The Issue Whether the Petitioner is liable for sales tax, interest, and penalties as alleged by the Department of Revenue (Department).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: The Petitioner is a Florida corporation formed in October 2004. The principal office and mailing address of the Petitioner is 518 North Tampa Street, Suite 300, Tampa, Florida 33602. The directors of the corporation are Brenda Dohring and Robert Hicks (husband and wife), and Joshua Dohring (their son). Brenda Dohring and Robert Hicks are residents of Tampa, Florida, and registered voters in Hillsborough County. Brenda Dohring and Robert Hicks hold Florida driver's licenses. Joshua Dohring is a resident of the United States Virgin Islands, where he operates a charter boat business. On November 8, 2004, the Petitioner purchased, in St. Petersburg, Florida, a 36-foot catamaran sailboat (hull No. QPQ0000D089) for $113,000. On November 15, 2004, the Petitioner purchased, in St. Petersburg, Florida, an inflatable tender with outboard motor and accessories (hull No. XMO18119G405) for $4,865. The catamaran and tender were purchased for the use of Joshua Dohring in his charter boat business in the Virgin Islands. They were to replace his previous boat that was destroyed by Hurricane Ivan. Because Joshua Dohring did not have sufficient financial resources or credit, Brenda Dohring and Robert Hicks decided to make the purchases for him. They created the Petitioner corporation to purchase and own the catamaran and tender because they wanted protection from personal liability that might arise from Joshua Dohring's use of the vessels in the Virgin Islands. At the time of each purchase, Joshua Dohring was provided a Department affidavit form to be completed and filed with the Department to claim exemption from sales tax. Joshua Dohring indicated the name of the Petitioner corporation on the affidavit forms along with the names of the corporation's directors. The Department's affidavit form for sales tax exemption includes several statements that the affiant must attest to, including the following: 4. I represent a corporation which has no officer or director who is a resident of, or makes his or her permanent place of abode in Florida. David Erdman, a licensed yacht broker in Florida who assisted Joshua Dohring in the purchase of the catamaran and tender, believed that the purchases were exempt from Florida sales tax because Joshua Dohring was not a Florida resident and was going to remove the vessels from Florida. Mr. Erdman did not understand that, because the purchaser was not Joshua Dohring, but a Florida corporation, the sales tax exemption did not apply. Mr. Erdman advised Joshua Dohring that the purchases were exempt from Florida sales tax. There is no evidence in the record, and the Department did not allege, that the Petitioner intended to defraud the State. On this record, it is clear that the Petitioner's directors were simply mistaken in their belief that the purchases of the boats were exempt from Florida sales tax, based primarily on the erroneous advice of Mr. Erdman. The Department made a routine investigation after its receipt of the sales tax exemption affidavits signed by Mr. Dohring and determined that the exemption did not apply because the Petitioner is a Florida corporation with directors who are residents of Florida. In January 2005, the Department notified the Petitioner of its billing for the sales tax due on the boat purchases, plus penalty and interest, totaling $8,474.67. An informal conference regarding the billing was requested by the Petitioner, and a conference was held in an attempt to resolve the matter. Subsequently, the Department's Final Assessment was issued on January 23, 2005, indicating tax, penalty, and interest totaling $9,229.26. Because of the circumstances indicating that the Petitioner's failure to pay was due to a mistake and bad advice, the Department proposes to eliminate the penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue an final order: finding that the Petitioner's purchases of the catamaran and inflatable tender are subject to sales tax; and assessing sales tax of six percent on the purchases; and imposing interest on the taxes until paid; and imposing no penalty. DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 22nd day of September, 2005.
The Issue Whether or not the corporate names Sarasota Yacht Club on Coon Key, Inc., and Sarasota Yacht Club, Inc., are deceptively similar to each other and, if so, whether or not pertinent rules and regulations of the Department of State require the latter chartered corporation to amend its Articles of Incorporation and registration to reflect a new name due to a "bad faith" name reservation by Respondent, Sarasota Yacht Club, Inc.
Findings Of Fact Based upon the testimony adduced at the hearing, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Documents on file in the Division of Corporations, Department of State, reveal that the Articles of Incorporation for the Sarasota Yacht Club, 1/ a Florida corporation not for profit, were granted by the Circuit Court of Sarasota County, Florida, on June 30, 1926. (See Exhibit A of the Stipulation received herein as the parties' Joint Exhibit 1.) Sarasota Yacht Club came under the jurisdiction of the Division of Corporations of the Department of State (Respondent) on April 18, 1963, with the filing of certain amendments to the Articles of Incorporation (Exhibit B of Joint Exhibit 1). The Sarasota Yacht Club was dissolved on September 3, 1976, for failure to file its Annual Report for 1974 and subsequent years. Notices mailed by Respondent, Division of Corporations, to the Sarasota Yacht Club were directed to 1100 Ringling Boulevard, an address which was erroneously given on the 1973 Annual Report of Sarasota Yacht Club, whose correct address is 1100 John Ringling Boulevard. (Exhibit C of Joint Exhibit 1.) The postmaster of Sarasota, Florida, upon inquiry by the Department, indicated that mail addressed to the Sarasota Yacht Club at 1100 Ringling Boulevard would not automatically be forwarded to 1100 John Ringling Boulevard, Sarasota, Florida. (Joint Exhibit 1 and testimony of John W. Arnold, the manager of Sarasota Yacht Club on Coon Key, Inc., during the calendar years 1975 through 1979.) On July 9, 1979, Martin J. McGuire, Ethel May McGuire and William Kecht filed Articles of Incorporation under the name Sarasota Yacht Club, Inc., which corporation was granted Charter No. 748001. (Exhibit D of Joint Exhibit 1.) Sarasota Yacht Club reinstated its Charter under the name of The Sarasota Yacht Club on Coon Key, Inc., on September 24, 1979, with the original Charter No. 705493. (Exhibit E of Joint Exhibit 1.) Sarasota Yacht Club, Inc., Charter No. 748001, failed to file its Annual Report prior to July 1, 1980, and was involuntarily dissolved December 8, 1980, and failing reinstatement of Charter No. 748001, pursuant to Chapter 10- 1.09, Florida Administrative Code, the name Sarasota Yacht Club will become available for reissuance on December 8, 1981. (Joint Exhibit 1.) Sarasota Yacht Club on Coon Key, Inc., Charter No. 705493, has attempted to reserve the name Sarasota Yacht Club so that it may be restored to the use of its name granted on June 30, 1926, however, the Respondent, Department of State, Division of Corporations, will not process said name reservation until December 8, 1981. (Exhibit F of Joint Exhibit 1.) During the years 1975 through 1979, when Messr. Arnold was manager of Sarasota Yacht Club, the Club continued to do business with various State agencies and regularly renewed various licenses with the Department of Natural Resources; gasoline dealers; special fuel certificates; Department of Business Regulation, Division of Hotels and Restaurants; Internal Revenue Service special tax stamps and licenses issued by the City of Sarasota, including the Health Department. Also, during this period, the Club received various letters which were not properly addressed, such as John Ringling Causeway, Ringling Causeway, etc. As stated herein, Sarasota Yacht Club, Inc., Charter No. 748001, was formed on July 3, 1979, for the express purpose of encouraging boating and yachting to provide entertainment food, refreshments and social activities for its members and guests. Accordingly, the purpose for which that club was formed is the identical purpose for which Petitioner was originally formed and continues to operate since 1926. Also, both corporations operate in the same locality, Sarasota, Florida. Respondent, Sarasota Yacht Club, Inc., however, has not conducted any business in furtherance of its corporate purpose other than the chartering of the corporation. Martin McGuire, one of the incorporators of Respondent, Sarasota Yacht Club, Inc., was a former member of Petitioner. His membership was terminated for reasons unknown to the Hearing Officer, during 1979. On July 12, 1979, Norman Jacobson, an attorney licensed to practice in Florida received a phone call from Martin McGuire. Attorney Jacobson has known attorney Martin McGuire for more than thirty-five (35) years. Attorney Jacobson attended law school with Martin J. McGuire at John Marshall Law School, Chicago, Illinois. During the July 12, 1979, conversation, attorney McGuire related to attorney Jacobson, certain alleged problems that Sarasota Yacht Club, Inc., was experiencing including personal, financial and tax liabilities which could affect the Club (Petitioner) if made known to the public. This conversation took place subsequent to the time when attorney McGuire had been expelled as a member of Petitioner. According to Jacobson, attorney McGuire agreed to dissolve Corporate Charter No. 748001 provided Petitioner do the following: l. Reinstate his membership in good standing; Guarantee his continued membership in good standing; and Agree to certain unspecified changes in Petitioner's by-laws. Attorney Jacobson advised attorney McGuire that those concessions could not and would not be made if his recommendation to the Club's membership were adopted. Attorney Jacobson considered McGuire's demands to be a form of blackmail. Attorney Jacobson reported to the Club (Petitioner) the details of the conversation and discussions that he had with attorney McGuire as outlined above and the Club unanimously agreed to maintain its original decision to cancel attorney McGuire's membership. Messr. Brady, a former practicing attorney and also an employee of the Department of Justice, Federal Bureau of Investigation, is familiar with Petitioner's history. Messr. Brady recounted that the Club was formed during 1926, and its stature has continuously grown. The Club presently boasts of a membership in excess of 500 and regularly sponsors regattas and other sailing events. The Club is sponsoring its third annual sailing regatta this month and one of its female members is a finalist in this year's Adams Cup Race.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the corporate name Sarasota Yacht Club, Inc., be found deceptively similar to Sarasota Yacht Club on Coon Key, Inc., and that approval for use of the name Sarasota Yacht Club, Inc., be withdrawn by the Secretary of State. 2/ RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 16 day of November, 1981.
The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue Whether Respondent acted as a yacht broker in Florida without holding a yacht broker's license issued by petitioner?
Findings Of Fact Respondent, presently retired, was formerly employed with Sun Yacht Charters located in Camden, Maine. He has never been licensed by the State of Florida as a yacht and ship salesperson or broker. Respondent attended the 57th Annual Miami International Boat Show and Strictly Sail (boat show) held February 12-18, 1998. Respondent was in attendance at the Sun Yacht Charters Exhibit Booth, a booth in the Strictly Sail portion of the boat show. Investigators and other Petitioner employees regularly attend this specific boat show in order to find unlicensed activity, such as selling and brokering of regulated yachts by persons not holding valid salesperson or broker’s licenses. On February 13, 1998, Petitioner investigators James Courchaine and Peter Renje attended the boat show. They carried fictitious business cards with false names and the designation "Yacht Consultant" on the cards. Courchaine’s fictitious name was James K. Ramson. Renje’s card bore the name Pete Benson. While walking through the Strictly Sail portion of the show, the investigators saw the booth for Sun Yacht Charters and Respondent. Respondent’s name tag read "Pat Raum." Outside the tent, the two investigators checked their list of licenses and did not find Pat Raum’s name listed. Although a license is not required in the sailboat portion of the show, Courchaine, posing as James K. Ramson, went back into the show and introduced himself to Respondent, handing him the fictitious business card with the name James K. Ramson, Yacht Consultant, displayed on it. Courchaine, a/k/a Ramson, inquired of Respondent that he was looking for a boat for a client for an outright purchase for a client. Courchaine asked if there were any boats for sale through Sun Yacht Charters. Respondent replied that sometimes people in their charter program wanted to sell a boat and that Sun Yacht Charters would sell it for them. He gave Courchaine his business card identifying himself as Pat Raum, Director of Yacht Sales for Sun Yacht Charters. The business address on the card was Camden, Maine. Respondent also gave Courchaine a specifications sheet on the Southern Belle, destined to come out of the charter program in April of 1998. The specifications sheet listed an asking price of $9,000 for the boat. From conversations he had with Petitioner's employees at a previous time when he discussed obtaining a Florida license, Respondent understood that Florida law did not permit him to sell or purchase yachts in Florida as an owner's agent. On February 17, 1998, following contact with Sun Yacht’s Camden office, Courchaine learned that Respondent was still in Florida. Courchaine contacted Respondent and asked for a contract. Believing that he was dealing with a licensed Florida Yacht broker, Respondent agreed to what he thought was an appropriate arrangement between himself and Courchaine whereby the sale of the Southern Belle would involve a 30/70 split on the commission from the sale. Respondent later confirmed to Courchaine in a fax message that same day that Courchaine, a/k/a Ramson, would get three percent of the sales commission. Also, he included in the fax to Courchaine a blank Yacht Purchase and Sale agreement. It was Respondent’s understanding that in the event of a sale, the matter would have to be handled by Courchaine a/k/a Ramson, or another Florida broker, that he, Respondent could not act as a broker in Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order dismissing the notice to show cause. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Raum Post Office Box 302 Kennebunkport, Maine 04046 Philip Nowick, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Yacht and Ship Broker's Act, Chapter 326, Florida Statutes. At times prior to June 21, 1991, Respondent Bongiovi was licensed by Petitioner as a yacht broker. Respondent Bongiovi did not hold any license as a yacht broker at any time after June 21, 1991. Respondent AJB Yachts was not licensed as a yacht broker at any time pertinent to this proceeding. Respondent Bongiovi does business as AJB Yachts or AJB Yacht Sales, Inc. There was no evidence that AJB Yacht Sales, Inc., is legally incorporated. On various dates in September and October 1994, Respondent Bongiovi placed two separate advertisements in the classified ads section of the Fort Lauderdale, Florida, Sun-Sentinel newspaper. The first of these ads offered for sale a 41' Hatteras yacht for the sum of $150,000. The second of these advertisements offered for sale a 43" Portofino yacht for the sum of $125,000. Both advertisements contained the Respondent's telephone number, 305-942-7425. On or about May 28, 1993, Respondent, acting as a yacht broker, represented Charles Robbins in the purchase of a 66' Pacemaker yacht named the Sea Cow. The owner of the yacht, Dennis Gaultney, was represented by Mauch Yacht Sales, Inc., the listing broker. As part of the offer made by Mr. Robbins, he gave to Respondent Bongiovi a check in the amount of $33,000 as earnest money. Respondent Bongiovi deposited this money in a bank account at First Union National Bank of Florida, Pompano Beach branch on June 1, 1993. This account is entitled "AJB Yacht Sales, Inc., Escrow Account." Respondent Bongiovi was the sole signatory on this account. Respondent Bongiovi immediately began making withdrawals from this account that were not related to the Robbins transaction. 1/ As of June 10, 1993, the balance in this account was $29,575.54. As of June 21, 1993, the balance was $23,570.83. As of June 30, 1993, the balance was $21,554.04. Negotiations for the sale of the Sea Cow continued between the purchaser and the owner until July 20, 1993. The final version of the owner's proposal was a response to the last proposal made by Mr. Robbins and contained several changes to the last offer made by Mr. Robbins, including a change in the price of the vessel and an extension of the closing date to July 22, 1993. These changes were initialed by the owner of the boat, but they were not initialed by Mr. Robbins. Mr. Robbins never received a signed copy of the final proposal from the owner of the Sea Cow. A survey to evaluate the condition of the vessel was conducted and a copy of the inspection report faxed to Respondent Bongiovi by Jan Mauch of Mauch Yacht Sales on June 9, 1993. The transmittal note that accompanied the fax stated the following: "Here is the 'Schedule A' 2/ to go with the contract. After Charlie sees the survey, have him sign this and Acceptance of Vessel on contract and fax back both to me and I'll have Denny sign." Included in the inspection report was the following information: ". . . an engine inspection did not include a detailed mechanical inspection or test of components. A complete engine survey by a qualified mechanic is recommended in all cases." Mr. Robbins thereafter requested that Respondent Bongiovi arrange for an inspection of the vessel's engines before he accepted the vessel. Mr. Robbins never received an inspection report for the engines, he did not obtain his own financing for the vessel, and he never tendered the balance of the purchase price. The transaction involving Mr. Robbins did not timely close because the inspection of the engines were not completed. Because there was a delay in closing the transaction, the owner sold the yacht to another buyer. Neither Mr. Gaultney nor Mauch Yacht Sales demanded a portion of the $33,000 earnest money deposit. Mr. Robbins demanded the return of his money from the Respondent after he learned that the Sea Cow had been sold to another purchaser. Respondent Bongiovi refused to return the deposit and asserted the position that he was entitled to keep all of the deposit as liquidated damages because the transaction had not closed. Respondent Bongiovi relies on Paragraphs 3 and 4 of the form agreement for his contention that he was entitled to retain the $33,000 deposit as liquidated damages. Those provisions are as follows: The purchase of the vessel is subject to survey - seatrial - capt (sic) - inspection showing condition subject to purchasers (sic) sole judgment and approval to be conducted as soon as practicable after execution of this agreement at the option and expense of the PURCHASER. The PURCHASER shall give written acceptance or rejection of the Vessel by June 10, 1993, and if written notification is not received by the BROKER (A.J.B. Yacht Sales) on or before said date, it shall be construed as acceptance of the Vessel by PURCHASER. In the event, after written or construed acceptance of the Vessel, the PURCHASER fails to pay the balance of the purchase price and execute all papers necessary to be executed by him for the completion of his purchase, pursuant to the terms of this contract, on or before July 10, 1993, the sum this date paid shall be retained by A.J.B. Yacht Sales as liquidated and agreed damage and the parties shall be relieved of all obligations under this contract. In paragraph 2 of the agreement executed by Mr. Robbins on May 28, 1993, there was a provision that the offer submitted by Mr. Robbins was withdrawn if not accepted by June 5, 1993. There was no evidence that there was a final and complete agreement sufficient to bind the parties by June 5, 1993, or at any time thereafter. The agreement executed by Mr. Robbins on May 28, 1993, also contained the following provision: In the event that this sale is not consummated by reasons of unsatisfactory survey . . . the deposit shall be returned, providing all expenses incurred by the PURCHASER against the Vessel have been paid, and this agreement shall be null and void. Mr. Robbins verbally notified Respondent Bongiovi that he would require additional testing on the engine before accepting the vessel. Mr. Robbins did not receive the results of those additional tests and learned soon thereafter that the vessel had been sold to another purchaser. Following the failure and refusal of the Respondents to return the deposit, Mr. Robbins sued the Respondents in the Circuit Court in and for Broward County, Florida, pursuant to the provisions of Sections 772.11 and 812.014, Florida Statutes. Based on the evidence presented, the Circuit Judge in that civil proceeding entered a final judgement for treble damages ($99,000) in favor of Mr. Robbins and against the Respondents based, in part, on the following: . . . On the evidence presented, the Court finds: * * * Plaintiff (Mr. Robbins) gave Defendants (Mr. Bongiovi and his corporation) a check in the amount of $33,000.00 on May 28, 1993, to be held in escrow as a deposit pending accep- tance by the owner of a vessel for the purchase of said motor vessel. Said $33,000.00 was deposited into a bank account owned and/or controlled by Defendants. The owner of the vessel failed to accept Plaintiff's offer within the time provided in the written contract attached to the Amended Complaint; and, therefore, Plaintiff was entitled to return of his $33,000.00 deposit. Plaintiff demanded return of said $33,000.00 deposit, but Defendants failed and refused to return same, which sum has been due with interest since June 5, 1993. Defendants breached the Purchase Agree- ment on June 5, 1993, by failing and refusing to return Plaintiff's deposit of $33,000.00 when the offer to purchase the vessel was not accepted by the owner by that date. Defendants had a fiduciary responsibility to Plaintiff as escrow agents under the Purchase Agreement, and they breached their fiduciary responsibility by failing and refusing to return the $33,000.00 deposit when the offer to purchase the vessel was not accepted by the owner by June 5, 1993. . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order in this proceeding that adopts the findings of fact and conclusions of law and which imposes an administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violations of Count I and imposes an additional administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violation of Count II. DONE AND ENTERED this 29th day of December, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
The Issue The issue presented is whether the Respondent, David Hirshberg acted as a yacht salesman without being licensed in accordance with Chapter 326, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was not licensed as a yacht broker or as a yacht salesman in accordance with Chapter 326, Florida Statutes, commonly referred to as the "Yacht and Ship Broker's Act". The Division is the state agency statutorily authorized to regulate yacht and ship brokers and salesmen. At all times material to this proceeding, the Respondent was employed by Tampa Bay Marine Repossession Center (Center). Respondent's main responsibility was the sale of new Chris Craft boats and occasionally used boats. However, other than giving directions or explaining procedures at the boat show as set out in Finding of Fact 11 the Respondent was not involved with the sale of yachts. The Center is a division of Hirsh Marine, Inc., and acts as the showing agent between banks owning the repossessed boats and the boat buyer. At all times material to this proceeding, Center was not licensed as a yacht broker in accordance with Chapter 326, Florida Statutes, but was licensed as a boat dealer. On Sunday, March 10, 1991, the Center maintained a display booth at the Ninth Annual Suncoast Boat Show (Show) at Sarasota, Florida. The Center's display booth at the Show on March 10, 1991 contained listings offering boats for sale which had been repossessed by banks. One of those listings was for a 34-foot Mainship Trawler (Trawler). Listing of boats on a display board at boat shows is a common method of offering brokerage boats for sale. At the time Center was offering the Trawler for sale on March 10, 1991, the Center did not own, hold title to or have a secured interest in the Trawler. On March 10, 1992, the Trawler was owned by a lending institution that had foreclosed its security interest in the Trawler. The Trawler had been delivered to the Center by the lending institution to be offered for sale. The Trawler was held for sale by the Center for the owner in expectation of compensation for the sale. Ron Hirshberg testified that after the Center negotiated the sale of a repossessed boat with a buyer, the Center paid the lending institution off and title to the boat was transferred to the Center which in turn transferred title to the buyer. Based on material available at Center's display booth, this does not appear to be the procedure used by the Center in handling a sale. The material available at the Center's display booth advises the potential buyer, among other things, that: (a) Center acts as the showing agent between the boat owner (bank) and buyer; (b) certain guidelines are imposed by the bank; (c) no offers will be submitted to the bank without a 10% refundable deposit on initial offer; (d) offers are subject to bank's acceptance; and (e) if repairs are needed, this will be negotiated between bank and buyer. Respondent had his business cards on the table at the display booth which indicated he was associated with the Center. Also, on the display board was a notice that read "Any questions, come out to Chris Craft in-water display and ask for Dave". Dave is the Respondent herein. Upon inquiry, Respondent would direct the person to the marina where the repossessed boats were stored and explain the procedure on how to make an offer or purchase a repossessed boat. There was insufficient competent substantial evidence to establish facts to show that the Respondent was employed by the Center as a yacht salesman or that the Respondent acted as a yacht salesman on behalf of Center as the term "salesman" is defined in Section 326.082(4), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly, RECOMMENDED: That Petitioner, Department of Business Regulation, Florida Land Sales, Condominiums and Mobile Homes enter a final order dismissing the order to show cause. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 6 and 7. Adopted in substance as modified in Finding of Fact 8. - 5. Adopted in substance as modified in Finding of Fact 9. Adopted in substance as modified in Findings of Fact 3 and 11. Rejected as not being supported by competent substantial evidence in the record. Adopted in substance as modified in Finding of Fact 11. Adopted in substance as modified in Findings of Fact 1 and 5. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any Proposed Findings of Fact. COPIES FURNISHED: Mark Henderson, Esquire Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 David R. Hirshberg 6035 30th Avenue West Bradenton, Florida 34209 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
