to the contract in her capacity as an officer of Dream Home. There was no attempt on the part of Respondents to deceive the Wingates, who had agreed to this method of financing the purchase. On October 24, 1990, the transaction closed. The buyers executed the first mortgage in favor of Security First Federal Savings and Loan Association in the principal amount of $69,900, and a second purchase money mortgage in favor of Dream Home in the principal amount of $13,100. (There was no explanation as to why the second mortgage that was executed at the closing was for $13,100 instead of for $17,500. Dream Home's letter of October 27, 1988, to the Wingates, signed by Ms. Batchelor, refers to a revised second mortgage that should be executed by the Wingates and recorded. There was no evidence that the revised second mortgage was, in fact, delivered to the Wingates or executed by them.) The second mortgage note required monthly payments commencing November 24, 1988, with a balloon payment of $12,965.22 due on October 24, 1991. The Wingates were aware of the manner in which their purchase of this property was financed. There was insufficient evidence to establish that Respondents dealt with the Wingates in anything other than an honest, straightforward manner. The unusual owner financing involved in this transaction was an attempt to accommodate the buyers. There was no intent by Respondents to deceive the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings. There was insufficient evidence to establish that the Wingates, Dream Home, Security First Federal, or any other party pertinent to these proceedings was, in fact, deceived or tricked by any act of Respondents. The Wingates moved into the premises prior to the closing of the transaction. Ms. Batchelor did not give the Wingates permission to move into the house prior to closing and she did not personally inform the Wingates that they would have to pay rent if they moved in prior to closing. Ms. Batchelor had been told by her business associate, Mr. Vander Meer, that the Wingates would pay a per diem rental fee until the closing. On October 27, 1990, Ms. Batchelor, on behalf of Dream Home, advised the Wingates that they were being charged a rental fee of $27.54 per day that they had occupancy prior to the closing. For the 36 days the Wingates were in the house prior to closing, the total rental claimed came to $920.52. The Wingates disputed the amount claimed for rent and had not, as of the date of the formal hearing, paid that amount. There was no evidence that Respondents were attempting to deceive, trick, or defraud the Wingates in any manner by claiming rent for the period between the time the Wingates moved in to the house and the time of the closing. By letter dated September 20, 1989, Ms. Batchelor, on behalf of Dream Home, notified the Wingates that the second mortgage balloon payment was $12,795.52 and that, according to her records, would become due on May 1, 1990. Although this statement of the due date is inconsistent with the instrument executed by the Wingates, there was no evidence that this statement was anything other than a mistake. The Wingates have defaulted on the first and the second mortgages. When Petitioner's investigator, Sharon Thayer, conducted an office inspection and escrow audit of Respondents' offices on March 13, 1990, Respondents did not have an enclosed room within which negotiations and closings of real estate transactions could be conducted and carried on with privacy. The negotiations between the buyers and sellers in the Wingate transaction were, however, conducted in private. Buyers were prompted to file a complaint against Respondents approximately one year after the closing when an unidentified bank officer told them they may have committed a fraud. Without knowledge or complicity of Respondents, Sarah F. Wingate falsified her loan application with Security First Federal Savings and Loan Association. Respondents received no commission in regard to the Wingate transaction. Respondents moved their offices and have corrected the deficiency related to the absence of an enclosed, private area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order which finds that Respondent violated the provisions of Rule 21V-10.002, Florida Administrative Code, and consequently, Section 475.25(1)(e), Florida Statutes, which finds that Respondents violated the provisions of Section 475.25(1)(b), Florida Statutes, and which provides for the issuance of a letter of reprimand to said Respondents for such violations and the assessment of an administrative fine against Respondents in the amount of $500.00. DONE AND ENTERED this 3rd day of December, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3587 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-15 and 19-22 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 16 are rejected as being unsubstantiated by the evidence. The entry on line 501 of the copy of the closing statement introduced as Petitioner's Exhibit 8 is too faint to read. However, the copy of the closing statement included as part of Joint Exhibit 1 reflects that the entry on line 501 is the figure $4,400 and not the figure of $4,100 reflected in Petitioner's proposed finding. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are rejected as being contrary to the greater weight of the evidence. Although the proposed findings correctly reflect Ms. Batchelor's statement to Petitioner's investigator, that statement was made several months after the transaction and before Ms. Batchelor had had the opportunity to review her files. Other evidence regarding the addendum is found to be more credible as reflected by the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-21 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 22 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 Lawrence Maxwell Fuchs, Esquire Fuchs and Jones, P.A. 590 Royal Palm Beach Boulevard Royal Palm Beach, Florida 33411 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On July 8, 1983, Petitioner, B & D International Yacht Charters, Ltd., a California corporation, purchased the 96-foot motor yacht, Realite, from Broward Marine, Inc., 1601 Southwest 20th Street, Fort Lauderdale, Florida, for the sum of $2,495,787.02. Petitioner paid no Florida sales tax on the purchase of the Realite. On October 14 and 16, 1983, the Realite was observed operating in the State of Florida. On January 24, 1985, the Department issued a "Notice of Delinquent Tax, Penalty and Interest Due and Assessed," against Petitioner, on the purchase of the Realite. The Department's assessment claimed (1) Florida State Sales/Use Tax of 5% ($124,789.35), (2) a penalty of 5% per month, up to a maximum of 25% of the tax due ($31,197.34), (3) the statutory penalty of, 100% of the tax due ($124,789.35), and (4) interest on the tax due at the rate of 1% per month from the date of purchase. Petitioner, pursuant to Section 72.011, Florida Statutes, initiated a proceeding under Section 120.57, Florida Statutes, to contest the Department's assessment. Petitioner alleged it was not liable for the use tax because the Realite had been purchased in Nassau, Bahamas, and that her presence in the State of Florida, in October 1983, was for the sole purpose of having warranty repair work done. However, Petitioner offered no evidence that the purchase of the Realite occurred in Nassau, Bahamas, or that the reason for her presence in the State of Florida, in October 1983, was for warranty repair work.
Findings Of Fact From September 22, 1975, to December 24, 1975, Kopf was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing Fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. In November of 1975, Kopf telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975. November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected. Notwithstanding the fact that FAR had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions. As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts. FREC introduced no evidence to establish that the prices for which the properties were listed were reasonable listing prices and further introduced no evidence to show that Kopf represented that the property would be advertised nationwide and in foreign countries, or that the company had foreign buyers wanting to purchase the property listed with FAR, with the exception of Kopf's property, or that such representations, if made, were false. However, the evidence establishes that Kopf represented that the property would be sold within 30 days of the listing, which representation was false, and that Kopf knew that the representation was false.
The Issue The issue posed herein is whether or not the Petitioner remitted to Respondent, pursuant to Chapter 212.05(1), Florida Statutes, the, proper amount of sales tax on the boat "Captain Deebold" which was purchased on November 29, 1976. A related issue, assuming that the proper sales taxes were not remitted by Petitioner, is whether or not a levy of penalty and interest is warranted under the circumstances.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, legal memoranda submitted by the parties and the entire record compiled herein, the following relevant facts are found. Petitioner purchased the vessel "Captain Deebold" on November 29, 1976, and alleged that the purchase price of the boat was $20,000.00. Accordingly, Petitioner remitted to the Department sales taxes based on the declared value of $20,000.00. Respondent maintained that the subject boat was purchased for the sum of $75,000.00 and has, therefore, issued an assessment against Petitioner for the additional taxes, penalty and interest. By letter dated November 29, 1978, Respondent's Revenue Investigator, Leslie J. Smithling, advised Petitioner that a routine verification concerning his purchase of the subject boat revealed a transaction amount of $75,000.00 upon which the four percent Florida Sales Tax is $3,000.00. Petitioner was further advised therein that his remittance in the amount of $4,202.00 was due no later than December 15, 1979. Taxes, penalties and interest were calculated as follows: Purchase Price $75,000.00 Tax Rate 4% Tax $ 3,000.00 Minus Tax Paid (Based on $20,000.00) $ 800.00 Tax Due $ 2,200.00 Administrative Penalty (Ch. 212.12[2], F.S.) $ 550.00 Fraud Penalty (Ch. 212.12[2], F.S.) $ 1,100.00 Interest: 1% per month from 8/1/77 to 12/1/77 16% Plus $.72 daily thereafter Total Interest Accrued $ 352.00 Total Tax, Penalties & Interest Due $ 4,202.00 In support of its position that the true purchase price of the boat was only $20,000.00, Petitioner points out that the seller of the boat, Frank Deebold, had neglected the boat and had only made repairs that were absolutely necessary to operate the vessel. Thus, when Petitioner purchased the vessel, numerous repairs were made to make it seaworthy including 1) repaired electrical wiring; 2) sealed the deck seams; 3) reconnected the port fuel tank; 4) repaired the clutch in the port engine; 5) repaired leaks in the starboard stern quarter; 6) replaced and rebolted the chines; 7) replaced a section of the keel; 8) rebuilt the main clutch; 9) caulked deck; 10) replaced or repaired the winch on the anchor; 11) reworked and/or repaired the engine room, including insulation, lighting, lining, painting and hauling. To perform these repairs, Petitioner places the value on materials utilized at approximately $18,000.00. Additionally, Petitioner estimated that the value of his labor involved in making the approximately $25,000.00. The articles of agreement for the purchase of the boat provides in pertinent part as follows: Witnesseth, that if the said party of the second part shall (purchaser) first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part (seller) hereby covenants and agrees to convey and assure to the said party of the second part, his heirs, personal represent- atives or assigns, clear of all encumbrances, whatever by a good and sufficient bill of sale the Oil Screw vessel, Captain Deebold, o/n294675, gross tons-36, its equipment, hull, machinery, present insurance policies and business including fifty or more used rods and reels, one 3.5 KW Lister auxiliary generator, used and in need of repair, spare Jabsco water pump (used and in need of repair), spare 24 volt DC alternator, spare 24 volt DC main engine starter, spare stub shaft, three spare propellers (used and in need of repair) and a spare UHF Pierce- Simpson radio transceiver (used and in need of repair) and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of seventy-five thousand and 00/100 ($75,000.00) dollars in the manner following. . . . Nevertheless, Petitioner stressed that inasmuch as the Articles of Agreement provided that the seller only required Petitioner to maintain insurance coverage in the amount of $50,000.00 indicating that the purchase price was something less than $75,000.00 and in fact was no more than $50,000. Pursuant to the Articles of Agreement, the amount insurance coverage required was $50,000.00. Petitioner also declared that included in the $75,000.00 purchase price were other items which included the business (dock space), and reduced prices for miscellaneous supplies and fuel prices. In this regard, an examination of the Articles revealed that these items were provided Petitioner on a cost plus basis and the dock space was leased for an amount based on a rebate of the percentage of ticket sales or charter fees received. Petitioner ultimately sold the boat for 95,000.00. Petitioner initially tried to sell the boat for the sum of $105,000.00 of which $10,000.00 represented the value he (Petitioner) placed on the business. An examination of the accounting records introduced indicated that Petitioner placed the sum of $75,000.00 as the purchase price for the boat. Petitioner thought that his estimation of the labor and materials necessary to properly repair the boat were items that could be used as a setoff to reduce the amount of taxes due. Petitioner testified that he, in no way, intended to defraud the Respondent of taxes properly due and owing. Petitioner's testimony in this regard is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: Petitioner remit to the Respondent the proper interest as set forth herein in paragraph 4 of the Conclusions of Law. Petitioner remit to the Respondent an administrative penalty of 5 percent of the aggregate taxes due as set forth herein in Paragraph 5 of the Conclusions of Law. Petitioner not be held liable for payment of for allegedly filing a "false or fraudulent" return for reasons set forth herein in Paragraph 6 of the Conclusions of Law. RECOMMENDED this 27th day of February 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of February 1981.
Findings Of Fact Silver Sand is in the aggregate business. A major portion of this business involves the trucking of sand, rock, and shell. Diesel fuel, a special fuel, is used in these trucking operations. Approximately fifteen percent of the trucking takes place off of highways and roads. Fuel utilized for off-road operations is not subject to the Florida excise tax on special fuel. To facilitate its trucking operations, Silver Sand purchases diesel fuel in bulk, and uses it in its own trucks and sells it to lease operators who are under contract to Silver Sand. Silver Sand holds a Florida Department of Revenue license which entitles it to purchase diesel fuel in bulk without paying the excise tax. The assessment period involved in this case is April, 1973 through December, 1973. During that period the United States was in the middle of a fuel crisis, and motor fuels, including diesel fuel, was difficult to obtain. During the relevant period Jeremiah J. Kelly, Jr., was Silver Sand's lease operations manager. He was responsible for obtaining diesel fuel. In April, 1973, a Mr. Carruthers, representing Handy Haul-It, approached Kelly and told him that Handy Haul-It could provide Silver Sand with diesel fuel. Kelly had the authority to negotiate diesel fuel purchases on behalf of Silver Sand. Kelly did not know where Carruthers or Handy Haul-It could get diesel fuel, and he assumed that Handy Haul-It was a fuel distributor. Carruthers told Kelly that he would need to have a "Purchaser's Blanket Resale and Exemption Certificate" issued by Silver Sand in order to obtain the fuel. Carruthers presented Kelly with such a certificate. The certificate was addressed to Radiant Oil. Kelly went to his superior, Kenneth Surbaugh, and asked whether he should issue the certificate. Surbaugh authorized Kelly to sign the certificate. Kelly signed the certificate that day, and left it on his desk. When he returned the following day the certificate was gone. Kelly did not write the name "Silver Sand Company" on the certificate, and did not date it. The name "Silver Sand Company" and the date were placed on the certificate after Kelly signed it. The certificate came into Carruthers' possession. The evidence did not reveal whether the certificate was delivered to Carruthers by anyone at Silver Sand, but Kelly did intend to deliver the certificate to Carruthers. A copy of the certificate was received in evidence as Respondent's Exhibit 1. The name Silver Sand Company is inserted as the purchaser, and it is dated January 1, 1973. The document was predated. It was actually signed during April, 1973. NCJ is in the business of distributing motor fuels, including diesel fuel. Joseph Capitano is the President and Chief Executive Officer of NCJ. During April through December, 1973, NCJ had a relative abundance of diesel fuel. In April, 1973, Bill Simms, a friend of Capitano who is also in the fuel distribution business, told Capitano that he had a customer who desired to purchase substantial quantities of diesel fuel. This customer was Carruthers. Simms introduced Carruthers to Capitano. Capitano told Carruthers that he would need a Purchaser's Blanket Resale and Exemption Certificate in order to sell him diesel fuel. Capitano gave Carruthers a certificate to be executed which would fulfill this function. This is the certificate that was signed by Kelly, and received in evidence as Respondent's Exhibit 1. Carruthers ultimately returned the form to Capitano. The form is addressed to Radiant Oil, not to NCJ. NCJ and Radiant Oil are separate entities. NCJ and Radiant Oil are separately registered with the Department of Revenue as motor fuel dealers. The corporations are somewhat related. Joseph Capitano's father owns Radiant Oil. NCJ leases office space from Radiant Oil, and the two corporations share clerical help. The companies use common gas tanks. The companies also utilize many of the same business forms. NCJ had on occasion utilized Radiant Oil's "Purchaser's Blanket Resale and Exemption Certificate" form for its use. NCJ was a new company, and did not have its own forms. Respondent's Exhibit 3 is a compilation of such forms which were used by NCJ during the relevant period. Some of these were Radiant Oil's forms. In utilizing Radiant Oil's forms, the name Radiant Oil Company was marked off and NCJ Investment Company was inserted. That was not done on the form signed by Kelly on behalf of Silver Sand. After Carruthers delivered the exemption certificate to Capitano Handy Haul-It proceeded to purchase fuel from NCJ and resell it to Silver Sand. The fuel was generally picked up at NCJ's tanks by Handy Haul-It's truck. Occasionally Handy Haul-It hired trucks from another common carrier to pick up the fuel. Handy Haul-It paid for the fuel by check made out on the account of Handy Haul-It. NCJ invoices reflected, however, that the purchaser was Silver Sand. Copies of these invoices were not mailed to Silver Sand, and never came into the possession of Silver Sand. No one at Silver Sand was aware of the existence of NCJ. Handy Haul-It purchased 1,753,027 gallons of special fuel from NCJ in this manner. Handy Haul-It did not pay the special fuel tax on any of the purchases. While NCJ was selling tax free based upon the Purchaser's Blanket Resale Exemption Certificate (Respondent's Exhibit 1) it did not place Silver Sand's dealer or distributor license number on many of the invoices. NCJ never made any inquiry of anyone at Silver Sand as to Carruthers' or Handy Haul-It's authority to purchase fuel on Silver Sand's behalf. 882,264 gallons of the special fuel purchased by Handy Haul-It from NCJ was delivered to Silver Sand. This fuel was delivered either in Handy Haul-It's own truck, or in a truck hired by Handy Haul-It. Silver Sand paid Handy Haul-It directly by check when it received each of the deliveries. Handy Haul-It delivered invoices to Silver Sand. The invoices do not reflect a separate itemization showing that motor fuel taxes were paid. The price paid for the fuel would indicate that the price included the tax. Carruthers represented to officials at Silver Sand that the price included the tax, and that he would pay the taxes. In its monthly reports to the Department of Revenue, Silver Sand did not report the purchases because it believed that it was not required to report purchases upon which taxes had been paid. The evidence at the hearing was insufficient to establish the ultimate destination of the fuel which Handy Haul- It purchased from NCJ but did not sell to Silver Sand. Handy Haul-It did make sales to several other trucking companies, including Keystone Trucking Company, Montgomery Trucking, Montgomery Hauling, Keys of the Coast, Florida Bulk Transport, Dirt Haulers, Inc., and Mid Florida Hauling. Handy Haul-It had purchased some fuel from sources other than NCJ, and it cannot be gleaned from the evidence whether the fuel purchased from NCJ was ultimately delivered to these other companies. It is clear from the evidence that the remaining fuel was not delivered to Silver Sand, and that Silver Sand was not aware that Handy Haul-It had purchased such additional quantities from NCJ in Silver Sand's name. Handy Haul-It was not licensed as a distributor or dealer of motor fuels by the Florida Department of Revenue. By agreeing to purchase diesel fuel from Handy Haul-It, Silver Sand authorized Handy Haul-It to obtain diesel fuel on behalf of Silver Sand. Handy Haul-It was therefore Silver Sand's agent for the purpose of obtaining fuel for Silver Sand. When Kelly signed the Purchaser's Blanket Resale and Exemption Certificate, he authorized Handy Haul-It to use Silver Sand's special fuel dealer's license to obtain diesel fuel tax free from Radiant Oil Company of Tampa, the addressee on the certificate. Silver Sand thus clothed Handy Haul-It and Carruthers with the apparent authority to purchase diesel fuel tax free utilizing Silver Sand's special fuel dealer license number from Radiant Oil Company of Tampa. NCJ knew, or should have known, that in making sales to Carruthers and Handy Haul-It, it was not dealing directly with Silver Sand. Although the exemption certificate had the name Silver Sand on it, and NCJ chose to address its invoices to Silver Sand, all of the purchases were made by Handy Haul-It and Carruthers. There was no evidence that Carruthers ever represented to NCJ that he had authority to speak for Silver Sand. NCJ took no action to inform itself as to Carruthers' authority to act on Silver Sand's behalf, other than to obtain the exemption certificate. The exemption certificate, however, was not made out to NCJ. The only authority of Handy Haul-It to act on Silver Sand's behalf that NCJ was entitled to rely upon was the authority to purchase fuel from Radiant Oil Company of Tampa. The authorization is very specific in this regard, and although it may be that Silver" Sand would gladly have executed an exemption certificate addressed to NCJ, it did not do that. The fact that the certificate was back-dated, and was issued to the wrong entity, should have caused NCJ to take action to contact Silver Sand. If NCJ had done that, Handy Haul-It would never have been in a position to purchase fuel from NCJ and to deliver it to someone other than Silver Sand. Indeed, it is possible that Handy Haul-It would never have been placed in the position of buying fuel under Silver Sand's license number at all. Knowing that it was dealing with an agent, NCJ should have sent copies of the invoices to the principal, Silver Sand. If NCJ had done that, Silver Sand would have been on notice that Handy Haul-It was purchasing considerable fuel in its name, and delivering it elsewhere. Silver Sand did not give Handy Haul-It the authority to obtain fuel for any purpose except delivery to Silver Sand. When Handy Haul-It utilized the exemption certificate to purchase fuel for purposes other than delivery to Silver Sand, it exceeded the scope of its authority. NCJ did not obtain special fuel taxes from Handy Haul-It on the sales which NCJ made to Handy Haul-It. NCJ did report the sales to the Department of Revenue. Silver Sand believed that it was paying special fuel taxes to Handy Haul-It. The fact that the price which Silver Sand paid to Handy Haul-It included the tax was not, however, placed on the invoices. Handy Haul-It did not pay any special fuel taxes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS THEREFORE RECOMMENDED: That the assessment for Special Fuel Tax in the amount of $154,644.50 imposed against Silver Sand Company of Leesburg, Inc., by the Department of Revenue be upheld. CERTIFICATION I certify that the foregoing is the Final Order of the Department of Revenue adopted by the Governor and Cabinet on the 19th day of April, 1977. Harry L. Coe, Jr., Executive Director State of Florida, Department of Revenue Room 102, Carlton Building Tallahassee, Florida 32304 Dated this 20th day of April, 1977.
Findings Of Fact From February 5, 1976, to March 31, 1976, Rosenbaum was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Rosenbaum. FREC introduced no evidence to show that Rosenbaum represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wring to purchase United States property listed with the company. There was no evidence introduced to show that Rosenbaum either made the representations or knew them to be false. There was no evidence introduced to show that Sherman knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Rosenbaum was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Rosenbaum was guilty of a violation of a duty imposed by law.
The Issue The issue presented is whether the Respondent violated Section 475.25(1)(a) and Secton 475.25(3), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact The Respondent, Nettie Byer, was employed by Continental Marketing Services from November 3, 1975, until March 31, 1976, as a broker salesman. The deposition of Maureen Palloti was received into the record subject to the objections ruled on in the Hearing Officer's Order heretofore entered in the record. The testimony of Edward Nadelman was received. Nadelman stated that he was contacted by telephone by a person who represented that she was Nettie Byer. The caller stated that she was with Continental Marketing Services, a real estate sales organization. The caller further represented that if Nadelman paid a $350 advance fee, Continental Marketing Services would list Nadelman's property advertising it widely within the United States and abroad, selling it for several times what Nadelman paid for the property. Nadelman subsequently received a copy of that advertisement for his property. Nadelman's property was not sold. The deposition of Maureen Palloti reflects that Mrs. Palloti and her husband were contacted by a caller who identified herself as Nettie Byer. The caller made representation similar to those made to Edward Nadelman. As a result, the Pallotis entered into a listing agreement with Continental Marketing Services, paid an advance listing fee, and subsequently received a proof of an advertisement of their property. Evidence was presented that Nadelman's and the Pallotis' property was not worth the price suggested by the caller as the price at which the property could be sold. However, no guarantees of sale were made by the caller. No evidence was introduced that the individual who called Edward Nadelman or that the individual who called the Pallotis was the Respondent, Nettie Byer. No evidence was introduced that the Respondent had any knowledge of the business activities of Continental Marketing Services. No evidence was introduced that Continental Marketing Services did not perform in accordance with the listing contracts with the Pallotis or with Nadelman.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the license of Nettie Byer as a broker salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530,Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert D. KIlausner, Esquire 28 W. Flagler Street, Suite 804 Miami, Florida 33130 Mark A. Grimes, Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact From December 29, 1975, to January 15, 1976, and from February 5, 1976, to September 30, 1976, Leichus was a registered real estate salesperson in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During those periods of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters or qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Leichus. FREC introduced no evidence to show that Leichus represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Leichus either made the representations or knew them to be false. There is no evidence introduced to show that Leichus knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Leichus was dishonest or untruthful. No evidence was introduced to establish the amended allegation that Leichus was guilty of a violation of a duty imposed by law.
